BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         KENNETH L. SCHMITZ,
 
          
 
               Claimant,
 
                                            File No. 834034
 
          VS.
 
          
 
          AHRENS CONSTRUCTION COMPANY,      A P P E A L
 
          
 
               Employer,                    D E C I S I 0 N
 
          
 
          and
 
          
 
          FIREMAN'S FUND INSURANCE COS.,
 
          
 
               Insurance Carrier,
 
               Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
                                        
 
              Claimant appeals from an arbitration decision denying 
 
         further permanent partial disability benefits as the result of an 
 
         alleged injury on October 20, 1986.  The record on appeal 
 
         consists of the transcript of the arbitration hearing and 
 
         claimant's exhibits 1 through 18.  Both parties filed briefs on 
 
         appeal.
 
         
 
                                      ISSUE
 
                                        
 
              Claimant states the following issue on appeal: "Did the 
 
         deputy industrial commissioner err in not awarding more than 10% 
 
         permanent partial impairment to the leg as based upon A.M.A. 
 
         guidelines of the evaluation for permanent partial impairment?"
 
         
 
                              REVIEW OF THE EVIDENCE
 
                                        
 
              The arbitration decision adequately and accurately reflects 
 
         the pertinent evidence and it will not be set forth herein.
 
         
 
         
 
                                  APPLICABLE LAW
 
                                        
 
              The citations of law in the arbitration decision are 
 
         appropriate to the issue and the evidence.
 
         
 
                                     ANALYSIS
 
                                        
 
              Claimant, on appeal, argues that the deputy's award based on 
 
         10 percent impairment of the leg is inadequate.  Basically, 
 
         claimant argues that the A.M.A. Guides to the Evaluation of 
 
         Permanent Impairment, which were relied upon by Rouben Mirbegian, 
 
         M.D.,
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         SCHMITZ V. AHRENS CONSTRUCTION COMPANY 
 
         Page 2
 
         
 
         
 
         do not take into consideration "extenuating  circumstances."  In 
 
         this case, Dr. Mirbegian testified that claimant had undergone 
 
         arthrotomy surgery, which resulted in the removal of claimant's 
 
         medial meniscus.  Dr. Mirbegian rated claimant's permanent 
 
         partial impairment as 10 percent of the right leg.
 
         
 
              Claimant asserts that Dr. Mirbegian testified that he 
 
         removed claimant's right lateral meniscus as well as the medial 
 
         meniscus.  However, a review of the record indicates that the 
 
         testimony in question can be read as a hypothetical answer as to 
 
         claimant's probable impairment if both the medial and lateral 
 
         meniscus were removed.  This reading of the testimony is 
 
         corroborated by the hospital surgery records.  Dr. Mirbegian's 
 
         testimony in this regard is, at best, confusing.  Claimant bears 
 
         the burden of proof to establish the extent of his disability.  
 
         Based on the evidence in the record, claimant has only shown that 
 
         this arthrotomy surgery resulted in the removal of the medial 
 
         meniscus, and that claimant has demonstrated only a 10 percent 
 
         present permanent partial impairment of his right leg.
 
         
 
              Claimant also elicited testimony from Dr. Mirbegian, 
 
         however, that indicated that claimant now has a "50/50" chance of 
 
         developing arthritis in the future.  Dr. Mirbegian stated that if 
 
         claimant did develop arthritis in his knee, his rating of 
 
         impairment would change to 20 percent.
 
         
 
              Claimant argues that Dr. Mirbegian's statements as to the 
 
         probability of future arthritis should be taken into 
 
         consideration.  However, only claimant's present disability can 
 
         form the basis of an award of benefits.  Basing an award on 
 
         future possible developments of claimant's present condition 
 
         would be engaging in speculation.  Chapter 85, Code of Iowa, 
 
         contemplates a review-reopening proceeding should claimant's 
 
         condition deteriorate in the future.
 
         
 
              Claimant notes that Dr. Mirbegian testified that the 
 
         arthritis condition could develop as late as five to ten years in 
 
         the future, and that in that event claimant would be foreclosed 
 
         from pursuing a review-reopening by the statute of limitations.  
 
         Chapter 85 of the Code of Iowa contemplates awards based on 
 
         present circumstances.  The legislature has designated a statute 
 
         of limitations to cut off review-reopening claims beyond three 
 
         years from the last payment of benefits.  Although operation of 
 
         the statute of limitations may seem harsh or arbitrary in some 
 
         cases, it serves to preclude the re-emergence of cases 
 
         indefinitely into the future.  It is also noted that claimant is 
 
         not certain to develop arthritis in the future, but rather such a 
 
         change in condition is merely possible.  Granting claimant an 
 
         award based in part on the future development of arthritis might 
 
         result in a windfall to claimant if the condition does not 
 
         develop.  For this and other reasons, claimant's award must be 
 
         limited to his present condition.  As the record indicates
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         SCHMITZ V. AHRENS CONSTRUCTION COMPANY
 
         Page 3
 
         
 
         
 
         a 10 percent present impairment of the right leg, the deputy's 
 
         award of benefits will be affirmed..
 
         
 
                                 FINDINGS OF FACT
 
                                        
 
              1. The work injury of October 20, 1986, was a cause of a 10 
 
         percent permanent partial impairment to the right leg.
 
         
 
              2. The medical expenses listed in the prehearing report are 
 
         fair and reasonable and were incurred by claimant for reasonable 
 
         and necessary treatment of his work injury as a result of his 
 
         work injury on October 20, 1986.
 
         
 
              3. Defendants have voluntarily paid claimant benefits 
 
         equivalent to 10 percent impairment of the right leg.
 
         
 
                                CONCLUSION OF LAW
 
                                        
 
              Claimant has not established by a preponderance of the 
 
         evidence entitlement to further permanent partial disability 
 
         benefits.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed.
 
         
 
                                      ORDER
 
                                        
 
              THEREFORE, it is ordered:
 
         
 
              That defendants shall pay directly to Dr. Mirbegian the bill 
 
         submitted in the prehearing report totaling seventy-five and 
 
         no/100 dollars ($75.00).
 
         
 
              That claimant shall pay the costs of this action.
 
         
 
              That defendants shall file activity reports as required by 
 
         this agency pursuant to Division of Industrial Services Rule 
 
         343-3.1(2).
 
         
 
              Signed and filed this 2nd day of June, 1989.
 
         
 
         
 
                                         DAVID E. LINQUIST
 
                                         INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies to:
 
         
 
         Mr. James P. Hoffman
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         Attorney at Law
 
         Middle Road
 
         P.O. Box 1066
 
         Keokuk, IA 52632-1066
 
         
 
         
 
         
 
         SCHMITZ V. AHRENS CONSTRUCTION COMPANY
 
         Page 4
 
         
 
         
 
         Ms. Dorothy L. Kelley
 
         Attorney at Law
 
         500 Liberty Bldg.
 
         Des Moines, IA 50309
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                                      1803. 2905
 
                                                      File June 2, 
 
         1989
 
                                                      DAVID E. 
 
         LINQUIST
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
                                        
 
           KENNETH L. SCHMITZ,
 
           
 
             Claimant,
 
           
 
           vs.                                       File No. 834034
 
           
 
           AHRENS CONSTRUCTION COMPANY                 A P P E A L
 
           
 
             Employer,                               D E C I S I O N
 
           
 
           and
 
           FIREMAN'S FUND INSURANCE COS.,
 
           
 
             Insurance Carrier,
 
             Defendants.
 
           
 
         1803, 2905
 
         
 
              Claimant's doctor gave a rating of 10 percent, but also 
 
         testified that claimant had a 50/50 chance of developing 
 
         arthritis anywhere from 5 to 10 years in the future, and that if 
 
         arthritis developed, claimant's rating would be 20 percent of the 
 
         body as a whole.  Held that basing an award on what may or may 
 
         not occur in the future would be speculation.  Claimant would 
 
         have review-reopening as a remedy if arthritis did develop.  
 
         Claimant  argued that review-reopening may not be available if 
 
         the arthritis develops beyond the 3 year statute of limitations.  
 
         Nevertheless, the legislature has made a policy decision to deny 
 
         compensation for claims beyond the statute of limitations.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         KENNETH L. SCHMITZ,
 
         
 
              Claimant,
 
         
 
         vs.                                          FILE NO. 834034
 
         
 
         AHRENS CONSTRUCTION COMPANY,              A R B I T R A T I 0 N
 
         
 
              Employer,                               D E C I S I 0 N
 
         
 
         and
 
         
 
         FIREMAN'S FUND INSURANCE COS.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Kenneth L. 
 
         Schmitz, claimant, against Ahrens Construction Company, employer 
 
         (hereinafter referred to as Ahrens), and Fireman's Fund Insurance 
 
         Companies, insurance carrier, for workers' compensation benefits 
 
         as a result of an alleged injury on October 20, 1986.  On 
 
         February 29, 1988, a hearing was held on claimant's petition and 
 
         the matter was considered fully submitted at the close of this 
 
         hearing.
 
         
 
              The parties have submitted a prehearing report of contested 
 
         issues and stipulations which was approved and accepted as a part 
 
         of the record of this case at the time of hearing.  Oral 
 
         testimony was received during the hearing only from claimant.  
 
         The exhibits received into the evidence at the hearing are listed 
 
         in the prehearing report.  According to the prehearing report, 
 
         the parties have stipulated to the following matters:
 
         
 
              1.  On October 20, 1986, claimant received an injury which 
 
         arose out of and in the course of his employment with Ahrens.
 
         
 
              2.  The injury was a cause of temporary total disability 
 
         from October 21, 1986 through April 30, 1987 and now permanent 
 
         disability.
 
         
 
              3.  Claimant's rate of weekly compensation in the event of 
 
         an award of weekly benefits from this proceeding shall be $124.14 
 
         per week.
 
         
 
              4.  The type of disability is a scheduled member disability 
 
         to the leg.
 
                                                
 
                                                         
 
         
 
              5.  If permanent disability benefits are awarded herein they 
 
         shall begin as of May 1, 1987.
 
         
 
              6.  The medical provider would testify that the fees charged 
 
         in the two medical bills submitted by claimant in the prehearing 
 
         report were fair and reasonable.  It is also stipulated that 
 
         these bills are causally connected to the medical condition upon 
 
         which the claim is based but their causal connection to any work 
 
         injury and whether or not this constitutes reasonable treatment 
 
         of the work injury remains an issue to be decided.
 
         
 
         
 
                                      ISSUES
 
         
 
              The parties have submitted the following issues for 
 
         determination in this proceeding:
 
         
 
              I.  The extent of claimant's entitlement to weekly benefits 
 
         for permanent disability; and,
 
         
 
             II.  The extent of claimant's entitlement to additional 
 
         medical benefits under Iowa Code section 85.27.
 
         
 
         
 
                             SUMMARY OF THE EVIDENCE
 
         
 
              The following is a summary of evidence presented in this 
 
         case.  For the sake of brevity, only the evidence most pertinent 
 
         to this decision is discussed.  Whether or not specifically 
 
         referred to in this summary, all of the evidence received at the 
 
         hearing was considered in arriving at this decision.  As will be 
 
         the case in any attempted summarization, conclusions about what 
 
         the evidence offered may show are inevitable.  Such conclusions, 
 
         if any, in the following summary should be considered as 
 
         preliminary findings of fact.
 
         
 
              The circumstances surrounding the injury and subsequent 
 
         treatment of the injury are not in dispute.  On October 20, 1986, 
 
         while working as a laborer with Ahrens, claimant attempted to 
 
         jump into an excavation and he twisted his right knee at a 
 
         construction site in the State of Missouri.  Claimant was 
 
         initially examined by a physician in Missouri but was soon 
 
         referred to an orthopedic surgeon, Rouben Mirbegian, M.D., for 
 
         further treatment.  Conservative treatment failed to improve 
 
         claimant's condition and upon a diagnosis of a torn cartilage in 
 
         the knee, claimant underwent arthroscopy exploration of his right 
 
         knee meniscus on December 2, 1986 and upon a final diagnosis of a 
 
         torn medial meniscus, claimant's medial meniscus was removed in 
 
         an arthrotomy surgery immediately after the arthroscopy.
 
         
 
              Claimant then underwent a long period of post-operative care 
 
         consisting of pain and anti-inflammatory medication, exercises 
 
         and recommendations of weight loss.  On April 13, 1987, claimant 
 
         was eventually released for work on May 2, 1987.  In his 
 
                                                
 
                                                         
 
         deposition, Dr. Mirbegian stated that claimant may continue to 
 
         experience problems after the surgery.  One of the problems the 
 
         doctor identified was a feeling of "giving out" of the knee, with 
 
         occasional pain and swelling and the possibility of developing 
 
         arthritis in the knee in the future.  Dr. Mirbegian finally 
 
         concluded that due to the loss of the medial meniscus, claimant 
 
         has a 10 percent permanent partial impairment to the leg.
 
         
 
              The issue as to the probability of claimant's developing 
 
         arthritis within three to five years was a subject of 
 
         considerable dispute among the parties.  In his deposition, Dr. 
 
         Mirbegian stated that there was a 50/50 chance of claimant 
 
         developing arthritis which would increase his impairment rating 
 
         to 20 percent.  However, Dr. Mirbegian later stated as follows in 
 
         his deposition:
 
         
 
              Q.  But we're talking about there's -- what 50-50 
 
              chance that he will develop arthritis?
 
         
 
              A.  Yes.  The reason is that's one side of the knee is 
 
              the inside.  The outside is another 50 percent.  So if 
 
              he had the two cartilage removed the medial side and 
 
              lateral side -- then he has higher than 50 percent 
 
              chance of getting arthritis.
 
         
 
              Q.  If I understand, he had the medial meniscus 
 
              removed?
 
         
 
              A.  He got the one on median side, got one on lateral 
 
              side.  So he has quite good chance of getting that 
 
              arthritis in that side of his knee.
 
         
 
              The operative report of the arthrotomy states that only 
 
         claimant's medial meniscus was removed.  According to this report 
 
         observations of the lateral meniscus during arthroscopy shows no 
 
         signs of any tear or abnormality.
 
         
 
              Claimant testified that his knee continues to give out once 
 
         in a while and swells and throbs especially in cold weather and 
 
         strenuous activity.  These episodes last two to three days.  
 
         Claimant states that he is not able to lift or use his left leg 
 
         as before.  Claimant states that he has attempted to lose weight 
 
         but has been unable to do so.
 
         
 
              Claimant testified that he reinjured his right knee in 
 
         August, 1987, in a part-time job which required a return visit to 
 
         Dr. Mirbegian on August 10, 1987 and again on August 24, 1987.  
 
         Claimant delivered appliances such as washers and dryers in this 
 
         job.  Claimant testified that he had assistance with this work.
 
              Claimant's appearance and demeanor at the hearing indicated 
 
         he was testifying truthfully.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              I.  Claimant must establish by a preponderance of the 
 
                                                
 
                                                         
 
         evidence the extent of weekly benefits for permanent disability 
 
         to which claimant is entitled.  Permanent partial disabilities 
 
         are classified as either scheduled or unscheduled.  A specific 
 
         scheduled disability is evaluated by the functional method; the 
 
         industrial method is used to evaluate an unscheduled disability.  
 
         Martin v. Skelly Oil Co., 252 Iowa 128, 133, 106 N.W.2d 95, 98 
 
         (1960); Graves v. Eagle Iron Works, 331 N.W.2d 116 (Iowa 1983); 
 
         Simbro v. DeLong's Sportswear, 332 N.W.2d 886, 997 (Iowa 1983).  
 
         When the result of an injury is loss to a scheduled member, the 
 
         compensation payable is limited to that set forth in the 
 
         appropriate subdivision of Code section 85.34(2).  Barton v. 
 
         Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (1961).  "Loss 
 
         of use" of a member is equivalent to "loss" of the member.  Moses 
 
         v. National Union C.M. Co., 194 Iowa 819, 184 N.W. 746 (1922).  
 
         Pursuant to Code section 85.34(2)(u) the industrial commissioner 
 
         may equitably prorate compensation payable in those cases wherein 
 
         the loss is something less than that provided for in the 
 
         schedule.  Blizek v. Eagle Signal Company, 164 N.W.2d 84 (Iowa 
 
         1969).
 
         
 
              From the evidence submitted it is found as a matter of fact 
 
         that the work injury is a cause of a 10 percent loss of use of 
 
         the right leg.  Claimant in his brief argues that Dr. Mirbegian 
 
         testified that if both the medial and lateral aspects of the 
 
         meniscus were removed this would change the rating to 20 percent 
 
 
 
                       
 
                                                         
 
         due to the fact that there would be a greater than a 50/50 chance 
 
         of developing arthritis.  The problem is that this deputy has not 
 
         been shown by the evidence that both the medial and lateral 
 
         aspects were removed.  The deposition testimony of Dr. Mirbegian 
 
         is confusing.  The surgical report shows only the medial aspect 
 
         was involved.  Had both parts of the meniscus been removed, 
 
         claimant would be correct in that the greater weight of the 
 
         evidence would show a probability of a greater impairment than 10 
 
         percent.  In other words, it would be more likely than not.  
 
         However, this has not been shown.
 
         
 
              Based upon a finding of a 10 percent permanent partial 
 
         impairment, claimant is entitled as a matter of law to 22 weeks 
 
         of permanent partial disability benefits under Iowa Code section 
 
         85.34(2)(o) which is 10 percent of 220 weeks, the maximum 
 
         allowable number of weeks for an injury to a leg in that 
 
         subsection.  The extent of claimant's entitlement to healing 
 
         period benefits were stipulated to.  Therefore, claimant is 
 
         entitled to a total of 49 3/7 weeks for both healing period and 
 
         permanent disability benefits. It was stipulated that claimant 
 
         has already been paid 52 2/7 weeks.  This is more than his 
 
         entitlement.  Therefore, claimant shall not be awarded additional 
 
         benefits.
 
              
 
              II.  Pursuant to Iowa Code section 85.27, claimant is 
 
         entitled to an order directing the defendants to pay reasonable 
 
         medical expenses for treatment of the work injury.  Claimant is 
 
         entitled to an order of reimbursement only for those expenses 
 
         which he has previously paid.  Krohn v. State,    N.W.2d    (Iowa 
 
         1988) decision filed March 16, 1988.
 
         
 
              Although the bills in August, 1987, submitted by claimant in 
 
         the prehearing report are the result of a reinjury to the knee 
 
         while working for another employer, Dr. Mirbegian stated that 
 
         claimant will be occasionally having these episodes of his knee 
 
         going out.  Therefore, claimant has shown that the work injury in 
 
         this case was at least a significant contributing factor to this 
 
         reinjury and the need for treatment in August of 1987.  
 
         Therefore, claimant will be awarded medical benefits for the sums 
 
         requested.
 
         
 
              Claimant's request for penalty benefits under Iowa Code 
 
         section 86.13 is a moot issue as no additional weekly benefits 
 
         were awarded
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Claimant was a credible witness.
 
         
 
              2.  The work injury of October 20, 1986, was a cause of a 10 
 
         percent permanent partial impairment to the leg and of occasional 
 
         episodes of swelling and throbbing such as a feeling that the 
 
         knee "is giving out" and of a 50/50 chance of developing 
 
         arthritis in the future.
 
         
 
              3.  The medical expenses listed in the prehearing report are 
 
                                                
 
                                                         
 
         fair and reasonable and were incurred by claimant for reasonable 
 
         and necessary treatment of his work injury as a result of his 
 
         work injury on October 20, 1986.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant has not established by a preponderance of the 
 
         evidence entitlement to additional weekly benefits but has 
 
         established entitlement to the medical benefits awarded below.
 
         
 
                                      ORDER
 
         
 
              1.  Defendants shall pay directly to Dr. Mirbegian the bill 
 
         submitted in the prehearing report totaling seventy-five and 
 
         no/100 dollars ($75.00).
 
         
 
              2.  Defendants shall pay the costs of this action pursuant 
 
         to Division of Industrial Services Rule 343-4.33 and specifically 
 
         the deposition fee of Dr. Mirbegian in the amount of one hundred 
 
         and no/100 dollars ($100.00).
 
         
 
              3.  Defendants shall filed activity reports on the payment 
 
         of this award as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
         
 
         
 
              Signed and filed this 12th day of May, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                         LARRY P. WALSHIRE
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. James P. Hoffman
 
         Attorney at Law
 
         Middle Road
 
         Keokuk, Iowa 52632
 
         
 
         Ms. Dorothy L. Kelley
 
         Attorney at Law
 
         1000 Des Moines Bldg.
 
         Des Moines, Iowa 50309
 
         
 
         
 
 
 
 
 
 
 
 
 
                                                
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                    1803
 
                                                    Filed May 12, 1988
 
                                                    LARRY P. WALSHIRE
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         KENNETH L. SCHMITZ,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                     FILE NO. 834034
 
         AHRENS CONSTRUCTION COMPANY,
 
                                                  A R B I T R A T I 0 N
 
              Employer,
 
                                                     D E C I S I 0 N
 
         and
 
         
 
         FIREMANOS FUND INSURANCE COS.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1803
 
         
 
              Claimant denied additional weekly benefits for a scheduled 
 
         member injury to his knee.  Additional medical benefits were 
 
         awarded even though they were caused by a subsequent reinjury in 
 
         that the first injury was a substantial contributing factor to
 
         the reinjury.
 
 
 
         
 
         
 
 
        
 
 
 
 
 
        
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        TIM BROWN,
 
        
 
            Claimant,
 
        
 
        vs.                                      File No. 834047
 
        
 
        RHEINSCHMIDT FLOOR SPECIALISTS,       A R B I T R A T I O N
 
        
 
            Employer,                           D E C I S I O N
 
        
 
        and                                         F I L E D
 
        
 
        ST. PAUL PROPERTY AND                      JUL 31 1989
 
        LIABILITY INSURANCE,
 
                                          IOWA INDUSTRIAL COMMISSIONER
 
            Insurance Carrier,
 
            Defendants.
 
        
 
        
 
        
 
                             STATEMENT OF THE CASE
 
        
 
             This is a proceeding in arbitration brought by Tim Brown, 
 
             claimant, against Rheinschmidt Floor Specialists, employer 
 
             (hereinafter referred to as Rheinschmidt), and St. Paul Property 
 
             and Liability Insurance, insurance carrier, defendants, for 
 
             workers' compensation benefits as a result of an alleged injury 
 
             on July 31, 1986. On December 7, 1988, a hearing was held on 
 
             claimant's petition and the matter was considered fully submitted 
 
             at the close of this hearing.
 
        
 
            The parties have submitted a prehearing report of contested 
 
        issues and stipulations which was approved and accepted as a part 
 
        of the record of this case at the time of hearing. Oral 
 
        testimony was received during the hearing. The exhibits received 
 
        into the evidence at the hearing are listed in the prehearing 
 
        report. According to the prehearing report, the parties have 
 
        stipulated to the following matters:
 
        
 
            1. Claimant's rate of weekly compensation in the event of 
 
        an award of weekly benefits from this proceeding shall be 
 
        $358.87.
 
        
 
            2 . The medical bills submitted by claimant at hearing are 
 
        fair and reasonable and causally connected to the medical 
 
        condition upon which the claimed hearing is based but that the 
 
        issue of their causal connection to any work injury remains at 
 
        issue.
 
        
 
                                      ISSUES
 
        
 
             The parties submitted the following issues for determination 
 
             in this proceeding:
 
        
 
                  I. Whether an employee-employer relationship existed 
 
                  between claimant and the alleged defendant employer at the time 
 
                  of the alleged injury;
 
        
 
             II. Whether claimant received an injury arising out of and 
 

 
        
 
 
 
 
 
             in the course of his employment;
 
        
 
             III. Whether there is a causal relationship between the 
 
             alleged work injury and the claimed disability;
 
        
 
             IV. The extent of claimant's entitlement to weekly 
 
             benefits for disability; and,
 
        
 
                  V. The extent of claimant's entitlement to medical 
 
                  benefits.
 
        
 
                                 STATEMENT OF FACTS
 
        
 
             The following is a brief statement highlighting some of the 
 
             more pertinent evidence presented. Whether or not specifically 
 
             referred to in this statement, all of the evidence received at 
 
             the hearing was independently reviewed and considered in arriving 
 
             at this decision. Any conclusions about the evidence received 
 
             contained in the following statement should be viewed as 
 
             preliminary findings of fact.
 
        
 
            Claimant testified that he worked for Rheinschmidt from 1982 
 
        until November 15, 1986, as a floor covering installer. Claimant 
 
        worked for Rheinschmidt on a previous occasion but left in 1978 
 
        to operate a tavern business. Claimant said that he left 
 
        Rheinschmidt in 1986 due to his low back difficulties. Claimant 
 
        was paid by Rheinschmidt for this work the sum of $20,044.78 in 
 
        1985 and $18,586.89 until he left in 1986.
 
        
 
            James Rheinschmidt, the manager of defendant employer, 
 
        testified that claimant was an independent contractor for 
 
        Rheinschmidt. Claimant was paid by the square yard for carpet he 
 
        installed. No withholding taxes or social security taxes were 
 
        deducted from amounts paid to claimant. Claimant filed a 
 
        business schedule to report his income from Rheinschmidt on his 
 
        tax returns. Rheinschmidt testified that claimant agreed to this 
 
        arrangement. According to Rheinschmidt, other installers who 
 
        objected to a subcontracting arrangement were paid by the hour 
 
        and were considered employees of Rheinschmidt. Claimant 
 
        furnished his own transportation and tools according to James 
 
        Rheinschmidt.
 
        
 
             Claimant testified that he was also paid by the hour for 
 
             moving furniture. He and a former Rheinschmidt installer 
 
             testified that no bidding or negotiating process determined the 
 
             amount the installers would be paid by Rheinschmidt. This was 
 
             done unilaterally by James Rheinschmidt. Claimant and this 
 
             former installer also testified that Rheinschmidt would 
 
             occasionally reduce the charges submitted to him by installers if 
 
             he felt they were excessive. Claimant was not paid for each job 
 
             separately but received a check from Rheinschmidt on Fridays each 
 
             pay week. Claimant said that although he furnished the truck he 
 
             was paid $.10 a mile by Rheinschmidt for out-of-town 
 
             installations. Rheinschmidt also furnished larger tools such as 
 
             rollers and strippers. Claimant admitted that he hired on 
 
             occasion his sons as assistants. Claimant's tax returns 
 
             indicated that such wages. amounted to $3,000 in 1986. Claimant 
 
             offered into evidence a copy of an advertisement published by 
 
             Rheinschmidt which stated that their carpeting was installed by 
 
             their "own professionals." Claimant said that customer complaints 
 
             were handled only by Rheinschmidt. Claimant also was to 
 
             telephone Rheinschmidt for guidance if problems developed during 
 
             installation. Claimant said that he received a layout plan and 
 
             precut carpeting for each installation job. Assignments were 
 
             given daily by Rheinschmidt to installers according to a work 
 
             schedule calendar. Claimant said that it was understood that he 
 

 
        
 
 
 
 
 
             was not to work for competitors. Rheinschmidt responded that 
 
             although he preferred that they not do so, he said that he did 
 
             not direct the installers not to work for competitors.
 
        
 
            The facts surrounding the alleged work injury were not in 
 
        great dispute. Claimant testified that in April 1986, he felt a 
 
        "tear" in his low back and low back pain ensued while loading 
 
        carpeting into his truck. Claimant continued work but eventually 
 
        sought medical treatment at a local hospital or emergency room 
 
        two weeks later. Claimant's symptoms improved and he returned to 
 
        work. On July 31, 1986, claimant said that he injured his back 
 
        again when he felt pain following another "tear" after turning or 
 
        twisting to reach for a tool while installing a carpet. Claimant 
 
        then sought medical treatment from an orthopedic surgeon, Dwayne 
 
        Nelson, M.D., from the Orthopedics and Reconstruction Surgery 
 
        Associates, P.C. Dr. Nelson diagnosed prolapse of the 
 
        intervertebral disc at the L4-5 level of claimant's spine. At 
 
        this time, claimant also developed left cubical tunnel syndrome. 
 
        Claimant also had problems with his wrists prior to this time and 
 
        received surgical treatment for bilateral carpal tunnel syndrome. 
 
        Dr. Nelson took claimant off work due to his back pain from 
 
        August 5 through October 13. During this time claimant received 
 
        medication, a back brace and physical therapy exercises. 
 
        Claimant testified that he worked at Rheinschmidt until November 
 
        15 at which time he had to quit due to his continuing back 
 
        problems. In December 1986, claimant worked for two weeks for 
 
        another carpeting business. The wife of this business testified 
 
        by deposition that claimant was their employee during this two 
 
        week period and earned $12.50 per hour as a carpet installer. 
 
        She said that her husband told her that claimant quit their 
 
        employment because claimant wanted more money. Claimant 
 
        testified that he worked for this second carpet business when he 
 
        ran out of money because his workers' compensation claim had been 
 
        denied by Rheinschmidt. He stated that he was compelled to quit 
 
        this second employment after two weeks because of continuing back 
 
        pain.
 
        
 
             In January 1987, claimant was evaluated by the University of 
 
             Iowa Hospitals and Clinics in Iowa City, Iowa. Dr. Leyman (first 
 
             name unknown) from that institution opines in his report that 
 
             claimant had a herniated disc at the 5-6 and 4-5 levels and 
 
             stated that claimant was temporary totally disabled in the amount 
 
             of 10 percent. In September 1987, a Dr. Miely (first man 
 
             unknown), also from the University of Iowa Hospitals, reported 
 
             that after his evaluation of claimant he found that claimant was 
 
             suffering from chronic low back pain possibly secondary to a 
 
             herniated disc with only a moderate amount of leg pain. Dr. 
 
             Miely opined that claimant suffers from a 10 percent permanent 
 
             partial impairment.
 
        
 
            In November 1986, Dr. Nelson left the employ of the 
 
        professional corporation and another orthopedic surgeon from that 
 
        corporation, Jerry Jochims, M.D., began treating claimant. His 
 
        treatment essentially consisted of prescriptions for pain 
 
        medication. In July 1988, Dr. Jochims performed a disability 
 
        evaluation on claimant. Upon a final diagnosis of "failed disc 
 
        syndrome" claimant was rated by Dr. Jochims as having a 10 
 
        percent permanent partial impairment to the body as a whole. Dr. 
 
        Jochims did not feel that surgery was warranted and recommended 
 
        conservative management with job modification including 
 
        vocational retraining.
 
        
 
            In his deposition testimony, Dr. Jochims indicated that he 
 
        was not aware that claimant had an extensive history of 
 
        chiropractic adjustment care for low back pain beginning sometime 
 
        in the 1960's. According to the records of Raymond Hanks, D.C., 
 

 
        
 
 
 
 
 
        claimant received an average of 9 treatments annually between 
 
        1975 and 1982 for episodes of low back pain following several 
 
        lifting and/or falling incidents. Dr. Hanks reports that he 
 
        treated claimant before 1975, but that his records prior to that 
 
        time were destroyed. During this time, claimant also received 
 
        regular treatment for neck and mid back pain. In 1982, claimant 
 
        suffered a neck injury following an auto accident and was rated 
 
        by Dr. Hanks as suffering from a 40 percent permanent partial 
 
        disability due to these injuries. Dr. Jochims also rated 
 
        claimant's neck impairment following the 1982 accident and 
 
        according to him, claimant suffered only a 2 percent permanent 
 
        partial impairment due to the neck problems and a 1 percent 
 
        permanent partial impairment due to a thumb problem.
 
        
 
             When presented with Dr. Hanks' records, Dr. Jochims 
 
             testified that he could not deduce anything from such records due 
 
             to the differing terminology and philosophies between medical 
 
             doctors and chiropractors. Dr. Jochims maintained in his 
 
             deposition that there is a difference between the prior recurrent 
 
             low back pain and claimant's problems after the July 1986 
 
             incident. He states that claimant was less employable after this 
 
             incident due to the new diagnosis of possible herniated disc.
 
        
 
            Claimant testified that he only had hip and neck pain prior 
 
        to 1986. He states that after the July 1986 incident, he no 
 
        longer lifts heavy objects, sits or stands for prolonged periods 
 
        of time, and can no longer crawl, twist or bend in the manner 
 
        necessary to install floor coverings. Claimant said that he is 
 
        improved when he does not exert himself. Claimant testified that 
 
        he has not been employed since his last floor covering job in 
 
        December of 1986.
 
        
 
            Claimant was 44 years of age at the time of hearing. 
 
        Claimant has only a ninth grade formal education but has 
 
        completed his GED since the work injury. Claimant testified that 
 
        his past employment primarily consists of 23 years as a floor 
 
        covering installer. However, he has worked construction and for 
 
        a two year period of time operated a tavern.
 
        
 
            LeRoy Schatz, a qualified vocational rehabilitation 
 
        counselor, testified that claimant has a reasonable expectation 
 
        of getting some sort of employment from vocational rehabilitation 
 
        efforts but at the present time claimant had no identifiable 
 
        transferable skills. He said that claimant does have a steady 
 
        work history prior to the 1986 injuries. Claimant has taken 
 
        courses in robotics at a local community college but had to leave 
 
        the program to take care of his wife who developed spinal cancer.
 
        
 
             Claimant's appearance and demeanor at hearing indicated that 
 
             he was testifying truthfully
 
        
 
                            APPLICABLE LAW AND ANALYSIS
 
        
 
             Note: A credibility finding will be made as claimant's 
 
             credibility became an issue with reference to the nature of his 
 
             employment relationship with the alleged employer, the nature and 
 
             extent of his past back problems, and the nature of and extent of 
 
             the alleged work injury and subsequent disability.
 
        
 
                  I. Claimant must first establish an employee-employer 
 
                  relationship between himself and Rheinschmidt at the time of the 
 
                  alleged injury. Only employees are entitled to compensation for 
 
                  work related injuries and occupational diseases under Chapters 85 
 
                  and 85A of the Code. Iowa Code section 85.61(2) defines employee 
 
                  as follows:
 
        
 

 
        
 
 
 
 
 
             "Worker" or "employee" means a person who has entered into 
 
             the employment of, or works under contract of service, 
 
             express or implied,...for an employer,...
 
             
 
             3. The following persons shall not be deemed "workers" or 
 
             "employees":
 
             
 
               ...
 
             
 
                  b. An independent contractor.
 
                  
 
             The Iowa Supreme Court stated in Nelson v. Cities Service 
 
             Oil Co., 259 Iowa 1209, 1213, 146 N.W.2d 261 (1966) as follows.
 
        
 
             This court has consistently held it is a claimant's duty to 
 
             prove by a preponderance of the evidence he or his decedent 
 
             was a workman or employee within the meaning of the law, and 
 
             he or his decedent received an injury which arose out of and 
 
             in the course of employment."
 
             
 
             And, if a compensation claimant establishes a prima facie 
 
             case the burden is then upon defendant to go forward with 
 
             the evidence and overcome or rebut the case made by 
 
             claimant. He must also establish by a preponderance of the 
 
             evidence any pleaded affirmative defense or bar to 
 
             compensation. (Citations Omitted)
 
             
 
             The Iowa Supreme Court has recognized 5 factors in 
 
             determining whether or not an employee-employer relationship 
 
             exists: (l) the right of selection, or to employ at will; (2) 
 
             responsibility for payment of wages by the employer; (3) the 
 
             right of discharge or termination of the relationship; (4) the 
 
             right to control the work; and (5) identity of the employer as 
 
             the authority in charge or for whose benefit it is performed. 
 
             The overriding issue is the intention of the parties. 
 
             Caterpillar Tractor Co. v. Shook, 313 N.W.2d 503 (Iowa 1981). In 
 
             the Caterpillar Tractor case, the court added that the primary 
 
             practice of the workers' compensation statute is to benefit the 
 
             workers as far as the statute permits and should be interpreted 
 
             liberally with the view toward that objective. The court stated 
 
             as follows at 506:
 
        
 
             [T]he statute is intended to cast upon the industry in which 
 
             the worker is employed a share of the burden resulting from 
 
             industrial accidents....As a result, "any worker whose 
 
             services form a regular and continuing part of the cost of 
 
             the product, and whose method of operation is not such an 
 
             independent business that it forms in itself a separate 
 
             route through which his own costs of industrial accident can 
 
             be channeled, is within the presumptive area of intended 
 
             protection." (Citations Omitted)
 
             
 
             If then a claimant has established a prima facie case for 
 
             employee-employer relationship, the defendant may assert an 
 
             affirmative defense that claimant was an independent contractor. 
 
             The Iowa Supreme Court has provided the following tests to 
 
             determine independent contractor status:
 
        
 
             ...An independent contractor, under the quite universal 
 
             rule, may be defined as one who carries on an independent 
 
             business, and contracts to do a piece of work according to 
 
             his own methods, subject to the employer's control only as 
 
             to results. The commonly recognized tests of such a 
 
             relationship are,...: (l) the existence of a contract for 
 
             the performance by a person of a certain piece or kind of 
 
             work at a fixed price; (2) independent nature of his 
 

 
        
 
 
 
 
 
             business or of his distinct calling; (3) his employment of 
 
             assistants, with the right to supervise their activities; 
 
             (4) his obligation to furnish necessary tools, supplies, and 
 
             materials; (5) his right to control the progress of the 
 
             work, except as to final results; (6) the time for which the 
 
             workman is employed; (7) the method of payment, whether by 
 
             time or by job; (8) whether the work is part of the regular 
 
             business of the employer....
 
             
 
        Mallinger v. Webster City Oil Co., 211 Iowa 847, 851; 234 N.W. 
 
        254 (1931).
 
        
 
             It is for the triers of fact to determine whether or not 
 
             there is a sufficient group of favorable factors to establish a 
 
             relationship of independent contractors. Hassebroch v. Weaver 
 
             Construction Co., 246 Iowa 622, 628; 67 N.W.2d 549, 553 (1955).
 
        
 
            In the case sub judice, claimant has first shown a prima 
 
        facie case for an employee-employer relationship. Claimant in 
 
        Rheinschmidt could terminate the relationship at will at any time 
 
        regardless of the completeness of any job. Rheinschmidt paid 
 
        what appeared to be weekly wages on both a piece work and hourly 
 
        basis, depending upon the work performed. There was no 
 
        negotiations or bidding. Rheinschmidt set the rates and amounts 
 
        to be paid for any one job both before and after the job. 
 
        Although claimant worked unsupervised, if problems developed he 
 
        was expected to call Rheinschmidt for instructions. Only 
 
        Rheinschmidt dealt with the customers. Rheinschmidt totally 
 
        controlled the assignment of work and required attendance of 
 
        installers except in the case of absence or prescheduled 
 
        vacations. The actual intent of the parties is ambiguous. 
 
        Claimant agreed to a piece work payment method as a means to 
 
        obtain more money. Many employees in an industrial setting are 
 
        paid on a piece work basis and are still considered employees. 
 
        It is unclear whether claimant fully intended to operate as a 
 
        separate business. Defendants' intentions were also very 
 
        unclear. When it came to selling carpets to customers, they 
 
        viewed the installers as not independent but their "own 
 
        professionals." Obviously, this implies that they had them under 
 
        their supervision. When it came to paying social security and 
 
        unemployment taxes or workers' compensation insurance premiums, 
 
        the management treated claimant as independent. It is found that 
 
        there is not a meeting of the minds as to the establishment of 
 
        anything other than employer-employee relationship. Had there 
 
        been a meeting of the minds, the parties would have anticipated 
 
        and dealt with the possibility of a work injury and identify in 
 
        writing which party should assume the risks of such an injury and 
 
        insurance premium costs.
 
        
 
             Secondly, it is found that defendants have not shown by 
 
             preponderance of the evidence that claimant was an independent 
 
             contractor. Although the oral contract provided for payment at a 
 
             fixed rate for installing carpeting, this payment was made on a 
 
             weekly basis, not separately for each job and the rate varied 
 
             according to Rheinschmidt unilateral determination as to what was 
 
             a fair charge. Claimant was not independent of Rheinschmidt. 
 
             Rheinschmidt controlled the quality of work by fielding 
 
             complaints and directing claimant how to proceed. Although 
 
             claimant hired assistants, this was a minor aspect compared to 
 
             the total work performed. Although claimant furnished tools, 
 
             Rheinschmidt also furnished the more expensive tools. Although 
 
             claimant utilized his own truck, Rheinschmidt paid for extra 
 
             expenses for out-of-town installations. It is clear that 
 
             Rheinschmidt maintained authority to control the progress of 
 
             work. Assignments were made on a daily basis according to 
 
             prescheduled calendars. Given all the above, it is clear that 
 

 
        
 
 
 
 
 
             the installation work performed by claimant formed a regular part 
 
             of Rheinschmidt business. It is also found that claimant had no 
 
             opportunity to pass on the costs of his industrial accidents to 
 
             customers because only Rheinschmidt set the amount customers 
 
             would have to pay for his services.
 
        
 
             II. Claimant has the burden of proving by a preponderance 
 
             of the evidence that claimant received an injury which arose out 
 
             of and in the course of employment. The words "out of" refer to 
 
             the cause or source of the injury. The words "in the course of" 
 
             refer to the time and place and circumstances of the injury. See 
 
             Cedar Rapids Community Sch. v. Cady, 278 N.W.2d 298 (Iowa 1979); 
 
             Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 
 
             (1955). An employer takes an employee subject to any active or 
 
             dormant health impairments, and a work connected injury which 
 
             more than slightly aggravates the condition is considered to be a 
 
             personal injury. Ziegler v. United States Gypsum Co., 252 Iowa 
 
             613, 620, 106 N.W.2d 591 (1960) and cases cited therein.
 
        
 
             Claimant has clearly shown a work injury in this case. His 
 
             credible testimony was uncontroverted. The fighting issue in 
 
             this case is the alleged causal connection of the injury to 
 
             permanent disability.
 
        
 
            III. The claimant has the burden of proving by a 
 
        preponderance of the evidence that the work injury is a cause of 
 
        the claimed disability. A disability may be either temporary or 
 
        permanent. In the case of a claim for temporary disability, the 
 
        claimant must establish that the work injury was a cause of 
 
        absence from work and lost earnings during a period of recovery 
 
        from the injury. Generally, a claim of permanent disability 
 
        invokes an initial determination of whether the work injury was a 
 
        cause of permanent physical impairment or permanent limitation in 
 
        work activity. However, in some instances' such as a job 
 
        transfer caused by a work injury, permanent disability benefits 
 
        can be awarded without a showing of a causal connection to a 
 
        physical change of condition. Blacksmith v. All-American, Inc., 
 
        290 N.W.2d 348, 354 (Iowa 1980); McSpadden v. Big Ben Coal Co., 
 
        288 N.W.2d 181 (Iowa 1980).
 
        
 
            The question of causal connection is essentially within the 
 
        domain of expert medical opinion. Bradshaw v. Iowa Methodist 
 
        Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). The opinion of 
 
        experts need not be couched in definite, positive or unequivocal 
 
        language and the expert opinion may be accepted or rejected, in 
 
        whole or in part, by the trier of fact. Sondag v. Ferris 
 
        Hardware, 220 N.W.2d 903 (Iowa 1974). The weight to be given to 
 
        such an opinion is for the finder of fact, and that may be 
 
        affected by the completeness of the premise given the expert and 
 
        other surrounding circumstances. Bodish v. Fischer, Inc., 257 
 
        Iowa 516, 133 N.W.2d 867 (1965).
 
        
 
            Furthermore, if the available expert testimony is 
 
        insufficient along to support a finding of causal connection, 
 
        such testimony may be coupled with nonexpert testimony to show 
 
        causation and be sufficient to sustain an award. Giere v. Asse 
 
        Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 911, 915 (1966). 
 
        Such evidence does not, however, compel an award as a matter of 
 
        law. Anderson v. Oscar Mayer & Co., 217 N.W.2d 531, 536 (Iowa 
 
        1974). To establish compensability, the injury need only be a 
 
        significant factor, not be the only factor causing the claimed 
 
        disability. Blacksmith, 290 N.W.2d 348, 354. In the case of a 
 
        preexisting condition, an employee is not entitled to recover for 
 
        the results of a preexisting injury or disease but can recover 
 
        for an aggravation thereof which resulted in the disability found 
 
        to exist. Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 
 

 
        
 
 
 
 
 
        N.W.2d 251 (1963).
 
        
 
             In the case sub judice, the evidence clearly establishes 
 
             that claimant has permanent partial impairment. All the medical 
 
             experts agree that claimant has a 10 percent permanent partial 
 
             impairment to the body as a whole from his low back difficulties 
 
             with a possible herniation of the disc in the lower lumbar area.
 
        
 
            However, the evidence showing the requisite causal 
 
        connection between the work injury and this permanent impairment 
 
        was not that clear. Claimant's past history of extensive 
 
        chiropractic treatment for upper and lower back pain extending 
 
        back to the 1960's certainly shows some degree of past functional 
 
        disability. However, Dr. Jochims refused to apportion his rating 
 
        due to the nature of the chiropractic records and differences he 
 
        apparently has with the chiropractic discipline. The undersigned 
 
        believes that Dr. Jochims is correct in stating that something 
 
        significant happened in July 1986, in that before claimant could 
 
        function quite well and had no problems with his work. Prior to 
 
        July 1986, claimant had a steady work history in his chosen 
 
        occupation. Therefore, the greater weight of evidence when viewed 
 
        as a whole supports the finding that claimant suffered a 10 
 
        percent permanent partial impairment from the July 1986 injury. 
 
        This is not to say that claimant did not have some degree of 
 
        prior impairment.
 
        
 
            III. Claimant must establish by a preponderance of the 
 
        evidence the extent of weekly benefits for permanent disability 
 
        to which claimant is entitled. As the claimant has shown that 
 
        the work injury was a cause of a permanent physical impairment or 
 
        limitation upon activity involving the body as a whole, the 
 
        degree of permanent disability must be measured pursuant to Iowa 
 
        Code section 85.34(2)(u). However, unlike scheduled member 
 
        disabilities, the degree of disability under this provision is 
 
        not measured solely by the extent of a functional impairment or 
 
        loss of use of a body member. A disability to the body as a 
 
        whole or an "industrial disability" is a loss of earning capacity 
 
        resulting from the work injury . Diederich v. Tri-City Railway 
 
        Co., 219 Iowa 587, 593, 258 N.W. 899 (1935). A physical 
 
        impairment or restriction on work activity may or may not result 
 
        in such a loss of earning capacity. The extent to which a work 
 
        injury and a resulting medical condition has resulted in an 
 
        industrial disability is determined from examination of several 
 
        factors. These factors include the employee's medical condition 
 
        prior to the injury, immediately after the injury and presently; 
 
        the situs of the injury, its severity and the length of healing 
 
        period; the work experience of the employee prior to the injury, 
 
        after the injury and potential for rehabilitation; the employee's 
 
        qualifications intellectually, emotionally and physically; 
 
        earnings prior and subsequent to the injury; age; education; 
 
        motivation; functional impairment as a result of the injury; and 
 
        inability because of the injury to engage in employment for which 
 
        the employee is fitted. Loss of earnings caused by a job 
 
        transfer for reasons related to the injury is also relevant. 
 
        Olson, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963). See 
 
        Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 
 
        28, 1985).
 
        
 
             Claimant's medical condition before the work injury in July 
 
             1986, was not excellent. He suffered from regular bouts of upper 
 
             and lower back pain requiring chiropractic treatment. However, 
 
             the disability appears to be mild in that he was able to continue 
 
             the heavy physical labor demands of his floor covering work. It 
 
             will be found that claimant suffered a 10 percent permanent 
 
             partial disability prior to July 1986.
 
        
 

 
        
 
 
 
 
 
            Claimant's treating physician, Dr. Jochims, has given 
 
        claimant a significant permanent impairment rating to the body as 
 
        a whole as a result of the July 1986 injury. It was only after 
 
        this July 1986 injury that claimant is unable to perform work 
 
        activities involving heavy lifting; repetitive lifting, bending, 
 
        twisting and stooping; and, prolonged sitting and standing. This 
 
        medical condition prevents him from returning to the work for 
 
        which he is best suited or any other work which requires a 
 
        significant degree of physical labor.
 
        
 
            Claimant argues for application of the so-called "odd-lot" 
 
        doctrine under Guyton v. Irving Jensen Co., 373 N.W.2d 101, 105 
 
        (Iowa 1985). However, the industrial commissioner has directed 
 
        that this doctrine cannot be applied by a deputy unless the 
 
        doctrine is plead and identified as an issue at the last 
 
        prehearing conference and listed as a contested issue in the 
 
        hearing assignment order. Collins v. Friendship Village, Inc., 
 
        Case No. 679258 (Appeal Decision filed October 31, 1988); Pyle v. 
 
        Carstensen Freight Lines, Inc., Case No. 753661 (Appeal Decision 
 
        filed July 24, 1987). As pointed out at hearing in this case, 
 
        this was not done and this doctrine cannot be applied to this 
 
        case. Consequently, there is no burden shifting that will occur 
 
        from simply a showing that claimant was unsuccessful in seeking 
 
        employment.
 
        
 
            Claimant is 44 years of age. Claimant should be in the most 
 
        productive years of his life. Even a mild disability at this 
 
        point in his life is certainly a very serious matter. However, 
 
        claimant's age does not preclude vocational rehabilitation. 
 
        Claimant has shown motivation to seek retraining in robotics. 
 
        Unfortunately, through no fault of his own, this effort could not 
 
        be continued due to family circumstances. However, even if 
 
        training would be continuing, this agency has held that 
 
        predicting the success of vocational retraining or future 
 
        employment searches after such retraining is speculation and is 
 
        not a proper factor in measuring an injured worker's current 
 
        industrial disability. Stewart v. Crouse Cartage Company, Appeal 
 
        Decision filed February 20, 1987. Therefore, claimant should be 
 
        fully compensated for his current, not future, loss of earning 
 
        capacity. However, this agency is available upon proper 
 
        application from defendants in the future to review such matters 
 
        if retraining proves successful.
 
        
 
             After reviewing the evidence as a whole, claimant has not 
 
             shown a case of permanent total disability. Claimant has not 
 
             shown there is no sedentary light duty work in the area of his 
 
             residence that is not available to him. The vocational counselor 
 
             did not state that claimant was unemployable in any capacity. 
 
             Claimant's testimony concerning his job applications was too 
 
             brief and sketchy to make a finding that no job whatsoever is 
 
             available to him. However, in this agency's experience, light 
 
             duty unskilled sedentary work is paid much lower than claimant's 
 
             last employment as a floor covering installer at the rate of 
 
             $12.50 per hour.
 
        
 
            After examination of all the factors, it is found as a 
 
        matter of fact that claimant has suffered a 50 percent loss of 
 
        earning capacity from his work injury. Based upon such a 
 
        finding, claimant is entitled as a matter of law to 250 weeks of 
 
        permanent partial disability benefits under Iowa Code section 
 
        85.34(2)(u) which is 50 percent of 500 weeks, the maximum 
 
        allowable for an injury to the body as a whole in that 
 
        subsection.
 
        
 
            As claimant has established entitlement to permanent partial 
 
        disability benefits, claimant is also entitled to weekly benefits 
 

 
        
 
 
 
 
 
        for healing period under Iowa Code section 85.34 from the date of 
 
        injury until he returns to work or is medically capable of 
 
        returning to substantially similar work to the work he was 
 
        performing at the time of the injury; or, until it is indicated 
 
        that significant improvement from the injury is not anticipated, 
 
        whichever occurs first.
 
        
 
            Claimant seeks healing period benefits beyond the return to 
 
        work date authorized by Dr. Nelson. However, the treatment which 
 
        was expected to improve claimant's condition appeared to have 
 
        ended at that point. The medical records indicate that the 
 
        actual active treatment by physicians after October 14, 1986, was 
 
        only minimal and designed as maintenance in nature. Therefore, 
 
        claimant will only be awarded healing period benefits from August 
 
        5 through October 13, 1986.
 
        
 
             IV. Pursuant to Iowa Code section 85.27, claimant is 
 
             entitled to payment of reasonable medical expenses incurred for 
 
             treatment of work injury. Claimant is entitled to an order of 
 
             reimbursement only if he has paid those expenses. Otherwise, 
 
             claimant is entitled to an order directing the responsible 
 
             defendants to make the payments directly to the providers.
 
        See Krohn v. State, 420 N.W.2d 463 (Iowa 1988)
 
             .
 
             
 
             Defense stipulated that the requested medical expenses 
 
             contained in claimant's exhibit 1 was causally connected to the 
 
             back condition upon which the claim was based but that the issue 
 
             of the causal connection of this condition to a work injury 
 
             remained at issue. As the undersigned found that the back 
 
             condition upon which the claim was based is indeed causally 
 
             connected to the work injury, the expenses are likewise causally 
 
             connected and claimant is entitled to payment to those expenses.
 
        
 
                                 FINDINGS OF FACT
 
             
 
             1. Claimant was a credible witness.
 
             
 
             2. Claimant was in the employ of Rheinschmidt on July 31, 
 
             1986. An employer-employee relationship existed between 
 
             Rheinschmidt and claimant on July 31, 1986. Claimant was paid on 
 
             a piece work basis for floor covering installation work and on an 
 
             hourly basis for other work such as moving furniture. Claimant 
 
             was paid weekly. The intention of the parties is unclear. 
 
             Although the tax treatment of the payments made by Rheinschmidt 
 
             to claimant resembled payments to a contractor, in all other 
 
             respects Rheinschmidt treated claimant as an employee with 
 
             reference to assignment and control of his work. Rheinschmidt 
 
             paid some expenses and furnished some of the tools of claimant's 
 
             work. Claimant was furnished with detailed plans and precut floor 
 
             coverings. Rheinschmidt advertised that claimant was one of 
 
             their "own professionals." Defendants have not shown by a 
 
             preponderance of the evidence that claimant was an independent 
 
             contractor. There was no independent means by which claimant 
 
             could transfer the costs of his industrial accidents to customers 
 
             as Rheinschmidt was in sole control of the amounts charged to 
 
             customers for his work.
 
        
 
            3. On July 31, 1986, claimant suffered an injury to his low 
 
        back which arose out of and in the course of his employment with 
 
        Rheinschmidt. While installing a floor covering, claimant 
 
        twisted and turned causing a tearing sensation and severe pain in 
 
        his low back. The medical experts believe that it is possible 
 
        that claimant suffered a herniated disc at the L4-5 level of his 
 
        spine.
 
        
 

 
        
 
 
 
 
 
            4. The work injury of July 31, 1986, was a cause of a 
 
        period of total disability from work beginning on August 5, 1986 
 
        and ending on October 14, 1986, at which time claimant returned 
 
        to work.
 
        
 
            5. The work injury of July 31, 1986, was a cause of a 10 
 
        percent permanent partial impairment to the body as a whole and 
 
        of permanent restrictions upon claimant's physical activity 
 
        consisting of no heavy lifting; no repetitive lifting, bending, 
 
        stooping or twisting; and, no prolonged sitting or standing. 
 
        Although claimant had repeated episodes of upper and lower back 
 
        pain since 1985 and earlier, claimant was able to function 
 
        without permanent restrictions on his activity. Claimant had 
 
        prior impairment due to recurrent episodes of chronic upper and 
 
        lower back pain.
 
        
 
             6. The work injury of July 31, 1986, and the resulting 
 
             permanent partial impairment was a cause of a 50 percent loss of 
 
             earning capacity. Due to recurrent upper and lower back pain, 
 
             claimant had a mild prior existing permanent partial disability 
 
             in the amount of 10 percent. This is in addition to the 50 
 
             percent caused by the July 31, 1986 injury. Prior to July 31, 
 
             1986, claimant was able to continue working in his job as a floor 
 
             covering installer. However, after the July 31, 1986 injury, 
 
             claimant was no longer able to continue in the work for which he 
 
             is best suited. Claimant's past work history has been steady and 
 
             uninterrupted by physical disability. Such past impairment 
 
             primarily consisted of carpet laying work but claimant did 
 
             operate a tavern for 2 years and worked construction and in 
 
             factories for a brief time. Claimant has only a ninth grade 
 
             formal education but has completed his GED. Claimant is 
 
             motivated for retraining and has attended classes in search of 
 
             vocational rehabilitation. However, due to unfortunate family 
 
             circumstances beyond claimant's control, he is not able to 
 
             continue in this retraining effort. Claimant has remained 
 
             unemployed but has failed to show that suitable and stable 
 
             sedentary unskilled work is not available to him. Claimant was 
 
             earning $12.50 per hour at the time of his last employment as a 
 
             floor covering installer. The odd-lot doctrine could not be 
 
             applied in this case.
 
        
 
            7. The medical expenses listed in claimant's exhibit 1 are 
 
        fair and reasonable and were incurred by claimant for reasonable 
 
        and necessary treatment of his low back condition as a result of 
 
        the work injury on July 31, 1986.
 
        
 
                                 CONCLUSION OF LAW
 
        
 
             Claimant has established under law entitlement to weekly 
 
             benefits for a 50 percent industrial disability and to the 
 
             medical expenses listed in claimant's exhibit 1.
 
        
 
                                      ORDER
 
        
 
             1. Defendants shall pay to claimant two hundred fifty (250) 
 
             weeks of permanent partial disability benefits at the rate of 
 
             three hundred fifty-eight and 87/100 dollars ($358.87) per week 
 
             from October 14, 1986.
 
        
 
            2. Defendants shall pay to claimant healing period benefits 
 
        from August 5, 1986, through October 13, 1986, at the rate of 
 
        three hundred fifty-eight and 87/100 dollars ($358.87) per week.
 
        
 
            3. Defendants shall pay claimant the medical expenses 
 
        listed in claimant's exhibit 1 totaling one thousand seven 
 
        hundred ninety and 95/100 dollars ($1,790,95). Claimant shall be 
 

 
        
 
 
 
 
 
        reimbursed for any portion of these expenses he has paid. 
 
        Otherwise, the defendants are ordered to pay the provider 
 
        directly less any attorney lien the claimant's attorney may have 
 
        upon this award.
 
        
 
             4. Defendants shall pay accrued weekly benefits in a lump 
 
             sum and shall receive credit against this award for all benefits 
 
             previously paid.
 
        
 
            5. Defendants shall pay interest on weekly benefits awarded 
 
        herein as set forth in Iowa Code section 85.30.
 
        
 
            6. Defendants shall pay the costs of this action pursuant 
 
        to Division of Industrial Services Rule 343-4.33.
 
        
 
            7. Defendants shall file activity reports on the payment of 
 
        this award as requested by this agency pursuant to Division of 
 
        Industrial Services Rule 343-3.1.
 
        
 
        
 
            Signed and filed this 31st day of July, 1989.
 
        
 
        
 
        
 
        
 
        
 
                                     LARRY P. WALSHIRE
 
                                     DEPUTY INDUSTRIAL COMMISSIONER
 
        
 
        Copies To:
 
        
 
        Mr. Patrick L. Woodward
 
        Attorney at Law
 
        321 North Third St.
 
        Burlington, Iowa 52601
 
        
 
        Mr. Greg A. Egbers
 
        Attorney at Law
 
        600 Union Arcade Bldg.
 
        Davenport, Iowa 52801