BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
 
 
      VIRGIL L. ERBE, JR.,
 
         
 
          Claimant,
 
                               
 
      vs.
 
                                                 File No. 824057
 
      IOWA STATE UNIVERSITY,
 
                                                  A P P E A L
 
           Employer,                                   
 
                                                D E C I S I O N 
 
      and
 
 
 
     STATE OF IOWA,
 
 
 
          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 
 
 July 10, 1991 is affirmed and is adopted as the final agency 
 
 action in this case.
 
 
 
 Defendants shall pay the costs of the appeal, including the 
 
 preparation of the hearing transcript.
 
 
 
 Signed and filed this 27TH day of August, 1992.
 
 
 
 
 
 
 
                                        BYRON K. ORTON
 
                                 INDUSTRIAL COMMISSIONER
 
 
 
 Copies To:
 
 
 
 Mr. Barry Moranville
 
 Attorney at Law
 
 West Bank Building  STE 212
 
 1601 22nd Street
 
 West Des Moines, Iowa  50265
 
 
 
 Ms. Joanne Moeller
 
 Assistant Attorney General
 
 Tort Claims Division
 
 Hoover State Office Building
 
 Des Moines, Iowa  50319
 
 
 
 
 
 
 
 
 
 
 
 
                                                 9998
 
                                                 Filed August 27, 1992
 
                                                 BYRON K. ORTON
 
 
 
                 BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
                               
 
      VIRGIL L. ERBE, JR.,
 
 
 
           Claimant,
 
      
 
      vs.
 
                                                 File No. 824057
 
      IOWA STATE UNIVERSITY,
 
                                                  A P P E A L
 
           Employer,
 
                                                D E C I S I O N
 
      and
 
 
 
     STATE OF IOWA,
 
 
 
          Insurance Carrier, 
 
          Defendants.
 
      
 
      
 
 9998
 
 
 
      Summary affirmance of deputy's decision filed July 10, 1991.
 
      
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            VIRGIL L. ERBE, JR.,          :
 
                                          :
 
                 Claimant,                :
 
                                          :         File No. 824057
 
            vs.                           :
 
                                          :      A R B I T R A T I O N
 
            IOWA STATE UNIVERSITY,        :
 
                                          :         D E C I S I O N
 
                 Employer,                :
 
                                          :
 
            and                           :
 
                                          :
 
            STATE OF IOWA,                :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Virgil 
 
            L. Erbe, Jr., against Iowa State University, his employer, 
 
            and the State of Iowa based upon an injury that occurred on 
 
            May 9, 1986.  Erbe seeks compensation for permanent partial 
 
            disability and reimbursement for the expenses of an 
 
            independent medical examination under the provisions of Code 
 
            section 85.39.  The issues identified for determination are 
 
            the degree of permanent partial disability, entitlement to 
 
            reimbursement for an independent medical examination and 
 
            determination of the employer's right to credit under Code 
 
            section 85.38(2) for group disability income payments paid 
 
            under a nonoccupational group plan.  It was stipulated that 
 
            all healing period compensation which was due has been paid 
 
            and that 75 weeks of permanent partial disability 
 
            compensation has been paid.  It was also stipulated that the 
 
            commencement date for any additional permanent partial 
 
            disability compensation which may be awarded in this 
 
            decision is June 19, 1990.  The amount of disability income 
 
            and sick pay which has been paid is $20,078.99, but the 
 
            entitlement for a credit for those payments is disputed.  
 
            Claimant seeks reimbursement in the amount of $395.00 for 
 
            the cost of an examination and report performed by Ron 
 
            Evans, D.C.
 
            
 
                 The case was heard at Des Moines, Iowa on April 2, 
 
            1991.  The evidence consists of the testimony of Virgil L. 
 
            Erbe, Jr., Connie Erbe, Gary Wiggins, Cheryl Banks and 
 
            Dennis Erickson.  The record also contains jointly offered 
 
            exhibits 1 through 13.
 
            
 
                                 findings of fact
 
            
 
                 Having considered all the evidence received, together 
 
            with the appearance and demeanor of the witnesses, the 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            following findings of fact are made.
 
            
 
                 Virgil L. Erbe, Jr., is a 38-year-old married man who 
 
            lives at Ames, Iowa with his wife, Connie.  Virgil graduated 
 
            from Ames High School in 1971 and has subsequently taken 
 
            some short courses and seminars which deal with his 
 
            employment at Iowa State University.
 
            
 
                 While in high school, Virgil worked as a gas station 
 
            attendant.  He has also worked as a tree trimmer and 
 
            security guard.
 
            
 
                 Virgil commenced employment with Iowa State University 
 
            on April 1, 1975.  He started as a groundskeeper or laborer 
 
            where his duties consisted primarily of activities such as 
 
            mowing, trimming trees, picking up debris, raking leaves, 
 
            snow removal and general grounds care on the Iowa State 
 
            University campus.  He was eventually promoted to the 
 
            position of arborist, a partially supervisory position.  At 
 
            the time of the injury which is the subject matter of this 
 
            case, he was earning in the range of $22,000-$23,000 
 
            annually.  If he were still working as an arborist, his 
 
            salary would be in the range of $24,000 annually.
 
            
 
                 Virgil's health history with regard to his back is 
 
            generally unremarkable until early July 1984 when he 
 
            sustained his first injury while removing a willow tree on 
 
            the university campus.  When his complaints did not resolve, 
 
            claimant entered into treatment with Ames orthopaedic 
 
            surgeon Allen G. Lang, M.D.  After conducting appropriate 
 
            diagnostic tests, Dr. Lang diagnosed Virgil as having a 
 
            herniated lumbar disc at the L5-S1 level of his spine.  
 
            Virgil underwent discectomy surgery in February 1985.  After 
 
            a period of recuperation, he resumed his employment as an 
 
            arborist (exhibit 2, pages 4 and 5; exhibit 13, pages 1-6).
 
            
 
                 Virgil continued to have some residual complaints 
 
            following the surgery, but apparently was able to adapt.  In 
 
            May 1986, he returned to Dr. Lang with increased complaints.  
 
            Diagnostic tests showed further disc herniation at the same 
 
            level as his previous surgery.  A second surgery was then 
 
            performed in May 1986 (exhibit 2, pages 5 and 6; exhibit 13, 
 
            pages 6-8).  Virgil returned to work during the month of 
 
            July 1986 with restrictions.  The severity of his 
 
            restrictions was eventually relaxed (exhibit 2, page 7; 
 
            exhibit 13, pages 8 and 9).
 
            
 
                 Virgil again contacted Dr. Lang in July 1988 with 
 
            complaints of continued back and leg discomfort.  Diagnostic 
 
            testing showed further disc herniation at the same level.  A 
 
            third laminectomy surgery was performed in September 1988 by 
 
            Dr. Lang (exhibit 2, pages 7-9; exhibit 13, pages 10-12).  
 
            In January 1989, Virgil was released to return to work with 
 
            restrictions from Dr. Lang.  He reported to work but was 
 
            sent home by supervisor, Dennis Erickson.
 
            
 
                 Virgil applied for and received long-term disability 
 
            benefits through the university group plan commencing April 
 
            28, 1989 and running through October 27, 1990 as explained 
 
            by Gary Wiggins, the benefits coordinator at the university.  
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            Wiggins explained that it is his understanding that the 
 
            group long-term disability carrier, Principal Mutual, does 
 
            not coordinate benefits or reduce the long-term disability 
 
            payment for workers' compensation benefits which are payment 
 
            of permanent partial disability, but that it does reduce the 
 
            benefit for workers' compensation benefits which have the 
 
            character of healing period or temporary total disability 
 
            compensation (exhibit 1, pages 7-19).  He explained that the 
 
            coordination or reduction occurs only for workers' 
 
            compensation benefits which are payment for loss of time 
 
            from work and that since permanent partial disability can be 
 
            paid while the individual is actually working, there is no 
 
            reduction of the long-term disability benefit.  Wiggins 
 
            explained that the university had been aware that Virgil was 
 
            receiving workers' compensation benefits prior to the time 
 
            that long-term disability benefits were started by virtue of 
 
            a March 30, 1989 letter from Dick Andrews.  Wiggins further 
 
            explained that Connie Tharp from Principal Mutual wrote a 
 
            letter to the claimant on June 28, 1989 in which the letter 
 
            advised the claimant that the long-term disability was being 
 
            reduced for Social Security benefits.
 
            
 
                 Wiggins explained that the long-term disability benefit 
 
            is subject to income taxation.
 
            
 
                 Wiggins explained that the long-term disability payment 
 
            commences 90 days following the last day of work or the date 
 
            that the disability began, unless the employee has more than 
 
            90 days of sick leave, in which event the payment begins 
 
            when the sick leave is completely exhausted.
 
            
 
                 Ronna Swacker, rehabilitation administrator with the 
 
            Principal Financial Group, issued a letter on January 16, 
 
            1991 in which she explained that under the policy which has 
 
            been issued to Iowa State University, long-term disability 
 
            benefits are reduced by workers' compensation temporary 
 
            benefits, but are not reduced for permanent disability 
 
            benefits, unless some portion of those benefits is 
 
            specifically set aside for loss of income, in which event it 
 
            would be reduced by the specific loss of income portion of 
 
            the award (exhibit 4).
 
            
 
                 Exhibit 1 to the deposition of Gary Wiggins is a copy 
 
            of a document identified in the deposition as the group life 
 
            insurance and total disability booklet (exhibit 1, page 10).  
 
            The booklet provides that the disabled employee, under the 
 
            policy issued, will receive 75 percent of the first $1,000 
 
            of monthly compensation plus 60 percent of monthly 
 
            compensation in excess of $1,000 up to a maximum of $3,150, 
 
            which amount is subject to increase according to the 
 
            Consumer Price Index.  The portion of the booklet entitled 
 
            "Coordination of Benefits" states in part as follows:
 
            
 
                 (b) any payment for which you are eligible under a 
 
                 Workers' Compensation Act or other similar 
 
                 legislation or under any plan (including 
 
                 compulsory plans) providing benefits for loss of 
 
                 time from employment to which the University 
 
                 contributes or makes payroll deductions; plus
 
            
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            (Exhibit 1, deposition exhibit 1, page 14)
 
            
 
                 Cheri Banks, workers' compensation manager for the Iowa 
 
            Department of Personnel since January 1, 1991, testified in 
 
            person at the hearing and by affidavit that she is the 
 
            person who decides whether or not to claim a credit under 
 
            Code section 85.38(2) and that she claims a credit in this 
 
            case for the long-term disability benefit payments.  Banks 
 
            also stated that the normal procedure is to pay the workers' 
 
            compensation and allow Principal Financial to take back any 
 
            amount which should not have been paid.  It was explained 
 
            that the state is essentially self-insured and that the 
 
            Principal Financial Group administers the program and is 
 
            paid a fee for administering the program.  Banks confirmed 
 
            that the state of Iowa pays the entire cost of the long-term 
 
            disability program (exhibit 5).  The opinion regarding what 
 
            the plan provides as expressed by Cheri Banks is outweighed 
 
            by the opinions expressed by Gary Wiggins and Ronna Swacker 
 
            as well as what is shown in the booklet which describes the 
 
            plan (exhibit 1, deposition exhibit 1, page 14).
 
            
 
                 The actual policy issued by Principal Financial Group 
 
            or the contract which specifies the actual provisions of the 
 
            plan which the Principal administers was not introduced into 
 
            evidence by any of the parties.  The evidence in the record 
 
            indicates that the plan does not offset permanent partial 
 
            disability compensation against the long-term disability 
 
            group benefit.
 
            
 
                 As previously indicated, after being sent home, Virgil 
 
            drew both workers' compensation and long-term disability 
 
            benefits concurrently.  He also entered into a program 
 
            through the Iowa Division of Vocational Rehabilitation where 
 
            tests showed him to be of average intelligence, though his 
 
            math scores were quite low and gave some indication of a 
 
            possible learning disability (exhibit 8).
 
            
 
                 In late 1990, Clark Williams, a qualified vocational 
 
            consultant, became involved in Virgil's case.  With his 
 
            assistance, Virgil was able to arrange to return to work 
 
            with Iowa State University on November 1, 1990 as a 
 
            groundskeeper, the same position he held in 1975 (exhibit 
 
            10).
 
            
 
                 At the time of hearing, Virgil was employed as a 
 
            groundskeeper by the university earning approximately 
 
            $19,900 annually.  His back continues to bother him, his 
 
            right leg is normally numb and at times he has a sharp pain 
 
            in the leg.  He still loses sleep at night, but is able to 
 
            get around fairly well once he gets loosened up in the 
 
            mornings.  Virgil has some difficulty with activities such 
 
            as shoveling or raking, but he believes that he can continue 
 
            working in his position as a groundskeeper.  According to 
 
            Dennis Erickson, Virgil is working satisfactorily and he 
 
            believes that claimant's physical restrictions can also be 
 
            accommodated in other positions which might provide a higher 
 
            rate of pay than Virgil's present position.  Erickson also 
 
            indicated that Virgil has the potential to move into a 
 
            supervisory position.  Virgil is interested in moving into a 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            higher paying or supervisory position.  No evidence was 
 
            introduced showing the probability or anticipated date of 
 
            any such move to a higher paying position.
 
            
 
                 From the record made, it appears as though the employer 
 
            did not take active control of Virgil's medical treatment 
 
            until it sent him to the Pain Management Center in late 1989 
 
            (exhibit 11).  While at the center, William C. Koenig, Jr., 
 
            M.D., provided claimant with a 15 percent permanent partial 
 
            impairment rating.  Claimant's original treating physician 
 
            for his back was Dr. Lang and no effort was made to cause 
 
            claimant to change from Dr. Lang to any other orthopaedic 
 
            surgeon for his primary treatment.  Based upon agency 
 
            expertise and experience, it is noted that it is not 
 
            uncommon for Dr. Lang to be an employer's authorized 
 
            treating physician for patients with orthopaedic problems 
 
            who reside in the Ames, Iowa area.  In this case, the 
 
            employer apparently acquiesced in treatment by Dr. Lang 
 
            since it took no action to direct other care.  In a report 
 
            dated March 24, 1990, Dr. Lang provided an impairment rating 
 
            of 20 percent of the whole person (exhibit 13, page 14).  In 
 
            a report dated June 30, 1989, Dr. Lang had provided an eight 
 
            percent impairment rating (exhibit 13, page 17).  Des Moines 
 
            orthopaedic surgeon Martin S. Rosenfeld, D.O., provided an 
 
            impairment rating of 20 percent in a report dated December 
 
            11, 1989 (exhibit 12).  The pain management program was 
 
            beneficial to the claimant.  In a report dated March 27, 
 
            1990, Dr. Koenig provided his impairment rating of 15 
 
            percent of the whole person (exhibit 11).  In a report dated 
 
            June 8, 1990, Sam C. Evans, D.C., provided an impairment 
 
            rating of 28 percent of the whole person (exhibit 3, page 
 
            4).  The charges for that evaluation and report are shown in 
 
            an attachment to the exhibit list to be $395.00.  When 
 
            deposed, Dr. Lang expressed the opinion that a causal 
 
            connection exists between the May 9, 1986 injury and 
 
            Virgil's current disability related to his back.  He again 
 
            rated that disability at 20 percent of the whole person 
 
            (exhibit 2, pages 10 and 11).  Dr. Lang approved of claimant 
 
            working as a groundskeeper (exhibit 2, pages 11 and 12; 
 
            exhibit 13, page 18).  The assessment of this case as made 
 
            by Dr. Lang is accepted as being correct, including his 
 
            opinion on causation, his impairment rating and his 
 
            recommended activity restrictions.
 
            
 
                                conclusions of law
 
            
 
                 There is no issue in this case with regard to 
 
            liability.  The initial issue is determination of the extent 
 
            of permanent partial disability.
 
            
 
                 If 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.2d 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 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            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.  DeWall v. Prentice, 224 N.W.2d 428, 
 
            435 (Iowa 1974); 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, Thirty-fourth Biennial Report of the Industrial 
 
            Commissioner 218 (1979); 2 Larson Workmen's Compensation 
 
            Law, sections 57.21 and 57.31.
 
            
 
                 Since it appears as though all the existing disability 
 
            has resulted from injuries sustained while the claimant was 
 
            employed by this employer, there is no basis for 
 
            apportionment of the disability.  Tussing v. George A. 
 
            Hormel & Co., 461 N.W.2d 450 (Iowa 1990).
 
            
 
                 Claimant seems to be appropriately employed.  While the 
 
            position of arborist has been eliminated from the university 
 
            work force, it is reasonable to expect that Virgil would be 
 
            earning approximately $24,000 annually if he had not been 
 
            injured in 1988.  It appears as though the position was 
 
            eliminated because it was vacant.  Approximately two years 
 
            had passed since he last worked and some pay increase would 
 
            have been expected.  It appears as though he has experienced 
 
            approximately a 15 percent reduction in actual earnings when 
 
            his current salary is compared to what he probably would 
 
            have been earning if he had not been injured.  While there 
 
            is some reason to believe that Virgil will eventually be 
 
            able to move into a higher paying position, possibly 
 
            supervisory, such has not yet occurred and may never occur.  
 
            It is particularly notable that he has had three back 
 
            surgeries.  That fact alone will make him quite unpalatable 
 
            to many potential employers.  His restrictions following the 
 
            most recent surgery caused this employer to determine that 
 
            they had no place for him in its work force.  Any other 
 
            employer would not have as much reason or motivation to hire 
 
            Virgil as would his current employer.  It appears as though 
 
            his current employment situation is quite favorable in 
 
            comparison to many of the alternatives which would have 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            faced him if the university had not decided to accommodate 
 
            his restrictions.
 
            
 
                 When all the material factors of industrial disability 
 
            are considered and weight given to those which are most 
 
            pertinent in this case, it is determined that Virgil L. 
 
            Erbe, Jr., sustained a 25 percent permanent partial 
 
            disability as a result of the May 9, 1986 injury.  This 
 
            entitles him to recover 125 weeks of compensation for 
 
            permanent partial disability, an amount which is 50 weeks 
 
            more than what had been voluntarily paid by the employer.  
 
            As stipulated in the prehearing report, those additional 50 
 
            weeks are payable commencing June 19, 1990.
 
            
 
                 Claimant seeks to recover the cost of the medical 
 
            examination performed by Dr. Evans.  There appears to be no 
 
            dispute regarding the reasonableness of the charges, only 
 
            the employer's liability.  In this case, it is clear that 
 
            the claimant was allowed to treat with the physician of his 
 
            choice.  The reason the employer permitted that to occur 
 
            does not appear in the record.  Perhaps it is the same 
 
            physician the employer would have chosen.  Because the 
 
            employer paid for the services provided by Dr. Lang without 
 
            any objection, Dr. Lang became the physician who was 
 
            retained and authorized by the employer for purposes of Code 
 
            sections 85.27 and 85.39.  Conte v. Heartland Lysine, Inc., 
 
            file number 900546 (Arb. Decn., June 13, 1991); Coble v. 
 
            Metromedia, Inc., Thirty-fourth Biennial Report of the 
 
            Industrial Commissioner 71 (1979); Munden v. Iowa Steel & 
 
            Wire, Thirty-third Biennial Report of the Industrial 
 
            Commissioner 99 (1977).  The fact that the claimant seeks an 
 
            independent examination from a second physician does not 
 
            increase the cost to the employer since if the employer had 
 
            selected the treating orthopaedic surgeon, the employer 
 
            would have paid for that physician's charges, including the 
 
            charges involved with making a rating of permanent 
 
            impairment.  The employer would also, under those 
 
            circumstances, have been required to expend the cost of an 
 
            independent examination by a second physician.  Since the 
 
            employer's liability is established in this case by 
 
            admission and an impairment rating had been made by Dr. Lang 
 
            as well as by Dr. Koenig, the claimant is clearly entitled 
 
            to recover the cost of his independent medical examination 
 
            performed by Dr. Evans.
 
            
 
                 The final issue in the case deals with the employer's 
 
            right to a credit under section 85.38(2) of The Code.  The 
 
            burden of proving the entitlement rests upon the employer.  
 
            Argo v. Van Hulzen Oil Co., IV Iowa Industrial Commissioner 
 
            Report 15 (1984); McCrady v. Iowa Beef Processors, Inc., IV 
 
            Iowa Industrial Commissioner Report 239 (1984); Hebensperger 
 
            v. Motorola Communications & Electronics, Inc., II Iowa 
 
            Industrial Commissioner Report 187 (1981).  The agency 
 
            precedent is consistent with the general proposition that 
 
            the burden of proving an entitlement to anything rests on 
 
            the proponent.  Rule 14(f)(5), Iowa Rules of Appellate 
 
            Procedure; Wonder Life Co. v. Liddy, 207 N.W.2d 27 (Iowa 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            1973).  The credit is similar to the defense of payment or 
 
            accord and satisfaction, both of which are affirmative 
 
            defenses where the burden of pleading and proof is on the 
 
            party seeking to benefit from the credit.  Electra Ad Sign 
 
            v. Cedar Rapids Truck Center, 316 N.W.2d 876 (Iowa 1982); 
 
            Glenn v. Keedy, 248 Iowa 216, 80 N.W.2d 509 (1957).  In 
 
            order to be entitled to a credit under section 85.38(2), the 
 
            employer has the burden of proving two facts, namely, that 
 
            the employer contributed toward the cost of the group plan 
 
            benefit and that the benefits should not have been paid or 
 
            payable if any right of recovery existed under the workers' 
 
            compensation statutes.  It is particularly noted that the 
 
            collateral source rule has not been extinguished with regard 
 
            to workers' compensation as clearly shown in section 
 
            85.38(1).  Only those benefits which qualify under section 
 
            85.38(2) are entitled to credit.
 
            
 
                 The best evidence from which a determination of the 
 
            terms of the group long-term disability plan could be 
 
            examined is the policy or contract between the state of Iowa 
 
            and the Principal Financial Group.  That document was not 
 
            entered into evidence in this case.  A booklet which is 
 
            probably intended to summarize the contents of the actual 
 
            plan seems to support the claimant's position as does the 
 
            testimony from Gary Wiggins and the letter from Ronna 
 
            Swacker.  Summarily stated, the individuals who administer 
 
            the group long-term disability plan interpret and administer 
 
            the plan in such a manner as to not provide any coordination 
 
            of benefits or reduction in the amount paid by the plan for 
 
            permanent partial disability compensation benefits.  The 
 
            fact that the plan has been customarily administered in that 
 
            manner is evidence that the customary manner of 
 
            administration is in conformance with the actual contract or 
 
            policy.
 
            
 
                 Section 79.20 of The Code establishes a long-term 
 
            disability program for state employees.  The fact that such 
 
            a plan is mandated by statute does not, however, necessarily 
 
            mean that the state is prohibited from providing employees 
 
            with benefits which are consistent with, but more favorable 
 
            than those provided by the statute.  The maximum amount 
 
            payable under the plan clearly exceeds the $2,000 maximum 
 
            specified by section 79.20.  If the state contracted for a 
 
            policy or plan which did not offset permanent partial 
 
            disability compensation benefits, then the requirements for 
 
            a credit under section 85.38(2) of The Code would not exist 
 
            for permanent partial disability compensation payments.
 
            
 
                 It must likewise be assumed that the public officials 
 
            who arranged the administration by the plan by the Principal 
 
            Financial Group acted lawfully.  Illegal conduct on their 
 
            part by purchasing a plan which would be in violation of 
 
            statute could potentially subject those individuals to 
 
            personal liability for any resulting excess costs or 
 
            expenses.  The issue of the legality of the group plan 
 
            arrangement was not raised in the prehearing conference and 
 
            was not identified on the hearing assignment order.  The 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            issue was not extensively briefed by counsel and no evidence 
 
            was submitted dealing with the manner in which the plan, 
 
            policy or contract was designed.  Under these conditions, 
 
            the presumption of regularity prevails.  The terms of the 
 
            policy, plan or contract, being lawful, control the right or 
 
            lack thereof to a credit under section 85.38(2).
 
            
 
                 There has long been recognized a distinction between 
 
            different types of workers' compensation benefit payments.  
 
            No credit is allowed for amounts which are paid in excess of 
 
            the weekly workers' compensation benefit rate.  Beeler v. 
 
            Union Elec. Co., III Iowa Industrial Commissioner Report 22 
 
            (App. Decn. 1983).  Overpaid healing period benefits cannot 
 
            be used to offset benefits payable under section 85.27.  
 
            Anderson v. Woodward State Hospital-School, 2-1 State of 
 
            Iowa Industrial Commissioner Decisions 24 (App. Decn. 1985).  
 
            The interpretation given by Wiggins and the Principal is 
 
            consistent with what is seen in some other states.  Ott v. 
 
            Workers Comp. Appellate Bd., 118 Cal. App. 3d 912, 173 Cal. 
 
            Rptr. 648 (1981); Russell v. Bankers Life Co., 46 Cal. App. 
 
            3d 405, 120 Cal. Rptr. 627 (1975); Schel v. City of Miami, 
 
            173 So. 2d 170 (Fla. 1976).
 
            
 
                 While the amount paid under the group long-term 
 
            disability plan is established by stipulation, the amount of 
 
            any credit entitlement based upon those payments is not 
 
            determinable.  If claimant's claim had been properly 
 
            adjusted as a compensable workers' compensation claim and 
 
            the correct amount of weekly compensation benefits for 
 
            permanent partial disability paid, the claimant would have 
 
            received nontaxable workers' compensation benefits.  The 
 
            group long-term disability compensation benefits are, 
 
            however, subject to federal and state income taxes.  The 
 
            amount of the credit is the net amount that the claimant 
 
            receives after deducting the applicable taxes.  Fields v. 
 
            Univ. of Iowa Hospitals & Clinics, file number 883516 (Arb. 
 
            Decn., May 31, 1990); Beller v. Iowa State Penitentiary, 
 
            file number 799401 (Review-reopening Decn., January 23, 
 
            1990).  To hold otherwise would penalize the injured 
 
            employee due to the employer's mistake in adjusting the 
 
            claim.  Such a result would be totally unconscionable, 
 
            particularly since the workers' compensation statutes are to 
 
            be construed in a light favorable to the injured employee.  
 
            The net result of any credit under section 85.38(2) of The 
 
            Code should be to place the injured employee in the same 
 
            position as the injured employee would have experienced if 
 
            the correct amount of workers' compensation benefits had 
 
            been paid from the outset.  If any party is to suffer as a 
 
            result of an error in the claim adjusting process, that 
 
            party should be the one who made the error, namely the 
 
            employer.
 
            
 
                 It is therefore concluded that the employer in this 
 
            case has failed to prove, by a preponderance of the 
 
            evidence, that it is entitled to a credit under section 
 
            85.38(2) of The Code based upon the long-term disability 
 
            benefits paid to Virgil L. Erbe, Jr., during the time 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            running from April 1989 through October 1990.  In making 
 
            this ruling, it is determined that the claimant's healing 
 
            period entitlement had ended by the time he was released to 
 
            return to work in January 1989 by Dr. Lang, reported for 
 
            work and was sent home, thereby starting the running of the 
 
            waiting period for long-term disability benefit payments.
 
            
 
                 This decision does not address whether or not the use 
 
            of the claimant's sick leave during the waiting period 
 
            constituted a violation of section 85.38(3) or any 
 
            interpretation of credit for those benefits.  The only 
 
            issues briefed or discussed by counsel deal with the 
 
            long-term disability group plan.
 
            
 
                                      order
 
            
 
                 IT IS THEREFORE ORDERED that defendants pay Virgil L. 
 
            Erbe, Jr., fifty (50) weeks of compensation for permanent 
 
            partial disability at the stipulated rate of two hundred 
 
            forty-one and 49/100 dollars ($241.49) per week payable 
 
            commencing June 19, 1990.  The entire amount thereof is now 
 
            past due and owing and shall be paid to the claimant in a 
 
            lump sum together with interest pursuant to section 85.30 of 
 
            The Code computed from the date each payment came due until 
 
            the date of actual payment.
 
            
 
                 IT IS FURTHER ORDERED that defendants reimburse the 
 
            claimant in the amount of three hundred ninety-five and 
 
            00/100 dollars ($395.00) representing the cost of an 
 
            independent medical examination under section 85.39 of The 
 
            Code.
 
            
 
                 IT IS FURTHER ORDERED that the defendants not take or 
 
            enforce any credit under section 85.38(2) of The Code based 
 
            upon the long-term disability compensation benefits which 
 
            were paid to the claimant by Principal Mutual.
 
            
 
                 IT IS FURTHER ORDERED that the costs of this action are 
 
            assessed against the defendants pursuant to rule 343 IAC 
 
            4.33 and shall be paid by defendants to the claimant in the 
 
            total amount of six hundred ninety and 62/100 dollars 
 
            ($690.62) as itemized in the attachment to the prehearing 
 
            report.
 
            
 
                 IT IS FURTHER ORDERED that defendants file claim 
 
            activity reports as requested by this agency pursuant to 
 
            rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ______ day of ____________, 1991.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            Mr. Barry Moranville
 
            Attorney at Law
 
            West Bank Building, Suite 212
 
            1601 22nd Street
 
            W. Des Moines, Iowa  50265
 
            
 
            Ms. Joanne Moeller
 
            Assistant Attorney General
 
            Tort Claims Division
 
            Hoover State Office Building
 
            Des Moines, Iowa  50319
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           1403.30; 1701; 1803; 2502
 
                           Filed July 10, 1991
 
                           MICHAEL G. TRIER
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            VIRGIL L. ERBE, JR.,     :
 
                      :
 
                 Claimant, :
 
                      :         File No. 824057
 
            vs.       :
 
                      :      A R B I T R A T I O N
 
            IOWA STATE UNIVERSITY,   :
 
                      :         D E C I S I O N
 
                 Employer, :
 
                      :
 
            and       :
 
                      :
 
            STATE OF IOWA, :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ____________________________________________________________
 
            
 
            1803
 
            Thirty-eight-year-old groundskeeper at Iowa State University 
 
            awarded 25 percent permanent partial disability based upon 
 
            his second and third laminectomy, a 20 percent impairment 
 
            rating and approximately a 15 percent reduction in his 
 
            actual earnings.  Were it not for his employer's 
 
            accommodations, his loss of actual earnings would have been 
 
            profound.
 
            
 
            1403.30; 1701
 
            Employer required to carry burden of proof when seeking 
 
            section 85.38(2) credit.  Employer failed to carry the 
 
            burden by failing to show that the long-term disability plan 
 
            or policy prohibited payment of long-term disability 
 
            benefits in addition to permanent partial disability.  The 
 
            persons who administer the long-term disability plan 
 
            provided evidence that there was no offset under those 
 
            circumstances.
 
            
 
            2502
 
            Where employer acquiesced in the claimant's choice of 
 
            orthopaedic surgeons (without showing any evidence as to 
 
            why), that surgeon became the employer's authorized and 
 
            retained physician for purpose of entitling the claimant to 
 
            an independent medical examination under section 85.39.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         SCOTT M. BLASBERG,
 
         
 
              Claimant,
 
                                                    File No. 824142
 
         vs.
 
                                                 A R B I T R A T I 0 N
 
         FRIEDMAN MOTORCARS, LTD.,
 
                                                    D E C I S I 0 N
 
              Employer,
 
         
 
         and                                           F I L E D
 
         
 
         UNIVERSAL UNDERWRITERS                       JAN 24 1990
 
         INSURANCE COMPANY,
 
                                             IOWA INDUSTRIAL COMMISSIONER
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                                 INTRODUCTION
 
         
 
              This is a proceeding brought by claimant, Scott Blasberg, 
 
         against his employer, Friedman Motorcars, Ltd., and its insurance 
 
         carrier, Universal Underwriters Insurance Company.  The case was 
 
         heard in Des Moines, Iowa on the 23rd day of February, 1989.
 
         
 
              The record consists of the testimony of claimant.  The 
 
         record also consists of the testimonies of Jerry Friedman and 
 
         Kevin Dean Messenger.  The record is also comprised of joint 
 
         exhibits 1-18 and defendants' exhibit A.
 
         
 
                                 STIPULATION
 
         
 
              Prior to the hearing, the parties entered into one 
 
         stipulation.  The stipulation is:
 
         
 
              1.  The existence of an employer-employee relationship 
 
         between claimant and employer at the time of the alleged injury.
 
         
 
                                   ISSUES
 
         
 
              As a result of the prehearing report and order submitted and 
 
         approved on February 23, 1989, the issues presented by the 
 
         parties are:
 
         
 
              1.  Whether claimant received an injury which arose out of 
 
         and in the course of employment;
 
         
 
              2.  Whether there is a causal relationship between the 
 
         alleged injury and the disability;
 
         
 
              3.  Whether claimant is entitled to temporary 
 
                                                
 
                                                         
 
         disability/healing period benefits or permanent partial or total 
 
         disability benefits; and,
 
         
 
              4.  Whether claimant is entitled to medical benefits 
 
         pursuant to section 85.27.
 
         
 
                             STIPULATED FACTS
 
         
 
              In addition to certain facts which were presented at the 
 
         hearing, the following facts have been admitted and stipulated to 
 
         by the parties:
 
         
 
              1.  On May 1, 1986, claimant was employed by Friedman 
 
         Motorcars, Ltd., as a parts counter man.
 
         
 
              2.  May 1, 1986, was a Thursday.
 
         
 
              3.  On May 1, 1986, Friedman Motorcars, Ltd., was the owner 
 
         of a 1986 1/2 Toyota Supra 2 door-automobile, VIN Number 
 
         JT2MA70LOGOO10080 (Toyota Supra).
 
         
 
              4.  On May 1, 1986, Kevin Messenger was an employee of the 
 
         service department of Friedman Motorcars, Ltd., where he worked 
 
         as a mechanic.
 
         
 
              5.  On May 1, 1986, one of the duties of Kevin Messenger as 
 
         an employee of the service department of Friedman Motorcars, 
 
         Ltd., was to prepare and test drive the Toyota Supra.
 
         
 
              6.  On May 1, 1986, at approximately 4:40 p.m. there was a 
 
         collision between the Toyota Supra, being driven by Kevin 
 
         Messenger, and a 1986 Ford Aerostar Van, owned by Charles Gabus 
 
         Ford (Ford), near the intersection of Northwest 46th Avenue 
 
         (Meredith Drive) and Northwest 47th Court in Des Moines, Polk 
 
         County, Iowa.
 
         
 
              7.  On May 1, 1986, at approximately 4:40 p.m., claimant was 
 
         a passenger in the Toyota Supra when it and the 1986 Ford 
 
         collided near the intersection of Northwest 46th Avenue (Meredith 
 
         Drive) and Northwest 47th Court in Des Moines, Polk County, 
 
         Iowa.
 
         
 
              8.  On May 1, 1986, John Rath was manager of the parts 
 
         department of Friedman Motorcars, Ltd.
 
         
 
              9.  On May 1, 1986, by 4:30 p.m., John Rath had finished his 
 
         work for the day and left Friedman Motorcars, Ltd.
 
         
 
              10.  Duties of claimant as an employee of the Friedman 
 
         Motorcars, Ltd., parts department included:  taking orders for 
 
         parts from retail customers or from employees of the service 
 
         department; selling parts to retail customers; obtaining parts 
 
         from their place of storage and bringing them to the parts 
 
         counter; unloading trucks delivering parts; unpacking the bases 
 
         in which parts,were shipped, carrying the unplaced parts to the 
 
                                                
 
                                                         
 
         place of storage and placing them in the storage area; recording 
 
         parts received; making records of parts sold or furnished to 
 
         service personnel; answering the telephone; and, closing and 
 
         reconciling the cash drawer, as necessary.
 
         
 
              11.  Parts counter persons, such as claimant, are expected 
 
         to be familiar with the various automobiles sold by Friedman 
 
         Motorcars, Ltd.
 
         
 
              12.  On May 1, 1986, policies, rules and regulations of the 
 
         parts department of Friedman Motorcars, Ltd., were not in 
 
         writing.
 
         
 
              13.  Prior to May 1, 1986, Scott M. Blasberg had not been 
 
         disciplined, fined, reprimanded, censured, admonished, or 
 
         otherwise rebuked for violating or failing to follow any of the 
 
         policies, rules and regulations of the parts department of 
 
         Friedman Motorcars, Ltd.
 
         
 
              14.  Claimant was hired by Friedman Motorcars, Ltd., on 
 
         August 21, 1984.
 
         
 
              15.  During all relevant times, claimant's treating 
 
         physician was Scott Neff, D.O.
 
         
 
              16.  Claimant was born September 15, 1957.
 
         
 
                              FACTS PRESENTED
 
         
 
              During the hearing, claimant testified he never had a 
 
         discussion with anyone from Friedman's concerning company 
 
         policies other than discussions about hours and lunch breaks.  
 
         Claimant indicated he worked Monday through Friday from 8:00 to 
 
         5:00 p.m., with one-half hour off for lunch.  During his lunch 
 
         break, claimant stated he was able to leave the premises or he 
 
         could eat his lunch on site.  If claimant left the dealership for 
 
         lunch, he was not required to tell anyone.
 
         
 
              Claimant also testified that during his employment, he 
 
         reported to John Rath, parts department manager.  Claimant stated 
 
         he did not know whether there was an assistant to Mr. Rath. 
 
         Claimant indicated that whenever a parts department employee 
 
         needed to leave the premises to obtain parts, the employee was 
 
         required to obtain the permission of Mr. Rath.  If Mr. Rath was 
 
         not present, then the parts employees would tell anyone else who 
 
         was present.
 
         
 
              On the day in question, claimant testified he was taking a 
 
         break in the back of the shop.  Kevin Messenger, the co-employee, 
 
         was prepping a Toyota Supra for sale.  Claimant stated he began 
 
         looking at the vehicle so he could familiarize himself with it. 
 
         Claimant testified he wanted hands-on experience with the vehicle 
 
         so he could explain parts to the customers.
 
         
 
              According to claimant's testimony, Mr. Messenger asked 
 
                                                
 
                                                         
 
         claimant if he wanted to ride in the Supra while Mr. Messenger 
 
         test drove it.  Claimant indicated, yes, and he reported the 
 
         matter to several co-employees in the parts department.  Claimant 
 
         testified no one complained or told him not to leave, although 
 
         claimant indicated this was the first time he had ever been asked 
 
         to accompany a service technician on a test drive.  Claimant also 
 
         indicated he did not know of any other parts employee who had 
 
         ever gone on a test drive.
 
         
 
              Claimant and Mr. Messenger were involved in the 
 
         aforementioned auto collision with the Ford.  After the 
 
         collision, claimant was hospitalized.  Later, claimant was 
 
         terminated from his employment.
 
         
 
              John Rath, parts manager, testified by deposition.  He 
 
         indicated he was the parts manager and that he supervised 
 
         claimant.  Mr. Rath reported the policies at defendant's 
 
         establishment were oral policies and training was on-the-job 
 
         training.  Mr. Rath stated employees in the parts department did 
 
         not leave the premises unless he instructed them to leave.  Mr. 
 
         Rath said he never had to enforce that policy.  Mr. Rath also 
 
         testified no one was in charge of the parts department when he 
 
         was away from the premises.
 
         
 
              Mr. Rath also testified that on the day of the collision, he 
 
 
 
                     
 
                                                         
 
         left work at 4:00 p.m., but that prior to 5:00 p.m., he received 
 
         a telephone call regarding claimant's injury.  Mr. Rath reported 
 
         he visited claimant in the hospital.  During his first of four 
 
         hospital visits, Mr. Rath reported claimant blurted out, "I'm 
 
         sorry, John.  I know I've got you in trouble.  I was where I 
 
         shouldn't have been."  (Joint Exhibit 4, page 18, lines 9-11)
 
         
 
              Mr. Rath also stated he had no knowledge of claimant's 
 
         termination.  The decision to terminate claimant was not Mr. 
 
         Rath's decision.  He did not know who had made that decision.
 
         
 
              Kevin Messenger testified by deposition.  He stated claimant 
 
         requested the test ride.  Mr. Messenger indicated he had never 
 
         taken a parts employee with him on a test ride on any prior 
 
         occasion.
 
         
 
              Jerry Friedman, President of defendant company, testified at 
 
         the hearing.  He stated there were no written policies governing 
 
         test drives on May 1, 1986, but that parts employees did not take 
 
         test drives.  Mr. Friedman stated no parts knowledge would be 
 
         gained by a parts employee taking a test drive.
 
         
 
                         APPLICABLE LAW AND ANALYSIS
 
         
 
              An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
         employment.  Section 85.3(1).
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received an injury on May 1, 1986,.which arose 
 
         out of and in the course of his employment.  McDowell v. Town of 
 
         Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central 
 
         Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              The injury must both arise out of and be in the course of 
 
         the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 
 
         402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the 
 
         Iowa Report.  See also Sister Mary Benedict v. St. Mary's Corp., 
 
         255 Iowa 847, 124 N.W.2d 548 (1963) and Hansen v. State of Iowa, 
 
         249 Iowa 1147, 91 N.W.2d 555 (1958).
 
         
 
              The words "out of" refer to the cause or source of the 
 
         injury.  Crowe, 246 Iowa 402, 68 N.W.2d 63 (1955).
 
         
 
              The words "in the course of" refer to the time and place and 
 
         circumstances of the injury.  McClure v. Union et al. Counties, 
 
         188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 402, 68 N.W.2d 63 
 
         (1955).
 
         
 
              "An injury occurs in the course of the employment when it is 
 
         within the period of employment at a place the employee may 
 
         reasonably be, and while he is doing his work or something 
 
         incidental to it."  Cedar Rapids Comm. Sch. Dist. v. Cady, 278 
 
         N.W.2d 298 (Iowa 1979), McClure, 188 N.W.2d 283 (Iowa 1971); 
 
         Musselman, 261 Iowa 352, 154 N.W.2d 128 (1967).
 
                                                
 
                                                         
 
         
 
              The Iowa Supreme Court recently addressed this issue in the 
 
         case of McMullen v. Department of Revenue, State of Iowa, 437 
 
         N.W.2d 596, 597-598, (Iowa App. 1989).  The Court, in McMullen, 
 
         wrote:
 
         
 
              Iowa Courts have liberally construed the phrase "in the 
 
              course of employment."  In cases where the employment 
 
              activity was not required by the employer:
 
         
 
                   An injury in the course of employment 
 
                   embraces all injuries received while employed 
 
                   in furthering the employer's business and 
 
                   injuries received on the employer's premises, 
 
                   provided that the employee's presence must 
 
                   ordinarily be required at the place of the 
 
                   injury, or, if not so required, employee's 
 
                   departure from the usual place of employment 
 
                   must not amount to an abandonment of 
 
                   employment or be an act wholly foreign to his 
 
                   usual work.  An employee does not cease to be 
 
                   in the course of his employment merely 
 
                   because he is not actually engaged in doing 
 
                   some specifically prescribed task, if, in the 
 
                   course of his employment, he does some act 
 
                   which he deems necessary for the benefit or 
 
                   interest of his employer.
 
         
 
              Farmers Elevator Co., 286 N.W.2d at 177 (court quoting 
 
              Bushing v. Iowa Railway & Light Co., 208 Iowa 1010, 226 
 
              N.W. 719, 723 (1929) (citations omitted) (emphasis added).
 
         
 
              Claimant requests benefits for his hip injury.  Defendants 
 
         maintain the injury is not compensable.  According to defendants' 
 
         position, "claimant was doing nothing to further the employer's 
 
         business."  Therefore, the injury is not covered by workers' 
 
         compensation.
 
         
 
              Whether an injury is in the course of employment is an issue 
 
         which is discussed in Chapter 6 of Lawyer & Higgs, Iowa Workers, 
 
         Compensation -- Law & Practice, Section 6-5, pages 43-44.  The 
 
         section provides that:
 
         
 
              Employees usually do not leave the course of their 
 
              employment by seeking personal comfort through such things 
 
              as smoking, using bathroom facilities or eating.  Some cases 
 
              in this category may entail consideration of whether an 
 
              employer prohibition against the activity exists.
 
         
 
              In Rish v. Iowa Portland Cement Co., claimant was injured 
 
              when he commenced smoking while wearing a pair of overalls 
 
              that had dynamite caps in the pockets.  Although not finding 
 
              smoking a necessity, the Iowa Supreme Court recognized it as 
 
              a "quite universal habit among workmen and an indulgence 
 
              reasonably to be anticipated by employers.  Benefits were 
 
                                                
 
                                                         
 
                   awarded.
 
         
 
              Reasonableness of the action of the employee was considered 
 
              in Sachleben v. Gjellefald Co.  Claimant was working on a 
 
              sewer line near a railroad track when he went between two 
 
              cars to have a bowel movement.  The train started to move 
 
              and his legs were crushed.  Claimant's injury was 
 
              compensable.
 
         
 
              In the case at hand, claimant did not prove by a 
 
         preponderance of the evidence that his injury arose out of and in 
 
         the course of his employment.  Claimant argues the test ride 
 
         which he took with Kevin Messenger was made so claimant could 
 
         familiarize himself with a new model automobile.  The familiarity 
 
         would thus enable claimant to become a better employee and he 
 
         could recommend parts to customers.
 
         
 
              Claimant was hired as a sales person in the parts 
 
         department. His primary duty was to engage in over-the-counter 
 
         sales.  He was paid on a salary plus commission basis.  Claimant 
 
         was required to know and sell auto parts.  In order to gain the 
 
         requisite knowledge, defendant provided manuals, video tapes and 
 
         microfiche as tools for claimant to use.  Claimant was not 
 
         required to perform test drives.  He had never been on a test 
 
         drive on any prior occasion.  In fact, Kevin Messenger had never 
 
         taken a parts employee on a test drive prior to the day of the 
 
         collision.
 
         
 
              Moreover, the parts manager, John Rath, testified that parts 
 
         employees were not to leave the premises without his permission. 
 
         On the day in question, the parts manager was absent from the 
 
         premises.  His permission was not obtained prior to claimant 
 
         taking the test drive.
 
         
 
              Mr. Jerry Friedman corroborated the above oral policy.  He 
 
         indicated parts employees were to stay on the premises and in 
 
         their department.  Mr. Friedman believed no parts knowledge would 
 
         be gained from test driving a.car.  Consequently, he had never 
 
         asked a parts employee to test drive a new model automobile.  
 
         Test driving was the duty of a service technician.
 
         
 
              Claimant's test drive was done for personal reasons.  He and 
 
         Mr. Messenger were social friends and roommates.  The ride was a 
 
         detour from claimant's normal duties.  It was done for purely 
 
         private motives.
 
         
 
              All of the aforementioned facts establish that it would be 
 
         unreasonable for management employees of defendant to foresee 
 
         that claimant would engage in a test drive.  Such an action would 
 
         especially be unreasonable in light of the fact claimant was paid 
 
         a commission to sell auto parts.  If claimant was absent from the 
 
         sales counter, he would not be able to earn as much in wages.  
 
         His wages were contingent upon claimant's presence at the 
 
         counter. Claimant was required to remain at the counter so he 
 
         could benefit the employer by selling parts.
 
                                                
 
                                                         
 
         
 
              Finally, the record establishes that subsequent to the 
 
         collision, claimant made various statements to John Rath.  The 
 
         statements reflect claimant's understanding that he was not to 
 
         leave the premises on a test drive.
 
         
 
              Therefore, it is the determination of the undersigned that 
 
         claimant's injury did not arise out of and in the course of his 
 
         employment.  Since the injury did not arise out of and in the 
 
         course of claimant's employment, other issues presented are 
 
         moot.
 
         
 
                     FINDINGS OF FACT AND CONCLUSIONS OF LAW
 
         
 
              Finding 1.  Claimant was working as a parts salesman for 
 
         defendant on May 1, 1986.
 
         
 
              Finding 2.  Claimant's job duties on May 1, 1986, included 
 
         over-the-counter parts sales.
 
         
 
              Finding 3.  Claimant was required to have the permission of 
 
         the parts manager in order to leave the premises of defendant.
 
         
 
              Finding 4.  Claimant's job duties on May 1, 1986, did not 
 
         include taking test rides of new model autos.
 
         
 
              Finding 5.  Claimant left the premises of defendant on May 
 
         1, 1986, in order to take a test drive of a new model auto.
 
         
 
              Finding 6.  Claimant left the premises of defendant on May 
 
         1, 1986, without the permission of his supervisor, and the ride 
 
         was unauthorized.
 
         
 
                     
 
                                                         
 
              Finding 7.  When claimant left the premises of defendant on 
 
         May 1, 1986, the ride was done for purely personal reasons unique 
 
         to claimant.
 
         
 
              Finding 8.  It would be unreasonable for defendant to 
 
         foresee that claimant would leave the premises on an unauthorized 
 
         test drive.
 
         
 
              Finding 9.  Claimant was injured in an auto collision while 
 
         on the unauthorized test drive on May 1, 1986.
 
         
 
              Conclusion A.  Claimant has not proven by a preponderance of 
 
         the evidence that his injury arose out of and in the course of 
 
         his employment.
 
         
 
              Conclusion B.  Claimant takes nothing from these proceedings 
 
         since the injury did not arise out of and in the course of his 
 
         employment.
 
         
 
                                     ORDER
 
         
 
              Claimant takes nothing from these proceedings.
 
         
 
              Costs of this action are assessed against defendants.
 
         
 
         
 
              Signed and filed this 24th day of January, 1990.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            MICHELLE A. McGOVERN
 
                                            DEPUTY INDUSTRIAL 
 
                                            COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Ms. Carla T. Cook
 
         Mr. George F. Davison, Jr.
 
         Attorneys at Law
 
         2801 Fleur Dr.
 
         Des Moines, IA  50321
 
         
 
         Mr. Frank T. Harrison
 
         Attorney at Law
 
         Terrace Center, STE 111
 
         2700 Grand Ave.
 
         Des Moines, IA  50312
 
 
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            1100, 1103
 
                                            Filed January 24, 1990
 
                                            MICHELLE A. McGOVERN
 
         
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         SCOTT M. BLASBERG,
 
         
 
              Claimant,
 
                                                    File No. 824142
 
         vs.
 
                                                 A R B I T R A T I 0 N
 
         FRIEDMAN MOTORCARS, LTD.,
 
                                                     D E C I S I 0 N
 
              Employer,
 
         
 
         and
 
         
 
         UNIVERSAL UNDERWRITERS
 
         INSURANCE COMPANY,
 
         
 
              Insurance carrier,
 
              Defendants.
 
         
 
         
 
         1100, 1103
 
         
 
         
 
              Claimant's injury did not arise out of and in the course of 
 
         his employment.  Claimant left the premises of defendant on a 
 
         purely private venture and without the permission of defendant. 
 
         While off the premises, claimant was involved in an automobile 
 
         accident where the auto was owned by defendant and driven by a 
 
         co-employee.
 
 
 
         
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                           :
 
            VICKY BURTON,                  :
 
                                           :
 
                 Claimant,                 :
 
                                           :
 
            vs.                            :
 
                                           :         File No. 824332
 
            WOODWARD STATE HOSPITAL-SCHOOL,:
 
                                           :      A R B I T R A T I O N
 
                 Employer,                 :
 
                                           :         D E C I S I O N
 
            and                            :
 
                                           :
 
            STATE OF IOWA,                 :
 
                                           :
 
                 Insurance Carrier,        :
 
                 Defendant.                :
 
            ___________________________________________________________
 
            
 
            
 
                              statement of the case
 
            
 
                 This is a review-reopening proceeding upon the petition 
 
            of claimant, Vicky Burton, against her employer, Woodward 
 
            State Hospital School, and the State of Iowa, self-insured 
 
            employer, defendant.  The case was heard on July 9, 1990, in 
 
            Des Moines, Iowa at the office of the industrial 
 
            commissioner.  The record consists of the testimony of 
 
            claimant.  Additionally, the record consists of joint 
 
            exhibits 1-7.
 
            
 
                                      issues
 
            
 
                 The issues to be determined are:  1) whether there is a 
 
            causal relationship between the alleged injury and the 
 
            disability; 2) whether claimant is entitled to temporary 
 
            disability/healing period benefits or permanent partial 
 
            disability benefits; and, 3) whether claimant is entitled to 
 
            medical benefits.
 
            
 
                                 findings of fact
 
            
 
                 The deputy, having heard the testimony and considered 
 
            all the evidence, finds:
 
            
 
                 Claimant entered into a settlement agreement on March 
 
            11, 1987, which was approved by Deputy Industrial 
 
            Commissioner Michael Trier on March 12, 1987.  The 
 
            settlement agreement provided that:
 
            
 
                    1)  That the Claimant, Vicky Burton, was 
 
                 employed by Woodward State Hospital School on May 
 
                 18th, 1986.
 
            
 
                    2)  Claimant sustained an injury arising out of 
 
                 and in the course of her employment on May 18th, 
 
                 1986.
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                    3)  Claimant was paid healing period benefits 
 
                 from May 19, 1986 to December 20, 1986.
 
            
 
                    4)  Claimant was treated by Dr. Dennis F. 
 
                 Rolek, D.O., her private physician and Dr. D.J. 
 
                 Boarine, M.D., the employer's physician.
 
            
 
                    5)  The Claimant underwent a C.T. Scan of the 
 
                 lumbar spine where a bulged disc was found at L-4, 
 
                 L-5.
 
            
 
                    6)  Due to the fact it was a bulged disc, the 
 
                 attending physician was unable to give a permanent 
 
                 rating.
 
            
 
                    7)  That the parties hereto have agreed that 
 
                 Claimant's present permanent partial impairment as 
 
                 a body of the whole is 5%, entitling Claimant to 
 
                 be paid 25 weeks of permanent partial disability 
 
                 compensation at the rate of $178.78 or $4469.50, 
 
                 part of which has accrued and payment by Defendant 
 
                 of the outstanding medical bills.
 
            
 
                    8)  The terms of this Agreement are that the 
 
                 payment of $4469.50 be made by the Defendant and 
 
                 Claimant agrees that said payment shall constitute 
 
                 payment of 5% permanent partial disability of the 
 
                 body as a whole.
 
            
 
                    9)  That said Agreement for Settlement shall 
 
                 have the full force of a Review-Re-opening 
 
                 Decision if rendered by a Deputy Industrial 
 
                 Commissioner, allowing Claimant and Defendants the 
 
                 rights set forth in Section 85.26(2), of the Code 
 
                 of Iowa.
 
            
 
                 A review-reopening petition was filed on February 29, 
 
            1988.  Subsequent to the approval of the settlement 
 
            agreement, claimant sought medical treatment from James N. 
 
            Weinstein, Assistant Professor and Director of the Spine 
 
            Diagnostic and Treatment Center at the University of Iowa.
 
            
 
                 On March 1, 1988, claimant had a:
 
            
 
                 L4-5 fusion with exploration of the right L4 nerve 
 
                 route and a discectomy done on L4-5 with a steffee 
 
                 plating done in the pedicles of L4 and L5 with 
 
                 posterolateral fusion, using autogenous bone graft 
 
                 from the right iliac crest.
 
            
 
                 Subsequent to the surgery, claimant engaged in physical 
 
            therapy and a home exercise program.  Approximately one year 
 
            post surgery, x-rays were taken.  They revealed:
 
            
 
                 COMPARISON STUDY DATED 9-8-88.
 
            
 
                 AP AND FLEXION AND EXTENSION VIEWS OF THE 
 
                 LUMBOSACRAL SPINE DEMONSTRATE NO EVIDENCE OF 
 
                 INSTABILITY OR MOVEMENT AT THE SITE OF BILATERAL 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                 POSTERIOR STEFFEE PLATING WHICH BRIDGE L4 AND L5.  
 
                 THE HARDWARE APPEARS INTACT.  PERSISTENT NARROWING 
 
                 OF THE L4-L5 DISC SPACE IS AGAIN APPRECIATED.
 
            
 
                 OVERALL, NO INTERVAL CHANGE IS DEMONSTRATED FROM 
 
                 THE 9-88 EXAM.
 
            
 
                 IMPRESSION:  STATUS POST STEFFE PLATING SHOWING NO 
 
                 EVIDENCE OF COMPLICATION OR MOVEMENT ON FLEXION OR 
 
                 EXTENSION.
 
            
 
                 Dr. Weinstein evaluated claimant on April 26, 1989.  
 
            Dr. Weinstein opined:
 
            
 
                 In response to your January 17, 1989 letter, I 
 
                 would like to respond to each of your questions.  
 
                 To answer your first question, the final diagnosis 
 
                 and prognosis is internal traumatic disc 
 
                 disruption at the L4-5 level.  It is my opinion 
 
                 that the injury did indeed rise out of the course 
 
                 of her employment on May 18, 1986.  At the present 
 
                 time, I feel that she has a 12% body as a whole 
 
                 impairment rating based on the injury and 
 
                 subsequent surgical procedure.  She was under my 
 
                 care and unable to perform her normal work duties 
 
                 from the time I first saw her until the present 
 
                 time.  Her current physical restrictions, 
 
                 according to our evaluation done by Mary Lou 
 
                 Fairchild, P.T. on April 25, 1989, would indicate 
 
                 that at the present time she has a one time lift, 
 
                 or not to be done more than four times per hour, 
 
                 limit of 15 pounds.  This would make her 
 
                 repetitive lifting limit approximately 7-8 pounds.  
 
                 However, it needs to be emphasized that these are 
 
                 not permanent restrictions and can be 
 
                 significantly improved with the exercise and 
 
                 activity program that Ms. Burton is currently 
 
                 undertaking.  She relates that she has gained a 
 
                 great deal of weight since the injury and at the 
 
                 present time, is embarking on a very strict 
 
                 exercise and activity program.  It is my opinion 
 
                 that she will be a very good rehabilitation 
 
                 candidate and certainly we [sic] be able to be 
 
                 employable full-time if she sticks with the 
 
                 activity program and continues with her high 
 
                 motivation.
 
            
 
                 I would be happy to see her back at anytime to 
 
                 redo restrictions, but I would anticipate that she 
 
                 could more than double these restrictions within 
 
                 the next 6 weeks and eventually build up to a 
 
                 weight restriction which would make her very 
 
                 employable.
 
            
 
                 Claimant returned to work on July 8, 1988.  She 
 
            commenced employment as a clerk typist II for the State of 
 
            Iowa in the Department of Human Services.  At the time she 
 
            started working, she earned $6.41 per hour.  She was 
 
            promoted on December 8, 1989 to an income maintenance worker 
 
            I at $9.09 per hour.
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
                                conclusions of law
 
            
 
                 The case law relating to review-reopening proceedings 
 
            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 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            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."
 
            
 
                 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 had a change 
 
            of condition not reasonably contemplated by the parties at 
 
            the time of the settlement.  On the day the settlement 
 
            agreement was approved, the parties had acknowledged 
 
            claimant had a bulging disk at L-4, L-5.  Surgery was not 
 
            contemplated.  Claimant had been treated conservatively.  
 
            Surgery or potential surgery was not discussed as an option 
 
            by claimant's then treating physician.
 
            
 
                 However, claimant's back began bothering her in January 
 
            of 1988.  Claimant testified her condition worsened.  She 
 
            testified she could not stand her pain, and that her pain 
 
            traveled down her right leg.  She was unable to walk.  Her 
 
            muscles felt weak.  She sought medical treatment at the 
 
            University of Iowa.  The physicians at the University of 
 
            Iowa noted:
 
            
 
                 X-RAY EXAMINATION:  Review of outside CT and 
 
                 myelogram reveals a normal profile.  No evidence 
 
                 of bulging or herniation at L4-5.  AP lateral 
 
                 flexion extension views taken here reveal 
 
                 segmental instability of L4, 5, significant 
 
                 rocking between the bodies indicating possible 
 
                 internal derangement of the disc.
 
            
 
                 Dr. Weinstein scheduled surgery for March 1, 1988.  He 
 
            performed the aforementioned procedures after having 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            diagnosed claimant as having an internal disc disruption at 
 
            L4-5.
 
            
 
                 Claimant's physical condition definitely changed after 
 
            her settlement agreement was approved.  Her surgery was not 
 
            anticipated at the time her settlement agreement was 
 
            approved.  Nor was her surgery foreseeable given the opinion 
 
            of D. J. Boarini, M.D., who diagnosed claimant's condition 
 
            as "myofascial back pain with no evidence of root entrapment 
 
            or disc problem whatsoever."  Claimant, per the opinion of 
 
            Dr. Weinstein, has proven there has been a change of 
 
            condition attributable to her work injury of May 18, 1986.
 
            
 
                 Claimant is entitled to additional benefits pursuant to 
 
            this review-reopening proceeding.  Claimant has been 
 
            evaluated as having a 12 percent impairment rating by Dr. 
 
            Weinstein.  Claimant was restricted but only temporarily.  
 
            The physician was quite adamant that her restrictions could 
 
            be significantly improved.
 
            
 
                 Claimant is highly motivated to work.  She can no 
 
            longer engage in positions similar to the position of 
 
            resident treatment worker where she is required to lift 
 
            patients.  Claimant is quite capable of handling clerical 
 
            and office positions.  She has been employed since July of 
 
            1988.  She has been promoted.  At the time of the hearing 
 
            she had earned more per hour than she had earned on the date 
 
            of her work injury.  Claimant has some transferable skills.  
 
            She also has a high school education.  Claimant is defi
 
            nitely employable.
 
            
 
                 Therefore, it is the determination of the undersigned 
 
            that claimant has a 15 percent permanent partial disability.  
 
            Ten percent of the disability is attributable to the change 
 
            of condition that she has had since the approval of her 
 
            settlement agreement on March 12, 1987.
 
            
 
                 The next issue to address is whether claimant is 
 
            entitled to additional healing period benefits from January 
 
            7, 1988 through July 6, 1988.
 
            
 
                 Section 85.34(1), Code of Iowa, provides that healing 
 
            period benefits are payable to an injured worker who has 
 
            suffered permanent partial disability until (1) he has 
 
            returned to work; (2) is medically capable of returning to 
 
            substantially similar employment; or (3) has achieved 
 
            maximum medical recovery.  The industrial commissioner has 
 
            recognized that healing period benefits can be interrupted 
 
            or intermittent.  Willis v. Lehigh Portland Cement Co., Vol. 
 
            2-1, State of Iowa Industrial Commissioner Decisions 485 
 
            (1984).
 
            
 
                 On January 7, 1988, claimant sought medical treatment 
 
            at the University of Iowa for her back.  She continued 
 
            treatment through July 6, 1988.  On or about July 6, 1988, 
 
            claimant returned to work at her present position.  On July 
 
            6, 1988, claimant's healing period ended.  Claimant is 
 
            entitled to 26 weeks of healing period benefits at the 
 
            corrected stipulated rate of $178.80 per week.  (The parties 
 
            had stipulated to a rate of $178.78 which is a rate that is 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            not listed in the rate book.)
 
            
 
                 The final issue to address is whether claimant is 
 
            entitled to medical benefits pursuant to section 85.27.  
 
            This section provides in relevant portion:
 
            
 
                 The employer, for all injuries compensable under 
 
                 this chapter or chapter 85A, shall furnish 
 
                 reasonable surgical, medical, dental, osteopathic, 
 
                 chiropractic, podiatric, physical rehabilitation, 
 
                 nursing ambulance and hospital services and 
 
                 supplies therefor and shall allow reasonably 
 
                 necessary transportation expenses incurred for 
 
                 such services.  The employer shall also furnish 
 
                 reasonable and necessary crutches, artificial 
 
                 members and appliances but shall not be required 
 
                 to furnish more than one set of permanent 
 
                 prosthetic devices.
 
            
 
                     ...
 
            
 
                 For purposes of this section, the employer is 
 
                 obliged to furnish reasonable services and 
 
                 supplies to treat an injured employee, and has the 
 
                 right to choose the care.  The treatment must be 
 
                 offered promptly and be reasonably suited to treat 
 
                 the injury without undue inconvenience to the 
 
                 employee.  If the employee has reason to be 
 
                 dissatisfied with the care offered, the employee 
 
                 should communicate the basis of such 
 
                 dissatisfaction to the employer, in writing if 
 
                 requested, following which the employer and the 
 
                 employee may agree to alternate care reasonably 
 
                 suited to treat the injury.  If the employer and 
 
                 employee cannot agree on such alternate care, the 
 
                 commissioner may, upon application and reasonable 
 
                 proofs of the necessity therefor, allow and order 
 
                 other care.  In an emergency, the employee may 
 
                 choose the employee's  care at the employer's 
 
                 expense, provided the employer or the employer's 
 
                 agent cannot be reached immediately.
 
            
 
                 This division has held that it is inconsistent to deny 
 
            liability and the obligation to furnish care on one hand, 
 
            and at the same time, to claim a right to choose the care.  
 
            Therefore, a denial of liability precludes an employer from 
 
            selecting the medical care.  Lewis E. Jones v. R. M. Boggs 
 
            Company, Inc., File No. 655193 (Arbitration Decisions - July 
 
            22, 1986);  Kindhart v. Fort Des Moines Hotel, (Appeal 
 
            Decision, March 27, 1985); Barnhart v. MAQ Incorporated, I 
 
            Iowa Industrial Commissioner Report 16 (Appeal Decision 
 
            1981).
 
            
 
                 Claimant's attorney wrote two letters to Mr. Richard 
 
            Andrews at the Iowa Department of Personnel relative to 
 
            claimant's medical care.  The two letters were written on 
 
            February 2, 1988 and on February 12, 1988.  No response from 
 
            defendant was provided to claimant.  As a result, claimant 
 
            incurred various medical expenses causally related to her 
 
            work injury of May 18, 1986.  Claimant is entitled to have 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            certain medical expenses paid by defendant.  At one time, 
 
            claimant was covered by Title XIX.  Defendant shall 
 
            reimburse Title XIX for those medical expenses causally 
 
            related to this work injury.  Claimant's medical expenses 
 
            which are causally related to her work injury are:
 
            
 
               1.  Dennis Francis Rolek, D.O./South Des Moines
 
                   Family Practice Associates, P.C.
 
                     5-15-86 to 7-26-88                             
 
            $2,800.00
 
            
 
               2.  Joseph M. Doro, D.O.
 
                     5-27-87 to 7-29-87                                
 
            180.00
 
            
 
               3.  Dr. John I. Royer
 
                     11-25-86 to 4-7-88                                
 
            185.00
 
            
 
               4.  Mercy Hospital Medical Center
 
                     5-13-87                                         
 
            1,151.25
 
                     6-12-87                                           
 
            150.00
 
                     6-23-87                                            
 
            19.50
 
            
 
               5.  Iowa Methodist Medical Center
 
                     6-12-87                                           
 
            575.00
 
            
 
               6.  The University of Iowa Hospitals and Clinics -
 
                                       Hospital Services
 
                     1-19-88 to 1-29-88                              
 
            1,727.07
 
                     2-29-88 to 3-5-88                               
 
            8,651.57
 
                     4-20-88                                            
 
            40.00
 
                     6-1-88                                             
 
            78.75
 
                     3-1-89 to 3-30-89                                 
 
            101.50
 
                     4-25-89 to 5-24-89                                 
 
            76.80
 
            
 
                                       Medical Services
 
                     1-7-88 to 1-29-88                                 
 
            976.00
 
                     2-29-88 to 3-1-88                               
 
            8,357.00
 
                     4-20-88                                            
 
            60.00
 
                     6-1-88                                            
 
            110.00
 
                     9-8-88                                            
 
            160.00
 
                     3-1-89 to 6-20-89                                 
 
            183.00
 
            
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
               7.  Dana Simon, M.D.
 
                     8-7-87 to 9-17-87                                 
 
            873.00
 
            
 
               8.  Hammer Medical Supply (copy of bill not attached)
 
                     6-22-87                                            
 
            75.00
 
            
 
                                                         TOTAL     
 
            $26,530.44
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Defendant is to pay fifty (50) additional weeks of 
 
            permanent partial disability benefits at the corrected 
 
            stipulated rate of one hundred seventy-eight and 80/l00 
 
            dollars ($178.80) per week commencing on July 7, 1988.
 
            
 
                 Defendant is to pay healing period benefits from 
 
            January 7, 1988 to July 6, 1988, a period of twenty-six (26) 
 
            weeks at the stipulated rate of one hundred seventy-eight 
 
            and 80/l00 dollars ($178.80) per week.
 
            
 
                 Defendant is to pay medical expenses in the amount of 
 
            twenty-six thousand five hundred thirty and 44/l00 dollars 
 
            ($26,530.44).
 
            
 
                 Defendant shall receive credit for all benefits 
 
            previously paid and not credited.
 
            
 
                 Interest shall be paid pursuant to Iowa Code section 
 
            85.30.
 
            
 
                 Costs of the action shall be assessed to defendant 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 Defendant shall file a claim activity report as 
 
            requested by this division pursuant to rule 343 IAC 3.1 of 
 
            the Iowa Administrative Code.
 
            
 
            
 
            
 
                 Signed and filed this ____ day of April, 1991.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________               
 
            MICHELLE A. McGOVERN
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. David D. Drake
 
            Attorney at Law
 
            West Towers Office
 
            1200 35th St  STE 500
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            W Des Moines  IA  50265
 
            
 
            Ms. Eleanor E. Lynn
 
            Assistant Attorney General
 
            Hoover State Office Bldg
 
            Des Moines  IA  50319
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           5-1803
 
                           Filed April 9, 1991
 
                           MICHELLE A. McGOVERN
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                           :
 
            VICKY BURTON,                  :
 
                                           :
 
                 Claimant,                 :
 
                                           :
 
            vs.                            :
 
                                           :         File No. 824332
 
            WOODWARD STATE HOSPITAL-SCHOOL,:
 
                                           :      A R B I T R A T I O N
 
                 Employer,                 :
 
                                           :         D E C I S I O N
 
            and                            :
 
                                           :
 
            STATE OF IOWA,                 :
 
                                           :
 
                 Insurance Carrier,        :
 
                 Defendant.                :
 
            ___________________________________________________________
 
            
 
            
 
            5-1803
 
            
 
            Claimant was awarded a 10 percent permanent partial 
 
            disability because of a change of physical condition.
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         RAYMOND STONE,
 
         
 
              Claimant,                               File No. 824449
 
         
 
         vs.                                       A R B I T R A T I O N
 
         
 
         SPENCER COMMUNITY SCHOOL                     D E C I S I O N
 
         DISTRICT,
 
         
 
              Employer,                                  F I L E D
 
         
 
         and                                            FEB 28 1990
 
         
 
         EMPLOYERS MUTUAL INSURANCE CO.,            INDUSTRIAL SERVICES
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is an arbitration proceeding brought by Raymond Stone, 
 
         claimant, against Spencer Community School District, employer, 
 
         and Employers Mutual Insurance Company, insurance carrier, 
 
         defendants. The case was heard by the undersigned on August 8, 
 
         1989, in Storm Lake, Iowa.
 
         
 
              The record consists of the testimony of claimant.  The 
 
         record is also comprised of the testimonies of Glen Lohman, 
 
         Assistant Superintendent of Spencer Schools; David Goedicke, 
 
         school employee; and JoEllen Parrott, professional nursing 
 
         consultant. Additionally, the record consists of claimant's 
 
         exhibits 1-6 and defendants' exhibits C, D-N.
 
         
 
                                      ISSUES
 
         
 
              As a result of the prehearing report and order submitted and 
 
         approved on August 8, 1989, the issues presented by the parties 
 
         are:
 
         
 
              1.  Whether claimant received an injury which arose out of 
 
         and in the course of employment;
 
         
 
              2.  Whether there is a causal relationship between the 
 
         alleged injury and the disability; and,
 
         
 
              3.  Whether claimant is entitled to temporary disability/ 
 
         healing period benefits or permanent partial or total disability 
 
         benefits;
 
         
 
                                   STIPULATIONS
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              Prior to the hearing, the parties entered into a number of 
 
         stipulations.  The stipulations are as follows:
 
         
 
              1.  The existence of an employer-employee relationship 
 
         between claimant and employer at the time of the alleged injury.
 
              
 
              2.  That the extent of entitlement to weekly compensation 
 
         for temporary total disability or healing period, if defendants 
 
         are liable for the injury, is stipulated to be from May 28, 1986 
 
         and claimant has received weekly benefits of 67 3/7 weeks at the 
 
         rate of $168.08, ending September 11, 1987.
 
         
 
              3.  That the type of permanent disability, if the injury is 
 
         found to be a cause of permanent disability, is stipulated to be 
 
         an industrial disability to the body as a whole.
 
         
 
              4.  In the event of an award of weekly benefits, the rate of 
 
         weekly compensation is stipulated to be $168.08 per week.
 
         
 
              5.  All requested benefits have been paid by defendants 
 
         pursuant to Iowa Code section 85.27 and/or medical evaluation 
 
         under section 85.39.
 
         
 
                                 FACTS PRESENTED
 
         
 
              Claimant is 42 years old.  He has completed the tenth grade. 
 
         He does not have a GED nor did he serve in the military.  After 
 
         claimant dropped out of high school, he worked with his father on 
 
         a turkey farm.  Claimant engaged in cleaning, general feeding and 
 
         checking water lines.  Later, claimant worked at Jones Transfer 
 
         in Spencer, Iowa where claimant unloaded freight and where he was 
 
         employed as an over-the-road truck driver.
 
         
 
              Claimant testified he commenced his employment with 
 
         defendant, Spencer Community School District, in 1979.  Claimant 
 
         was hired as a custodian.  He indicated he had no prior training 
 
         and was assigned to the junior high school.  After five years 
 
         claimant was transferred to Lincoln Elementary School.
 
         
 
              Claimant explained that his job duties included performing 
 
         floor maintenance, maintaining walls, carrying trash to the 
 
         dumpster, scooping snow, maintaining the grounds and floating 
 
         duties for eight hours per week.
 
         
 
              Claimant reported that on May 28, 1986, the day in question, 
 
         he was engaged in pulling the hot lunch tables from the wall unit 
 
         in which they were stored.  The tables were made of steel with 
 
         formica tops.  They were approximately nine feet long and 
 
         claimant indicated there was a release at the bottom of the unit.  
 
         Claimant stated he was required to pull out the tables at the 
 
         bottom and to unfold them.  The tables were on wheels for easy 
 
         movement.
 
         
 
              Claimant continued that the tables would not release so he 
 
         shook the unit.  He stated the entire unit came out of the wall 
 
         and the table top came out from the wall.  According to 
 
         claimant's testimony, the table top struck him on the forehead 
 
         above the right eye, then the table struck him from behind 
 
         hitting him on the leg and buttocks, as well as on the back.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant testified he notified his employer of the injury. 
 
         Claimant reported he sought the services of Ellis 0. 
 
         Schlicthemeier, M.D.  Dr. Schlicthemeier treated claimant for 
 
         approximately two weeks.  The claimant was referred to William 
 
         Follows, M.D.  Dr. Follows referred claimant to the Institute For 
 
         Low Back Care where claimant was treated by Alexander Lifson, 
 
         M.D., Assistant Medical Director.  Claimant was also sent to 
 
         Brian W. Nelson, M.D., for an evaluation and for an active 
 
         rehabilitation program.
 
         
 
              Glen Lohman testified he is the assistant superintendent of 
 
         schools and he is responsible for the support staff in the 
 
         district, including the custodians.  Mr. Lohman testified that on 
 
         May 28, 1986, he received a telephone call from the school 
 
         secretary that a table had fallen on claimant and he was going to 
 
         the doctor.  Mr. Lohman reported no one could locate a damaged 
 
         table after the alleged incident.
 
         
 
              Mr. Lohman also stated he had told the rehabilitation 
 
         consultant, JoEllen Parrott, that he had concerns about claimant 
 
         returning to work on a light duty basis.  According to the 
 
         assistant superintendent, a light duty custodian would require 
 
         constant supervision.  Mr. Lohman also indicated claimant would 
 
         only have been offered a probationary contract for 1987 if he had 
 
         returned to work.  Mr. Lohman also reported he would offer 
 
         claimant a position if claimant would return to work, but there 
 
         could be no lifting restrictions.  Mr. Lohman also related 
 
         claimant had been on probation since the spring of 1985 because 
 
         his work had not been done according to the satisfaction of the 
 
         school administration.
 
         
 
              David Goedicke testified he had been employed with the 
 
         school district for 21 years.  Mr. Goedicke stated he viewed the 
 
         accident scene shortly after the alleged injury.  He stated he 
 
         found nothing wrong with the cafeteria tables and there were no 
 
         broken parts.  Mr. Goedicke testified only claimant was 
 
         responsible for setting up the cafeteria tables.
 
         
 
              JoEllen Parrott testified for defendants that she is a 
 
         professional nursing consultant for workers' compensation cases. 
 
         She stated she was retained by the defendants in February of 
 
         1987. She testified claimant did not put forth his best effort.  
 
         She also related that claimant agreed to try an active 
 
         rehabilitation program with Dr. Nelson.
 
         
 
                                  APPLICABLE LAW
 
         
 
              An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
         employment.  Section 85.3(1).
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received an injury on May 28, 1986, which arose 
 
         out of and in the course of his employment.  McDowell v. Town of 
 
         Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central 
 
         Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              The injury must both arise out of and be in the course of 
 
         the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 
 
         402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the 
 
         Iowa Report.  See also Sister Mary Benedict v. St. Mary's Corp., 
 
         255 Iowa 847, 124 N.W.2d 548 (1963) and Hansen v. State of Iowa, 
 
         249 Iowa 1147, 91 N.W.2d 555 (1958).
 
         
 
              The words "out of" refer to the cause or source of the 
 
         injury.  Crowe, 246 Iowa 402, 68 N.W.2d 63 (1955).
 
         
 
              The words "in the course of" refer to the time and place and 
 
         circumstances of the injury.  McClure v. Union et al. Counties, 
 
         188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 402, 68 N.W.2d 63 
 
         (1955).
 
         
 
              "An injury occurs in the course of the employment when it is 
 
         within the period of employment at a place the employee may 
 
         reasonably be, and while he is doing his work or something 
 
         incidental to it."  Cedar Rapids Comm. Sch. Dist. v. Cady, 278 
 
         N.W.2d 298 (Iowa 1979), McClure, 188 N.W.2d 283 (Iowa 1971); 
 
         Musselman, 261 Iowa 352, 154 N.W.2d 128 (1967).
 
              
 
              The opinions of experts need not be couched in definite, 
 
         positive or unequivocal language.  Sondag v. Ferris Hardware, 220 
 
         N.W.2d 903 (Iowa 1974).  An opinion of an expert based upon an 
 
         incomplete history is not binding upon the commissioner, but must 
 
         be weighed together with the other disclosed facts and 
 
         circumstances.  Bodish, 257 Iowa 516, 133 N.W.2d 867 (1965).  The 
 
         expert medical evidence must be considered with all other 
 
         evidence introduced bearing on the causal connection between the 
 
         injury and the disability.  Burt, 247 Iowa 691, 73 N.W.2d 732 
 
         (1955).  In regard to medical testimony, the commissioner is 
 
         required to state the reasons on which testimony is accepted or 
 
         rejected.  Sondag, 220 N.W.2d 903 (1974).
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of May 28, 1986, is causally related 
 
         to the disability on which he now bases his claim.  Bodish v. 
 
         Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  Lindahl v. 
 
         L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A possibility 
 
         is insufficient; a probability is necessary.  Burt v. John Deere 
 
         Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
         question of causal connection is essentially within the domain of 
 
         expert testimony.  Bradshaw.v. Iowa Methodist Hospital, 251 Iowa 
 
         375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag, 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, 261 Iowa 352, 154 N.W.2d 128 (1967).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              An injury is the producing cause; the disability, however, 
 
         is the result, and it is the result which is compensated.  Barton 
 
         v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (1961); 
 
         Dailey v. Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 569 (1943).
 
         
 
              If a claimant contends he has industrial disability he has 
 
         the burden of proving his injury results in an ailment extending 
 
         beyond the scheduled loss.  Kellogg v. Shute and Lewis Coal Co., 
 
         256 Iowa 1257, 130 N.W.2d 667 (1964).
 
         
 
              Functional impairment is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963). 
 
         Barton, 253 Iowa 285, 110 N.W.2d 660 (1961).
 
         
 
              A finding of impairment to the body as a whole found by a 
 
         medical evaluator does not equate to industrial disability.  This 
 
         is so as impairment and disability are not synonymous.  Degree of 
 
         industrial disability can in fact be much different than the 
 
         degree of impairment because in the first instance reference is 
 
         to loss of earning capacity and in the latter to anatomical or 
 
         functional abnormality or loss.  Although loss of function is to 
 
         be considered and disability can rarely be found without it, it 
 
         is not so that a degree of industrial disability is 
 
         proportionally related to a degree of impairment of bodily 
 
         function.
 
         
 
              Factors to be considered in determining industrial 
 
         disability include the employee's medical condition prior to the 
 
         injury, immediately after the injury, and presently; the situs of 
 
         the injury, its severity and the length of healing period; the 
 
         work experience of the employee prior to the injury, after the 
 
         injury and potential for rehabilitation; the employee's 
 
         qualifications intellectually, emotionally and physically; 
 
         earnings prior and subsequent to the injury; age; education; 
 
         motivation; functional impairment as a result of the injury; and 
 
         inability because of the injury to engage in employment for which 
 
         the employee is fitted. Loss of earnings caused by a job transfer 
 
         for reasons related to the injury is also relevant.  These are 
 
         matters which the finder of fact considers collectively in 
 
         arriving at the determination of the degree of industrial 
 
         disability.
 
         
 
              There are no weighting guidelines that indicate how each of 
 
         the factors are to be considered.  There are no guidelines which 
 
         give, for example, age a weighted value of ten percent of the 
 
         total value, education a value of fifteen percent of total, 
 
         motivation - five percent; work experience - thirty percent, etc. 
 
         Neither does a rating of functional impairment directly correlate 
 
         to a degree of industrial disability to the body as a whole.  In 
 
         other words, there are no formulae which can be applied and then 
 
         added up to determine the degree of industrial disability.  It 
 
         therefore becomes necessary for the deputy or commissioner to 
 
         draw upon prior experience, general and specialized knowledge to 
 
         make the finding with regard to degree of industrial disability.  
 
         See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, 
 
         February 28, 1985); Christensen v. Hagen, Inc., (Appeal Decision, 
 
         March 26, 1985).  For example, a defendant employer's refusal to 
 
         give any sort of work to a claimant after he suffers his 
 
         affliction may justify an award of disability.  McSpadden v. Big 
 
         Ben Coal Co., 288 N.W.2d 181 (Iowa 1980).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Similarly, a claimant's inability to find other suitable 
 
         work after making bona fide efforts to find such work may 
 
         indicate that relief would be granted.  McSpadden, 388 N.W.2d 181 
 
         (Iowa 1980).
 
         
 
                                     ANALYSIS
 
         
 
              Firstly, claimant has proven by a preponderance of the 
 
         evidence that he has sustained an injury which arose out of and 
 
         in the course of his employment.  Claimant testified he was on 
 
         defendant-employer's premises when the incident occurred.  There 
 
         were no witnesses.  However, claimant was performing one of his 
 
         assigned duties at the time he was injured.  Claimant was setting 
 
         up the cafeteria tables.  This was a daily task for claimant.  It 
 
         was reasonable to assume claimant could be injured while 
 
         performing this regular activity.  Claimant reported the incident 
 
         immediately.  He sought medical attention.  The injury arose out 
 
         of and in the course of claimant's employment.
 
         
 
              The next issue to address is whether the injury on May 28, 
 
         1986, is causally connected to claimant's claimed disability.  
 
         All of the doctors' reports list the cause as a table falling on 
 
         claimant's lower back and hip.  No medical records indicate 
 
         otherwise.  There are no medical reports which establish any 
 
         prior or subsequent injuries.  All of the medical histories are 
 
         consistent with the sequence of events which were related by 
 
         claimant.  It is the determination of the undersigned that 
 
         claimant has established the requisite causal connection.
 
         
 
              The final issue to discuss is whether claimant is entitled 
 
         to any weekly benefits.  One of the treating physicians, Kenneth 
 
         B. Heithoff, M.D., read a CT scan taken of claimant's lumbar 
 
         spine. He found as of September 3, 1986:
 
         
 
              1.  Small to moderate sized symmetrical central disc 
 
              herniation which impinges on the thecal sac, but does not 
 
              produce compression of the traversing L5 nerve roots.  No 
 
              other disc protrusion is noted and there is no evidence of 
 
              bony central or lateral spinal stenosis.
 
         
 
              Another of the treating physicians, Alexander Lifson, M.D., 
 
         opined:
 
         
 
              An MRI scan which was done at The Center for Diagnostic 
 
              Imaging on 3-24-87 showed a congenitally small spinal canal 
 
              at the L4-5 level which along with mild bulging of the disc 
 
              and hypertrophy of facet joints and ligamentous flavum 
 
              obviously can create a significant degree of subarticular 
 
              stenosis and impingment [sic] of the L5 nerve root which is 
 
              much more dramatic in an upright position.
 
         
 
              I believe we have no other choice but to offer Mr. Stone a 
 
              surgical decompression.  He has to understand because he is 
 
              grossly overweight that his chances for success probably 
 
              would not exceed 70 percent, but I have no other 
 
              suggestions.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
              Dr. Lifson opined as of June 15, 1988:
 
         
 
              Mr. Raymond Stone was first seen at The Institute for Low 
 
              Back Care on December 16, 1988.  In consideration of the 
 
              past history, the initial and follow-up physical 
 
              examinations and the condition in which we found the patient 
 
              at the time of the last examination on March 25, 1987, he 
 
              has a 15 percent permanent partial disability to the body.
 
         
 
              The final authorized treating physician, Dr. Nelson, wrote 
 
         in his letter of July 31, 1987:
 
         
 
              It is my professional opinion that Raymond is exaggerating 
 
              his symptoms and because of this, I do not feel he should be 
 
              given any permanent impairment rating.  I would strongly 
 
              recommend that no further cost be incurred obtaining more 
 
              medical treatment for this patient because I have absolutely 
 
              no confidence that he will respond.  He has had the most 
 
              sophisticated testing available and none of these have given 
 
              any pure objective evidence of organic disability.  I 
 
              recommend that Raymond be returned to the work force as 
 
              quickly as possible.  If he refuses to do this, I would 
 
              recommend that a settlement be achieved as quickly as 
 
              possible in order to minimize any future costs involving 
 
              this patient.
 
         
 
              Dr. Nelson, in his deposition, explained why he believed 
 
         claimant was magnifying his symptoms.  Dr. Nelson stated:
 
         
 
              The three criteria are, number one, you have to show 
 
              unphysiologic results on the objective equipment; number 
 
              two, you have to be positive in the majority of the signs of 
 
              nonorganic pathology that I test you on in my physical exam; 
 
              and, number three, both the physical therapist who is 
 
              treating him and the physician have to believe in their 
 
              hearts, if you will, that this patient isn't trying and that 
 
              he's exhibiting classic pain behavior, which is consistent 
 
              with symptom exaggeration.  If you don't meet any of those 
 
              -- if you  don't meet all three of those criteria, then -- 
 
              then we will not -- we won't go as far as we went on this 
 
              particular patient, because we do consider that to be very 
 
              serious.
 
         
 
              Q.  After your visit with Raymond Stone, how did his 
 
              treatment continue?
 
         
 
              A.  I saw him again in two weeks.  And I was very, very 
 
              pleased --
 
         
 
                   MR. FITZGIBBONS:  What's the date, Doctor?
 
                   
 
                   THE DEPONENT:  June 12th.
 
                   
 
                   MR. FITZGIBBONS:  Thank you.
 

 
                   
 
 
 
 
 
 
 
 
 
 
 
         
 
              A.  His -- I examined him again, and his signs of symptom 
 
              exaggeration were greatly diminished.  He showed a 
 
              remarkable improvement from his objective testing data over 
 
              a few weeks before.  And the physical therapist, although I 
 
              didn't document it here, I believe had told me that Raymond 
 
              was now working pretty hard.  So we were very encouraged and 
 
              that was -- At that date I put down here that he also for 
 
              the first time said to me that he noted some improvement.  
 
              He stated that he was being -- able to sleep longer at night 
 
              than he had been before, said he was still having a lot of 
 
              back and leg pain.  But at least we seemed to be heading in 
 
              the right direction.  So based on that, we decided to 
 
              continue him, and -- and we did so.
 
         
 
              Q.  And what was the result of continuing the treatment?
 
         
 
              A.  Well, the next time -- Raymond then started missing a 
 
              lot of appointments.  And the next time -- in fact, June 
 
              12th was the last time that I saw him.  And on July 27th I 
 
              was due to see him again, and he called to say that he was 
 
              having car trouble and he would be late.  But he never 
 
              showed up, and he never called, and I never heard from him 
 
              again.  And during that period of time between June 12th and 
 
              June 27th, he several times missed appointments, called to 
 
              say that he would be making appointments but then never 
 
              showed up and generally was sporatic [sic].
 
         
 
              His objective testing then deteriorated very badly after 
 
              that and became completely unphysiologic again.  And it 
 
              became very obvious to me at that time that rehab was not 
 
              going to help this patient.
 
         
 
         (Deposition page 20, line 2 to page 22, line 2)
 
         
 
              There is a wide disparity of opinions relative to claimant's 
 
         condition.  Dr. Lifson believed claimant had a 15 percent 
 
         functional impairment and that claimant was in need of surgery. 
 
         Initially, Dr. Nelson rendered an opinion concurring with Dr. 
 
         Lifson relative to the surgical procedure.  Later, Dr. Nelson 
 
         changed his opinion.  The rationale for the change of opinion was 
 
         that:
 
              
 
              However, it's not the same way I would do it.  I believe 
 
              that there is probably too much surgery done in this 
 
              country, and I believe a person becomes a surgical candidate 
 
              only after they have failed all types of conservative care.  
 
              So you shouldn't do -- surgery in my -- in my mind should be 
 
              as a last resort.
 
         
 
         (Exhibit N, p. 42, 11. 13-18)
 
         
 
              Dr. Nelson found no functional impairment.  Moreover, Dr. 
 
         Nelson indicated claimant's "bulging disk is a variation of 
 
         normal."  (Ex. N, p. 67, 11. 19-20).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              It is the determination of this deputy that claimant is 
 
         functionally impaired.  The impairment is in the amount of seven 
 
         percent.
 
         
 
              Claimant maintains he has an industrial disability.  
 
         Claimant is without a high school education.  He has no GED.  
 
         Claimant does not appear motivated to return to work.  He has 
 
         been less than enthusiastic about continuing his active 
 
         rehabilitation program, or working with JoEllen Parrott, the 
 
         rehabilitation consultant. Claimant neglected to even return 
 
         telephone calls to Ms. Parrott.
 
         
 
              Defendant-employer acknowledges it would allow claimant to 
 
         return to a full time position.  Mr. Lohman admits there would 
 
         not be a light duty position open to claimant.  Claimant would be 
 
         required to perform all duties.
 
         
 
              Claimant has not attempted to return to his position with 
 
         defendant.  He maintains he is unable to perform the duties 
 
         assigned.  Dr. Nelson has released claimant to return to work 
 
         without any restrictions.  There is no evidence claimant has 
 
         looked for other types of work or that he has filled out job 
 
         applications.  Claimant is unmotivated.  He is capable of 
 
         handling some employment.
 
         
 
              Therefore, in light of the foregoing, it is the 
 
         determination of the undersigned that claimant has a permanent 
 
         partial disability to the body as a whole in the sum of 10 
 
         percent.  This finding is based upon 1) the aforementioned 
 
         considerations; 2) based upon the personal observation of 
 
         claimant; 3) based upon claimant's testimony at the hearing; and 
 
         4) based upon agency expertise (Iowa Administrative Procedures 
 
         Act 17A.14(s).
 
         
 
              It is also the decision of the undersigned that claimant is 
 
         entitled to healing period benefits.  The benefits commenced on 
 
         May 28, 1986.  They remained in existence through July 28, 1987, 
 
         the date claimant was released to return to work by Dr. Nelson.
 
         
 
                     FINDINGS OF FACT AND CONCLUSIONS OF LAW
 
         
 
              WHEREFORE, based on the evidence presented and the 
 
         principles of law previously stated, the following findings of 
 
         fact and conclusions of law are made:
 
         
 
              Finding 1.  Claimant sustained a back injury arising out of 
 
         and in the course of his employment on May 28, 1986.
 
         
 
              Finding 2.  Claimant was functionally impaired in the sum of 
 
         seven percent.
 
         
 
              Finding 3.  Claimant has not returned to work.
 
         
 
              Finding 4.  Claimant has been released to return to work 
 
         without restrictions by Dr. Nelson, the treating physician.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Finding 5.  Claimant is not motivated to return to work.
 
         
 
              Conclusion A.  Claimant has met his burden of proving he has 
 
         a 10 percent permanent partial disability attributable to his 
 
         work injury on May 28, 1986.
 
         
 
              Conclusion B.  Claimant has met his burden of proving he was 
 
         in the healing period from May 28, 1986 to July 28, 1987.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, defendants are to pay unto claimant fifty (50) 
 
         weeks of permanent partial disability benefits at the stipulated 
 
         rate of one hundred sixty-eight and 08/100 dollars ($168.08) per 
 
         week.
 
         
 
              Defendants are to pay unto claimant sixty-one (61) weeks of 
 
         healing period benefits at the stipulated rate of one hundred 
 
         sixty-eight and 08/100 dollars ($168.08) per week.
 
         
 
              Payments that have accrued shall be paid in a lump sum 
 
         together with statutory interest thereon pursuant to Iowa Code 
 
         section 85.30.
 
         
 
              Defendants are to be given credit for any benefits 
 
         previously paid to claimant.
 
         
 
              Costs are assessed against defendants pursuant to Division 
 
         of Industrial Services Rule 343-4.33.
 
         
 
              Defendants shall file a claim activity report upon payment 
 
         of this award.
 
         
 
              Signed and filed this 28th day of February, 1990.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            MICHELLE A. McGOVERN
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Joseph L. Fitzgibbons
 
         Mr. Harold H. White
 
         Attorney At Law
 
         108 North Seventh St
 
         Estherville, IA  51334
 
         
 
         Ms. Claire F. Carlson
 
         Attorney at Law
 
         Seventh Floor - Snell Bldg
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         P 0 Box 957
 
         Fort Dodge, IA  50501
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
                                            
 
 
 
 
 
 
 
 
 
 
 
                                            5-1803
 
                                            Filed February 28, 1990
 
                                            MICHELLE A. McGOVERN
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         RAYMOND STONE,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                     File No. 824449
 
         SPENCER COMMUNITY SCHOOL
 
         DISTRICT,                                A R B I T R A T I 0 N
 
         
 
              Employer,                              D E C I S I 0 N
 
         
 
         and
 
         
 
         EMPLOYERS MUTUAL INSURANCE CO.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         5-1803
 
         
 
              Claimant awarded a 10 percent permanent partial disability 
 
         to the body as a whole.  Claimant was released to work without 
 
         restrictions.  Claimant was unmotivated.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            FRANCIS BECKER,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 824608
 
            CITY OF CEDAR RAPIDS,         :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            IOWA MUNICIPALITIES WORKERS'  :
 
            COMPENSATION ASSOCIATION,     :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 Claimant Francis Becker seeks benefits under the Iowa 
 
            Workers' Compensation Act upon his petition in arbitration 
 
            against defendant employer City of Cedar Rapids and its 
 
            insurance carrier, Iowa Municipalities Workers' Compensation 
 
            Association.  Mr. Becker asserts that he sustained a work 
 
            injury to his back and left knee while working on a water 
 
            main, when another worker, and a heavy pipe fell on him on 
 
            May 23, 1986.
 
            
 
                 This cause came on for hearing in Cedar Rapids, Iowa on 
 
            January 6, 1993.  Testimony was received from claimant, 
 
            Carol Becker (his wife), Steve Libby, Lora Summerwill, Gary 
 
            Rawson, Judith Perkins, Gary Thompson, Dick York and Ron 
 
            Robinson.  Claimant's exhibits C1 through C9 and joint 
 
            exhibits J1 through J14 were received into evidence, along 
 
            with defendants' exhibits D1, 3, 7, 8, 9 and 11.  
 
            Defendants' offer of exhibits 2, 4, 5 and 6 was withdrawn.  
 
            Claimant's objection to exhibit 10 was sustained.
 
            
 
                                      ISSUES
 
            
 
                 The parties have stipulated to the existence of an 
 
            employment relationship on May 23, 1986, to the rate of 
 
            compensation ($231.78 per week), and that defendants paid 
 
            certain benefits voluntarily prior to hearing.
 
            
 
                 Issues presented for resolution include:
 
            
 
                 1.  Whether claimant sustained injury arising out of 
 
            and in the course of his employment on May 23, 1986;
 
            
 
                 2.  Whether the injury caused either temporary or 
 
            permanent disability;
 
            
 
                 3.  The extent of temporary total disability/healing 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            period;
 
            
 
                 4.  The extent and commencement date of permanent 
 
            disability, whether claimant be partially disabled or wholly 
 
            disabled under the "odd-lot" theory of permanent total 
 
            disability, or otherwise;
 
            
 
                 5.  Entitlement to medical benefits under Iowa Code 
 
            section 85.27;
 
            
 
                 6.  Entitlement to reimbursement for an independent 
 
            medical examination under Iowa Code section 85.39;
 
            
 
                 7.  Entitlement to penalty benefits under Iowa Code 
 
            section 86.13.
 
            
 
                 With respect to medical benefits, defendants stipulated 
 
            that expenses were incurred for reasonable and necessary 
 
            treatment and that the providers of medical services would 
 
            testify in the absence of contrary evidence that fees were 
 
            reasonable and necessary; however, they dispute causal 
 
            connection to the work injury.  Defendants also disputed 
 
            authorization of medical expenses, but the defense was ruled 
 
            invalid at hearing, as defendants have forfeited the right 
 
            to control the course of medical treatment by denying 
 
            liability on the claim.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 Francis Becker, 58 years of age at hearing, has only 
 
            finished the eighth grade of school, but appears of at least 
 
            average intelligence.  His life has largely been devoted to 
 
            heavy physical labor, including farming, factory work, 
 
            manufacture and fitting of canvas products (truck tarps, 
 
            boat covers, etc.) and, since 1979, employment with the City 
 
            of Cedar Rapids in building maintenance and the water 
 
            department.
 
            
 
                 Mr. Becker was employed on the hydrant crew on May 23, 
 
            1986.  Although he testified that he never had back problems 
 
            before that date and had never required medical treatment 
 
            for back problems, it is noteworthy that a medical history 
 
            questionnaire he filled out prior to employment with the 
 
            city reflected treatment by a chiropractor six or seven 
 
            years before for back problems when he slipped or fell into 
 
            a hole; also, that he had been treated once for hip 
 
            problems, with good result.  In numerous medical histories 
 
            claimant has given since his claimed injury, he has spoken 
 
            of receiving chiropractic back treatment 20 or 25 years 
 
            before.
 
            
 
                 Claimant testified that he was injured while making an 
 
            eight inch tap for a new hydrant to be installed on an 
 
            existing water main.  He says he was standing in a large, 
 
            wet hole some twelve feet in diameter and nine feet deep.  
 
            He testified that a fellow worker, Gary Rawson, was standing 
 
            on a ladder when Rawson handed down the back half of a 100 
 
            pound tapping sleeve, then lost his balance and toppled 
 
            forward, causing claimant to take the weight both of the 
 
            sleeve and Rawson.  Claimant estimated Rawson's weight at 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            240 pounds.  Mr. Becker says he took most of the weight on 
 
            his left side, but that he did not hurt at first.
 
            
 
                 This incident happened about noon on a shift scheduled 
 
            to end at 3:30, although claimant worked a little late that 
 
            day.  He testified that he felt "tired" at the end of the 
 
            day, but that no particular part of his body pained him.
 
            
 
                 That night, claimant says that he just sat in a chair 
 
            and felt progressively worse, or more tired.  On the next 
 
            day, he felt much worse and his left leg began hurting him 
 
            from the hip on down.  He took no action that day, except 
 
            taking an over-the-counter pain killer, but symptoms 
 
            continued to worsen.
 
            
 
                 On Sunday, the second day of the Memorial Day weekend, 
 
            claimant felt worse yet, especially in the left leg.  He 
 
            visited the Mercy Hospital Emergency Room.  His wife, Carol, 
 
            testified that she gave an admission history of a work 
 
            injury on Friday, specifically mentioning the water main 
 
            work, the sleeve and Gary Rawson's stumble.
 
            
 
                 However, the emergency room chart notes are very much 
 
            at odds with this account.  The handwritten portion refers 
 
            to complaints of pain in the left hip area with radiation 
 
            down the left leg to the knee; no known injury, started 
 
            several days ago, worse today.  History of dislocation 25 
 
            years ago.  The subjective portion of the "SOAP" assessment 
 
            read:  "This patient is a 52-year-old white male who comes 
 
            in with left hip pain for the past few days.  He does not 
 
            recall any specific injury."  Assessment was of left hip and 
 
            groin strain.
 
            
 
                 Gary Rawson testified to a much less dramatic incident 
 
            at the water main.  Incidentally, he weighed only 200 pounds 
 
            at the time, not 240.  Rawson testified that he did not lose 
 
            his balance while standing on the ladder, but jumped off 
 
            while claimant was backing up.  He had already released the 
 
            sleeve, and did not drop the weight (70-80 lbs) on claimant.  
 
            When he jumped, he did not fall or slide into claimant, but 
 
            may have "brushed" him.  In general, he felt that nothing 
 
            unusual happened whatsoever, and was unaware that anything 
 
            happened to hurt claimant, who made no complaint whatsoever.
 
            
 
                 Gary Thompson was also on the crew that day, and a 
 
            witness.  His statements have been somewhat inconsistent.  
 
            On a form witness statement he executed on June 2, 1986, 
 
            Thompson wrote:
 
            
 
                 I handed Gary Rawson a pipe fitting that weighs 
 
                 about 50 lbs. to him while he was standing on the 
 
                 ladder.  Gary R. then start to step down the 
 
                 ladder uneasyily (sic) with the fitting in his 
 
                 hand.  When he reached the bottom of the ladder he 
 
                 then shifted his weight towards Francis as he 
 
                 handed him the fitting.  As he did this, Gary R. 
 
                 lost his balance and slid into Francis, causing 
 
                 Francis to be pushed off balance also.
 
            
 
                 In his hearing testimony, Thompson explained that 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            Rawson had released the tapping sleeve to claimant when 
 
            claimant said something and Rawson then put his hand on Mr. 
 
            Becker's shoulder.  Claimant was not knocked down or pushed 
 
            out of place, although he may have shifted his weight to 
 
            brace Rawson.  Thompson saw this as nothing unusual, and 
 
            noted that claimant made no complaint.  On 
 
            cross-examination, Thompson testified that Rawson did not 
 
            "slide into" claimant, but then conceded that there may have 
 
            been a "slight slide."  In an earlier statement to Lora 
 
            Summerwill (Director of Safety & Health Services) Thompson 
 
            said that Rawson jumped so as to avoid claimant.
 
            
 
                 Generally speaking, it seems clear that some minor 
 
            incident occurred, but that no one present thought anything 
 
            of it.  Claimant admist he felt no pain at the time, 
 
            although he later became tired.  Indeed, this incident was 
 
            so minor that Mr. Becker did not see fit to mention it when 
 
            he visited the hospital trauma center two days later ("does 
 
            not recall any specific injury").
 
            
 
                 On the other hand, contrast this with the medical 
 
            history claimant gave one year later (March 26, 1987) to Dr. 
 
            Shaffer at the University of Iowa Hospitals and Clinics:
 
            
 
                 He had sudden onset of left buttock posterior 
 
                 thigh, calf and bottom of the foot pain that was 
 
                 also associated with numbness and tingling.
 
            
 
                 It is curious indeed that claimant did not mention such 
 
            dramatic symptoms at the Mercy Hospital Trauma Center, or, 
 
            for that matter, when the "sudden onset" occurred, while he 
 
            was standing in the hole.  This history is inconsistent in 
 
            numerous respects with claimant's trial testimony and other 
 
            histories he has given.  It will also be recalled that the 
 
            Mercy notes reflect complaints of pain only down to the 
 
            knee, not calf and bottom of the foot pain associated with 
 
            numbness and tingling.   One obvious explanation for this 
 
            false history is that, by 1987, claimant was seeking to 
 
            manufacture favorable evidence in contemplation of this 
 
            litigation.
 
            
 
                 Following his visit to the emergency room, claimant was 
 
            next seen by a physician on May 27, when he visited his 
 
            family doctor, Donald W. Hilliard, M.D.  Dr. Hilliard was 
 
            given a history of a Friday work incident, with development 
 
            of severe pain in the left upper leg and groin area on 
 
            Saturday.  Examination showed no low back symptoms or signs 
 
            and straight leg raising was negative.  The left upper leg 
 
            was tenderness to palpation.  Dr. Hilliard's assessment was 
 
            of probable leg muscular or ligament strain.  On June 2, Dr. 
 
            Hilliard writes that claimant was feeling better but was 
 
            having some discomfort about his left knee "still."  This is 
 
            the first mention of the knee in the medical records, and is 
 
            somewhat indirect about the knee.  On June 6, Dr. Hilliard 
 
            reported that claimant continued to improve but still had 
 
            persistent tenderness in the left upper leg area.
 
            
 
                 Claimant was next seen by W. R. Basler, M.D.  None of 
 
            Dr. Basler's chart notes are in the record, only a series of 
 
            return to work certificates and a surgeon's report 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            (diagnosis: muscle strain of back).  Dr. Basler first saw 
 
            claimant on June 12, 1986, and referred him to Lawrence C. 
 
            Strathman, M.D.
 
            
 
                 Dr. Strathman is a board certified orthopedic surgeon 
 
            who testified by deposition on April 25, 1991.  He was 
 
            claimant's main treating physician.  
 
            
 
                 Dr. Strathman was given a history similar to claimant's 
 
            testimony (Rawson losing his balance and putting all his 
 
            weight on claimant), including chiropractic care about 20 
 
            years before.  Complaint was made of pain starting around 
 
            the hip and going down the entire leg, although claimant 
 
            could not be specific as to front or back.   Dr. Strathman's 
 
            chart notes of June 13 make two references to the left knee: 
 
            that prepatellar swelling came on "after his examination 
 
            yesterday" and "a day ago."  It will be recalled that 
 
            claimant had seen Dr. Basler the day before.  Dr. 
 
            Strathman's chart notes indicated he did not know what might 
 
            have caused the prepatellar swelling.  Initial impression 
 
            was of low back strain.
 
            
 
                 On June 20, Dr. Strathman charts that claimant's back 
 
            "seems much better" but there were complaints of soreness in 
 
            the left knee.  Straight leg raising was negative.  However, 
 
            on June 25, Mr. Becker complained of worse pain in the 
 
            groin, through the buttock and down into the leg.  The 
 
            prepatellar bursa was much better.  Straight leg raising on 
 
            the leg caused knee pain but no back pain; negative on the 
 
            right.  Dr. Strathman thought claimant's complaints "a bit 
 
            out of proportion to findings."  He recognized degenerative 
 
            problems in the back, but noted no true radicular pain.
 
            
 
                 By June 30, Dr. Strathman charted that claimant still 
 
            had some aching in the back and some complaints of the left 
 
            knee, but that the prepatellar bursa was subsiding; he 
 
            believed claimant to be progressing satisfactory and 
 
            released him to return to work in one week.  However, by 
 
            July 11 (claimant had returned to work at light duty by this 
 
            time), the bursa was less pronounced and the ligaments at 
 
            the knee were "stable," but claimant was showing more 
 
            findings consistent with L4 radiculopathy.  A CAT scan was 
 
            ordered which showed both bulging discs at L3-4 and L4-5 
 
            with some relative stenosis but no definite evidence of 
 
            nerve root encroachment.  Claimant's pain was described as 
 
            "much less," and he was to continue supportive measures for 
 
            another couple of weeks, while increasing walking and 
 
            exercises.
 
            
 
                 On August 4, claimant was showing puffiness in the 
 
            prepatellar bursa and some atrophy in quadriceps muscles, 
 
            but Dr. Strathman believed him to be improving; he was 
 
            released to light work.  
 
            
 
                 On September 3, Dr. Strathman found claimant to be 
 
            "much better" and he was released to full duty.  Claimant 
 
            was showing marked improvement, but still had some swelling 
 
            in the prepatellar bursa.
 
            
 
                 Unfortunately, this marked improvement lasted only a 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            month.  On October 7, claimant was fishing in the state of 
 
            Minnesota when he twisted his back while landing a fish.  
 
            The sudden onset of back pain was so severe that claimant 
 
            concedes he was unable to either walk or stand and had to be 
 
            driven home (to the Mercy Hospital Trauma Center) by his 
 
            son.  Emergency room chart notes reflect that claimant had 
 
            been extremely uncomfortable and required the assistance of 
 
            his two sons to get out of bed and around.  Assessment was 
 
            of acute back strain.  Although there was no radiation down 
 
            the leg, it was noted that claimant had been unable to sit 
 
            on the way home.
 
            
 
                 Dr. Strathman's chart notes of October 9 show that 
 
            claimant had been feeling better and was improving until 
 
            this episode.  Dr. Strathman felt that myelogaphy might be 
 
            necessary, but claimant was improving by October 15.
 
            
 
                 On October 24, claimant was seen by one of Dr. 
 
            Strathman's associates, W. John Robb, M.D.  Dr. Robb noted 
 
            that claimant had increased weakness since the second 
 
            injury, although it had slightly improved.  He noted that 
 
            claimant's left knee problems did not appear to be related 
 
            to the original accident and considered the fishing incident 
 
            as an aggravation of what Dr. Robb diagnosed as a 
 
            preexisting herniated disc; the doctor anticipated 
 
            improvement back to claimant's status prior to the fishing 
 
            incident.
 
            
 
                 On November 13, 1986, Dr. Strathman found claimant much 
 
            improved, but still with some low back discomfort at times.  
 
            In view of that improvement, claimant was released to return 
 
            to work wearing his brace and being a little careful about 
 
            lifting and carrying.  Mr. Becker was released from care 
 
            "prn" (return as needed).  
 
            
 
                 Claimant returned on January 2, 1987, with continued 
 
            problems in the low back and left leg.  Dr. Strathman 
 
            charted significant degenerative problems in the back, but 
 
            neurological deficit improving.  Claimant was return to work 
 
            with a one month thirty pound restriction.
 
            
 
                 In his deposition testimony, Dr. Strathman was asked as 
 
            to the cause of treatment necessary from the time of the 
 
            fishing incident through November 13.  He answered:
 
            
 
                    A.  that's an extremely difficult question to 
 
                 answer.  I don't know as that there's any medical 
 
                 -- there's any way for anybody to know.  I think 
 
                 it has to be recognized that when I first saw this 
 
                 gentleman he had evidence of degenerative problems 
 
                 in his lumbar spine and he had the incident that 
 
                 occurred at work.  He'd improved and then had 
 
                 another incident and had a recurrence of symptoms.  
 
                 And I don't know whether medically I can say what 
 
                 caused what.  It's an ongoing thing.  is that 
 
                 helpful?
 
            
 
            (Strathman Deposition, Page 19).
 
            
 
                 Notably, Dr. Strathman also testified that claimant's 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            degenerative spine condition preexisted the incident of May 
 
            23, 1986, which he considered an exacerbation of the 
 
            degenerative problem, or an injury superimposed on that 
 
            problem.  The preexisting condition itself was severe enough 
 
            to explain decreased range of motion and other findings.  
 
            Dr. Strathman gave no impairment rating, but recognized that 
 
            claimant does have some impairment of the back; "but the 
 
            cause of the impairment is not that easily identified" 
 
            (Strathman Deposition, Page 24).
 
            
 
                 While Dr. Strathman provided treatment for claimant's 
 
            prepatellar bursa problem, he testified that he was never 
 
            able to elicit any causative factor for that problem, and at 
 
            no time saw any signs that would lead him to think or 
 
            suspect that claimant had suffered a meniscus tear or damage 
 
            to his cruciate ligaments.
 
            
 
                 When claimant was released on January 2, 1987, Dr. 
 
            Strathman found a significant resolution of nerve root 
 
            involvement that claimant had  exhibited, but the 
 
            preexisting degenerative problems persisted, and would in 
 
            fact always be there.  Continued degeneration was 
 
            anticipated.  However, claimant had no complaints with 
 
            respect to the knee.  Dr. Strathman also emphasized that the 
 
            bursa problem for which claimant had been treated was not in 
 
            the knee joint and that his chart note that ligaments in the 
 
            knee were felt to be stable included the cruciate ligament.
 
            
 
                 Dr. Strathman was never specifically asked whether a 
 
            causal nexus exists between the alleged work injury and 
 
            claimant's current state of ill-being.  Three physicians 
 
            have: Dr. Albright (knee), Dr. Weinstein (back) and Dr. 
 
            Crouse (independent evaluation).
 
            
 
                 John P. Albright, M.D., a board certified orthopedic 
 
            surgeon, testified by deposition on May 7, 1991.  Dr. 
 
            Albright works in the Department of Orthopedic Surgery, 
 
            University of Iowa Hospitals and Clinics.  He testified that 
 
            magnetic resonance imaging reviewed on May 31, 1989 showed a 
 
            significant tear in the medial meniscus, described as a 
 
            degenerative type of a tear.  As a result, surgery was 
 
            performed on August 23, 1989.
 
            
 
                 As of December 14, 1989, Dr. Albright felt claimant 
 
            might be entitled to a one percent impairment rating based 
 
            on the fact of surgery, but that he had no functional 
 
            impairment whatsoever, since physical examination was 
 
            entirely normal.  Dr. Albright also specified that the 
 
            meniscus tear he treated in 1989 had no relationship to 
 
            claimant's alleged injury in 1986, pointing out that the 
 
            prepatellar bursa problems treated by Dr. Strathman were in 
 
            a different location from the meniscus tear.
 
            
 
                 Claimant points out the following testimony:
 
            
 
                    Q.  If Mr. Becker had given a history of a 
 
                 traumatic injury on May 23rd, 1986, and his 
 
                 history was such that he was not having any 
 
                 problems with the left knee prior to that date, he 
 
                 on that date has an accident at work which I think 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
                 is reflected in the University notes and continues 
 
                 to have problems with the left knee, pain in the 
 
                 left knee, since that date, are you able to state, 
 
                 Doctor, whether there is a causal relationship 
 
                 between the incident on May 23rd, 1986, and the 
 
                 medial meniscus tear?
 
            
 
                    A.  You're asking me for a hypothetical 
 
                 situation?
 
            
 
                    Q.  That's right.
 
            
 
                    A.  Given those facts, I would have no reason 
 
                 to doubt that there -- the statement that there 
 
                 was a causal relationship.  Certainly the 
 
                 description of the injury would be sufficient to 
 
                 give an injury that would be picked up later -- 
 
                 not picked up later, become symptomatic later and 
 
                 require surgery on a delayed basis.
 
            
 
            (Albright Deposition, Pages 14-15).
 
            
 
                 However, the question includes an inaccurate recitation 
 
            of fact in that claimant did not report knee problems "since 
 
            that date" and did not continue to have left knee problems 
 
            "since that date."
 
            
 
                 James Weinstein, D.O., is also a board certified 
 
            orthopedic surgeon.  Dr. Weinstein, Professor of Orthopedics 
 
            Surgery and Director of the University of Iowa Spine 
 
            Diagnostic Treatment Center, testified by deposition on May 
 
            1, 1991.
 
            
 
                 It will be recalled that claimant was seen at the 
 
            University of Iowa in March 1987 by Dr. Shaffer.  Dr. 
 
            Weinstein was familiar with the history given Dr. Shaffer, 
 
            at least with respect to claimant's report of sudden onset 
 
            of symptomatology.  Claimant was seen again in October 1987 
 
            by Dr. Found.  Claimant returned and was seen by Dr. 
 
            Weinstein in July 1988.  Claimant gave Dr. Weinstein a 
 
            history of sudden onset of symptoms consistent with the 
 
            history given Dr. Shaffer:  "[A]s they were falling from a 
 
            ladder and felt a pain in his lower back at that time."
 
            
 
                 In his trial testimony, claimant testified he had not 
 
            developed pain in his lower back for about one month 
 
            following the incident.
 
            
 
                 At Dr. Weinstein's orders, an EMG, CAT scan and 
 
            myelogram were performed on August 23.  The EMG indicated 
 
            either that claimant had problems with his lower nerve root 
 
            or that he had a neuropathy, which is not necessarily 
 
            related to a back problem.  The myelogram was read as 
 
            showing numerous bulging discs, mostly at L4-5.  The CAT 
 
            scan identified no bulging or herniated discs, but showed 
 
            degenerative changes in the spine.  Treatment modalities 
 
            directed independently at disc problems and bony problems 
 
            were undertaken, but proved unsuccessful.  Dr. Weinstein 
 
            testified that he and the clinic were unable to reach a 
 
            final specific diagnosis of claimant's back pain.
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            
 
                 In an order dated February 16, 1990, Dr. Weinstein 
 
            expressed the view that claimant's back and knee problems 
 
            both occurred with the subject injury.  In his deposition 
 
            testimony, he made it clear that his opinion was based on an 
 
            incorrect history of sudden onset of pain and in ignorance 
 
            of the October fishing incident, which, at least on the 
 
            surface, was far more dramatic.
 
            
 
                 James E. Crouse, M.D., is an orthopedic specialist who 
 
            authored a report dated January 14, 1991, after seeing 
 
            claimant for an independent medical examination.   Dr. 
 
            Crouse's detailed report makes it clear that he was quite 
 
            familiar with claimant's medical history, although his 
 
            understanding that claimant "twisted wrong and developed low 
 
            back pain" while fishing in Minnesota might be viewed as 
 
            significantly understating the severity of that incident.
 
            
 
                 Dr. Crouse's impression was of (1) back sprain with 
 
            degenerative disc disease with disc disruption and (2) 
 
            status post-arthoscopic excision for torn medial meniscus, 
 
            left knee.  This writer concedes unfamiliarity with the term 
 
            "disc disruption."  It probably implies uncertainty as to 
 
            whether the problem consists of a disc bulge or an actual 
 
            herniation.  Dr. Crouse finds both the medial meniscus tear 
 
            and disability from the back related to the subject work 
 
            injury.  Impairment "related to the accident" (probably 
 
            referring to the back) was rated at twelve percent of the 
 
            body as a whole, while impairment due to the knee injury was 
 
            rated at five percent of the leg.  Dr. Crouse recommended 
 
            restrictions against prolonged standing, walking and 
 
            sitting, lifting up to 25 pounds occasionally and heavy 
 
            weights more frequently (?), but without repetitive bending, 
 
            stooping and lifting.  He felt claimant should be limited to 
 
            light work.
 
            
 
                 Evidence has been received as to a number of other 
 
            matters involving claimant's motivation and trustworthiness 
 
            in regard to this claim.  Taken together, they paint a 
 
            disturbing picture.
 
            
 
                 Although claimant asserts that his knee problems relate 
 
            to the injury, and he has given medical histories to the 
 
            effect that symptoms came on immediately, he did not claim 
 
            to his employer that his knee was injured in the original 
 
            incident until 1989 (according to Lora Summerwill).  
 
            Following a grievance hearing, the arbitrator (Milo G. 
 
            Flaten) understood that claimant suffered a severe back 
 
            strain when he had to unexpectedly support the weight of a 
 
            co-worker and a heavy piece of cast iron pipe, but that 
 
            "[l]ater, his knee began hurting him as well."  Claimant 
 
            told Summerwill that his knee had been injured during the 
 
            October 1986 fishing trip, but considered it an 
 
            "aggravation" of the original injury.
 
            
 
                 During the early stages of recuperation, the City of 
 
            Cedar Rapids made regular efforts to get claimant back to 
 
            work, but found him resistant.  While seeing various 
 
            doctors, and receiving return to work clearances for either 
 
            the back or the knee, he would complain that he had not been 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            released for the other condition, and vice versa.  In an 
 
            accommodation hearing on February 22, 1990, claimant was 
 
            offered the opportunity to bid on two other city jobs: 
 
            working a parking meter route and as a building maintenance 
 
            worker at city hall.  By this time, claimant had received 
 
            work restrictions from Dr. Weinstein (with those 
 
            restrictions, he could not work his previous water 
 
            department jobs).  Claimant refused to bid for the jobs; as 
 
            it happens, both individuals eventually hired had less 
 
            seniority.  At hearing, claimant complains that he would 
 
            have had to undergo a 30 day probationary period with either 
 
            job.  This is true, but claimant would have been returned to 
 
            status quo had he failed to get through the probationary 
 
            period.  At the accommodation hearing, he made no claim that 
 
            he had not been released to work to work by his physicians, 
 
            but did spring that argument on defendant at the later 
 
            arbitration hearing.  Since the city believed that claimant 
 
            was not interested in available jobs, he was terminated in 
 
            March 1990.  The grievance hearing following, culminating in 
 
            claimant being given an additional window in which to apply 
 
            for other city jobs.  He did apply for approximately seven 
 
            (including his old job, which he could not perform), some of 
 
            which were unrealistic or from which he would be 
 
            realistically be barred by potential conflicts of interest 
 
            (e.g., as a housing inspector, although claimant owns a 
 
            number of rental properties).
 
            
 
                 The evidence is conflicting as to the manner in which 
 
            claimant originally reported this injury.  It will be 
 
            recalled that the subject incident immediately preceded the 
 
            Memorial Day weekend.  According to claimant's wife Carol, 
 
            she attempted to call supervisors Ron Robinson and Larry 
 
            Robinson beginning Friday night, but failed to get an 
 
            answer.  She continued calling both men on and off all day 
 
            Saturday, leaving messages on answering machines, although 
 
            someone at Larry Robinson's number advised that he was out 
 
            of town.  Ms. Becker further testified that she visited both 
 
            houses on Sunday and Monday, finding both men at Ron 
 
            Robinson's house on the latter day.  According to Ron 
 
            Robinson, water supervisor, no messages were left on his 
 
            answering machine and he first learned of the incident when 
 
            Carol Becker telephoned him on the first work day, Tuesday.
 
            
 
                 Following the discharge, claimant successfully applied 
 
            for job insurance benefits.  To do so, he was required to 
 
            certify on a weekly basis to being able and available for 
 
            work, although he now asserts that he is a permanently and 
 
            totally disabled "odd-lot" worker.  Mr. Becker received both 
 
            regular and extended benefits.  During this time, he applied 
 
            for work with numerous employers, but apparently has not 
 
            done so since exhausting his eligibility.  A sustained 
 
            weekly job search is, of course, a prerequisite of 
 
            entitlement to job insurance benefits.  Ron Robinson pointed 
 
            out that claimant walked "funny," or with a noticeable limp 
 
            following his injury date -- when he knew someone was 
 
            watching.
 
            
 
                 Thus, the record contains much that is suspicious.  
 
            Individually, any of these can be explained away, but the 
 
            cumulative effect is great.  When the entire record is 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            considered, it must be concluded that claimant is not a 
 
            reliable witness.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 The party who would suffer loss if an issue were not 
 
            established has the burden of proving that issue by a 
 
            preponderance of the evidence.  Iowa R. App. P. 14(f).
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the alleged injury 
 
            actually occurred and that it arose out of and in the course 
 
            of employment.  McDowell v. Town of Clarksville, 241 N.W.2d 
 
            904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 
 
            154 N.W.2d 128 (1967).  The words "arising out of" refer to 
 
            the cause or source of the injury.  The words "in the course 
 
            of" refer to the time, place and circumstances of the 
 
            injury.  Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986); 
 
            McClure v. Union County, 188 N.W.2d 283 (Iowa 1971).
 
            
 
                 Claimant also has the burden of proving by a 
 
            preponderance of the evidence that the injury is a proximate 
 
            cause of the disability on which the claim is based.  A 
 
            cause is proximate if it is a substantial factor in bringing 
 
            about the result; it need not be the only cause.  A 
 
            preponderance of the evidence exists when the causal 
 
            connection is probable rather than merely possible.  
 
            Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 
 
            1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 
 
            (Iowa 1974).
 
            
 
                 Given claimant's lack of credibility, it follows, on 
 
            this record, that he has failed to meet his burden of proof 
 
            in establishing that he sustained disability from an injury 
 
            arising out of and in the course of employment.  It will be 
 
            recalled that claimant suffered no pain following the very 
 
            minor work incident of, at most, a light brushing against 
 
            claimant as Rawson jumped from the ladder.  Then, symptoms 
 
            developed during a long weekend.  Claimant may well have 
 
            participated in any number of activities, including working 
 
            on his rental properties, on Saturday, the day before he 
 
            sought medical attention.  There is a conflict in the 
 
            evidence as to when and how claimant's supervisors were 
 
            notified of a claimed injury.  At the emergency room, 
 
            claimant complained of a hip and upper leg injury.  Knee and 
 
            back symptoms did not come on until much later.  Even more 
 
            significantly, claimant did not identify any specific 
 
            incident to emergency room personnel.  Contrast this with 
 
            the dramatic history of sudden onset of symptoms Mr. Becker 
 
            later gave at the University of Iowa Hospitals. 
 
            
 
                 Claimant's back symptoms, by his own testimony, did not 
 
            come on for approximately one month.  His preexisting 
 
            degenerative condition alone explains those symptoms.  There 
 
            was also a delay in development of knee symptoms, and those 
 
            were attributable to a prepatellar bursa problem, clearly 
 
            not the ligament problem claimant later developed (and now 
 
            blames on the work incident).  Claimant's conduct has not 
 
            shown motivation to return to work, but great motivation to 
 
            maximize possible benefits, both workers' compensation and 
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            job insurance.  Claimant had apparently recovered from any 
 
            possible exacerbatory effect of the work incident during the 
 
            following summer, only to suffer a much more dramatic 
 
            incident or exacerbation while fishing in the fall.
 
            
 
                 For all these reasons, defendants must prevail.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Claimant takes nothing.
 
            
 
                 Costs are assessed to claimant.
 
            
 
                 Signed and filed this ____ day of April, 1993.
 
            
 
            
 
            
 
            
 
                                          
 
                                        ________________________________
 
                                          DAVID R. RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr Thomas L Currie
 
            Attorney at Law
 
            3401 Williams Blvd SW
 
            PO Box 998
 
            Cedar Rapids Iowa 52406-0998
 
            
 
            Mr Fred L Morris
 
            Mr Stephen W Spencer
 
            Attorneys at Law
 
            PO Box 9130
 
            Des Moines Iowa 50306-9130
 
            
 
 
            
 
 
 
 
 
 
 
                 
 
                                               5-1402.20
 
                                               Filed April 28, 1993
 
                                               DAVID R. RASEY
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            FRANCIS BECKER,     
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                               File No. 824608
 
            CITY OF CEDAR RAPIDS,    
 
                                          A R B I T R A T I O N
 
                 Employer, 
 
                                               D E C I S I O N
 
            and       
 
                      
 
            IOWA MUNICIPALITIES WORKERS   
 
            COMPENSATION ASSOCIATION,     
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            
 
            5-1402.20
 
            
 
            Claimant failed to prove injury arising out of and in the 
 
            course of employment.