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                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            JUNIOR ALDRIDGE,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 822896
 
            J. P. CULLEN & SONS, INC.,    :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            WAUSAU INSURANCE COMPANIES,   :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by claimant 
 
            Junior Aldridge against defendant employer J. P. Cullen & 
 
            Sons and defendant insurance carrier Wausau Insurance 
 
            Companies to recover benefits under the Iowa Workers' 
 
            Compensation Act as the result of an injury sustained on May 
 
            8, 1986.  This matter came on for hearing before the 
 
            undersigned in Davenport, Iowa, on June 2, 1989.  The cause 
 
            was considered fully submitted at the close of hearing.
 
            
 
                 The record in this proceeding consists of joint 
 
            exhibits A through F, defendants' exhibit 1 and claimant's 
 
            testimony.
 
            
 
                                      issues
 
            
 
                 Pursuant to the prehearing report submitted by the 
 
            parties and approved at hearing, the following issues have 
 
            been stipulated:  that an employment relationship existed 
 
            between claimant and employer at the time of the injury; 
 
            that claimant sustained an injury on May 8, 1986, arising 
 
            out of and in the course of that employment; that the injury 
 
            caused temporary and permanent disability; that the 
 
            appropriate rate of weekly compensation is $318.18; that 
 
            affirmative defenses are waived; that defendants have 
 
            voluntarily paid claimant benefits from the date of injury 
 
            and continue to do so.
 
            
 
                 Issues presented for resolution include:  the extent of 
 
            claimant's entitlement to compensation for temporary total 
 
            disability or healing period; the extent of claimant's 
 
            entitlement to compensation for permanent disability, the 
 
            nature of his disability and the commencement date thereof; 
 
            the extent of claimant's entitlement to medical benefits; 
 
            taxation of costs.
 
            
 
                              review of the evidence
 

 
            
 
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                 Claimant testified that he was 62 years of age as of 
 
            the date of hearing and that his education was limited to 
 
            the eighth grade.  He indicated that his work history 
 
            included farm work, a 19-month stint in the United States 
 
            Army at age 18 (with training as a mechanic), heavy 
 
            construction work from 1947-1950, and employment as a 
 
            bricklayer's helper since 1950.  Claimant's employment as a 
 
            bricklayer's helper included duties such as mixing mortar, 
 
            carrying bricks, building scaffolding, climbing up to 11 
 
            stories and lifting up to 90 pounds.
 
            
 
                 Claimant testified that he has never smoked and has 
 
            never been treated for allergies.  He indicated his health 
 
            was "perfect" and that he had missed zero days of work due 
 
            to illness in the year before the subject injury.  Claimant 
 
            further indicated that he had no prior history of breathing 
 
            or respiratory problems, although on one occasion 
 
            approximately seven years before the subject injury, he 
 
            required medical treatment (one visit) when he breathed 
 
            fumes from a cleaner or solvent.  In addition, claimant had 
 
            surgery for removal of nose polyps on three occasions, the 
 
            most recent occasion being 5-7 years prior to the work 
 
            injury.
 
            
 
                 Claimant described his injury as occurring when he fell 
 
            approximately ten feet from a scaffold.  He was immediately 
 
            taken to the hospital where he was seen by Richard A. Roski, 
 
            M.D.  Claimant described his injuries as including three 
 
            spinal fractures, a broken thumb, two broken toes, a broken 
 
            nose, lacerations, a hiatal hernia, detached lining of the 
 
            stomach and pulmonary problems.  Claimant was treated for 
 
            his orthopaedic problems by Dr. Roski, began respiratory 
 
            treatment at the hands of Akshay Mahadevia, M.D.  Claimant 
 
            also testified to seeing several other physicians during his 
 
            first hospitalization.
 
            
 
                 At the present time, claimant indicated that his toes 
 
            and head have recovered.  His thumb hurts in cold weather 
 
            and his legs become numb if he lifts items even as light as 
 
            a gallon of milk or an iron skillet.  He was prescribed a 
 
            cane and back brace by Dr. Roski, and has problems with his 
 
            balance and numbness of the right foot.  He is unable at 
 
            present to perform such common functions as lawn mowing, 
 
            working on automobiles, watching television for any length 
 
            of time, hunting, climbing stairs (except slowly, one at a 
 
            time) or breathing easily (his back brace puts pressure on 
 
            his lungs).
 
            
 
                 Claimant testified that prior to his injury, he was 
 
            able to constantly walk, climb, bend, twist, stoop, and lift 
 
            heavy weights at work.  Now, his limitations from Dr. Roski 
 
            include a ten-pound weight limit, an injunction against 
 
            walking in grass, turning too fast, or bending (even to tie 
 
            his shoes).
 
            
 
                 Claimant indicated that his typical day now includes 
 
            watching television, doing light yard work, reclining when 
 
            his legs become tired, sitting up to one hour, standing for 
 
            up to a few minutes (when he does, his back hurts, his legs 
 

 
            
 
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            become numb, and he is required to lie down for 10-15 
 
            minutes), and walking up to perhaps one-half block.  He is 
 
            at all times short of breath at least a little, but more so 
 
            upon exertion, such as walking.
 
            
 
                 On cross-examination, claimant testified that he was 
 
            required to mix mortar during his many years as a 
 
            bricklayer's helper.  This is a very dusty type of job.  He 
 
            had no prior history of back pains, despite the work being 
 
            so heavy.  His history of nasal polyps began more than 25 
 
            years ago, and claimant believed that the polyps were caused 
 
            by cement dust.  Claimant agreed that he probably told a 
 
            nurse he was allergic to any dust and that he is now 
 
            "allergic" to tobacco smoke.
 
            
 
                 Asked if he now had any worse spasms or other problems 
 
            as opposed to 1986, claimant indicated that his condition is 
 
            essentially the same.  From September, 1988 through 
 
            February, 1989, he was frequently hospitalized.  However, 
 
            claimant agreed that he had not suffered bronchial spasms 
 
            during the four months prior to hearing, and that this 
 
            improvement coincided with his discontinuing use of the 
 
            metal back brace.
 
            
 
                 In general, claimant indicated that he has undergone 
 
            repeated hospitalizations for respiratory problems since 
 
            this injury.  These have been as often as perhaps every six 
 
            weeks.
 
            
 
                 Admitting records of Mercy Hospital in Davenport show 
 
            that claimant was seen by Richard A. Roski, M.D.  Admitting 
 
            diagnosis was of multiple trauma with scalp laceration, 
 
            nasal fracture, thoracic compression fracture and fracture 
 
            of the thumb.  Past medical history was of allergies 
 
            possibly to aspirin and some diuretics and including nasal 
 
            polyps and emphysema.  Claimant was on no active medication.  
 
            Claimant was admitted to the intensive care unit for 
 
            observation due to poor partial pressure of oxygen and Dr. 
 
            Mahadevia was to follow for evaluation of pulmonary status.
 
            
 
                 A. E. Berkow, M.D., did a chest x-ray on May 9, finding 
 
            cardiac enlargement and pulmonary vascular congestion.  A CT 
 
            scan of the thoracic spine read on May 9 by E. L. Johnson, 
 
            M.D., showed marked degenerative changes from the inferior 
 
            portion of T-7 through the upper border of T-12.  The bridge 
 
            at T10-T9 showed evidence of recent fracture through the 
 
            bone bridge anteriorly.  Dr. Johnson's impression was of 
 
            osteoporosis with severe degenerative changes and recent 
 
            fracture through a bone bridge of T9-T10.
 
            
 
                 Radiologist R. Picchiotti, M.D., reported on May 8 that 
 
            one view of the chest showed the heart at the upper limits 
 
            of normal and lung fields essentially clear, a fracture of 
 
            the nasal bones with angulation towards the face, no 
 
            evidence of fracture in the cervical spine (but moderate 
 
            arthritic changes of the degenerative and hypertrophic 
 
            variety, a compression fracture of T-10 and conceivably a 
 
            fracture of the osteophyte bridging T-10 and 11, a slightly 
 
            comminuted fracture of the proximal left first metacarpal 
 
            with anterior angulation of the distal portion, and 
 

 
            
 
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            hypertrophic degenerative osteoarthritis of the lower lumbar 
 
            spine with no evidence of fracture.
 
            
 
                 Dr. Mahadevia first saw claimant on May 9, 1986.  Chest 
 
            x-ray failed to reveal any pneumothoracic pneumonia or any 
 
            abnormalities except some chronic changes and small 
 
            calcified nodular density.  Claimant denied any history of 
 
            asthma, bronchitis, chronic obstructive pulmonary disease 
 
            (hereafter "COPD") or pneumonia.  Dr. Mahadevia's initial 
 
            impression was of hypoxemia, etiology unclear.  Asthma and 
 
            COPD were initially ruled out.  However, Dr. Mahadevia's 
 
            discharge diagnosis on May 27, 1986 was of severe COPD; 
 
            claimant was discharged with the advice to take seven 
 
            separate medications, although he was not discharged on 
 
            oxygen.
 
            
 
                 Mercy Hospital records show numerous subsequent 
 
            hospitalizations, primarily for treatment of respiratory 
 
            problems.  However, claimant also was seen for various 
 
            gastrointestinal problems.  These gastrointestinal problems 
 
            included findings of a large, sliding hiatal hernia with 
 
            gastroesophageal reflux.
 
            
 
                 Dr. Roski authored a series of letters to defendant 
 
            insurance carrier.  On July 14, 1986, he stated that 
 
            claimant had developed a compression fracture of the T-10 
 
            vertebral body by reason of his fall.  He noted in that 
 
            letter that surgery to stabilize claimant's spine was quite 
 
            risky due to claimant's chronic lung problems, which had 
 
            been markedly exacerbated following the fall.
 
            
 
                 On September 22, 1986, Dr. Roski wrote that claimant 
 
            had continued to heal from the compression fracture and 
 
            noted that he did not directly relate claimant's 
 
            gastrointestinal bleeding to the job injury.
 
            
 
                 On January 28, 1987, Dr. Roski wrote that claimant's 
 
            neurological condition appeared normal, but that he still 
 
            had some intermittent pain in the rib area, probably related 
 
            to the fractures.  "The deformities that he has in his spine 
 
            from his area of fracture I think would make it difficult 
 
            for him to ever get back to any kind of strenuous work 
 
            activity * * *."  He did not realistically believe that 
 
            claimant could be rehabilitated as to his back to any 
 
            reasonable degree, even under better conditions.  He 
 
            certainly would not want to have claimant undergoing "any 
 
            kind of lifting or strenuous activity because of the 
 
            continued condition of his spine."
 
            
 
                 Dr. Roski wrote on March 24, 1987 that due to the 
 
            severe nature of claimant's spine problem, he was not a 
 
            candidate to do any kind of manual labor now or in the 
 
            future.
 
            
 
                 On April 27, 1987, Dr. Roski wrote that claimant 
 
            continued to have thoracic pain and that he was rated under 
 
            the American Medical Association guidelines as having 
 
            sustained a 20 percent permanent disability of the whole 
 
            person by reason of his thoracic compression fracture.  
 
            Because of the poor healing of that fracture and persistent 
 

 
            
 
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            pain, claimant would be required to stay in his back brace 
 
            permanently "and I do not recommend he undertake any lifting 
 
            in the future."
 
            
 
                 Dr. Roski wrote claimant's counsel on November 20, 1987 
 
            to note that claimant was an extremely high risk for a major 
 
            posterior rod stabilization procedure because of his other 
 
            medical problems.  In this letter, Dr. Roski noted that 
 
            claimant had a severe underlying pulmonary problem, but 
 
            further opined that the pulmonary function was further 
 
            compromised by the deformity in claimant's thoracic spine, 
 
            and that the situation was still progressing and further 
 
            deterioration might still force reconsideration of high risk 
 
            surgical intervention.
 
            
 
                 Dr. Roski wrote claimant's counsel again on May 12, 
 
            1988:
 
            
 
                 Mr. Aldridge has not been seen back in this office 
 
                 since April 27th 1987.  We have had some phone 
 
                 contact with him up through 11-2-87.  It is my 
 
                 understanding that his medical condition has 
 
                 continued to gradually deteriorate.  This is 
 
                 compounded both by the condition of his spine as 
 
                 well as progressive pulmonary compromise.  
 
                 Certainly, from my standpoint as far as his spine 
 
                 is concerned, he is unable to do any active heavy 
 
                 work.  This would include any type of bending and 
 
                 lifting or repetitive lifting activities.  I think 
 
                 that along with his pulmonary condition would make 
 
                 him totally disabled at this time.  I certainly do 
 
                 not envision that improving at all in the future.
 
            
 
                 Dr. Roski wrote again on December 5, 1988:
 
            
 
                 I subsequently seen [sic] Mr. Aldridge in the 
 
                 office on August 5 and September 14, 1988.  Mr. 
 
                 Aldridge's condition overall remains quite poor.  
 
                 I have been seeing him because of a compression 
 
                 fracture of his thoracic spine.  He also, as you 
 
                 well know, has severe pulmonary problems for which 
 
                 is followed by Dr. Mahadevia.  His two problems 
 
                 are quite intertwined and that his compression 
 
                 fractures decompensate his breathing capacity.  
 
                 His poor pulmonary function allows for continued 
 
                 exacerbation of his back and rib problems.  At 
 
                 present time, I do not think him capable of any 
 
                 further full time employment and not 
 
                 rehabilitatable to any kind of significant work 
 
                 level.
 
            
 
                 Claimant was treated for his gastrointestinal problems 
 
            including hiatal hernia and bleeding from esophageal ulcers 
 
            by B. N. Shivakumar, M.D.  Dr. Shivakumar wrote on September 
 
            9, 1986, that he could not say that claimant's entire 
 
            problem was related to the job injury, but that the bleeding 
 
            and ulcer "might" have been precipitated by the stress of 
 
            the trauma and possibly analgesic medications.  Dr. 
 
            Shivakumar wrote again on December 16, 1986 that it was very 
 
            difficult to say that the injury had been directly 
 

 
            
 
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            responsible for gastrointestinal problems, but that "I 
 
            certainly feel that the recent accident has something to do 
 
            with this, although it is not a direct effect of the 
 
            accident."
 
            
 
                 Dr. Mahadevia wrote defendant carrier on October 27, 
 
            1986 to opine that although claimant's fracture did not 
 
            directly cause his COPD, it caused an acute exacerbation of 
 
            COPD and significant deterioration in claimant's respiratory 
 
            status.  He opined again in a letter of December 4, 1986 
 
            that claimant's COPD was "acutely exacerbated from the 
 
            vertebral fracture, and the immobilization necessary 
 
            following."
 
            
 
                 Dr. Mahadevia testified by deposition on May 30, 1989.  
 
            Dr. Mahadevia is a specialist in pulmonary medicine who had 
 
            practiced in that specialty in the Quad City area for five 
 
            and one-half years.  He first saw claimant on May 8, 1986.  
 
            The doctor was called in for a consultation because claimant 
 
            was short of breath and panting or breathing shallowly.  One 
 
            x-ray had been done, but Dr. Mahadevia requested another.  
 
            He found suggestions of chronic lung disease and a small 
 
            calcified nodular density.  Inflammation of the bronchial 
 
            tubes was seen.
 
            
 
                 Nodular densities are caused by previous infection.  
 
            Claimant had only one small nodular density which was 
 
            probably not a by-product of any occupational lung disease.
 
            
 
                 Claimant did not give a history of emphysema, but did 
 
            give history of a prior exposure to chlorine bleach which 
 
            caused acute respiratory distress at the time.  Although Dr. 
 
            Roski's history included a reference to emphysema, Dr. 
 
            Mahadevia concluded claimant does not suffer from that 
 
            disease.
 
            
 
                 As has been seen, Dr. Mahadevia concluded that claimant 
 
            suffered from chronic obstructive pulmonary disease.  He 
 
            noted that claimant's enlarged heart is a common result of 
 
            COPD.  He also testified that claimant's COPD probably 
 
            preexisted the work injury because radiographic changes 
 
            would not have shown up so quickly; it appeared to the 
 
            doctor that claimant had initially acquired COPD at least 
 
            one month prior to the work injury.  Claimant's history of 
 
            asthma probably produced the COPD.  He also noted that an 
 
            asthmatic condition can become very symptomatic or very 
 
            noticeable all at once, where the individual had in reality 
 
            suffered the asthmatic condition to an undetectable degree 
 
            for some time.  Asthmatic conditions may also be 
 
            traumatically aggravated or induced.  Dr. Mahadevia felt 
 
            from claimant's clinical examination and history of allergic 
 
            nasal polyp that it was more likely he had a preexisting 
 
            asthmatic component which could have been aggravated by 
 
            injury.  Multiple allergies are a potential cause of nasal 
 
            polyps.
 
            
 
                 As to claimant's subsequent history, Dr. Mahadevia 
 
            testified:
 
            
 
                 Q.  In Mr. Aldridge's case you've continued to 
 

 
            
 
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                 treat him down to the present time, haven't you, 
 
                 Doctor?
 
            
 
                 A.  Yes, I have.
 
            
 
                 Q.  And I certainly don't want to go through the 
 
                 many, many pages of records that we've given the 
 
                 judge about that treatment but is it a fair 
 
                 observation that Mr. Aldridge has had a real 
 
                 succession or recurrence of asthmatic attacks 
 
                 every six weeks to two months where he needs to be 
 
                 hospitalized?
 
            
 
                 A.  Correct.
 
            
 
                 Q.  It looks like the hospitalizations may be 
 
                 overnight or a day and two in length at most; is 
 
                 that a fair summary?
 
            
 
                 A.  Yes.
 
            
 
                 Q.  What do you basically do for him when he's in 
 
                 the hospital with one of these acute attacks?
 
            
 
                 A.  I usually treat him with intravenous medicines 
 
                 which are bronchodilators and also give him 
 
                 corticosteriods and oxygen and relieve the spasm 
 
                 of the bronchial tubes.
 
            
 
            (Dr. Mahadevia deposition, page 21, line 13 through page 22, 
 
            line 10)
 
            
 
                 Questioned by defense counsel as to the cause of 
 
            subsequent bronchospasms or asthmatic reactions:
 
            
 
                 [Q.]  If we looked at one of the recent typical 
 
                 hospitalizations, is there any way within a 
 
                 reasonable degree of medical certainty that you 
 
                 could indicate whether the bronchospasms or 
 
                 asthmatic reaction were caused by something he 
 
                 inhaled or was allergic to?
 
            
 
                 A.  Yes.  It is possible.
 
            
 
                 Q.  All right.  And if a person repetitively 
 
                 inhales an irritant that the bronchial tubes don't 
 
                 like and you get a bronchospasm as a result, 
 
                 depending on how much you inhale or how exposed 
 
                 you are to that irritant, does that control the 
 
                 severity of the reaction?
 
            
 
                 A.  Yes.
 
            
 
                 Q.  The severity of the bronchospasms themselves?
 
            
 
                 A.  Yes.
 
            
 
                 Q.  Doctor, is it likely in your opinion that a 
 
                 number of Mr. Aldridge's recent bronchospasms or 
 
                 asthmatic attacks have been related to some 
 

 
            
 
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                 unknown irritant that he is being exposed to?
 
            
 
                 A.  That is correct.
 
            
 
                 Q.  Again, for the judge's benefit if a person is 
 
                 allergic to a particular irritant and is exposed 
 
                 to that irritant on a repetitive basis, can the 
 
                 reaction, the degree of bronchospasms, become 
 
                 progressively worse?
 
            
 
                 A.  Yes.  As time goes by, it gets worse.
 
            
 
                 Q.  Is that a pretty well accepted medical fact?
 
            
 
                 A.  Yes.
 
            
 
                 Q.  I have just kind of as an overview sensed from 
 
                 Mr. Aldridge's medical records that his bronchial 
 
                 condition is worse today than it was, say, in 
 
                 1987.
 
            
 
                 A.  Yes.
 
            
 
                 Q.  Is that your observation?
 
            
 
                 A.  Correct.
 
            
 
                 Q.  Could a large measure, if not all, of that 
 
                 worsening of his bronchial condition be related to 
 
                 the repetitive exposure to whatever irritant is 
 
                 triggering the bronchospasms?
 
            
 
                 A.  Correct.
 
            
 
            (Dr. Mahadevia deposition, page 22, line 18 through page 24, 
 
            line 11)
 
            
 
                 However, upon inquiry by defense counsel as to the 
 
            causative impact of the work injury, Dr. Mahadevia 
 
            testified:
 
            
 
                 Q.  Is there any way, Doctor, within a reasonable 
 
                 degree of medical certainty that you could say it 
 
                 is more probable that his asthma was aggravated by 
 
                 the fall that he suffered as opposed to it being a 
 
                 progressing or developing adult onset of asthma?
 
            
 
                 A.  I think it was aggravated by the fall.
 
            
 
                 Q.  Why do you say that is more probable than the 
 
                 fact that he was suffering a developing asthmatic 
 
                 reaction as a result of simply what he was being 
 
                 exposed to in daily life?
 
            
 
                 A.  The reason to state that that is more likely 
 
                 because he was not hospitalized or he wasn't in 
 
                 the emergency room or in any physician's office 
 
                 with similar symptoms before the date of the 
 
                 accident.
 
            
 

 
            
 
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            (Dr. Mahadevia deposition, page 27, line 13 through page 28, 
 
            line 3)
 
            
 
                 And:
 
            
 
                 Q.  Doctor, is it entirely possible that Mr. 
 
                 Aldridge could suffer an acute short-term 
 
                 aggravation of his underlying chronic obstructive 
 
                 pulmonary disease as a result of a fall and 
 
                 perhaps a compression fracture of osteophytes 
 
                 bridging between one or more of the thoracic 
 
                 vertebrae?
 
            
 
                 A.  Yes, it is likely.
 
            
 
                 Q.  In other words, there could be a physiological 
 
                 reaction such as splinting which might account for 
 
                 an acute aggravation of an underlying chronic 
 
                 obstructive pulmonary condition?
 
            
 
                 A.  Yes.
 
            
 
                 Q.  Now, Doctor, what would there be about a fall 
 
                 and an acute aggravation that would convert the 
 
                 fall or the trauma into a suspected cause of a 
 
                 chronic aggravation of a [sic] underlying 
 
                 obstructive pulmonary disease?
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            
 
                 A.  Usually once the effect of the trauma goes 
 
                 away, it should not longer be a factor.
 
            
 
                 Q.  In other words, you could have in layman's 
 
                 terms a short-term reaction where your asthma or 
 
                 your obstructive lung disease was aggravated but 
 
                 you would expect those symptoms to subside as you 
 
                 moved away from the trauma date?
 
            
 
                 A.  That's correct.
 
            
 
            (Dr. Mahadevia deposition, page 29, line 22 through page 30, 
 
            line 23)
 
            
 
                 And:
 
            
 
                 Q.  Doctor, is there any way in Mr. Aldridge's 
 
                 case that his current bronchial sensitivity and 
 
                 hyperreactivity can be said to be caused by any 
 
                 effect of that original fall in 1986?
 
            
 
                 A.  No, it doesn't present any factor.
 
            
 
            (Dr. Mahadevia deposition, page 31, lines 2 through line 7)
 
            
 
                 Dr. Mahadevia further specified that if claimant were 
 
            being exposed in some unknown fashion to an irritant that 
 
            tended to trigger bronchospasms in his home or local 
 
            environment, this would cause his condition to literally 
 
            worsen month by month.  Possible irritants could include 
 
            dust, fumes, pollen, ragweed, humidity, cold air, or other 
 
            known specific environmental factors.  Claimant was not 
 
            given allergy tests, since these are normally not productive 
 
            with an individual of his age, largely because in any event 
 
            nothing can be done to cure the problem.
 
            
 
                 However, on examination by claimant's attorney, Dr. 
 
            Mahadevia testified:
 
            
 
                 Q.  Do you feel that the fall accelerated his 
 
                 symptomatology?
 
            
 
                 A.  Yes.
 
            
 
                 Q.  Do you feel that it accelerated it 
 
                 significantly?
 
            
 
                 A.  Yes.
 
            
 
                 Q.  And is this an opinion within a reasonable 
 
                 degree of medical and surgical certainty on your 
 
                 part?
 
            
 
                 A.  Yes.  My conclusion really depends on the 
 
                 history I obtained from Mr. Aldridge on the first 
 
                 day of May 8th, '86.
 
            
 
            (Dr. Mahadevia deposition, page 41, lines 10 through 21)
 
            
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
                 And:
 
            
 
                 Q.  Is it true that his orthopedic condition can 
 
                 have a direct relationship on his pulmonary 
 
                 situation?
 
            
 
                 A.  Yes, it can.
 
            
 
                 Q.  In what way?
 
            
 
                 A.  It can cause muscle spasm, pain, splinting 
 
                 which can impair his ability to breathe.
 
            
 
                 Q.  And do those orthopedically induced 
 
                 impairments make him any more susceptible to the 
 
                 type of asthmatic or allergic reactions you're 
 
                 treating him for?
 
            
 
                 A.  It can make him more symptomatic from that.
 
            
 
                 Q.  Mr. Aldridge wears a brace, doesn't he?
 
            
 
                 A.  Yes.
 
            
 
                 Q.  Does that have any impact on his pulmonary 
 
                 situation?
 
            
 
                 A.  Yes.  People who have brace, usually they tend 
 
                 to be more short of breath than people who don't 
 
                 wear a brace.
 
            
 
                 Q.  And if he needs to wear that brace as a direct 
 
                 result of the fall that he sustained in 1986, 
 
                 would that change your opinion as to whether or 
 
                 not the fall is contributing to his current 
 
                 chronic problem?
 
            
 
                 A.  Yes, indirectly.  Because of his injury he 
 
                 needs rest and because of rest his breathing is 
 
                 somewhat more restricted.
 
            
 
                 Q.  And does that restriction caused by the brace 
 
                 impact negatively on his overall pulmonary 
 
                 condition?
 
            
 
                 A.  Yes, that's correct.
 
            
 
                 Q.  Is there any known traumatic component of 
 
                 adult onset asthma?
 
            
 
                 A.  No, but trauma can aggravate it.
 
            
 
                 Q.  And once aggravated it will only get worse?
 
            
 
                 A.  Yes.
 
            
 
            (Dr. Mahadevia deposition, page 42, line 2 through page 43, 
 
            line 14)
 
            
 
                 And:
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            
 
                 Q.  Has Mr. Aldridge been capable of working at 
 
                 any time since you first saw him?
 
            
 
                 A.  No.
 
            
 
                 Q.  Do you have an opinion based upon a reasonable 
 
                 degree of medical and surgical certainty as to 
 
                 whether or not the injury sustained by Mr. 
 
                 Aldridge at work is causally related to his 
 
                 current inability to work?
 
            
 
                 A.  It is one of the precipitating factors, yes.
 
            
 
            (Dr. Mahadevia deposition, page 44, lines 2 through 11)
 
            
 
                 And:
 
            
 
                 Q.  Is there anything about Mr. Aldridge's 
 
                 carriage or posture which impacts upon his 
 
                 pulmonary condition?
 
            
 
                 A.  Yes.
 
            
 
                 Q.  And what would that be?
 
            
 
                 A.  Any kind of deformity or spinal deformity 
 
                 would impair ability to breathe.
 
            
 
            (Dr. Mahadevia deposition, page 46, line 25 through page 47, 
 
            line 6)
 

 
            
 
            Page  13
 
            
 
            
 
            
 
            
 
            
 
                 On redirect examination, Dr. Mahadevia testified it was 
 
            possible that claimant suffered an acute exacerbation or 
 
            flare-up of his bronchial problem by reason of the fall or 
 
            sequelae of the fall in that the episode cleared up within a 
 
            few days of initiation of treatment and claimant thereafter 
 
            had increasingly severe repetitive attacks and that the most 
 
            likely cause for the current repetitive attacks is 
 
            environmental in nature, that is, some irritant claimant is 
 
            encountering in his environment.  However, on 
 
            recross-examination, Dr. Mahadevia agreed that he was 
 
            speaking only of the direct cause of claimant's condition 
 
            and that each attack makes claimant more susceptible to the 
 
            next attack:
 
            
 
                 Q.  And is it your opinion within a reasonable 
 
                 degree of medical and surgical certainty that the 
 
                 fall Mr. Aldridge sustained, in fact, made him 
 
                 more susceptible to the initial attacks that he 
 
                 suffered while under your care?
 
            
 
                 A.  Yes.
 
            
 
                 Q.  And any attacks he may have suffered while -- 
 
                 that were directly caused by that fall, in fact, 
 
                 made him more susceptible to all subsequent 
 
                 attacks?
 
            
 
                 A.  Yes.
 
            
 
                 Q.  In that regard is the fall the man sustained 
 
                 in 1986 a cause of his current condition?
 
            
 
                 A.  As a factor, definite factor.
 
            
 
                 Q.  You differentiate between factors and causes.
 
            
 
                 A.  Cause in my opinion means it is one condition 
 
                 which caused that.  A factor means he may have 
 
                 that before and aggravated it and I'm unable to 
 
                 say whether he had it or he didn't.
 
            
 
                 Q.  Do you have an opinion within a reasonable 
 
                 degree of medical and surgical certainty as to 
 
                 whether or not Mr. Aldridge's condition of 
 
                 ill-being would be better or worse absent the 
 
                 injury he sustained at work in 1986?
 
            
 
                 A.  I would have to guess that it would have been 
 
                 better.
 
            
 
            (Dr. Mahadevia deposition, page 52, line 18 through page 53, 
 
            line 20)
 
            
 
                           applicable law and analysis
 
            
 
                 As has been seen, the parties have stipulated that 
 
            claimant sustained an injury arising out of and in the 
 
            course of his employment and that the injury is causally 
 
            connected to temporary and permanent disability.  The 
 

 
            
 
            Page  14
 
            
 
            
 
            
 
            
 
            fighting issue in this case is the nature and extent of 
 
            claimant's disability.  In particular, defendants are of the 
 
            view that claimant's pulmonary difficulties and particularly 
 
            his current pulmonary status lack a causal relationship to 
 
            the work injury.  Defendants' brief further asserts that the 
 
            chronic nature of claimant's asthmatic or COPD condition is 
 
            such that his recuperation from the back injury has been 
 
            impaired.
 
            
 
                 However, the mere fact that claimant's pulmonary 
 
            difficulties impede recovery from his orthopaedic problems 
 
            (they make surgery high risk and inadvisable) is irrelevant.  
 
            An employer takes an employee subject to any active or 
 
            dormant health impairments.  Ziegler v. United States Gypsum 
 
            Co., 252 Iowa 613, 106 N.W.2d 591 (1960).
 
            
 
                 There is no evidence in this record to controvert the 
 
            finding that claimant's fracture at T-10 was caused by the 
 
            injury.  Dr. Roski has opined that claimant is disabled from 
 
            any active heavy work, including any type of bending, 
 
            lifting or repetitive lifting.  Dr. Roski felt claimant 
 
            incapable of any further full-time employment and not 
 
            rehabilitatable to any kind of significant work level.
 
            
 
                 Claimant has only an eighth grade education and a work 
 
            history limited to hard manual labor as a farm and 
 
            construction worker and bricklayer's helper.  By reason of 
 
            his orthopaedic problems alone claimant is clearly unable to 
 
            return to meaningful employment in any field in which he has 
 
            experience.  His age and educational level make it unlikely 
 
            in the extreme that claimant could be rehabilitated to any 
 
            other meaningful employment, even in the absence of his 
 
            pulmonary problems.  By reason of his back injury alone, 
 
            claimant has sustained a permanent and total industrial 
 
            disability; there was no competent evidence introduced to 
 
            show that there exists any other gainful employment which 
 
            claimant now or at any later time might reasonably be 
 
            expected to enter and carry on successfully.  Diederich v. 
 
            Tri-City R. Co., 219 Iowa 587, 258 N.W. 899 (1935).  The 
 
            Iowa court found that the Diederich claimant suffered a 
 
            compression fracture and was 59 years of age, had worked as 
 
            a streetcar motorman for 30 years, and had little education.  
 
            The court noted that to suppose such a person could become a 
 
            stenographer, lawyer, clerk or bookkeeper was to suppose the 
 
            impossible, for a man of his age with no education was not 
 
            capable of securing or filling any such position.  From the 
 
            standpoint of his ability to go back to work to earn a 
 
            living for himself and his family, Diederich's disability 
 
            was a total disability.  The same observations are true in 
 
            this case.  It is held that claimant has established that he 
 
            is permanently and totally disabled from an industrial 
 
            viewpoint.
 
            
 
                 Yet, claimant's orthopaedic problems do not stand 
 
            alone.  It seems clear that claimant is also totally 
 
            disabled by reason of his pulmonary difficulties.  As if the 
 
            limitations to his ability to function by reason of COPD 
 
            were not severe enough, it is difficult to imagine that 
 
            claimant could ever find an employer willing to accept the 
 
            likelihood that claimant will require repeated 
 

 
            
 
            Page  15
 
            
 
            
 
            
 
            
 
            hospitalizations for pulmonary problems perhaps every six 
 
            weeks or two months for the indefinite future.  But, can 
 
            claimant's present pulmonary status be directly traced to 
 
            the work injury?  Defendants properly point out that the 
 
            answer to this question must be found in the testimony of 
 
            Dr. Mahadevia.  A review of his deposition shows that Dr. 
 
            Mahadevia has employed language which gives comfort to each 
 
            side of this dispute.  Defendants point out that Dr. 
 
            Mahadevia believed that claimant's asthma and COPD 
 
            preexisted his work injury.  They are of the further view 
 
            that even if the work injury aggravated claimant's pulmonary 
 
            condition, the aggravation was temporary in nature and that 
 
            his repetitive subsequent problems are too remote to trace 
 
            to the work injury.
 
            
 
                 The supreme court of Iowa in Almquist v. Shenandoah 
 
            Nurseries, 218 Iowa 724, 731-32, 254 N.W. 35, 38 (1934) 
 
            discussed the definition of personal injury in workers' 
 
            compensation cases as follows:
 
            
 
                 While a personal injury does not include an 
 
                 occupational disease under the Workmen's 
 
                 Compensation Act, yet an injury to the health may 
 
                 be a personal injury.  [Citations omitted.]  
 
                 Likewise a personal injury includes a disease 
 
                 resulting from an injury....The result of changes 
 
                 in the human body incident to the general 
 
                 processes of nature do not amount to a personal 
 
                 injury.  This must follow, even though such 
 
                 natural change may come about because the life has 
 
                 been devoted to labor and hard work.  Such result 
 
                 of those natural changes does not constitute a 
 
                 personal injury even though the same brings about 
 
                 impairment of health or the total or partial 
 
                 incapacity of the functions of the human body. 
 
            
 
                    ....
 
                 
 
                 A personal injury, contemplated by the Workmen's 
 
                 Compensation Law, obviously means an injury to the 
 
                 body, the impairment of health, or a disease, not 
 
                 excluded by the act, which comes about, not through the 
 
                 natural building up and tearing down of the human body, 
 
                 but because of a traumatic or other hurt or damage to 
 
                 the health or body of an employee.  [Citations 
 
                 omitted.]  The injury to the human body here 
 
                 contemplated must be something, whether an accident or 
 
                 not, that acts extraneously to the natural processes of 
 
                 nature, and thereby impairs the health, overcomes, 
 
                 injures, interrupts, or destroys some function of the 
 
                 body, or otherwise damages or injures a part or all of 
 
                 the body.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of May 8, 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 
 

 
            
 
            Page  16
 
            
 
            
 
            
 
            
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903 (Iowa 1974).  However, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Id. at 907.  Further, the weight to be given to such 
 
            an opinion is for the finder of fact, and that may be 
 
            affected by the completeness of the premise given the expert 
 
            and other surrounding circumstances.  Bodish, 257 Iowa 516, 
 
            133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
            Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
            
 
                 While a claimant is not entitled to compensation for 
 
            the results of a preexisting injury or disease, the mere 
 
            existence at the time of a subsequent injury is not a 
 
            defense.  Rose v. John Deere Ottumwa Works, 247 Iowa 900, 
 
            908, 76 N.W.2d 756, 760-61 (1956).  If the claimant had a 
 
            preexisting condition or disability that is aggravated, 
 
            accelerated, worsened or lighted up so that it results in 
 
            disability, claimant is entitled to recover.  Nicks v. 
 
            Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, 815 
 
            (1962).
 
            
 
                 Although claimant has had surgery for removal of nasal 
 
            polyps on three occasions and has suffered one acute 
 
            incident of respiratory distress when he inhaled chlorine, 
 
            the record is clear that he suffered no industrial 
 
            disability by reason of asthma or COPD prior to the work 
 
            injury.  His condition may have preexisted the injury, but 
 
            was asymptomatic.  During the year prior to the injury, 
 
            claimant missed zero days of work.  Following the injury, he 
 
            has been totally disabled from any sort of remunerative 
 
            employment by reason of his pulmonary condition, regardless 
 
            of his orthopaedic status.  Dr. Mahadevia was clearly of the 
 
            view that the work injury aggravated the preexisting 
 
            condition.  He further points out that each subsequent 
 
            attack has made claimant more susceptible to the next.  He 
 
            specifically opined that claimant's fall is a cause of his 
 
            current condition and that claimant's current condition 
 
            would be better at the present time absent the work injury.
 
            
 
                 Where a work injury has been established, the employer 
 
            is liable for all consequences that naturally and 
 
            proximately flow from the accident.  Oldham v. Scofield & 
 
            Welch, 222 Iowa 764, 266 N.W. 480 (1936).  That is to say, 
 
            naturally occurring sequelae of an original injury are 
 
            compensable.  For example, a bathtub injury did not break 
 
            the chain of causation in a case where claimant was actually 
 
            in the tub by reason of the original work injury, Rust v. 
 
            Quaker Oats, 2-1 Iowa Industrial Commissioner Decisions 475 
 
            (1985).
 
            
 
                 In the present case, it appears that the work injury 
 

 
            
 
            Page  17
 
            
 
            
 
            
 
            
 
            that aggravated and lit up claimant's preexisting condition 
 
            is not the sole proximate cause of claimant's repetitive 
 
            subsequent attacks, but is one substantial proximate cause.  
 
            The subsequent attacks and claimant's current pulmonary 
 
            status flow directly and naturally from the original 
 
            aggravation and lighting up of claimant's chronic 
 
            obstructive pulmonary disease.  It is therefore held that 
 
            claimant has met his burden of proof in establishing that 
 
            his current pulmonary condition is causally related to the 
 
            work injury.  There can be little doubt but that claimant's 
 
            current pulmonary condition independently disables him from 
 
            gainful employment on a total and permanent basis.
 
            
 
                 Because it is found that claimant has sustained a total 
 
            and permanent disability, it is unnecessary to consider the 
 
            issue of temporary total disability or healing period.
 
            
 
                 Still at issue is claimant's entitlement to medical 
 
            benefits under Iowa Code section 85.27.  The stipulation 
 
            entered into by the parties at hearing was that if the 
 
            commissioner were to find claimant's pulmonary treatment to 
 
            be causally related to the industrial accident and a source 
 
            of compensable disability, all such medical services would 
 
            be compensated by defendants, even though actual bills were 
 
            not submitted into evidence.  As it is found that claimant's 
 
            pulmonary condition is attributable to the work injury, 
 
            defendants shall bear the responsibility for payment of 
 
            those medical bills.
 
            
 
                                 findings of fact
 
            
 
                 THEREFORE, based on the evidence presented, the 
 
            following ultimate facts are found:
 
            
 
                 1.  As stipulated, claimant sustained an injury arising 
 
            out of and in the course of his employment on May 8, 1986.
 
            
 
                 2.  As stipulated, the appropriate rate of weekly 
 
            compensation is $318.18.
 
            
 
                 3.  By reason of the work injury, claimant sustained a 
 
            fracture to the tenth thoracic vertebra which could not be 
 
            treated surgically by reason of claimant's serious pulmonary 
 
            condition of chronic obstructive pulmonary disease.
 
            
 
                 4.  Claimant's treating physician with respect to the 
 
            thoracic fracture has restricted claimant against any kind 
 
            of lifting or strenuous activity including any type of 
 
            bending, lifting or repetitive lifting.  That physician also 
 
            found that claimant had sustained a functional disability of 
 
            20 percent of the whole person under American Medical 
 
            Association guidelines.
 
            
 
                 5.  Claimant was also required to employ a back brace 
 
            on a permanent basis.  The compression fracture further 
 
            compromises claimant's pulmonary problems and vice versa.
 
            
 
                 6.  By reason of the work injury, claimant also 
 
            aggravated and lit up a preexisting condition of chronic 
 
            obstructive pulmonary disease.  Since the injury, claimant 
 

 
            
 
            Page  18
 
            
 
            
 
            
 
            
 
            has suffered repetitive pulmonary attacks which have cause 
 
            regular hospitalizations every 6-8 weeks since, except for 
 
            several months prior to hearing.  Claimant's primary 
 
            pulmonary physician finds him disabled from any gainful 
 
            employment by reason of his pulmonary disease.
 
            
 
                 7.  Claimant is currently and for the foreseeable 
 
            future disabled from any meaningful employment in any 
 
            recognized and regular field of endeavor by reason, 
 
            independently, of his thoracic fracture and by his chronic 
 
            obstructive pulmonary disease.
 
            
 
                                conclusion of law
 
            
 
                 WHEREFORE, based on the principles of law previously 
 
            cited, the following conclusion of law is made:
 
            
 
                 1.  Claimant is permanently and totally disabled by 
 
            reason of his work injury of May 8, 1986.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Defendants are to pay unto claimant three hundred 
 
            eighteen and 18/100 dollars ($318.18) per week as permanent 
 
            total disability compensation from May 8, 1986 and during 
 
            such time as claimant remains totally disabled.
 
            
 
                 Defendants shall be entitled to credit for all weekly 
 
            benefit payments made on a voluntary basis.
 
            
 
                 As per the stipulation of the parties, defendants shall 
 
            pay all outstanding medical bills attributable either to 
 
            claimant's orthopaedic or to his pulmonary condition.
 
            
 
                 The costs of this action shall be assessed to 
 
            defendants pursuant to Division of Industrial Services Rule 
 
            343-4.33.
 
            
 
                 Defendants shall file claim activity reports as 
 
            requested by this agency pursuant to Division of Industrial 
 
            Services Rule 343-3.1.
 
            
 
                 Signed and filed this ______ day of ____________, 1990.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          DAVID RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 

 
            
 
            Page  19
 
            
 
            
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr. William G. Gillies, Jr.
 
            Mr. Christopher J. Klockau
 
            Attorneys at Law
 
            1808 Third Avenue
 
            P.O. Box 3460
 
            Rock Island, Illinois  61204-3460
 
            
 
            Mr. Larry L. Shepler
 
            Attorney at Law
 
            Suite 102, Executive Square
 
            400 Main Street
 
            Davenport, Iowa  52801
 
            
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               1108.50, 1804
 
                                               Filed April 27, 1990
 
                                               DAVID RASEY
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            JUNIOR ALDRIDGE,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 822896
 
            J. P. CULLEN & SONS, INC.,    :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            WAUSAU INSURANCE COMPANIES,   :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
            1108.50, 1804
 
            Stipulated work injury caused thoracic compression fracture 
 
            and aggravated and lit up preexisting but asymptomatic 
 
            chronic obstructive pulmonary disease.  Problems 
 
            intertwined, as surgery was inadvisable due to COPD, and 
 
            COPD was worsened by orthopaedic problems.  Subsequent 
 
            repetitive attacks of COPD were found causally related as 
 
            sequelae of original injury.  Claimant found totally and 
 
            permanently disabled by orthopaedic and pulmonary problems 
 
            independently.
 
            
 
 
         
 
         Page   1
 
         
 
         
 
                            
 
         
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         ____________________________________________________________
 
                   
 
         SHERRY MEARS,  
 
                   
 
              Claimant, 
 
                   
 
         vs.       
 
                                            File No. 823071
 
         ALDI BENNER (ALDI, INC.),     
 
                                              A P P E A L
 
              Employer, 
 
                                           D E C I S I O N
 
         and       
 
                   
 
         CNA INSURANCE COMPANIES, 
 
                   
 
              Insurance Carrier,  
 
              Defendants.    
 
         ___________________________________________________________
 
         The record, including the transcript of the hearing before the 
 
         deputy and all exhibits admitted into the record, has been 
 
         reviewed de novo on appeal.  The decision of the deputy filed 
 
         October 9, 1991 is affirmed and is adopted as the final agency 
 
         action in this case, with the following additional analysis:
 
         A contingent fee for attorney's services is not applicable to 
 
         medical benefits obtained if the action also sought disability 
 
         benefits.  Toalson v. Purolator Courier Corp., Decision on 
 
         Attorney Fees, February 27, 1989, file number 808332; Webb v. 
 
         Lovejoy Construction Company, Ruling on Rehearing, December 16, 
 
         1992, file number 474988.
 
         Attorney Craig Warner shall pay the costs of the appeal, 
 
         including the preparation of the hearing transcript.
 
         
 
         Signed and filed this ____ day of April, 1993.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                      ________________________________
 
                                                BYRON K. ORTON
 
                                            INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Craig D. Warner
 

 
         
 
         Page   2
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         Attorney at Law
 
         321 North Third Street
 
         Burlington, Iowa  52601
 
         
 
         Mr. D. Raymond Walton
 
         Attorney at Law
 
         3370 Westridge Drive
 
         Waterloo, Iowa  50701
 
         
 
         Mr. Elliott R. McDonald, Jr.
 
         Attorney at Law
 
         P O Box 2746
 
         Davenport, Iowa  52809
 
         
 
 
            
 
 
 
          
 
 
 
 
 
                                               9999
 
                                               Filed April 22, 1993
 
                                               BYRON K. ORTON
 
            
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            SHERRY MEARS,  
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                                 File No. 823071
 
            ALDI BENNER (ALDI, INC.),     
 
                                                  A P P E A L
 
                 Employer, 
 
                                                 D E C I S I O N
 
            and       
 
                      
 
            CNA INSURANCE COMPANIES, 
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            
 
            
 
            9999
 
            
 
            Summary affirmance of deputy's decision filed October 9, 
 
            1991 with short additional analysis.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         SHERRY MEARS,
 
         
 
              Claimant,                                File No. 823071
 
         
 
         vs.                                        A R B I T R A T I O N
 
         
 
         ALDI BENNER, (ALDI, INC.),                    D E C I S I O N
 
         
 
              Employer,                                   F I L E D
 
         
 
         and                                             APR 27 1989
 
         
 
         CNA INSURANCE COMPANIES,                    INDUSTRIAL SERVICES
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Sherry Mears 
 
         against Aldi Benner, also known as Aldi, Inc., her former 
 
         employer, and CNA Insurance, the employer's insurance carrier.  
 
         The case was heard and fully submitted at Burlington, Iowa, on 
 
         July 25, 1988. The record in the proceeding consists of testimony 
 
         from Sherry Mears, Jim Dumse, Sandra Powell and Mary Ann Buck.  
 
         The record also contains claimant's exhibits A through J.
 
         
 
                                      ISSUES
 
         
 
              Claimant seeks compensation for permanent disability and 
 
         alleges to be totally disabled.  Claimant also seeks to recover 
 
         medical benefits under Code section 85.27.  It was stipulated 
 
         that claimant sustained an injury which arose out of and in the 
 
         course of her employment and that her entitlement to healing 
 
         period ran from November 18, 1985 through January 7, 1987.  It 
 
         was further stipulated that claimant had been paid 139 weeks of 
 
         compensation for permanent disability effective as of July 18, 
 
         1988 and that the correct rate of compensation is $173.30 per 
 
         week.  Claimant relies upon the odd-lot doctrine to assert her 
 
         claim for total disability.
 
         
 
                            SUMMARY OF EVIDENCE
 
         
 
              The following is a summary of evidence presented in this 
 
         casE.  Of all the evidence received at the hearing, only that 
 
         considered most pertinent to this decision is discussed. 
 
         Conclusions about what the evidence showed are inevitable with 
 
         any summarization.  The conclusions in the following summary 
 
         should be considered to be preliminary findings of fact.
 
         
 
              Sherry Mears is a 36-year-old married lady who lives at West 
 
                                                
 
                                                         
 
         Burlington, Iowa, with her two children whose ages are 16 and 13. 
 
         She is currently separated from her husband.
 
         
 
              Mears is a 1971 high school graduate.  She has completed a 
 
         drafting course at Southeast Community College and a course in 
 
         shorthand.  Claimant has been employed as a dental assistant and 
 
         also as a receptionist.  Claimant was employed by General 
 
         Electric as a draftsman for five years where she earned $6.00 per 
 
         hour, the highest rate of earnings that she enjoyed from any of 
 
         the positions she held prior to commencing work with Aldi 
 
         Benner.
 
         
 
              Sherry Mears commenced work with Aldi Benner on April 19, 
 
         1985.  She worked as a warehouse selector, a job which consisted 
 
         of loading boxes of groceries onto pallets on a forklift-type 
 
         piece of equipment referred to as a "tugger."  She would move 
 
         about the warehouse filling orders and placing the boxes onto the 
 
         "tugger" pallet.  When it was filled, she would then move to the 
 
         loading dock where other employees would load the boxes into 
 
         semis.  Claimant stated that her work standard was handling 280 
 
         boxes per hour.  Claimant testified that the work was hard, but 
 
         that she liked it.  She acknowledged experiencing occasional 
 
         aches, pain and soreness.
 
         
 
              Claimant testified that, on November 18, 1985, she had been 
 
         at work approximately 30 minutes when she bent over to pick up a 
 
         box and something in her back snapped.  Claimant stated that she 
 
         felt a lot of pain in the left side of her low back.  Claimant 
 
         stated that she tried to resume working, but her back started 
 
         hurting more.  She reported the incident to her supervisor and 
 
         was sent to the Burlington Medical Center Emergency Room where 
 
         she was examined, treated with medications and advised to stay 
 
         off work for two or three days to see what happened (exhibit B, 
 
         pages 1-3).
 
         
 
              Claimant testified that she was miserable and then went to 
 
         her family physicians in New London, Iowa, Harry M. Readinger, 
 
         M.D., and W. R. Vaughan, M.D.  She was again given medication and 
 
         advised to use a heating pad.  Her symptoms did not improve.
 
         
 
              In January, 1986, claimant had been seen by Koert Smith, 
 
         M.D., an orthopaedic surgeon in Burlington, Iowa.  Dr. Smith 
 
         noted that claimant had a spina bifida occulta at the S1 level of 
 
         her spine.  He indicated that claimant had suffered a lumbar 
 
         strain, that she should recover in two to four weeks and should 
 
         be able to return to her prior employment without restriction and 
 
         without having any permanent impairment (exhibit C).
 
         
 
              Claimant was referred to Richard Neiman, M.D., a neurologist 
 
         in Iowa City, Iowa.  After conservative treatment was again 
 
         unsuccessful, claimant underwent a myelogram and CT scan on April 
 
         17, 1986 which showed her to have congenital abnormalities at the 
 
         L5-S1 level of her spine, a minimally bulging annulus at the L4-5 
 
         level and stress arthrosis of the facet joints (exhibit E, page 
 
         7).  Approximately a month later, claimant was involved in an 
 
                                                
 
                                                         
 
         automobile accident (exhibit E, page 9).
 
         
 
              Claimant was evaluated by E. A. Dykstra, M.D., an Iowa City 
 
         orthopaedic surgeon.  Dr. Dykstra felt that claimant's primary 
 
         problem was degenerative disc disease with central bulging at the 
 
         L4-5 and L5-S1 levels and the spina bifida occulta.  Dr. Dykstra 
 
         felt that claimant would be unable to return to a job which 
 
         involved heavy lifting.  He did not recommend a surgical fusion 
 
         (exhibit F).
 
         
 
              Claimant was evaluated at the Institute for Low Back Care in 
 
         Minneapolis, Minnesota, in November, 1986.  The report issued 
 
         following the examination indicates that the claimant sustained a 
 
         significant musculoligamentous strain and had a mechanical low 
 
         back problem and injured facet joints.  Alexander Lifson, M.D., 
 
         the author of the report, stated that he did not believe claimant 
 
         was a candidate for a lumbosacral fusion (exhibit G).
 
         
 
              Dr. Neiman became claimant's primary treating physician.  On 
 
         January 9, 1987, he indicated that her recovery seemed to have 
 
         plateaued and he rated her as having a 20% permanent partial 
 
         impairment of the body as a whole due to her low back condition 
 
         (exhibit E, page 22; exhibit A, page 26).  Dr. Neiman explained 
 
         that claimant suffers from gross instability in her lower back 
 
         which is a result of a congenital malformation being aggravated 
 
         by time and probably by the lifting which she performed at her 
 
         place of employment.  He stated that the aggravation of the 
 
         preexisting condition was permanent (exhibit A, pages 5-6, 10-12 
 
         and 35).  Dr. Neiman indicated that the automobile accident 
 
         seemed to worsen claimant's low back, but that it was not a major 
 
         aggravating factor affecting her back (exhibit A, pages 16, 17 
 
         and 27; exhibit E, page 14).
 
         
 
              Dr. Neiman indicated that, during his course of treatment, 
 
         the main reason for seeing claimant was her low back and that 
 
         whenever he saw claimant for her low back, he also looked at her 
 
         neck (exhibit E, page 11; exhibit A, page 18).
 
         
 
              Dr. Neiman advised that claimant restrict her activities to 
 
         lifting of no more than 15 pounds and that she also avoid 
 
         flexion, extension, prolonged sitting or standing (exhibit A, 
 
         page 22).  He expected that claimant would have difficulty 
 
         performing housework or performing activities which involved 
 
         rotation of the body (exhibit A, pages 30 and 31).  He felt that 
 
         she should not return to perform heavy lifting or other vigorous 
 
         work, but that she could possibly work as a secretary if the 
 
         condition of her neck had resolved (exhibit E, page 14; exhibit 
 
         A, pages 31 and 32).
 
         
 
              Dr. Neiman felt that fusion surgery might improve claimant's 
 
         symptoms by removing the instability, however the orthopaedic 
 
         surgeons with whom he had consulted were not recommending surgery 
 
         (exhibit A, pages 14, 29 and 39-41; exhibit E, page 28; exhibit 
 
         F; exhibit G).
 
         
 
                                                
 
                                                         
 
              Dr. Neiman indicated that the ongoing litigation process was 
 
         probably aggravating claimant's symptoms (exhibit E, pages 
 
         29-31). He stated that claimant's headaches and arm complaints 
 
         were due to her neck condition which had resulted from the 
 
         automobile accident and were not related to the low back injury 
 
         (exhibit A, pages 21 and 28).
 
         
 
              Dr. Neiman strongly recommended swimming as a preferred form 
 
         of therapy for claimant, but he also indicated that with a 
 
         problem such as claimant's, therapy would not have made much 
 
         difference (exhibit A, pages 20 and 45).
 
         
 
              Dr. Neiman explained that the instability problem in 
 
         claimant's low back is such that whenever she bends forward the 
 
         vertebral body shifts forward, pinches off the nerve root and 
 
         causes pain (exhibit A, pages 36 and 37).  He indicated that the 
 
         mechanical instability appeared to have damaged the right L5 
 
         nerve root (exhibit A, page 42).
 
         
 
              Exhibit D contains the notes of claimant's treatment 
 
         obtained from her family physicians starting in 1971.  A note of 
 
         October 18, 1985 reports that claimant had pain in her hips and 
 
         worked lifting boxes all day (exhibit D, page 4).  None of the 
 
         earlier notes make any reference to back complaints.
 
         
 
                            
 
                                                         
 
              Jim Dumse, claimant's brother, testified that prior to the 
 
         time of claimant's injury, she was very active and engaged in 
 
         activities such as exercising and water skiing, but that since 
 
         the injury, she does little activity other than swimming.  Dumse 
 
         stated that claimant got along better with her children prior to 
 
         the injury and that she is now short-tempered.  Dumse confirmed 
 
         that the death of their mother, the automobile accident and the 
 
         ongoing litigation is stressful to claimant.
 
         
 
              Sandra Powell, a long-time friend of claimant, testified 
 
         that during the year before claimant's work accident, she and 
 
         claimant exercised at the "Y" including nautilus and running on 
 
         the track. Powell stated that claimant had been the more active 
 
         of the two of them prior to her injury, but that now claimant 
 
         cannot do the things that she could before the injury.  Powell 
 
         stated that claimant is irritable, but that now swimming is the 
 
         only exercise in which claimant engages.  Powell stated that 
 
         claimant is well-motivated and is not afraid of work.  To 
 
         Powell's knowledge, claimant had been steadily employed prior to 
 
         the work injury.
 
         
 
              Mary Ann Buck, a rehabilitation specialist for Intracorp, 
 
         testified that she was retained to work with claimant starting in 
 
         August, 1986.  Buck stated that she observed the work at the Aldi 
 
         warehouse and met with Dr. Neiman.  Buck stated that she phoned 
 
         and spoke with claimant's husband and daughter and that 
 
         claimant's husband advised Buck that she should not talk with the 
 
         daughter. Buck stated that she was advised that claimant was 
 
         stressed by her involvement in the case.
 
         
 
              Buck testified that a "Y" membership was arranged for 
 
         claimant.  She stated that the Kline Hospital facility is part of 
 
         Burlington Medical Center is for residents and is not open to the 
 
         general public or for people like claimant.
 
         
 
              Buck stated that her last contact with this case was in 
 
         January, 1987 when she met with Dr. Neiman and was advised that 
 
         claimant was not motivated to help herself and that therapy had 
 
         been discontinued.  Dr. Neiman did not recall telling Buck that 
 
         claimant was not motivated to help herself improve (exhibit A, 
 
         page 44).  Claimant testified that she had arranged to perform 
 
         her swimming therapy at the Kline pool because the cold water in 
 
         the pool at the "Y" aggravated her back.  Claimant testified that 
 
         an older couple managed the pool and that the pool was available 
 
         two times per week for individuals who had sustained injuries.
 
         
 
                          APPLICABLE LAW AND ANALYSIS
 
         
 
              As claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
         593, 258 N.W. 899, 902 (1935) as follows:  "It is therefore plain 
 
         that the legislature intended the term 'disability' to mean 
 
         'industrial disability' or loss of earning capacity and not a 
 
         mere 'functional disability' to be computed in the terms of 
 
                                                
 
                                                         
 
         percentages of the total physical and mental ability of a normal 
 
         man."'
 
         
 
              Functional impairment is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 1121 125 N.W.2d 251, 
 
         257 (1963).
 
         
 
              Industrial disability or loss of earning capacity is a 
 
         concept that is quite similar to impairment of earning capacity, 
 
         an element of damage in a tort case.  Impairment of physical 
 
         capacity creates an inference of lessened earning capacity.  The 
 
         basic element to be determined, however, is the reduction in 
 
         value of the general earning capacity of the person, rather than 
 
         the loss of wages or earnings in a specific occupation.  
 
         Post-injury earnings create a presumption of earning capacity.  
 
         The earnings are not synonymous with earning capacity and the 
 
         presumption may be rebutted by evidence showing the earnings to 
 
         be an unreliable indicator.  Carradus v. Lange, 203 N.W.2d 565 
 
         (Iowa 1973); Holmquist v. Volkswagon of America, Inc., 261 N.W.2d 
 
         516 (Iowa App. 1977) A.L.R.3d 143; Michael v. Harrison County, 
 
         34th Biennial Report, 218 (1979): 2 Larson Workmen's Compensation 
 
         Law, sections 57.21 and 57.31.
 
         
 
              The commissioner has ruled that a person must make bona fide 
 
         job seeking efforts in order to benefit from the burden shifting 
 
         provisions of the odd-lot doctrine.  Collins v. Friendship 
 
         Village, Inc., file number 679258, (App. Decn., October 31, 
 
         1988); Emshoff v. Petroleum Transportation Services, file umber 
 
         753723, (App. Decn., March 31, 1987).  A worker is deemed totally 
 
         disabled when that worker has insufficient residual earning 
 
         capacity to be self-supporting.  Guyton v. Irving Jensen Co., 373 
 
         N.W.2d 101, 103 (Iowa 1985); McSpadden v. Big Ben Coal Co., 282 
 
         N.W.2d 181, 182 (Iowa 1980); Diederich v. Tri-City Railway, 219 
 
         Iowa 587, 594, 258 N.W. 899, 902 (1935).
 
         
 
              From the evidence introduced, it appears that the vocational 
 
         consultant performed no meaningful activities aimed toward 
 
         returning claimant to gainful employment.  There is no evidence 
 
         that Buck performed any testing to determine claimant's skills 
 
         and aptitudes, made a search for available jobs or investigated 
 
         areas of retraining.  It appears that Buck primarily functioned 
 
         to monitor claimant's physical therapy activities.  Buck 
 
         apparently arranged a "Y" membership, but did not determine 
 
         whether the facilities at the "Y" were suitable.  She did, 
 
         however, apparently put forth considerable effort in attempting 
 
         to refute claimant's statements of having performed swimming 
 
         therapy at the Kline pool where the water temperature was warm 
 
         enough that it did not aggravate her back.  Buck's appearance and 
 
         demeanor were observed as she testified at hearing.  She is 
 
         perceived to have functioned primarily as an advocate for the 
 
         defendants, particularly when her assessment of Dr. Neiman's 
 
                                                
 
                                                         
 
         statements regarding claimant's motivation is considered in 
 
         comparison to Dr. Neiman's own assessment.
 
         
 
              Dr. Neiman's assessment of claimant's condition and the 
 
         cause of the condition as having been an aggravation of a 
 
         preexisting condition are accepted as correct.  His statement 
 
         that the aggravation is permanent is likewise accepted as 
 
         correct.  Dr. Neiman's restrictions are adopted.  All the 
 
         physicians, except Dr. Smith, indicated that claimant could not 
 
         return to the type of employment she had performed at Aldi 
 
         Benner.  Dr. Neiman also indicated, however, that she could 
 
         possibly work as a secretary. Claimant has work experience as a 
 
         receptionist.  She has problems, however, with prolonged sitting.  
 
         Her limitations would certainly restrict her from certain 
 
         secretarial positions, but there are many secretarial positions 
 
         which do permit a wide latitude with regard to standing, sitting 
 
         or moving about.  Accordingly, it is determined that claimant is 
 
         not totally disabled.  None of the physicians have indicated that 
 
         claimant is totally incapable of engaging in gainful employment.
 
         
 
              Claimant's physical capabilities are, however, quite limited 
 
         in comparison to her physical capabilities as they existed prior 
 
         to the work injury of November 18, 1985.  Clearly, claimant's 
 
         preexisting congenital condition may have predisposed her to 
 
         injury and made her more likely to be injured, but prior to the 
 
         time of the injury, she was not functionally impaired.  Her 
 
         physical capabilities are clearly quite different now from what 
 
         they were before the injury occurred.  Having observed claimant's 
 
         appearance and demeanor as she testified and having considered it 
 
         in light of the medical evidence in the record, her complaints 
 
         are accepted as being correct.  There are many occupations which 
 
         she was formerly capable of performing which are now beyond her 
 
         capabilities.  She has clearly sustained a considerable loss of 
 
         earning capacity by virtue of her loss of access to a number of 
 
         fields of employment and also by the reduction of wage levels as 
 
         is evidenced when the wage level of her earnings at Aldi is 
 
         compared to the wage levels of which she testified when she was 
 
         in some of her prior positions.  When all the appropriate factors 
 
         of industrial disability are considered, it is determined that 
 
         claimant sustained a 50% permanent partial disability as a result 
 
         of the injuries that occurred on November 18, 1985.
 
         
 
              Claimant testified that she traveled to Cedar Rapids for an 
 
         MRI on April 6, 1987 and to Iowa City on June 10, 1987 for her 
 
         back and has not been reimbursed for those travel expenses. 
 
         Exhibit H contains the prescriptions for which claimant seeks 
 
         reimbursement.  A review of the medication prescribed, the 
 
         issuing physician and comparison with the notes shows that the 
 
         Percocet, Xanax, Tylenol III and Feldene were all used in 
 
         treating claimant's low back.  Accordingly, they are the 
 
         responsibility of the defendants.  The charges for Soma and 
 
         Diazepam are not shown by the records to have been related to 
 
         claimant's low back. Accordingly, the amount of prescription 
 
         expense claimant may recover is $176.34.  Claimant is also 
 
         entitled to recover transportation expense for her travels to 
 
                                                
 
                                                         
 
         Iowa City in April, 1987 and June, 1988.  Reference to an 
 
         official Iowa highway map shows the distance from Burlington to 
 
         Iowa City to be 74 miles each way. Accordingly, two round trips 
 
         would be 296 miles which at $.21 per mile entitles claimant to 
 
         receive $62.16.
 
         
 
                              FINDINGS OF FACT
 
         
 
              1.  The assessment of claimant's case as made by Dr. Neiman 
 
         is accepted as being correct.
 
         
 
              2.  Claimant's description of her symptoms and complaints is 
 
         accepted as being correct.
 
         
 
              3.  The injury claimant sustained on November 18, 1985 was 
 
         an aggravation of a preexisting latent condition which had 
 
         formerly been asymptomatic.
 
         
 
              4.  The aggravation is permanent.
 
         
 
              5.  The injury claimant sustained on November 18, 1985 was a 
 
         substantial factor in producing the permanent disability with 
 
         which she is currently afflicted.
 
         
 
              6.  Claimant's medical expenses as shown in exhibit H, 
 
         except for the prescriptions for Soma and Diazepan, were 
 
         prescribed for treatment of claimant's low back condition.  The 
 
         reasonable charges for those prescriptions total $176.34.
 
         
 
              7.  Claimant traveled 296 miles obtaining medical treatment 
 
         for her low back injury for which she has not been compensated.
 
         
 
              8.  Sherry Mears sustained a 50% loss of her earning 
 
 
 
                              
 
                                                         
 
         capacity as a result of the injuries she sustained on November 
 
         18, 1985.
 
         
 
                            CONCLUSIONS OF LAW
 
         
 
              1.  This agency has jurisdiction of the subject matter of 
 
         this proceeding and its parties.
 
         
 
              2.  The injury claimant sustained to her low back on 
 
         November 18, 1985 arose out of and in the course of employment 
 
         with Aldi Benner, also known as Aldi, Inc.
 
         
 
              3.  The injury of November 18, 1985 was a proximate cause of 
 
         the physical disability which currently afflicts claimant, the 
 
         prescriptions she obtained as shown in exhibit H in the amount of 
 
         $176.34 and the travel of 296 miles for medical treatment which 
 
         entitles her to receive $62.16 under the provisions of Code 
 
         section 85.27.
 
         
 
              4.  Claimant has sustained a 50% permanent partial 
 
         disability of the body as a whole which under the provisions of 
 
         Code section 85.34(2)(u) entitles her to receive 250 weeks of 
 
         compensation for permanent partial disability.
 
         
 
                                  ORDER
 
         
 
              IT IS THEREFORE ORDERED that defendants pay claimant two 
 
         hundred fifty (250) weeks of compensation for permanent partial 
 
         disability at the stipulated rate of one hundred seventy-three 
 
         and 30/100 dollars ($173.30) per week payable commencing January 
 
         10, 1987.  Defendants are entitled to credit for all amounts of 
 
         permanent partial disability compensation previously paid and 
 
         shall pay any unpaid past due amounts in a lump sum together with 
 
         interest pursuant to Code section 85.30.
 
         
 
              IT IS FURTHER ORDERED that defendants pay claimant one 
 
         hundred seventy-six and 34/100 dollars ($176.34) as reimbursement 
 
         for prescription medications and sixty-two and 16/100 dollars 
 
         ($62.16) for transportation expenses under the provisions of Iowa 
 
         Code section 85.27.
 
         
 
              IT IS FURTHER ORDERED that defendants pay the costs of this 
 
         action pursuant to Division of Industrial Services Rule 343-4.33 
 
         including forty and 00/100 dollars ($40.00) for the transcript of 
 
         the deposition of Dr. Neiman
 
         
 
              IT IS FURTHER ORDERED that defendants file Claim Activity 
 
         Reports as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1
 
         
 
              Signed and filed this 27th day of April, 1989.
 
         
 
         
 
         
 
         
 
                                                
 
                                                         
 
         
 
         
 
                                            MICHAEL G. TRIER
 
                                            DEPUTY INDUSTRIAL 
 
                                            COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. D. Raymond Walton
 
         Attorney at Law
 
         3370 Westridge Drive
 
         Waterloo, Iowa  50701
 
         
 
         Mr. Elliott R. McDonald, Jr.
 
         Attorney at Law
 
         P.O. Box 2746
 
         Davenport, Iowa  52809
 
         
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            SHERRY MEARS,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 823071
 
            ALDI BENNER (ALDI, INC.),     :
 
                                          :          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
 
            CNA INSURANCE COMPANIES,      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                              STATEMENT OF THE CASE
 
 
 
            
 
 
 
                 This is a proceeding in review-reopening upon the 
 
            petition of claimant which was filed on March 26, 1990.  
 
            Claimant suffered an injury arising out of and in the course 
 
            of her employment on November 18, 1985.  After she filed a 
 
            petition seeking arbitration, a hearing was held on July 25, 
 
            1988.  A decision was filed on April 27, 1989.  A ruling on 
 
            the application for rehearing was filed on May 16, 1989.  
 
            Claimant was found to have sustained a 50 percent permanent 
 
            partial disability.  Her rate was established as $173.30 per 
 
            week.
 
            
 
                 The hearing on the petition for review-reopening was 
 
            thereafter held in Burlington, Iowa on April 2, 1991.  The 
 
            additional record consisted of claimant's exhibits 1-22, 
 
            defendants' exhibits A-G, and attorney lien seeker's exhibit 
 
            number 1.
 
            
 
                                      issues
 
 
 
            
 
 
 
                 The issues to be determined are:  1)  whether claimant 
 
            has experienced a change of condition since the prior 
 
            arbitration hearing and, if so, the extent of her current 
 
            industrial disability; 2) whether certain medical bills are 
 
            covered by section 85.27 of the Iowa Code; and, 3) whether 
 
            certain attorneys' fees are due to claimant's former 
 
            attorney.
 
            
 
                 This deputy adopts and incorporates by reference the 
 
            decision of Deputy Industrial Commissioner Mike Trier which 
 
            was filed on April 27, 1989.  In that decision, Deputy Trier 
 
            awarded claimant a 50 percent permanent partial disability.
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                                 findings of fact
 
 
 
            
 
 
 
                 The deputy, having heard the testimony and considered 
 
            all the evidence, finds:
 
            
 
                 Claimant has not returned to any type of gainful 
 
            employment since the date of her arbitration hearing.  At 
 
            the review-reopening hearing, she appeared using crutches to 
 
            assist her with walking.  Claimant testified she could not 
 
            step on her right foot without pain and she experienced 
 
            numbness in her right leg.  Claimant alternated standing and 
 
            sitting throughout the duration of the hearing.
 
            
 
                 Claimant testified she had been wearing a body cast 
 
            from beneath her breasts down to her knees.  She stated the 
 
            purpose of the cast was to stabilize her spine, but that the 
 
            cast did not aid her and that on March 27, 1991, she had her 
 
            brother slit the cast open and remove it from her body.  
 
            Claimant testified she could not walk without limping.  She 
 
            also testified she experienced back problems on a daily 
 
            basis and that she took the following medications for her 
 
            back pain:  2-3 Percodan per day and 3 Xanax per day.
 
            
 
                 Claimant testified she is depressed because of her back 
 
            pain and because of other factors unrelated to her work 
 
            injury.  Claimant attempted counseling on a minimal basis.  
 
            She also attempted to take an antidepressant but it upset 
 
            her stomach and claimant discontinued its use.  Claimant 
 
            also discontinued all counseling.
 
            
 
                 Richard F. Neiman, M. D.,  claimant's treating 
 
            physician, testified that as of March 29, 1990, claimant was 
 
            about the same as before as far as her level of back 
 
            dysfunction was concerned (Exhibit F, page 256, lines 20-23, 
 
            page 257, lines 1-7.  Dr. Neiman, in his deposition of March 
 
            25, 1991, rated claimant as still having a 20 percent 
 
            functional impairment.  This was the same functional 
 
            impairment rating he had assessed prior to claimant's 
 
            arbitration hearing.  Dr. Neiman opined claimant was unable 
 
            to return to work as of March of 1991.  However, he indi
 
            cated his opinion was subject to change given the success of 
 
            the body cast he had prescribed for claimant.
 
            
 
                 Claimant testified at the review-reopening hearing 
 
            there were no jobs she could perform.  She stated she could 
 
            not work as a dental assistant or a drafts person, even 
 
            though she had previous experience in those occupations.  
 
            Claimant made no attempts to seek employment.  She did not 
 
            seek any retraining nor did she participate in vocational 
 
            rehabilitation.  Defendants offered no rehabilitation to 
 
            claimant.
 
            
 
                                conclusions of law
 
 
 
            
 
 
 
                 The case law relating to review-reopening proceedings 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            is rather extensive.
 
            
 
                 The opinion of the Iowa Supreme Court in Stice v. 
 
            Consolidated Ind. Coal Co., 228 Iowa 1031, 1035, 291 N.W. 
 
            452 (1940) stated "that the modification of...[an] award 
 
            would depend upon a change in the condition of the employee 
 
            since the award was made."  The court cited the law 
 
            applicable at that time which was "if on such review the 
 
            commissioner finds the condition of the employee warrants 
 
            such action, he may end, diminish, or increase the 
 
            compensation so awarded" and stated at 1038:
 
            
 
                 That the decision on review depends upon the 
 
                 condition of the employee, which is found to exist 
 
                 subsequent to the date of the award being 
 
                 reviewed.  We can find no basis for interpreting 
 
                 this language as meaning that the commissioner is 
 
                 to re-determine the condition of the employee 
 
                 which was adjudicated by the former award.
 
            
 
                 The court in Bousfield v. Sisters of Mercy, 249 Iowa 
 
            64, 86 N.W.2d 109 (1957) cited prior decisions and added a 
 
            new facet to the review-reopening law by stating at page 69:
 
            But it is also true that unless there is more than a 
 
            scintilla of evidence of the increase, a mere difference of 
 
            opinion of experts or competent observers as to the 
 
            percentage of disability arising from the original injury 
 
            would not be sufficient to justify a different determination 
 
            by another commissioner on a petition for review-reopening.  
 
            Such is not the case before us, for here there was 
 
            substantial evidence of a worsening of her condition not 
 
            contemplated at the time of the first award.
 
            In a somewhat analogous vein, the Iowa Court of Appeals held 
 
            in Meyers v. Holiday Inn of Cedar Falls, Iowa, 272 N.W.2d 
 
            24, 25 (Iowa App. 1978) that a review-reopening petition may 
 
            allow a change in compensation when a claimant has failed to 
 
            improve to the extent initially anticipated.  A major 
 
            pronouncement came in the case of Gosek v. Garmer and Stiles 
 
            Co., 158 N.W.2d 731 (Iowa 1968).  The opinion there, at 732, 
 
            stated that "[o]n a review-reopening hearing claimant has 
 
            the burden of showing by a preponderance of the evidence his 
 
            right to compensation in addition to that accorded by a 
 
            prior agreement or adjudication."  The opinion went on to 
 
            discuss the common understanding that "if a claimant 
 
            sustained compensable injuries of which he was fully aware 
 
            at time of prior settlement or award, but for some 
 
            unexplainable reason failed to assert it, he cannot, for the 
 
            first time on subsequent review proceedings, claim 
 
            additional benefits."  The opinion continued at 733 "[b]ut 
 
            according to the apparent majority view, if a claimant does 
 
            not know of other employment connected injuries or 
 
            disability at time of any prior agreement or adjudication, 
 
            he is not ordinarily barred from later asserting it as a 
 
            basis for additional benefits."  The court went on to hold 
 
            at 735 that "cause for allowance of additional compensation 
 
            exists on proper showing that facts relative to an 
 
            employment connected injury existed but were unknown and 
 
            could not have been discovered by the exercise of reasonable 
 
            diligence, sometimes referred to as a substantive omission 
 
            due to mistake, at time of any prior settlement or award."
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
                 Each of these cases rest upon some disparity between 
 
            claimant's actual or anticipated physical condition at the 
 
            time of the previous assessment and the physical condition 
 
            which exists at the time of the review-reopening proceeding.  
 
            Thus, the question initially becomes has claimant 
 
            established a change in his physical condition since the 
 
            time of the former proceeding.
 
            
 
                 The required change of condition to satisfy the 
 
            requirements of review-reopening need not rest solely upon a 
 
            change of physical condition if economic hardships causally 
 
            related to a compensable injury but not contemplated within 
 
            the initial award or agreement are demonstrated.  An 
 
            increase in industrial disability may occur without a change 
 
            in physical condition.  A change in earning capacity 
 
            subsequent to the original award which is proximately caused 
 
            by the original injury also constitutes a change in 
 
            condition.  Blacksmith v. All-American, Inc., 290 N.W.2d 348 
 
            (1980); McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 
 
            1980).  The question thus secondarily becomes whether or not 
 
            claimant's industrial disability has changed.
 
            
 
                 With respect to the instant case, claimant failed to 
 
            prove she had a change of condition not reasonably 
 
            contemplated by the parties at the time of the arbitration 
 
            hearing.  Claimant's functional impairment rating from Dr. 
 
            Neiman remained 20 percent.  Claimant, at the time of the 
 
            original hearing, had not returned to her position with 
 
            defendant-employer.  Nor had claimant even sought other 
 
            employment either prior to the arbitration hearing or 
 
            subsequent thereto.  Dr. Neiman indicated claimant was about 
 
            the same after years of treatment by him.  Basically 
 
            claimant's condition remained unchanged.  Her physical 
 
            capabilities in April of 1991, were equal to those 
 
            capabilities which she possessed on the day of the 
 
            arbitration decision.  There was not a change of physical 
 
            condition.
 
            
 
                 While it is acknowledged that claimant is restricted, 
 
            she is still capable of working at various secretarial 
 
            positions.  Claimant has prior experience as a receptionist.  
 
            She is not totally disabled.  She is not especially 
 
            motivated to find employment, or to engage in the various 
 
            modalities prescribed by her treating physicians, including 
 
            psychiatric treatment.  Claimant seems content to take 
 
            medication and to fixate upon her pain.  Her motivation is 
 
            minimal at best.  She has not had a change in earning 
 
            capacity.  When all of the factors of industrial disability 
 
            are considered, it is determined that claimant's permanent 
 
            partial disability remains at 50 percent.  There has not 
 
            been a change in claimant's economic condition.
 
            
 
                 The next issue to address is whether certain medical 
 
            expenses are attributable to the claimant's original work 
 
            injury.
 
            
 
                 The employer shall furnish reasonable surgical, 
 
            medical, dental, osteopathic, chiropractic, podiatric, 
 
            physical rehabilitation, nursing, ambulance and hospital 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            services and supplies for all conditions compensable under 
 
            the workers' compensation law.  The employer shall also 
 
            allow reasonable and necessary transportation expenses 
 
            incurred for those services.  The employer has the right to 
 
            choose the provider of care, except where the employer has 
 
            denied liability for the injury.  Section 85.27.; Holbert v. 
 
            Townsend Engineering Co., Thirty-second Biennial Report of 
 
            the Industrial Commissioner 78 (Review decision 1975).  
 
            Claimant has the burden of proving that the fees charged for 
 
            such services are reasonable.  Anderson v. High Rise Constr. 
 
            Specialists, Inc., file number 850096 (Appeal Decision 
 
            1990).
 
            
 
                 Claimant is not entitled to reimbursement for medical 
 
            bills unless claimant shows they were paid from claimant's 
 
            funds.  See Caylor v. Employers Mut. Casualty Co., 337 
 
            N.W.2d 890 (Iowa App. 1983).
 
            
 
                 In the case at hand, it is determined that defendants 
 
            are responsible for all bills relating solely to the low 
 
            back.  Those bills which relate to the low back and to the 
 
            neck, or to the low back and to the carpal tunnel syndrome, 
 
            are assessed to defendants at 50 percent of the total 
 
            charge.
 
            
 
                 In light of the above, the defendants are responsible 
 
            for:
 
            
 
            
 
                HOSPITALIZATION
 
            
 
                 CENTER 1 BED                            $  117.50
 
                 CENTER 1 BED                               117.50
 
                 CENTER 1 BED                               117.50
 
                 CENTER 1 BED                               117.50
 
                 CENTER 1 BED                               117.50
 
            
 
                 CYCLOBENZAPRINE                              9.75
 
                 ALPRAZOLAM TAB 1                             3.00
 
                 CYCLOBENZAPRINE                              5.85
 
                 ALPRAZOLAM TAB 1                             1.50
 
                 CYCLOBENZAPRINE                              1.85
 
                 ALPRAZOLAM TAB 1                              .75
 
            
 
 
 
                 XRAY LUMBAR SPEC                            55.30
 
                 CAT SPINE                                  466.60
 
            
 
 
 
                 MED-SURG SUPPLIE                             4.25
 
                 MED-SURG SUPPLIE                             7.08
 
            
 
 
 
                 LAB HEMATOLOGY                               8.52
 
                 LAB URINALYSIS                               5.67
 
                 LAB CHEMISTRY                               12.95
 
            
 
 
 
                 PHYSICAL THERAPY                            24.35
 
                 PT ULTRA SOUND                               2.18
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
                 PT HUBBARD TANK                              6.48
 
                 PT MASSAGE                                   1.18
 
                 PHYSICAL THERAPY                            24.35
 
                 PT ULTRA SOUND                               2.18
 
                 PT LARGE WHIRLPO                             8.65
 
                 PT HOT PACKS                                 1.18
 
                 PT MASSAGE                                   1.18
 
                 PT HUBBARD TANK                              6.47
 
                 PHYSICAL THERAPY                            24.35
 
                 PT LARGE WHIRLPO                             4.33
 
                 PT ULTRA SOUND                               2.18
 
                 PT HOT PACKS                                 1.18
 
                 PT MASSAGE                                   1.18
 
                 PHYSICAL THERAPY                            24.25
 
                 PT LARGE WHIRLPO                             4.33
 
                 PT ULTRA SOUND                               2.18
 
                 PT HOT PACKS                                 1.18
 
                 PT MASSAGE                                   1.18
 
                 PHYSICAL THERAPY                            37.13
 
                 PT ULTRA SOUND                               2.18
 
                 PT LARGE WHIRLPO                             4.38
 
                 PT HOT PACKS                                 1.18
 
                 PT MASSAGE                                   1.18
 
                 PT INSTRUCTION                               2.25
 
            
 
 
 
                 ELECTROCARDIOGRA                            16.80
 
                 STEINDLER ORTHOPEDIC CLINIC                160.00
 
                      (100% BACK)                           265.00
 
            
 
 
 
                 UNIVERSITY OF IOWA HOSPITALS                62.47
 
                      (WINSTON BARCELLAS, M.D.)              45.00
 
            
 
 
 
                 TOWNCREST X-RAY DEPT.                       10.00
 
                      (LOW BACK AND                          38.50
 
                       LEFT FOOT)                            85.50
 
            
 
 
 
                 MERCY SERVICES  (2-28-89)                  424.06
 
                      (LUMBAR TRACTION, PELVIC BELT)
 
            
 
 
 
                 RICHARD F. NEIMAN, M.D.
 
                      (50% BACK FROM 8-18-88 TO 3-19-91)
 
            
 
 
 
                      01-03-89                               17.50
 
                      01-30-89                               15.00
 
                      02-14-89                               17.50
 
                      04-06-89                               50.00
 
                      04-06-89                               62.50
 
                      04-13-89                               20.00
 
                      06-15-89                               20.00
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
                      08-31-89                               20.00
 
                      11-30-89                               20.00
 
                      03-01-90                               20.00
 
                      06-28-90                               20.00
 
                      09-27-90                               20.00
 
                      02-13-91                               20.00
 
            
 
 
 
                 HAWKEYE REHABILITATION
 
                      (50% BACK)                            164.00
 
            
 
 
 
                 VINOD BHATARA, M.D
 
                      (50% BACK PAIN)                        90.00
 
            
 
 
 
                 SE IA MENTAL HEALTH                         57.75
 
                      (50% BACK)
 
            
 
 
 
                 J.C.N. BRAUN, M.D.                         185.00
 
                      (50% BACK)
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
                 K-MART PHARMACY                             59.52
 
                      8-1-88 TO 11-23-88              (PAID BY CLAIMANT)
 
                          (50% BACK)
 
            
 
 
 
                 WALMART PHARMACY                            43.14
 
                      (50% BACK)                      (PAID BY CLAIMANT)
 
            
 
 
 
                 SHORES PHARMACY                             33.92
 
                      (50% BACK)                      (PAID BY CLAIMANT)
 
            
 
 
 
                 APATHECARY-24                               98.25
 
                      (50% BACK)                      (PAID BY CLAIMANT)
 
            
 
 
 
                 WALGREEN COMPANY                           239.76
 
                      (50% BACK)                      (PAID BY CLAIMANT)
 
            
 
 
 
                 OSCO DRUG                                1,013.70
 
                      (50% BACK)                      (PAID BY CLAIMANT)
 
            
 
 
 
                 MILEAGE FOR 13 MEDICAL TRIPS TO            202.02
 
 
 
                 IOWA CITY & RETURN:                  (PAID BY CLAIMANT)
 
                 74 X 2 = 148 X 13 X .21 = 404.04
 
                                   2
 
            
 
 
 
            
 
 
 
                 The final issue addresses attorneys' fees for 
 
            claimant's former attorneys.  The issue was not listed as a 
 
            disputed issue on the prehearing report of October 26, 1990.  
 
            Nevertheless, at the start of the hearing, claimant's former 
 
            attorney requested this deputy to grant their Application 
 
            for Approval of Fees.  In support of their application, the 
 
            attorney cited their detailed records of time spent, at the 
 
            requested hourly rates, plus costs incurred.  Claimant 
 
            presented no evidence in response.  The matter was taken 
 
            under advisement, but no ruling was made at that time.  Then 
 
            upon review of the file by the undersigned in September of 
 
            1991, this deputy noted the matter was preheard on August 8, 
 
            1991, before the prehearing deputy and the matter was set 
 
            for hearing in Burlington, Iowa on October 3, 1991.  Since 
 
            the same deputy will be hearing the case in October, 
 
            pursuant to the August 12, 1991 prehearing report, a 
 
            decision on this issue is reserved for a later date.  It 
 
            appears this is the classic case of the right hand not 
 
            knowing what the left hand is doing.
 
            
 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            The undersigned apologizes for any inconvenience this may 
 
            have or will have caused the parties.  The matter will be 
 
            taken up on October 3, 1991.
 
            
 
                                      order
 
 
 
            
 
 
 
                 IT IS THEREFORE ORDERED:  defendants pay reasonable and 
 
            necessary medical expenses as detailed in the aforementioned 
 
            pages.  This sum totals three thousand two hundred 
 
            eighty-nine and 99/l00 dollars ($3,289.99).
 
            
 
                 IT IS FURTHER ORDERED THAT:  defendants pay claimant 
 
            one thousand four hundred eighty-eight and 29/l00 dollars 
 
            ($1,488.29) as reimbursement for prescription medications 
 
            and two hundred two and 02/l00 dollars ($202.02) for 
 
            transportation expenses under the provisions of Iowa Code 
 
            section 85.27.
 
            
 
                 IT IS FURTHER ORDERED that defendants pay the costs of 
 
            this action pursuant to rule 343 IAC 4.33 including the 
 
            following costs:
 
            
 
                 1.  filing fee                         $ 65.00
 
                     deposition cost                     195.35
 
                     deposition fee R. F. Neiman, M.D.   150.00
 
                                                        $410.35
 
            
 
                 IT IS FURTHER ORDERED THAT:  defendants file claim 
 
            activity reports as requested by this division pursuant to 
 
            rule 343 IAC 3.1.
 
            
 
 
 
            
 
 
 
            
 
 
 
                 Signed and filed this ____ day of September, 1991.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________               
 
            MICHELLE A. McGOVERN
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            
 
 
 
            Copies To:
 
            
 
            Mr. Alan N. Waples
 
            Attorney at Law
 
            507 Tama Bldg
 
            Burlington  IA  52601
 
            
 
            Mr. Elliott R. McDonald, Jr.
 
            Attorney at Law
 
            P O Box 2746
 
            Davenport  IA  52809
 
            
 
            Mr. Robert A. Engberg
 
            Attorney at Law
 
            321 N Third St
 
            Burlington  IA  52601
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                  51402.40, 51803, 52206
 
                                                  54100
 
                                                  Filed April 27, 1989
 
                                                  MICHAEL G. TRIER
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         SHERRY MEARS,
 
         
 
              Claimant,                                File No. 82307l
 
         
 
         vs.                                       A R B I T R A T I O N
 
         
 
         ALDI BENNER, (ALDI, INC.),                    D E C I S I O N
 
         
 
              Employer,
 
         
 
         and
 
         
 
         CNA INSURANCE COMPANIES,
 
         
 
              Insurance Carrier,
 
              Defendant.
 
         
 
         
 
         51402.40, 51803, 52206, 54100
 
         
 
              Claimant had a preexisting spina bifida occulta which was 
 
         permanently aggravated by lifting at her place of employment.  
 
         She was rated at 20% permanent impairment by her treating 
 
         physician and had not resumed any gainful employment.  Claimant 
 
         had medically-imposed restrictions against lifting more than 15 
 
         pounds, flexing, extending, rotation of her body and also against 
 
         prolonged sitting or prolonged standing.  Claimant awarded 50% 
 
         permanent partial disability.  Claimant held not totally disabled 
 
         as she had claimed.  The odd-lot doctrine was not applied since 
 
         claimant had not made bona fide efforts to obtain employment.
 
         
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           2905
 
                           Filed September 17, 1991
 
                           MICHELLE A. McGOVERN
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            SHERRY MEARS,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 823071
 
            ALDI BENNER (ALDI, INC.),     :
 
                                          :          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
 
            CNA INSURANCE COMPANIES,      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            
 
            2905
 
            Claimant did not prove a change of condition.  There was no 
 
            evidence of a physical change of condition.  Claimant's 
 
            treating physician opined claimant was about the same since 
 
            prior to the arbitration hearing.  Likewise, there was no 
 
            evidence of a non-physical change of condition.  Claimant 
 
            had still made no effort to seek a job or to obtain 
 
            retraining.
 
            
 
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
       _________________________________________________________________
 
               
 
       SHERRY MEARS,    
 
               
 
          Claimant, 
 
                                          File No. 823071
 
       vs.          
 
                                           R E V I E W -
 
       ALDI-BENNER COMPANY,  
 
                                        R E O P E N I N G
 
          Employer, 
 
                                         D E C I S I O N
 
       and         
 
               
 
       CNA INSURANCE COMPANIES,   
 
               
 
          Insurance Carrier,  
 
          Defendants.    
 
       ________________________________________________________________
 
       
 
                        STATEMENT OF THE CASE
 
            
 
            This is a proceeding in review-reopening brought by Sherry 
 
       Mears, claimant, against Aldi-Benner Company (Aldi, Inc.), 
 
       employer, and CNA Insurance Companies, defendants, for the 
 
       recovery of further workers' compensation benefits as the result 
 
       of a work injury on November 18, 1985.  Prior arbitration and 
 
       review-reopening decisions for this injury were filed on April 
 
       27, 1989 and September 17, 1991 respectively.  The arbitration 
 
       decision was not appealed and the review-reopening decision was 
 
       sustained on appeal.  On April 19, 1995 a hearing was held on a 
 
       second review-reopening petition filed by claimant and the matter 
 
       was considered fully submitted at the close of this hearing. 
 
            
 
            The parties have submitted a hearing report of contested 
 
       issues and stipulations which was approved and accepted as a part 
 
       of the record of this case at the time of hearing.  The oral 
 
       testimony and written exhibits received during the hearing are 
 
       set forth in the hearing transcript.
 
            
 
            According to the hearing report, it was stipulated that the 
 
       providers of the requested medical expenses would testify as to 
 
       their reasonableness and defendants are not offering contrary 
 
       evidence.  Defendants also indicate in the report that causal 
 
       connection of the requested medical expenses to a condition 
 
       related to the original injury is in dispute.
 
       
 
                                 ISSUES
 
            
 
            The parties submitted the following issues for determination 
 
       in this proceeding:
 
            
 
             I.  The extent of claimant's entitlement to additional 
 
       disability benefits.
 
            
 

 
 
 
 
 
 
 
 
 
 
 
 
 
            II.  The extent of claimant's entitlement to further medical 
 
       benefits and any penalty for failure to pay medical benefits 
 
       under Iowa Code section 86.13.
 
       
 
                              FINDINGS OF FACT
 
            
 
            Having heard the testimony and considered all of the 
 
       evidence, the deputy industrial commissioner finds as follows:
 
            
 
            A credibility finding is necessary to this decision as 
 
       defendants placed claimant's credibility at issue during cross-
 
       examination as to the extent of the injury and disability.  From 
 
       her demeanor and mannerisms while testifying, claimant is found 
 
       credible.
 
            
 
            The original work injury involved the low back which 
 
       occurred when claimant, Sherry Mears, was lifting a box while 
 
       performing her manual labor job at one of Aldi's warehouse 
 
       facilities.  Sherry's primary treating physician since 1986 has 
 
       been and continues to be Richard Neiman, M.D., a neurologist from 
 
       Iowa City, Iowa.  Although claimant had prior-existing congenital 
 
       back problems, it was found in the arbitration decision, based 
 
       upon the views of Dr. Neiman, that the injury permanently 
 
       aggravated this condition.  It was further found that this 
 
       aggravation, at that time, caused a 50 percent loss of earning 
 
       capacity.  The review-reopening decision found that claimant's 
 
       condition had not changed and further benefits were denied.
 
            
 
            As aptly set out in her attorney's brief and argument, 
 
       claimant presented evidence on the following concerns raised by 
 
       defendants and the deputy commissioner who previously denied 
 
       benefits in the review-reopening decision:
 
       
 
       
 
       1.  Change of Physical Condition
 
            
 
            Defendants argue that there has been no change in the 
 
       impairment rating and work restrictions imposed by Dr. Neiman 
 
       since the last proceeding in 1991.  This is not the case.  
 
       Although in his August 1994 report, he again rates claimant as 
 
       having a 20 percent impairment to the body as a whole under the 
 
       AMA Guides, he goes on to state as follows:  "I think frankly 
 
       that she has increasing difficulties as far as the degenerative 
 
       changes in the back and should be given a higher impairment as 
 
       far as industrial impairment" (Exhibit 1).
 
            
 
            The undersigned interprets this statement to mean that 
 
       claimant is less able to perform work.  Also, Dr. Neiman's work 
 
       restrictions are more restrictive.  Before, there was only a 
 
       general restriction against lifting over 15 pounds with no 
 
       flexion, extension or prolonged sitting or standing.  Today the 
 
       restrictions consist of no lifting greater than 5-10 pounds 
 
       repetitively and no more than 15-20 pounds every four hours with 
 
       only sitting or standing of 1 hour at a time.  Starting in 1993, 
 
       Dr. Neiman began issuing reports clearly stating that Sherry's 
 
       condition had worsened and that MRI tests indicated a more 
 
       noticeable deterioration in her condition.  He states in his last 
 
       report of March 1995 that there is "no question" that Sherry had 
 
       worsened over the years.  All of Dr. Neiman's views herein are 
 
       uncontroverted in the record.
 
            
 
            At the time of the last review-reopening, Dr. Neiman stated 
 
       that although claimant was not then able to work, this view could 
 
       change depending upon the outcome of the body cast therapy.  It 
 
       may be true that the body cast had been removed at the time of 
 
       the last hearing.  However, the removal had only been shortly 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
       before the hearing and the long-term effect of the cast had yet 
 
       to be assessed.  It can now be clearly found that the body cast 
 
       was not of any benefit.
 
            
 
            Claimant now has chronic pain syndrome with depression, all 
 
       causally related to the pain brought on by the original 
 
       aggravation injury according to the March 30, 1995 report of Dr. 
 
       Neiman.  This pain syndrome further aggravates the back 
 
       disability.
 
            
 
            Therefore, it is found that there has been a material 
 
       worsening of claimant's physical and mental condition since the 
 
       last review-reopening.
 
       
 
       
 
       2.  Refusal of Treatment
 
            
 
            Although Sherry consented to epidural steroid injection 
 
       therapy on one occasion in the past, she refused a second 
 
       procedure at the time of the last proceeding.  However, since 
 
       then, Sherry has underwent a second steroid injection without 
 
       obtaining any lasting improvement and no further treatments are 
 
       recommended.
 
       
 
       
 
       3.  Use of Medication
 
            
 
            Dr. Neiman, over the years, has continued to express concern 
 
       over Sherry's reliance on medication and has counseled her on 
 
       this problem.  This was noted by the deputy in the review-
 
       reopening decision.  Apparently, in January 1992, claimant ceased 
 
       use of Percodan and she was congratulated at the time by Dr. 
 
       Neiman for doing so.  However, at hearing, she testified that she 
 
       has again resumed its use.  Obviously, she is working with Dr. 
 
       Neiman but her efforts to date have failed largely due to the 
 
       continued lack of success in reducing her symptoms with other 
 
       forms of treatment. 
 
       
 
       
 
       4.  Lack of Motivation
 
            
 
            As strongly noted in the review-reopening decision, Sherry 
 
       was not found motivated to find suitable work despite being found 
 
       capable of secretarial and receptionist work.  Indeed, at that 
 
       time she had not made any effort to seek suitable work.  However, 
 
       unlike before, Sherry has now made a considerable effort to find 
 
       suitable work.  She has been in contact with the Iowa Vocational 
 
       Rehabilitation counselors who have made no recommendation other 
 
       than that she attend a pain clinic.  She has unsuccessfully 
 
       applied for all forms of work including secretarial work in the 
 
       geographical area of her residence.  Between November 1993 and 
 
       the spring of 1994, she made a good attempt to work part-time at 
 
       a restaurant first as a waitress and then as simply a hostess.  
 
       Despite accommodations by this employer, claimant was compelled 
 
       by her continued pain to end this employment.  Sherry's employer 
 
       testified at hearing that she was a valued employee but that her 
 
       inability to physically handle the work, even the hostess work 
 
       which only required sitting or standing, was readily apparent to 
 
       him.
 
            
 
            Sherry now is 42 years of age.  Except for her recent brief 
 
       attempt at employment, she has been unemployed since the injury.  
 
       Given the new restrictions imposed by Dr. Neiman against sitting 
 
       or standing and her experience as a restaurant hostess, it is 
 
       found that even secretarial or receptionist work is precluded 
 
       from claimant.  Such restrictions also preclude work as a 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
       draftsman which was found to be her most significant past 
 
       employment in the original arbitration decision.
 
            
 
            Despite a wide range of jobs at Aldi to this date, Aldi has 
 
       not made any effort at accommodation or to rehire her to suitable 
 
       work.  Defendants have not made any effort to assist in 
 
       vocational rehabilitation.  This is clear evidence that she is 
 
       incapable of any work.
 
            
 
            From examination of all of the factors of industrial 
 
       disability, it is found that as a result of the change of 
 
       condition caused by the work injury of November 18, 1985, Sherry 
 
       now has suffered a 100 percent loss of her earning capacity and 
 
       is unemployable.
 
            
 
            Although Dr. Neiman has opined that 20 percent of her 
 
       disability is related to the non-work related neck condition 
 
       caused by a 1986 auto accident, defendants have not shown by the 
 
       evidence that this neck condition independently produces 
 
       disability, separate from the back condition.  The disability 
 
       rating of Dr. Neiman only involved the low back.  The work 
 
       restrictions appear to arise only from the low back condition but 
 
       may overlap.  However, no significant work restriction is 
 
       independently caused by the neck injury.  Therefore, as was done 
 
       in the past, no apportionment of disability will be made for any 
 
       prior neck injury.
 
            
 
            Defendants assert lack of authorization but deny causal 
 
       connection and liability for the condition treated in the hearing 
 
       report.  It is found that all of the requested expenses, 
 
       including medical mileage, are causally related to the work 
 
       injury based upon the uncontroverted views of Dr. Neiman.
 
            
 
            Defendants seek to apportion out 20 percent of the bills and 
 
       medication attributable to the neck condition.  However, 
 
       treatment for the two conditions, like their resulting 
 
       disability, overlaps.  Defendants have failed to show that the 
 
       neck injury alone is a cause of an independent, separate 
 
       treatment modality.  The treatment and drugs prescribed were 
 
       given to claimant simultaneously for both conditions.  The 
 
       evidence if anything appears to indicate that even if claimant 
 
       had a healthy neck, the treatment and prescriptions would not be 
 
       significantly different.  Therefore, no apportionment of medical 
 
       expenses will be made.
 
       
 
                           CONCLUSIONS OF LAW
 
            
 
             I.  The question of causal connection is essentially within 
 
       the domain of expert medical opinion.  Bradshaw v. Iowa Methodist 
 
       Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).  The opinion of 
 
       experts need not be couched in definite, positive or unequivocal 
 
       language and the expert opinion may be accepted or rejected, in 
 
       whole or in part, by the trier of fact. Sondag v. Ferris 
 
       Hardware, 220 N.W.2d 903 (Iowa 1974).  The weight to be given to 
 
       such an opinion is for the finder of fact to determine from the 
 
       completeness of the premise given the expert or other surrounding 
 
       circumstances.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 
 
       867 (1965). 
 
            
 
             In a review-reopening proceeding, claimant has the burden 
 
       of establishing by a preponderance of the evidence that he 
 
       suffered a change of condition or a failure to improve as 
 
       medically anticipated as a proximate result of his original 
 
       injury, subsequent to the date of the award or agreement for 
 
       compensation under review, which entitles him to additional 
 
       compensation.  Deaver v. Armstrong Rubber Co., 170 N.W.2d 455 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
       (Iowa 1969).  Meyers v. Holiday Inn of Cedar Falls, Iowa, 272 
 
       N.W.2d 24 (Iowa Ct. App. 1978).  Such a change of condition is 
 
       not limited to a physical change of condition.  A change in 
 
       earning capacity subsequent to the original award which is 
 
       proximately caused by the original injury also constitutes a 
 
       change in condition under Iowa Code section 85.26(2) and 
 
       86.14(2).  See McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 
 
       (Iowa 1980); Blacksmith v. All-American, Inc., 290 N.W.2d 348 
 
       (1980).
 
            
 
            As the claimant has shown a change of condition, the degree 
 
       of permanent disability must be re-evaluated pursuant to Iowa 
 
       Code section 85.34(2)(u).  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 R. Co., 
 
       219 Iowa 587, 593, 258 N.W. 899 (1935).  A physical impairment or 
 
       restriction on work activity may or may not result in such a loss 
 
       of earning capacity.  Examination of several factors determines 
 
       the extent to which a work injury and a resulting medical 
 
       condition caused an industrial disability.  These factors include 
 
       the employee's medical condition prior to the injury, immediately 
 
       after the injury and presently; the situs of the injury, its 
 
       severity and the length of healing period; the work experience of 
 
       the employee prior to the injury, after the injury and potential 
 
       for rehabilitation; the employee's qualifications intellectually, 
 
       emotionally and physically; earnings prior and subsequent to the 
 
       injury; age; education; motivation; functional impairment as a 
 
       result of the injury; and inability because of the injury to 
 
       engage in employment for which the employee is fitted.  Loss of 
 
       earnings caused by a job transfer for reasons related to the 
 
       injury is also relevant.  See Peterson v. Truck Haven Cafe, Inc., 
 
       Vol. I, No. 3 Iowa Industrial Comm'r Decisions 654, 658 (App. 
 
       February 28, 1985).
 
            
 
            In the case sub judice, it was found that claimant has now 
 
       suffered a 100 percent loss of her earning capacity as a result 
 
       of the work injury.  Such a finding entitles claimant to 
 
       permanent total disability benefits as a matter of law under Iowa 
 
       Code section 85.34(3) which entitles claimant to weekly benefits 
 
       for an indeterminate period of time into the future during the 
 
       period of her disability.  Absent an improvement in her 
 
       condition, this will continue for the rest of her life.
 
            
 
            Although a portion of this total disability maybe 
 
       attributable to both work and non-work related medical 
 
       conditions, apportionment of disability, as envisioned in Varied 
 
       Enterprises, Inc. v. Sumner, 353 N.W.2d 407 (Iowa 1984), is not 
 
       appropriate or possible in a permanent total disability case.  
 
       This is so because the benefits are not payable for a definite 
 
       time period under Iowa Code section 85.34(2) but are paid to 
 
       claimant indefinitely during the period of his disability under 
 
       Iowa Code section 85.34(3).  The change of condition since the 
 
       last review-reopening decision was the proverbial "straw that 
 
       broke the camel's back" and permanent total disability benefits 
 
       shall be awarded accordingly.  Wissler v. City of Freemont, Iowa, 
 
       File No. 955181 (App. February 22, 1993); Auton v. The Celutex 
 
       Corporation, File No. 873898 (App. May 27, 1993).
 
            
 
            Furthermore, in any event, apportionment of disability 
 
       between a preexisting condition and an injury is proper only in 
 
       those situations where a prior injury or illness "unrelated to 
 
       employment independently produces some ascertainable portion of 
 
       the ultimate disability."  Tussing v. George A. Hormel & Co., 461 
 
       N.W.2d 450 (Iowa 1990), Varied Enterprises, Inc. v. Sumner, 353 
 
       N.W.2d 407 (Iowa 1984).
 
            
 

 
 
 
 
 
 
 
 
 
 
 
 
 
            Also, once claimant establishes a causal connection between 
 
       the claimed disability and the work injury, claimant does not 
 
       have the burden to establish the lack of a preexisting 
 
       disability. The burden of persuasion shifts to defendants to 
 
       establish such a preexisting disability for purposes of 
 
       apportionment.  There is no agency precedent as to this precise 
 
       point of law.  However, drawing from the general law of torts, 
 
       the undersigned believes that the correct law is that claimant 
 
       has no such additional burden after establishing a prima facia 
 
       case for disability.  The plaintiff, in a personal injury case, 
 
       is not normally charged with a burden of proof as to the actual 
 
       apportionment of damages.  Any burden of that nature must be 
 
       assumed by the defendant since the defendant is the party 
 
       standing to gain by litigating the apportionment issue.  2 
 
       Damages in Tort Actions, 15.34(1)(a); Wonder Life Company v. 
 
       Liddy, 207 N.W.2d 27 (Iowa 1973).  If no apportionment can be 
 
       made the defendants are responsible for the entire damage.  
 
       Becker v. D & E Distributing Co., 247 N.W.2d 727, 731 (Iowa 
 
       1976).
 
            
 
            IV.  Pursuant to Iowa Code section 85.27, claimant is 
 
       entitled to payment of reasonable medical expenses incurred for 
 
       treatment of a work injury.  Defendants first assert lack of 
 
       authorization for the requested expenses.  However, this agency 
 
       has held that it is inconsistent to deny liability and the 
 
       obligation to furnish care on one hand and at the same time claim 
 
       a right to choose the care.  Kindhart v. Fort Des Moines Hotel, I 
 
       Iowa Industrial Comm'r Decisions No. 3, 611 (App. 1985); Barnhart 
 
       v. MAQ Incorporated, I Iowa Industrial Comm'r Report 16 (App. 
 
       1981).
 
            
 
            Also, defendants seek apportionment of expenses despite the 
 
       fact that all of the treatment overlaps and that the treatment 
 
       given and drugs prescribed were for both work and non work-
 
       related conditions provided simultaneously.  Absent a showing 
 
       that the non work-related condition independently requires 
 
       separate treatment and medication, apportionment is not 
 
       appropriate and will not be made in such circumstances.
 
            
 
            However, as agreed by claimant, no award can be made for 
 
       medical expenses outstanding or unpaid at the time of the last 
 
       review-reopening proceeding.
 
            
 
            Claimant also seeks a penalty under Iowa Code section 86.13 
 
       for an unreasonable nonpayment of medical expenses.  Such a 
 
       remedy is not available to claimant.  The provisions of Iowa Code 
 
       section 86.13 and 85.30 allowing the commissioner to award 
 
       penalties or interest for delays in payment are only applicable 
 
       to weekly benefits, not medical expenses.  Klein v. Furnas Elec. 
 
       Co., 384 N.W.2d 370, 375 (Iowa 1986).
 

 
 
 
 
 
 
 
 
 
 
 
 
 
       
 
                                ORDER
 
            
 
            1.  Defendants shall pay to claimant permanent total 
 
       disability benefits at a rate of one hundred seventy-three and 
 
       30/l00 dollars ($173.30) per week from the date of this decision 
 
       for an indefinite period of time into the future during 
 
       claimant's disability.
 
            
 
            2.  Defendants shall pay the medical expenses listed in the 
 
       attachments to the hearing report which have been incurred by 
 
       claimant since the last review-reopening decision, including the 
 
       listed medical mileage to be reimbursed at the rate of twenty-
 
       four cents ($.24) per mile.
 
            
 
            3.  Defendants shall pay interest on weekly benefits awarded 
 
       herein as set forth in Iowa Code section 85.30. 
 
            
 
            4.  Defendants shall pay the costs of this action pursuant 
 
       to rule 343 IAC 4.33, including reimbursement to claimant for any 
 
       filing fee paid in this matter.
 
            
 
            5.  Defendants shall file activity reports on the payment of 
 
       this award as requested by this agency pursuant to rule 343 IAC 
 
       3.1.
 
       
 
          Signed and filed this ____ day of June, 1995.
 
       
 
       
 
                                   ______________________________
 
                                   LARRY P. WALSHIRE
 
                                   DEPUTY INDUSTRIAL COMMISSIONER
 
       
 
       Copies To:
 
       
 
       Mr. David W. Newell
 
       Attorney at Law
 
       323 E Second St
 
       Muscatine  IA  5276l
 
       
 
       Mr. Elliott R. McDonald, Jr.
 
       Attorney at Law
 
       PO Box 2746
 
       Davenport  IA  52809
 
       
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                1200
 
                                                Filed June 1, 1995
 
                                                LARRY P. WALSHIRE
 
       
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
       _________________________________________________________________
 
               
 
       SHERRY MEARS,    
 
               
 
          Claimant, 
 
                                             File No. 823071
 
       vs.          
 
                                               R E V I E W -
 
       ALDI-BENNER COMPANY,  
 
                                             R E O P E N I N G
 
          Employer, 
 
                                              D E C I S I O N
 
       and          
 
               
 
       CNA INSURANCE COMPANIES,   
 
               
 
          Insurance Carrier,  
 
          Defendants.    
 
       ________________________________________________________________
 
       1200 - Apportionment of Disability and Medical Expenses Denied.
 
       Apportionments of disability and medical expenses were denied as 
 
       the non work-related condition did not independently produce 
 
       separate or distinct disability or treatment.  Both the 
 
       disability and treatment for the work and non work-related 
 
       conditions overlapped.