Page   1
                     before the iowa industrial commissioner
            MICHAEL A. CARNES,  :
                 Claimant, :
            vs.       :
                      :      File No. 821400
            IOWA DEPARTMENT OF  :
            TRANSPORTATION,     :
                      :    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.    :
                 This is a proceeding in arbitration brought by Michael 
            A. Carnes, (claimant) commenced with the filing of a 
            petition on December 28, 1988 against the Department of 
            Transportation for the State of Iowa (DOT), employer and the 
            State of Iowa (State), (collectively defendants) DOT's 
            insurer for worker's compensation benefits as a result of an 
            alleged injury to claimant's back occurring on July 19, 
            1988.  On January 3, 1991, the matter came on for hearing in 
            Council Bluffs, Iowa.  The parties appeared as follows:  the 
            claimant in person and by his counsel Robert Rodenburg of 
            Council Bluffs, Iowa and DOT and the State by their counsel, 
            Assistant Attorney General Mark Hunacek.
                 The record in this proceeding consisted of the 
                 1.  The live testimony of the claimant, Wayne Wilson, 
            and Deborah Carnes.
                 2.  Claimant's exhibits 1-6 and defendants' exhibits 
                               preliminary matters
                 Before the hearing commenced, claimant amended his 
            injury date to July 19, 1988.  DOT had no objection and the 
            amendment was approved.
            Page   2
                 The parties stipulated to the following matters at the 
            time of the hearing:
                 That an employer-employee relationship existed between 
            claimant and employer at the time of the alleged injury.
                 That the type of permanent disability, if the injury is 
            found to be a cause of permanent disability, is industrial 
            disability to the body as a whole.
                 That the rate of compensation, in the event of an 
            award, is $246.34 per week.(1)  Claimant is married and has 
            two children and is entitled to four exemptions.
                 The fees charged for medical services are fair and 
            reasonable and the expenses were incurred for reasonable and 
            necessary medical treatment.
                 That defendants make no claim for employee 
            nonoccupational group health plan benefits paid prior to 
                 That defendants have paid some weeks of workers' 
            compensation benefits to claimant at the rate of $246.34 per 
            week prior to hearing.  Claimant was paid $7,404.05 in long 
            term disability benefits.  The parties agree that the 
            defendants are entitled to a credit for the long term 
            disability payments received by claimant and the workers' 
            compensation benefits received by claimant between the 
            injury date and the date claimant returned to light duty.
                 That there are no bifurcated claims.
                 The amount of the costs have been stipulated by the 
                 The parties agree that Exhibit 6, a letter from 
            Rodenburg to Brott, is a request for an extension of a 90 
            day leave of absence that is unaccompanied by a doctor's 
                 The parties agree that the DOT never received a 
            doctor's statement releasing claimant back to work.
                 The issues for resolution are as follows:
                 1.  Whether claimant sustained an injury on July 19, 
            1988, which arose out of and in the course of his employment 
            with DOT.
                 2.  Whether a causal relationship exists between 
            claimant's claimed injuries and the claimed industrial 
            disability and the extent of benefits if any.
                 3.  Whether claimant is entitled to medical benefits, 
            including a determination of causal connection to the work 
            (1).  According to the Guide to Iowa Workers' Compensation 
            Claim Handling, July 1, 1988, this rate contemplates a gross 
            weekly wage of $375.00 per week.  See, Division of 
            Industrial Services, Guide to Iowa Workers' Compensation 
            Claim Handling, p. 37 (July 1, 1988).  This rate is 
            consistent with an injury date of July 20, 1988.
            Page   3
            injury and the causal connection of this condition to a work 
                 4.  Whether claimant is entitled to penalty benefits 
            under Iowa Code section 86.13 (1991).
                 After considering all of the evidence and the arguments 
            of counsel, the undersigned makes the following findings of 
            fact and conclusions of law.
                 1.  Claimant is 39 years old.  He is a high school 
            graduate.  He entered the armed forces after high school.  
            He received a medical discharge.  He was discharged because 
            of injuries he had received in a automobile accident when he 
            was 18.  Claimant has no other post high school training 
            except on the job training.  Claimant resides on a 40 acre 
            farm near Pacific Junction, Iowa.  On this farm, he 
            maintains a limited livestock operation involving cattle and 
                 2.  Claimant's work history indicates that he has done 
            medium to heavy manual labor most of his life.  He has 
            worked primarily for DOT.  He began working for DOT in 1972.  
            He was trained through DOT as an Equipment Operator I.  
            Claimant can also operate a motor grader and a heavy or 
            light duty truck.  Claimant has also assisted with some 
            mechanical work in the shop for maintenance and repair of 
            equipment.  Claimant is licensed to apply chemicals 
            commercially for the State of Iowa and individually for 
            agricultural purposes.  Additionally, claimant is a self 
            employed livestock producer and farmer.  In connection with 
            his livestock operation and farm work, claimant raises 
            cattle and hogs, bales hay, operates farming equipment and 
            assists his father with his farming operation.  Claimant was 
            also self employed as a bulldozer operator and drove a truck 
            for Vinton Equipment Company.
                 3.  As an Equipment Operator I, claimant performed 
            heavy work in all weather.  The work consisted of operating 
            trucks, tractors, and other equipment with manual 
            transmissions, pavement breakers, a 90 pound jack hammer, 
            air tampers, a hand mower, hand scythes, and other equipment 
            required to maintain highways, culverts, ditches, and the 
            terrain surrounding the roadways and areas within the 
            purview of DOT's administration.  Claimant also operated 
            snow removal equipment for long periods of time under 
            adverse weather conditions.  Claimant's job also required 
            him to lift at least 50 pounds at one time and lift and 
            carry 100 pounds on occasion.  On July 19, 1988, claimant 
            was being paid at pay grade 18.  This grade is equal to 
            approximately $17,000.
                 4.  Claimant has a significant work injury history 
            during his employment with DOT.  The following chart shows 
            the approximate dates and types of injuries claimant has 
                   Date     Injured What     Time Off    Returned
            Page   4
                                                       to DOT
                     1974     Hand             3 months    Yes
                1976     Hand             some        yes
                1980     Broke ribs       2 months    yes
                1982     Broke R.Hd       3 months    yes
                1986     Low back         6 months    yes
                1988     Back             since injury yes and
                 The injury to claimant's hand in 1982 is the only 
            injury that claimant did not suffer while at work.  He broke 
            his little finger when it caught in a machine at a bowling 
            alley.  Claimant's other health problems include a prolapsed 
            valve in his heart and susceptibility to upper respiratory 
                 5.  The injuries of significance to the dispute in this 
            case occurred on April 14, 1986 and July 20, 1988.  On April 
            14, 1986, claimant was helping another employee put an end 
            gate spreader on a heavy duty truck.  He was carrying it 
            across the floor and he slipped and hurt his lower back.  At 
            the time of the accident he felt a twinge in his back.  When 
            he fell, claimant's back twisted.  Eventually, claimant saw 
            Dr. Schima, a neurosurgeon, for this first injury.  Dr. 
            Schima reviewed results of a myelogram study and a MRI 
            study.  He determined that claimant had a bulge in one of 
            the discs in his lower back, but no definite disc problem.  
            He also indicated that claimant had pain in the lumbar 
            region.  Dr. Schima's diagnosis was lumbosacral strain.  Dr. 
            Schima also commented:
                 The story is brief and begins in mid April with 
                 the abrupt onset of pain in the lumbar area during 
                 strenuous exertion with persistent difficulties 
                 until the present time despite a prolonged trial 
                 of conservative therapy which has included 
                 physical therapy, bed rest and analgesics.  The 
                 patient can't work at his present job since 
                 driving aggravates his discomfort.
                 6.  Claimant was released to return to work after six 
            months of inactivity by a letter from Dr. Schima to DOT on 
            September 17, 1986.  Claimant received workers compensation 
            benefits for this injury.  During this period, claimant saw 
            Dr. Schima regularly.  With each visit, claimant reported 
            pain in his lower back. 
                 7.  After claimant was released to return to work in 
            1986 claimant continued to have back pain.  During the next 
            two years, claimant saw Dr. Schima on several occasions.  He 
            complained of intermittent back pain aggravated by lifting 
            and other work activities.  During this time period, Dr. 
            Schima treated claimant conservatively, recommending 
            exercises, a back support and pain medication.
                 8.  As a result of an examination performed June 8, 
            1988, Dr. Schima concluded that claimant will continue to 
            experience intermittent discomfort that may be aggravated by 
            the strenuous exertion sometimes required by claimant's job.  
            Page   5
            Dr. Schima found that claimant had a 5 percent functional 
            impairment from the injury to his back suffered on April 14, 
            1986.  Dr. Schima gave this rating on July 20, 1988, prior 
            to the time he examined claimant for the injury to his back 
            suffered on July 20, 1988.
                 9.  On July 20, 1988, claimant testified that he was 
            working on a pavement blow out on Highway 34 with a 
            jackhammer.  He pulled straight back on the jackhammer and 
            as the concrete gave way he fell.  He landed on his buttocks 
            on the concrete.  Claimant had a dull aching pain in his 
            lower back after the fall.  Claimant finished his shift and 
            later in the day experienced severe pain in his lower back.  
            Claimant saw Dr. Schima on July 21, 1988 but did not 
            describe this incident.  Rather, claimant told Dr. Schima 
            that he always had back pain and that the pain had increased 
            during the last 7 days.  It was present in the morning, less 
            noticeable in the day and increased in the evening.  
            Claimant also told Dr. Schima that his pain increased with 
            lifting, shoveling, and standing all day flagging traffic.  
            Since Monday, July 18, 1988, claimant had been running an 
            air hammer.  Dr. Schima gave this description of the 
            incident at his deposition, in his hand written notes and in 
            correspondence with DOT.  This version shall be treated as 
            the more credible report of claimant's continuing back 
            problems and flare-up diagnosed on July 21, 1988.  
            Additionally, even though claimant has alleged an injury 
            date of July 19, 1988, Dr. Schima's records support an 
            injury date of July 20, 1988 since this is the last day 
            claimant was able to work.
                 10.  After examining claimant, Dr. Schima indicated on 
            July 21, 1988, that claimant was suffering from acute 
            lumbosacral strain and chronic lumbosacral strain.  He 
            further indicated that claimant's back problem began in 
            April of 1986 with the onset of low back pain following 
            strenuous exertion with recurrent symptoms since then and a 
            recent flare-up beginning on approximately July 16, 1988.  
            Dr. Schima concluded that the symptoms were primarily 
            muscular in origin.  Claimant stayed off work until August 
            29, 1988 when claimant returned to light duty at full pay 
            with DOT for 20 days in accordance with Iowa Department of 
            Personnel rules.  See, rule 581 IAC 10.3(6).  When claimant 
            returned to light duty, he was restricted to standing no 
            more than one hour at a time and he could not lift more than 
            25 pounds.  
                 11.  From the day Dr. Schima took claimant off work 
            until the time he returned to light duty, claimant received 
            worker's compensation benefits totaling 5 and 4/7 weeks.  
            (July 21, 1988 to August 29, 1988 equals 39 days).  
            Defendants were asked to supply a payment record for 
            purposes of calculating a credit.  The only payment record 
            that was supplied in defendants' brief was for the period 
            between April 16, 1986 and September 26, 1986.(2)  The total 
            amount of benefits paid for the April 14, 1986 injury equals 
                 12.  On September 22, 1988, Dr. Schima indicated to 
            George Heaberlin, resident DOT engineer, that after he 
            (2).  Claimant's compensation payment record is as follows:
                      DATE                    AMOUNT  
            COMPENSATION     MEDICAL   
                 TOTAL:             $5,112.12      $5,391.29
                 TOTAL MEDICAL/COMP:  $10,503.41
            Page   6
            reviewed claimant's job description, he did not think that 
            claimant could return to his duties as an Equipment Operator 
            I.  Dr. Schima felt that claimant could not load materials, 
            dig post holes, drive steel posts, unroll fencing material, 
            compact material or use an air hammer.  Additionally, 
            claimant could not lift weights in excess of 50 pounds.  Dr. 
            Schima did not indicate the cause of claimant's current 
            injury in this letter.
                 13.  Claimant's light duty status ended on September 
            28, 1988.  DOT did not extend the light duty period.  
            Claimant was not released by Dr. Schima to return to his 
            regular job duties.  Claimant was off work with the DOT at 
            that point.  Additionally, DOT suspended claimant's workers' 
            compensation benefits after claimant completed his light 
            duty assignment with DOT.  There was no explanation for the 
            suspension of benefits.  Nor is there any evidence in the 
            record indicating that claimant received a notice 
            terminating his benefits in accordance with Iowa Code 
            Section 85.13 (1991) and Auxier v. Woodward State Hospital, 
            226 N.W.2d 139, 142-43 (Iowa 1978)  At the time claimant 
            left DOT, he used up his remaining sick leave and vacation 
            days.  This equaled 10 days.  Long term disability payments 
            began in February 1989.
                 14.  On July 19, 1988 claimant was advised that he had 
            not been selected for the job of Equipment Operator II.  
            This was the second time claimant had applied for this job 
            and had not been selected.  Claimant subsequently filed a 
            disability discrimination lawsuit against DOT for not 
            selecting him for the job.  
                 15.  Between September 1988 and February 1989, claimant 
            worked for Vinton Equipment Co. for a short time painting 
            combines with a paint sprayer.  Claimant also assisted a 
            neighbor with planting in the spring of 1990.  Claimant was 
            paid for his work with Vinton Equipment Co. and he received 
            Page   7
            payment in kind from his neighbor.
                 16.  During the fall of 1988, claimant saw Dr. Schima 
            and Dr. McKinney for evaluation and continued treatment of 
            pain.  Dr. McKinney suggested that claimant participate in a 
            work hardening program to control his pain.  Dr. Schima 
            agreed that a work hardening program was in order to 
            strengthen claimant's back and to determine whether the pain 
            could be alleviated.  DOT refused to pay for the work 
            hardening so this course of therapy was not pursued.  
                 17.  In order to return to work, DOT had asked claimant 
            to obtain a release from his doctor after claimant was 
            released from light duty service.  However, Dr. Schima would 
            not release claimant to return to his job as an Equipment 
            Operator I.  In December of 1988, claimant made application 
            for unpaid medical leave from DOT.  According to Iowa 
            Department of Personnel rules, a state employee can be 
            granted up to one year of unpaid medical leave.  The leave 
            is awarded in increments of 90 days.  In order for the leave 
            to continue, the employee must request leave every 90 days 
            and the request must be supported with a doctor's statement 
            each time leave is requested.  Claimant and his attorney 
            were aware of this policy as early as December 28, 1988 when 
            claimant requested leave for the first time.  Dr. Schima had 
            seen a copy of claimant's job duties in September of 1988 
            and was aware of claimant's job duties when he wrote to the 
            Principal Financial Group in February of 1989.  This letter 
            was written to support claimant's request for long term 
                 18.  On March 30, 1989 DOT wrote to claimant's counsel 
            advising of the need to obtain additional leave and that the 
            request must be supported by a doctor's statement.  DOT 
            extended claimant's time to request leave for the second 
            calendar quarter of 1989 to the close of business on April 
            5, 1989.  Apparently, there was a telephone conversation 
            between DOT representative, Suszanne Brott and claimant's 
            counsel regarding the request for leave and the doctor's 
            statement.  Claimant was given additional time to complete 
            the requirements for requesting leave for the second quarter 
            of 1989.  Claimant and his counsel were also reminded by 
            letter on April 17, 1989, that claimant would have to 
            request leave supported by a doctor's statement for the 
            third quarter before June 29, 1989.  DOT also warned 
            claimant that if he failed to request leave for the third 
            quarter and provide a doctor's statement for the second 
            quarter leave, he would be terminated effective June 29, 
            1989.  On May 11, 1989, Dr. Schima wrote Ms. Brott and 
            advised her that claimant would not be capable of returning 
            to work by May 2, 1989.  This letter fulfilled the 
            requirements for the leave requested for the second quarter.  
            However, Claimant failed to request third quarter leave.  
            DOT terminated claimant for failure to adhere to the rules 
            regarding unpaid medical leave.  Claimant was not terminated 
            because he was unable to perform the physical demands of his 
            position.  The termination was effective June 29, 1989.  
            Page   8
            Claimant was notified by mail of his termination on August 
            3, 1989.
                 19.  In the meantime, claimant continued to see Dr. 
            Schima.  Claimant's back pain had not abated as he continued 
            to have daily low back pain.  In May of 1989, Dr. Schima 
            tried a new treatment program for claimant when he 
            prescribed a TENS unit.  Claimant began wearing the device 
            and noticed an improvement in his pain.  He indicated on 
            June 28, 1989 that he was now able to look after his 
            livestock.  Claimant also was walking about one half mile 
            per day.  By the fall of 1989, claimant was able to go two 
            days per week without the TENS unit and was able to walk 
            about a mile per day.  
                 20.  In February 1990, claimant reported new pain in 
            his testicles.  His back pain remained the same.  However, 
            in order to eliminate claimant's back problem as the source 
            of the difficulty with the pain in his testicles, a CT scan 
            of his spine was ordered by Dr. Schima.  The CT scan showed 
            mild degenerative changes in claimant's spine but was 
            otherwise normal.  There was no linkage made between 
            claimant's back pain and testicle pain.  
                 21.  On June 5, 1990, Dr. Schima again indicated that 
            claimant has chronic permanent pain in his back.  The TENS 
            unit has helped the pain.  The permanent nature of the pain 
            was caused by the work injury on April 14, 1986.  Dr. Schima 
            also reaffirmed his opinion that claimant has been 
            functionally impaired to the extent of 5 percent due to the 
            injury suffered on April 14, 1986 and not the exacerbation 
            in July of 1988.  Dr. Schima indicated that claimant's 
            condition will not change and the condition has remained 
            stable since August of 1988.  
                 22.  After claimant was terminated, DOT representative, 
            Wayne Wilson made contact with claimant regarding job 
            possibilities with DOT within claimant's restrictions.  
            There is a dispute regarding the timeliness of the DOT 
            contacts with claimant.  The evidence is clear however, that 
            DOT did contact claimant after he had been terminated 
            regarding employment with DOT.  Wilson explained to claimant 
            how he might obtain employment with DOT and be placed on a 
            preferential hiring list.  Wilson indicated that he would 
            send the application to claimant if claimant wanted to be 
            rehired by DOT.  Regardless of the timing of DOT's contacts 
            with claimant, claimant never requested the application for 
            the preferential hiring list or to request employment with 
            DOT.  Claimant was familiar with the forms used by DOT to 
            make application for other jobs and for transfers.  Claimant 
            qualified for the position of Engineering Aide I at the time 
            of the hearing.  Additionally, claimant remains eligible for 
            the preferential hiring list.
                 23.  Since his injury, claimant has made only the 
            slightest effort to seek reemployment within his medical 
            restrictions.  Claimant, even though he had been terminated 
            by DOT, apparently believed that there was nothing different 
            in his terminated employment status with DOT and the 
            Page   9
            previous occasions he had returned to work after an injury.  
            Claimant clung to the belief that he could still do his old 
            job, even though he admitted that he could only do 40 
            percent of the tasks required by his position.  
                 24.  Even though claimant is unable to perform his job 
            as an Equipment Operator I, claimant is capable of working 
            in the competitive labor market.  He worked for Vinton 
            Equipment after he was released from light duty with DOT.  
            Additionally, claimant can farm.  At a minimum, he can take 
            care of livestock and operate farming equipment.  As a 
            licensed chemical applicator, claimant can perform this type 
            of light work within his medical restrictions.  
                 25.  The only evidence of wage differentials included 
            in the record was the testimony of Wayne Wilson and the 
            report prepared by Steve Kuhn.  Claimant was making about 
            $17,000 at the time of his injury.  The jobs available 
            within claimant's restrictions included Engineer Aide I with 
            DOT, chemical applicator, exterminator, telemarketer, auto 
            and farm equipment parts sales, and assembler.  The wage 
            range for these positions is approximately $14,500.  If 
            claimant obtained reemployment with DOT he would suffer 
            about a 15 percent wage decrease.  His new wage would be 
            approximately $14,450. 
                 26.  Claimant's pain symptoms are inconsistent with the 
            objective findings made by the physical therapist who 
            evaluated claimant.  Claimant gave a poor effort during this 
            evaluation and his reactions to pain suggested that he is a 
            symptom magnifier.  The inconsistencies are also not 
            physiological but relate to a psychological overlay which 
            may be contributing to his condition.  For example, claimant 
            resisted any range of motion for his spine beyond 90 degrees 
            and reported pain.  However, he was able to bend forward 
            beyond the 90 degree plane to tie his shoe with no 
            difficulty.  This evaluation was completed in 1989 and 
            stands uncontroverted in the record.
                 27.  The claimant has submitted the following medical 
            bills for reimbursement in this dispute: 
                 DATE              MEDICAL PROVIDER         AMOUNT
                 2-6-90            Bergan Mercy            $507.00 
                 5-9-90            Bergan Mercy             $14.60
                 11-23-88          Midwest Rehab            $57.00 
                 3-7-88 to         LaRue Drug Co.          $274.77
                 6-10-89 to        Koley's Home Care     $1,179.66
                                         TOTAL:          $2,033.03
                 28.  Claimant made a reference to 13 trips to Dr. 
            Schima's office from May 1989 to the date of the hearing.  
            The round trip is 70 miles.  Claimant provided no dates as 
            to when these trips were made.  However, the total mileage 
            equals 910 miles.
                               CONCLUSIONS OF LAW 
            Page  10
                 1.  Whether claimant sustained an injury on July 20, 
            1988 which arose out of and in the course of his employment 
            with DOT.
                 At the outset, it should be noted that claimant 
            abandoned the first injury date of April 14, 1986 when the 
            hearing began.  Claimant, for the purposes of the dispute 
            heard on January 3, 1991, adopted July 19, 1988 as the 
            injury in issue.  The injury of April 14, 1986 and the 
            injury of July 19, 1988 are not the same injury.  If 
            claimant seeks compensation for the first injury, a separate 
            contested case proceeding must be commenced.  See rule 343 
            IAC 4.6.  The issues raised by the injury of April 14, 1986 
            will not be considered in this decision.  See also, Newcomb 
            v. Ruan Leasing, File No. 877383, Slip op. at 5 (Iowa Ind. 
            Comm'r Arbitration August 16, 1990).
                 Claimant urges that the work injury that is in dispute 
            arose out of and in the course of employment on July 19, 
            1988.  He supports this argument with the records of Dr. 
            Schima that are contemporaneous with the injury.  Defendants 
            urge that claimant did not injure his back on July 19, 1988.  
            He was motivated to report an injury because he had been 
            passed over a second time for a promotion.
                 Claimant has the burden of proving by a preponderance 
            of the evidence that he received an injury on July 19, 1988 
            which arose out of and in the course of his employment.  
            McDowell v. Town of Clarksville, 241 N.W.2d 904, 908 (Iowa 
            1976); Musselman v. Central Telephone Co., 154 N.W.2d 128, 
            130 (Iowa 1967).  The injury must both arise out of and be 
            in the course of the employment to bring a case within the 
            statute.  Crowe v. DeSoto Consolidated School District, 68 
            N.W.2d 63, 65 (Iowa 1955).  See also Sister Mary Benedict v. 
            St. Mary's Corp., 124 N.W.2d 548, 551 (Iowa 1963); Hansen v. 
            State of Iowa, 91 N.W.2d 555, 557 (Iowa 1958).  The words 
            "arising out of" have been interpreted to refer to the cause 
            and origin of the injury.  McClure v. Union County, 188 
            N.W.2d 283, 287 (Iowa 1971);  Crowe, 68 N.W.2d at 65.  An 
            injury occurs in the course of the employment when it is 
            within the period of employment at a place the employee may 
            reasonably be, and while the employee is doing work assigned 
            by the employer or something incidental to it.  Cedar Rapids 
            Community School District v. Cady, 278 N.W.2d 298, 299 (Iowa 
            1979), McClure, 188 N.W.2d at 287; Musselman, 154 N.W.2d at 
            130; Crowe, 68 N.W.2d at 65.  However, while a claimant is 
            not entitled to compensation for the results of a 
            preexisting injury or disease, the mere existence at the 
            time of a subsequent injury is not a defense.  Rose v. John 
            Deere Ottumwa Works, 76 N.W.2d 756, 760-61 (Iowa 1956).  If 
            the claimant had a preexisting condition or disability that 
            is aggravated, accelerated, worsened or lighted up so that 
            it results in disability, claimant is entitled to recover.  
            Nicks v. Davenport Produce Co., 115 N.W.2d 812, 815 (Iowa 
                 In this instance, claimant suffered an aggravation of a 
            preexisting chronic lumbosacral strain around July 20, 1988.  
            The injury may have occurred during the week preceding July 
            Page  11
            20, 1988.  The evidence does not support claimant's version 
            of a specific event that caused claimant's aggravation of 
            his lower back.  Rather, claimant reported that he had 
            experienced increasing pain for the seven days preceding his 
            examination by Dr. Schima on July 21, 1988.  Claimant 
            indicated that the only activities that he had been engaged 
            in were work related activities and there is no evidence to 
            the contrary.  Claimant reported that he had been operating 
            an air hammer on Monday March 18, 1988.  He had been 
            shoveling, and standing and flagging cars.  Since claimant 
            could no longer work after July 20, 1988, July 20, 1988 is 
            held to be the injury date.  An injury that arose out of and 
            in the course of claimant's employment occurred on that day.
                 Nor is claimant's motivation suspect.  Even though 
            claimant was passed over for the Equipment Operator II 
            position on July 19, 1988, Dr. Schima found positive 
            evidence of a flare-up when he examined claimant on July 21, 
            1988.  Consequently, claimant has satisfied his burden of 
            proof and demonstrated that he suffered a work related 
            injury on or about July 20, 1988 that aggravated a 
            preexisting chronic lumbosacral strain and caused him to be 
            off work as a result of the aggravation.
                 2.  Whether a causal relationship exists between 
            claimant's claimed injuries and the claimed industrial 
            disability and the extent of benefits if any.
                 Even though claimant has been successful in 
            establishing a work related aggravation of a preexisting 
            condition, claimant next has the burden of proving by a 
            preponderance of the evidence that the injury of July 20, 
            1988, is causally related to the disability on which he now 
            bases his claim.  Bodish v. Fischer, Inc., 133 N.W.2d 867, 
            868 (Iowa 1965);  Lindahl v. L. O. Boggs, 18 N.W.2d 
            607,613-14 (Iowa 1945).  A possibility is insufficient; a 
            probability is necessary.  Burt v. John Deere Waterloo 
            Tractor Works, 73 N.W.2d 732, 738 (Iowa 1955).  The question 
            of causal connection is essentially within the domain of 
            expert testimony.  Bradshaw v. Iowa Methodist Hospital, 101 
            N.W.2d 167,171 (Iowa 1960).  Expert medical evidence must be 
            considered with all other evidence introduced bearing on the 
            causal connection.  Burt, 73 N.W.2d at 738.  The opinion of 
            the experts need not be couched in definite, positive or 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
            903, 907 (Iowa 1974).  Moreover, the expert opinion may be 
            accepted or rejected, in whole or in part, by the trier of 
            fact.  Sondag, 220 N.W.2d at 907.  Finally, 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 material circumstances.  Bodish, 133 N.W.2d 
            at 870; Musselman, 154 N.W.2d at 133.  The Supreme Court has 
            also observed that greater deference is ordinarily accorded 
            expert testimony where the opinion necessarily rests on 
            medical expertise.  Sondag, 220 N.W.2d at 907.  Finally, 
            when an aggravation occurs in the performance of an 
            employer's work and a causal connection is established, 
            claimant may recover to the extent of the impairment caused 
            Page  12
            by the aggravation.  Ziegler v. United States Gypsum Co., 
            106 N.W.2d 591, 595 (Iowa 1960); Barz v. Oler, 133 N.W.2d 
            704, 707 (Iowa 1965); Olson v. Goodyear Service Stores, 125 
            N.W.2d 251, 256 (Iowa 1963); Yeager v. Firestone Tire & 
            Rubber Co., 112 N.W.2d 299, 302 (Iowa 1961); Almquist v. 
            Shenandoah Nurseries, 254 N.W. 35, 38 (Iowa 1934).  The 
            Supreme Court has also indicated that in order for an 
            aggravation of a preexisting condition to be compensable, 
            the aggravation should be material.  Yeager, 112 N.W.2d at 
                 In this instance, the claimant has failed to show that 
            the aggravation of July 20, 1988 caused a permanent 
            disability.  The claimant has established that the 
            aggravation caused a temporary total disability for which he 
            is entitled to compensation.  Since claimant has not 
            established entitlement to permanent benefits the question 
            of whether claimant qualifies as an odd-lot employee is 
                 The evidence on the issue of permanency is 
            uncontroverted.  Dr. Schima stated in his deposition and in 
            correspondence that the injury in April of 1986 caused 
            claimant's pain and the accompanying limitations.  These 
            limitations have functionally impaired claimant to the 
            extent of five per cent (5%) of the body as a whole.  Even 
            though claimant still has intermittent pain, according to 
            Dr. Schima, the cause of this pain is the injury in 1986 and 
            not the aggravation in 1988.  Dr. Schima indicated that as 
            far as claimant's pain was concerned, his disability was the 
            same and his pain symptoms have simply responded to a 
            different treatment modality.  The basic pathology and 
            physiology of claimant's condition has not changed since 
                 Nor does the authority cited by the claimant compel a 
            different result.  In Franks v. City of Council Bluffs, No. 
            784334, Slip op. at 5 (Iowa Ind. Comm'r Arb. December 18, 
            1989), there was a direct causal link between the claimant's 
            injury and his permanent disability.  Moreover, after four 
            evaluations, the City of Council Bluffs specifically 
            terminated claimant for health reasons.  In this case, Dr. 
            Schima, the only medical expert relied upon by both claimant 
            and the defendants indicated that claimant's disability was 
            caused by the April 14, 1986 injury rather than the injury 
            of July 20, 1988.  Moreover, the termination of claimant's 
            employment with DOT occurred after claimant failed to comply 
            with a procedure for unpaid leave rather than claimant's 
            inability to perform his job duties.
                 Regarding temporary disability benefits, Iowa Code 
            sections 85.32 and 85.33 (1989) provide that an injured 
            worker is entitled to such temporary disability benefits 
            from the date of injury until claimant returns to work or 
            until claimant is medically capable of returning to 
            substantially similar work the claimant was performing at 
            the time of the injury, whichever occurs first.  Clute v. 
            Countryside Retirement Home, File No. 876351, Slip op. at 6 
            Page  13
            (Iowa Ind. Comm'r Arbitration November 29, 1990);  Millar v. 
            Iowa Realty, (Valley West Inn), File No. 900518, Slip op. at 
            8 (Iowa Ind. Comm'r Arbitration March 27, 1990).  Temporary 
            disability benefits will also end if claimant begins working 
            at a different job.  Clute, File No. 876351, at 6.  However, 
            maximum medical improvement, one of the tests for ending a 
            healing period, is not a test for determining the end of 
            temporary total disability.  Blanchard v. Omaha Cold 
            Storage, File No. 931382, Slip op. at 9 (Iowa Ind. Comm'r 
            Arbitration February 26, 1991); Clute, File No. 876351, at 
            6.  If claimant had only briefly returned to work or only 
            had occasional employment during the recovery period, such 
            work would not affect his temporary total disability 
            benefits.  Millar, File No. 900518, at 8.
                 In this case, claimant was medically capable of 
            returning to work in June of 1989 when he resumed his duties 
            with his livestock operation.  There is no evidence that 
            claimant could work until this date.  While claimant had 
            occasional employment during the period of recovery, it was 
            not long enough or substantial enough to suggest that his 
            temporary total disability period had ended.  Claimant 
            worked briefly for DOT on light duty. (20 days).  He worked 
            briefly for Vinton Equipment to paint a combine.  He 
            assisted a neighbor with the 1990 planting.  In return, the 
            neighbor helped claimant put in his crops.  Claimant 
            reported to Dr. Schima that he had returned to his duties as 
            a self employed livestock operator on June 28, 1989.  Since 
            claimant returned to work at another job on this date, it is 
            at this point that his temporary benefits came to an end.  
            Claimant is therefore entitled to 49.14 weeks of temporary 
            total disability benefits at the stipulated rate.
                 DOT is entitled to a credit for amounts paid to 
            claimant in connection with this injury.  However, the 
            credit in the amount of $10,503.41 claimed by DOT will not 
            be allowed against the amount awarded here.  DOT submitted 
            payment records for an injury not in dispute in this matter.  
            DOT is not allowed to take a credit against future weekly 
            benefits.  Van v. Clarinda Correctional Treatment Complex, 
            File Nos. 832067, 841123, Slip op. at 15 (Iowa Ind. Comm'r 
            Arb. February 28,1990);  See also, Rule 343 IAC 8.4.
                 3.  Whether claimant is entitled to medical benefits, 
            including a determination of causal connection to the work 
            injury and the causal connection of this condition to a work 
                 Claimant has the burden of demonstrating that the 
            medical services obtained were related to the injury in 
            order to have the expenses reimbursed or paid.  Auxier v. 
            Woodward State Hospital, 266 N.W.2d 139, 144 (Iowa 1978).  
            In this instance, the claimant has shown that he aggravated 
            a preexisting condition while at work.  As a consequence, 
            the necessary nexus has been established and DOT must 
            provide medical benefits to the claimant.  
                 DOT has put into issue whether the expenses incurred by 
            the claimant were reasonable and necessary for the medical 
            Page  14
            treatment required by claimant's aggravated back condition.  
            A review of the expenses described in paragraph 28 
            demonstrates that all the medical services rendered to 
            claimant through June 28, 1989 were reasonable and necessary 
            to resolve the symptoms of pain claimant was experiencing.  
            Moreover, the medical costs associated with the rental, 
            maintenance and eventual purchase of the TENS unit are 
            certainly reasonable and necessary and directly related to 
            the claimant's aggravation of his back problem.  
            Consequently, DOT must pay for these expenses and the future 
            expenses associated with the maintenance of the TENS unit 
            and its use.  Likewise, DOT is responsible for claimant's 
            pain medication associated with his aggravated back 
                 DOT is not responsible for the cost of the charges 
            incurred at Bergan Mercy in February of 1990.  These costs 
            were attributable to an investigation made to determine the 
            cause of pain in claimant's testicles.  There is no evidence 
            that the pain or the subsequent tests were related to the 
            exacerbation of claimant's back condition suffered in July 
            of 1988.
                 Nor is DOT responsible for the mileage requested by the 
            claimant.  While mileage was not identified as a separate 
            expense item in the material submitted by the claimant with 
            the prehearing report, there was testimony from the claimant 
            that indicated that he made 13 trips to Dr. Schima's office 
            after May of 1989.  However, claimant made no effort to show 
            when these trips were made, whether the trips corresponded 
            with a doctor visit and whether the trips were made in 
            connection with the first injury of April 14, 1986 or the 
            second injury of 1988.  In this regard, claimant has failed 
            in his burden and mileage expenses will not be awarded.
                 The final issue in connection with claimant's 
            entitlement to medical benefits is whether DOT authorized 
            claimant to obtain the treatment form Dr. Schima.  Under 
            Iowa Code section 85.27 (1989) an employer has the 
            responsibility to provide an injured worker with reasonable 
            medical care and has the right to select the care the worker 
            will receive.  In order for the employer to be held 
            responsible for claimant's medical expenses, claimant must 
            show that the treatment sought was either of an emergency 
            nature or was authorized.  Templeton v. Little Giant Crane & 
            Shovel, 1 State of Iowa Industrial Commissioner Decisions 
            No. 3, 702, 704 (Iowa Ind. Comm'r Appeal 1985).  An employee 
            may engage medical services if the employer has expressly or 
            impliedly conveyed to the employee the impression that the 
            employee has authorization to proceed in this fashion.  2 
            Larson's Workmen's Compensation Section 61.12(g) (1990).  If 
            the treatment is unauthorized a claimant may still recover 
            if the treatment improves the claimant's condition and 
            ultimately mitigates defendants' liability.  Thomas v. 
            Broadlawns Medical Center, File No. 81240, Slip op. at pp. 
            6-8 (Iowa Ind. Comm'r October 31, 1990);  Butcher v. Valley 
            Sheet Metal, IV Iowa Industrial Commissioner Report 49 
            Page  15
            (1983); Rittgers v. United Parcel Service, III Iowa 
            Industrial Commissioner Report 210 (1982).
                 While claimant did not obtain direct authorization to 
            see Dr. Schima for his back injury, he could reasonably 
            imply that DOT had given him approval to see Dr. Schima when 
            he advised DOT that he needed to see a doctor after the 
            aggravation to his back occurred.  DOT could have directed 
            claimant to a doctor of its choice at that point and did not 
            do so.  Even if the treatment was unauthorized, Dr. Schima 
            was able to control claimant's symptoms with the TENS unit 
            enough so that claimant could resume his duties as a 
            livestock operator.  This treatment mitigated DOT's 
            liability.  As a result, DOT must pay for these medical 
                 4.  Whether claimant is entitled to penalty benefits 
            under Iowa Code section 86.13 (1991).
                 The final issue for resolution involves the question of 
            whether claimant is entitled to penalty benefits under Iowa 
            Code section 86.13 (1991) since DOT terminated claimant's 
            benefits in October of 1988.  Iowa Code section 86.13 
            provides in relevant part:
                 If commenced, the payments shall be terminated only 
                 when the employee has returned to work or upon thirty 
                 days' notice stating the reason for the termination and 
                 advising the employee of the right to file a claim with 
                 the industrial commissioner.
                 * * *
                 If a delay in commencement or termination of benefits 
                 occurs without reasonable or probable cause or excuse, 
                 the industrial commissioner shall award benefits in 
                 addition to those benefits payable under this chapter, 
                 or chapters 85, 85A or 85B up to fifty per cent of the 
                 amount of benefits that were unreasonably delayed or 
            Under Section 86.13, a penalty is not awarded for 
            nonpayment of medical expenses.  Penalty benefits are only 
            applicable to weekly compensation benefits.  Zahn v. Iowa 
            State Men's Reformatory, IV Iowa Industrial Commissioner 
            Report 409, 410 (1983)  If it is alleged that an employer 
            wrongfully withholds weekly compensation benefits from a 
            claimant, or an employer wrongfully terminates weekly 
            compensation benefits, claimant must establish the benefits 
            were withheld unreasonably or terminated unreasonably in 
            order for the claimant to receive additional benefits under 
            section 86.13.  Curtis v. Swift Independent Packing, IV Iowa 
            Industrial Commissioner Report 88, 93 (1984).  It is 
            reasonable for an employer to withhold benefits when the 
            employer was not alerted to occurrences which would notify a 
            reasonable person that benefits would be due or when there 
            was no work time lost.  McCormack v. Sunsprout, I Iowa 
            Industrial Commissioner Decisions No. 1, 142, 144 (1984).  
            However, if there are no contradictions in the claimant's 
            claim then a penalty will be assessed.  Willis v. Ruan 
            Page  16
            Transport Corporation, IV Iowa Industrial Commissioner 395, 
            396 (1984) (The doctors' reports and the claimant's 
            statements regarding the injury and its connection to an 
            incident at work are consistent.  Withholding benefits in 
            this instance was found to be unreasonable and a penalty was 
            assessed to the healing period benefits.  Employer was given 
            the benefit of the doubt as to whether the injury caused a 
            permanent impairment due to claimant's preexisting back 
            complaints); Peterman v. American Freight System, File No. 
            747931 Slip Op. at 3-4 (Iowa Industrial Comm'r Arbitration 
            August 10, 1988).  Additionally, failure to give notice of 
            the termination of benefits is a violation of the due 
            process rights of the claimant and results in a penalty.  
            Auxier, 266 N.W.2d at 142-43.
                 The record is silent as to whether the notice 
            requirements of Auxier were met in this case.  Since 
            claimant has the burden of proof and failed to indicate that 
            he did not receive an Auxier notice, then it would be pure 
            speculation on this writer's part to guess as whether DOT 
            complied with the provisions of the Code and case law.  See, 
            Burt v. John Deere Waterloo Tractor Works, 73 N.W.2d 732, 
            737-38 (Iowa 1955) (The findings of the commissioner must be 
            based on testimony that tends to establish facts or upon 
            proper inferences that may be drawn therefrom.  The findings 
            cannot be predicated upon conjecture, speculation or mere 
            surmise).  An award of penalty benefits cannot be made on 
            these grounds.
                 It appears from the record that DOT may have concluded 
            that claimant had returned to work and this is the ground 
            that DOT relied upon to withhold benefits.  However, this 
            conclusion is not readily apparent from the record as there 
            is no testimony on this point.  DOT never did explain why 
            claimant was terminated.  There was evidence that claimant 
            performed light duty work, the painting work at Vinton 
            Equipment and spring planting in 1990.  However, the 
            necessary link between the suspension of benefits and these 
            work episodes was not made.  Most particularly, return to 
            light duty work is not a return to work where the claimant 
            is limited to one 20 day period of duty and then released.  
            Claimant had no choice but to leave his light duty 
            employment when DOT indicated it would not extend light duty 
            status for him.  Nor did claimant return to work when he 
            painted one or two combines.  Given the limited nature of 
            claimant's involvement in these jobs, and the irrelevance of 
            the 1990 spring planting work to the time claimant's 
            benefits were terminated, each of these instances, even when 
            taken together, were not sufficient for DOT to reasonably 
            conclude that claimant's temporary disability period had 
            ended.  See generally,  Millar, File No. 900518, at 8. 
            (Occasional employment does not disqualify a worker from 
                 Claimant has shown that he had a continuing total 
            temporary disability after he was released from light duty 
            by DOT.  Dr. Schima confirmed that claimant could not do his 
            job given his then existing condition.  DOT was clearly 
            Page  17
            aware that claimant's aggravated back condition prevented 
            him from performing a job substantially similar to the work 
            he performed as an equipment operator or a farmer.  When DOT 
            did not extend the light duty work period for claimant, it 
            knew that claimant was unable to work as a result of his 
            aggravated back condition.  Benefits should have been 
            reinstituted at that point.  Claimant established that DOT 
            wrongfully withheld weekly compensation.
                 Claimant has shown that DOT had no basis for 
            withholding weekly compensation benefits.  A penalty in the 
            amount of 35 percent of the temporary total disability 
            awarded herein is therefore awarded to claimant.
                 THEREFORE, it is ordered that:
                 1.  Defendants, the Iowa Department of Transportation 
            and the State of Iowa, shall pay to claimant temporary total 
            disability for the period of time between July 19, 1988 
            until June 29, 1989 at the stipulated rate of two hundred 
            forty-six and 34/100 dollars ($246.34).  Since these 
            benefits have accrued they shall be paid in a lump sum with 
            interest at the statutory rate from the date of this 
                 2.  Defendants, the Iowa Department of Transportation, 
            shall pay the following medical expenses:
                 DATE              MEDICAL PROVIDER         AMOUNT
                 11-23-88          Midwest Rehab             $57.00 
                 3-7-88 to         LaRue Drug Co.           $274.77
                 6-10-89 to        Koley's Home Care      $1,179.66
                                         TOTAL:           $1,511.43
                 3.  Defendants, Department of Transportation and the 
            State of Iowa, shall be liable for all future medical costs 
            associated with claimant's TENS unit including maintenance, 
            repair and replacement as required until there is no medical 
            reason that requires claimant to use the TENS unit.  
            Additionally, Department of Transportation and the State of 
            Iowa shall pay for all accessories required for use of the 
            TENS unit including but not limited to the patches and the 
            leads that attach to claimant's skin and the TENS unit.
                 4.  Defendants, Department of Transportation and the 
            State of Iowa, are assessed a penalty in the amount of 
            thirty-five percent (35%) of the temporary total disability 
            benefits awarded in this dispute for suspending claimant's 
            benefit payments for no reason apparent in the record made 
            in this proceeding.
                 5.  Defendants, Department of Transportation and the 
            State of Iowa, shall have a credit for all amount paid to 
            claimant in connection with the exacerbation of his 
            preexisting back problem on July 19, 1988.  This credit 
            Page  18
            shall include any amounts paid for long term disability 
            benefits and for any weekly benefits paid to claimant.  
            Department of Transportation and the State of Iowa shall not 
            have a credit for amounts paid in connection with the injury 
            suffered by claimant on April 14, 1986.
                 6.  Defendants, Department of Transportation and the 
            State of Iowa, shall file a claim activity report in 
            connection with payments made pursuant to this order and 
            rule IAC 3.1(2).
                 Signed and filed this ____ day of April, 1991.
                 ELIZABETH A. NELSON
            Page  19
            Copies To:
            Mr Robert V Rodenburg
            Attorney at Law
            500 Willow Avenue
            100 Park Building
            Council Bluffs Iowa 51503
            Mr Mark Hunacek
            Assistant Attorney General
            General Counsel Division
            Iowa Department of Transportation
            800 Lincoln Way
            Ames Iowa 50010
                      5-1402.40; 5-1801; 5-2500; 4000
                      Filed April 23, 1991
                      ELIZABETH A. NELSON
            before the iowa industrial commissioner
            MICHAEL A. CARNES,  :
                 Claimant, :
            vs.       :
                      :      File No. 821400
            IOWA DEPARTMENT OF  :
            TRANSPORTATION,     :
                      :    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.    :
            5-1402.40, 5-1801
            Claimant exacerbated a preexisting back condition.  
            Physician clearly indicated that the original injury was the 
            cause of claimant's impairment rather than the exacerbation 
            episode.  Claimant did not prove permanancy but was 
            temporarily disabled.  Temporary disability ended when he 
            returned to his livestock operation.
            Employer was responsible for paying for TENS unit.  
            Additionally, employer responsible for future cost of TENS 
            Light duty work in accordance with the Iowa Department of 
            Personnel rules where the claimant is limited to a single 
            period of light duty for 20 days does not constitute a 
            return to work that allows for the termination of 
            compensation benefits.  Penalty benefits were awarded.
            Page   1
                      2203 3001 3002 51803
                      Filed March 13, 1991
                      Walter R. McManus, Jr.
            before the iowa industrial commissioner
            MARY MARTIN,   :
                 Claimant, :
            vs.       :
                      :      File No.  821570
                      :  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.    :
            Graduate assistant in UNI Art Department developed asthma as 
            a result of exposures to fumes and art materials.  Such was 
            held to be occupational disease rather than injury.
            3001 3002
            Gross earnings of graduate assistant included all actual 
            earnings for work in the library, her stipend and the value 
            of her scholarship.  When converting to determine the rate, 
            the earnings from the stipend and library work were applied 
            under section 85.36(10) through the benefit schedule.  To 
            that amount was added 80 percent of 1/50 of the value of the 
            scholarship.  The value of the scholarship was not applied 
            through the benefit schedule since the benefit schedule 
            reduces the gross amount for taxes, none of which were 
            applicable to the scholarship.  To do so would have 
            understated the rate of compensation.
            Thirty-three-year-old single woman with masters in art which 
            she was unable to use due to her occupational disease 
            returned to school and obtained a masters in special 
            education.  Earnings as an art or special education teacher 
            are equal.  Claimant awarded 25 percent permanent partial 
            disability due to loss of access to jobs and loss of 
            opportunity to pursue career as an artist.