ROBERT J. THAYER,             :
              Claimant,                :
         vs.                           :
                                       :         File No. 836037
         MICHAEL REINERT, d/b/a OLSEN  :
         WELDING & MACHINE,            :      A R B I T R A T I O N
              Employer,                :         D E C I S I O N
         and                           :
         GRINNELL MUTUAL,              :
              Insurance Carrier,       :
              Defendants.              :
                              STATEMENT OF THE CASE
              This is a proceeding in arbitration upon the petition of 
         claimant, Robert Thayer, against his employer, Michael Reinert, 
         d/b/a Olsen Welding and Machine, and Grinnell Mutual Reinsurance, 
         its insurance carrier, defendants.  The case was originally set 
         for hearing on December 12, 1990 in Storm Lake, Iowa.  At the 
         time, claimant was represented by Colin J. McCullough.  
         Defendants were represented by Thomas Plaza.  The parties had 
         reserved eight hours for the hearing.  However, by the end of the 
         day, the case was not fully submitted.  There were several 
         witnesses who had not yet testified.  The hearing was then 
         continued to 10:00 a.m. on March 29, 1992 in Des Moines.  An 
         application for extension of time was filed by claimant on April 
         4, 1991 requesting that the hearing be rescheduled until June 5, 
         1991 as claimant's then attorney was hospitalized outside of the 
         state.  On May 8, 1992 a motion for continuance was filed by 
         claimant on the basis that his attorney, Colin J. McCullough, had 
         his license to practice law suspended for 60 days from April 17, 
         1991 and claimant desired to retain new counsel.  A resistance 
         was filed by defendants.  The matter was rescheduled to August 
         15, 1991 at 10:00 a.m.  On June 27, 1991 Jay P. Roberts entered 
         an appearance on behalf of claimant.  On August 6, 1991 Colin J. 
         McCullough filed a withdrawal of his appearance.  A motion for 
         continuance and a motion to reopen record was filed by claimant 
         Page   2
         on August 13, 1991.  A resistance was filed by defendants on 
         August 15, 1991.
              On August 15, 1991 the remainder of the record was submitted 
         after four additional hours of testimony.  Briefs were due on 
         October 4, 1991.  The lawyers later agreed to delay the filing of 
         the briefs until October 14, 1991.
              The evidence herein consists of the testimony of claimant.  
         The evidence also consists of the testimonies of the following 
         witnesses:  Thomas A. Korn; Sue Thayer, spouse; Renay Barnes; Jo 
         Weeces; Charlene Peters; Clarence Menke; William Post; Michael 
         Reinert; and Steven D. Sherrets.  The record is also comprised 
         of:  joint exhibits A-L; claimant's exhibits A, B, C, E, F, G; 
         and defendants' exhibits A-F and H-O.
              It is noted there are duplicate exhibits in the file.  Such 
         duplication has resulted in unnecessary review of many exhibits 
         by the undersigned.  Duplication is to be eliminated in the 
         future.  Also, it is noted that some of the admitted exhibits, 
         especially notes, are unintelligible.  They are impossible to 
              The issues to be determined are:  1) The nature and extent 
         of any healing period or permanent partial disability to which 
         claimant is entitled; and 2) whether defendants are liable for 
         the expenses of Thomas Korn.
                                 FINDINGS OF FACT
              The deputy, having reviewed the evidence, observed the 
         witnesses and heard the testimony, finds:
              This is a most troublesome case.  The undersigned has 
         agonized over the voluminous record.
              Claimant was born on October 17, 1958.  He grew up on the 
         family farm.  He is married with two children.  At the time of 
         his work injury claimant was single.  He graduated from high 
         school.  However, his academic performance was less than stellar.  
         He graduated 133 out of 155 students.  His grade point average 
         was less than a C.  He had no formalized training subsequent to 
         his high school graduation.  All of his training was conducted on 
         the job.
              Claimant sustained a work injury on October 1, 1986.  At 
         approximately 10:00 p.m. he was knocked on the head by a falling 
         piece of lumber.  He sustained a headache but he remained on 
         duty.  Approximately 45 minutes later he walked off of the scaf
         folding which was 10-12 feet off of the ground.  Claimant's left 
         side of his body hit the concrete floor.  He sustained a closed 
         head injury, a rib fracture and a left wrist fracture which 
         required surgery.  (Defendants' Exhibit D, page 4 and Joint 
         Exhibit A114).  Claimant was hospitalized but he was unconscious.  
         He has few memories of the incident.
         Page   3
              Claimant's spouse, Susan Thayer, described claimant's diffi
         culties as:
                 A.  Well, he has a lot of memory problems, both 
              short-term and long-term.  He has headaches, which he 
              never used to have.  He has terrible mood swings, real 
              short temper.  He has trouble sleeping.
                 Q.  Anything else that you can attribute to the 
                 A.  Basically that's it.  His physical problems, his 
              headaches, and he gets disgusted with himself when he 
              can't do what he used to do.
         (Def. Ex. L, p. 12, lines 10-19)
              Claimant was off work for a period of time.  He eventually 
         returned to work in his former capacity.  He continued to perform 
         various duties as a welder.  There was disagreement whether 
         claimant could perform his duties in a satisfactory manner.  
         Michael Reinert, owner of the business, described claimant as a 
         slow but dependable employee.  Claimant was often assigned tasks 
         which required responsibility.
              Claimant's symptoms waxed and waned over the course of the 
         next year.  In April of 1987, Quentin J. Durward, M.D., described 
         claimant's condition as:
              Robert Thayer returns to the Outpatient Clinic today, 
              now six months since he suffered his severe head injury 
              in a fall from a scaffolding.  He actually has made a 
              rather remarkable recovery and was able to return to 
              his job in about January 1, 1987.
              He still has a number of problems he mentions to me.  
              He intermittently will have severe bifrontal headaches, 
              they're not present everyday.  They can last either a 
              short period of time, but occasionally they last for a 
              couple of days.  Currently in the office he has no 
              headache at all.  They often, when they occur, occur 
              when he awakens in the morning.
              Secondly, he notes that when he wears a watch on his 
              left hand, his hand goes numb.  He is going to be see
              ing a hand specialist about [sic] shortly.
              Thirdly, he has numbness feeling under the left armpit 
              over the ribs.  I explained this is likely related to 
              the rib fractures he had.
              Fourthly, his memory is poor.  He has some vague memory 
              of the day before the accident occurred.  However, he 
              then appears to have about six or seven days of post 
              traumatic amnesia after that before his memory becomes 
              fluent again.  Intermittently, he feels "dizzy" (equals 
         Page   4
              spinning).  This occurs with postural changes, particu
              larly looking under ledges, etc.  He has difficulty 
              with his memory for recent and past events.  He [sic] 
              "deaf" in his left ear and his concentration is poor.  
              He is on no medications except for Ascriptin for his 
         Demonstrates a very well-looking man in no distress.  
         Vital signs are quite normal with blood pressure of 
         130/80.  His memory is poor.  I gave him three items at 
         five minutes and he only remembered one and a half.  
         Otherwise his intellectual function appears to be 
         intact.  His speech is normal.  His cranial nerve exam
         ination is abnormal except that he has a postive [sic] 
         Barany's maneuver back and to the left.  He also has 
         sensory neural hearing loss in his left ear and scar
         ring of his left eardrum.
              Peripherally, his nervous system is grossly intact.  
              However, he does have balance problem.  He can stand 
              erect with his eyes open without moving, but with clo
              sure of his eyes, he does tend to fall back and to the 
              right.  He also cannot tandem gait.
              This patient is still suffering to a lesser degree a 
              post traumatic head injury syndrome.  The dizziness is 
              likely related to injury to the labyrinth, probably on 
              the left side.  This will gradually improve with time.  
              The headaches, poor memory and poor concentration; I 
              think, directly relate to his original injury and will, 
              I think with time, gradually lessen.  Mainly, I gave 
              him encouragement that with time, he would improve.
              I think it's likely that in another six months, most of 
              his syndrome will have resolved.
              In the interim, I think he should continue working, 
              however I would not recommend that he should be in a 
              situation where he is at a height.  I think that with 
              is [sic] his balance being as it is, he should not be 
              above ground level, except for on a large floor area.
              Certainly, he should not work on scaffolding.
              He will contact me in six months time should any of the 
              symptoms persist.
         (Jt. Ex. A124 - A125)
              Dr. Durward rated claimant as having a permanent partial 
         impairment according to The Guides to the Evaluation of Permanent 
         Impairment published by the American Medical Association.  The 
         neurologist opined that:
              Mr. Thayer does have a permanent impairment rating.  
              This would consist of 2% permanent impairment for loss 
         Page   5
              of smell.  For the loss of memory I would rate him 15% 
              permanently disabled.  This would give him on overall 
              permanency of 17%
         (Jt. Ex. A178)
              Michael F. E. Jones, M.D., diagnosed claimant's left ear 
         condition as:
              He has a persistent high frequency hearing in the left 
              ear.  Whereas I cannot say 100% that this is from his 
              injury, it probably is.  Noise induced hearing losses, 
              which sometimes are similar to this, are usually bilat
              eral and he had no other incident of note to cause it.  
              He also has a very poor discrimination score in the 
              left ear and I think both the high frequency neurosen
              sory loss and the poor discrimination score in the left 
              ear are as a result of his fall.  The high frequency 
              loss certainly will be permanent, although his discrim
              ination score may improve slightly.  Only time will 
              There is no further treatment of this at this time 
              other than to repeat his hearing test at three to six 
              month intervals to see if he is stabilizing.  In lieu 
              of any other symptoms from the patient such as nausea, 
              vomiting, dizzy spells or fluctuant hearing loss I 
              would not have to see him back again.
         (Jt. Ex. A-13)
              Dr. Jones referred claimant to Denise R. Miller, M.D., 
         Clinical Audiologist.  Dr. Jones also referred claimant to Ray 
         Stallons, Audiologist, M.S.  Mr. Stallons authored a report dated 
         May 5, 1988.  In the report, the audiologist opined:
              Test results indicate normal hearing for the right ear, 
              and a mild to severe sensorineural high frequency loss 
              for the left ear.
              Live voice speech audiometry produced results consis
              tent with the pure tones: SRT's 15dB HL for the right 
              ear and 35dB HL for the left, while discrimination 
              scores were 96% and 84% for the right and left ears 
              respectively.  His uncomfortable level (UCL) was 85dB 
              for both ears.
              He explained his tinnitus as a noise and a tone as a 
              ringing in the left ear.  Using the Norwest Acoustics 
              Tinnitus Analyzer, his noise was determined to be at 
              2250 Hz. and the tonal portion was 2670 Hz.; both at 
              69dB SPL.
              A hearing aid was fit to his left ear which was 
              designed to cover the loss in the left and also cover 
              the tinnitus noise from 2000 - 6000 Hz., and the 
              results rendered improved hearing without the tinnitus.  
         Page   6
              The latter was masked with amplification.
              An impression was made for an In-The-Ear hearing 
              instrument with Adaptive Compression which covers his 
              hearing loss; covers the tinnitus, and will not exceed 
              his uncomfortable level of 85dB.
              The Marcon MAT/AC hearing instruments was fit on May 2, 
              1988 to his satisfaction.  The hearing was improved for 
              the left side with 20dB of gain and the tinnitus was 
         (Jt. Ex. A185)
              A hearing aid was prescribed for claimant's left ear.  He 
         wore the device but not on a continual basis.
              Claimant's left arm continued to cause problems for him as 
         well.  After he was released from the hospital, he was treated 
         conservatively.  However, even after he returned to work in 
         January of 1987, claimant continued to experience difficulties 
         with the left arm and wrist.  Eventually claimant felt the neces
         sity to leave work because of persistent arm pain.
              On October 6, 1987, Brian Butler, M.D., performed a Darrach 
         Procedure on the left arm (Jt. Ex. A138).  Dr. Butler engaged in 
         follow-up care.  As of May 9, 1989, Dr. Butler opined that 
         claimant had reached maximum medical improvement with respect to 
         the left upper extremity, and he had rated claimant as having a 
         35 percent impairment of the left upper extremity (Jt. Ex. A387).
              Dr. Butler placed claimant on permanent restrictions with 
         respect to the left upper extremity.  Claimant was restricted 
         from returning to the welding profession (Jt. Ex. A187).  Butler 
         also temporarily restricted claimant from heavy lifting, pushing 
         or pulling weights greater than 20 pounds (Jt. Ex. A220).  The 
         orthopedic surgeon also restricted claimant from working in 
         extremes of heat and cold and from climbing (Jt. Ex. A219).
              Dr. Butler opined that claimant was capable of engaging in 
         vocational rehabilitation and pursuing employment in the follow
         ing careers:  surveyor's helper; truck driver; delivery truck 
         driver; forklift operator; and equipment operator.  The only 
         restriction relative to the employment was extreme weather condi
              Since claimant was precluded from returning to his former 
         position, claimant engaged in numerous attempts to rehabilitate 
         himself.  There was a plethora of rehabilitation experts, nurses, 
         psychologists, evaluators, counselors, and neurologists who 
         attempted to rehabilitate claimant, at one point or the other.  
         Claimant, however, had not resumed gainful employment by the date 
         of the hearing.  However, he was awarded disability benefits by 
         the Social Security Administration.
              The record establishes that while claimant had not returned 
         to gainful employment, he was capable of tilling gardens on an 
         Page   7
         intermittent basis; mowing his own lawn; engaging in some light 
         mechanical work; child care; running some machinery; and driving 
         an automobile at least as far as Sioux City, Iowa.
                                CONCLUSIONS OF LAW
              The party who would suffer loss if an issue were not estab
         lished 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 injury is a proximate cause of the disabil
         ity 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).
              The question of causal connection is essentially within the 
         domain of expert testimony.  The expert medical evidence must be 
         considered with all other evidence introduced bearing on the 
         causal connection between the injury and the disability.  The 
         weight to be given to any expert opinion is determined by the 
         finder of fact and may be affected by the accuracy of the facts 
         relied upon by the expert as well as other surrounding circum
         stances.  The expert opinion may be accepted or rejected, in 
         whole or in part.  Sondag v. Ferris Hardware, 220 N.W.2d 903 
         (Iowa 1974); Anderson v. Oscar Mayer & Co., 217 N.W.2d 531 (Iowa 
         1974); Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 
              Furthermore, if the available expert testimony is insuffi
         cient alone to support a finding of causal connection, such tes
         timony may be coupled with nonexpert testimony to show causation 
         and be sufficient to sustain an award.  Giere v. Aase 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, 217 N.W.2d 531, 536 (Iowa 1974).  To establish compens
         ability, the injury need only be a significant factor, not be the 
         only factor causing the claimed disability.  Blacksmith, 290 
         N.W.2d 348 (1980).
              The principal issue here is the nature and extent of 
         claimant's injury, especially the portion dealing with claimant's 
         closed head injury.  In Iowa 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 the 
         employee is fitted.  Olson v. Goodyear Serv. Stores, 255 Iowa 
         1112, 125 N.W.2d 251 (1963); Barton v. Nevada Poultry, 253 Iowa 
         285, 110 N.W.2d 660 (1961).
              A finding of impairment to the body as a whole found by a 
         medical evaluator does not equate to industrial disability.  
         Impairment and disability are not synonymous.  The degree of 
         Page   8
         industrial disability can be much different than the degree of 
         impairment because industrial disability references to loss of 
         earning capacity and impairment references to anatomical or func
         tional abnormality or loss.  Although loss of function is to be 
         considered and disability can rarely be found without it, it is 
         not so that a degree of industrial disability is proportionally 
         related to a degree of impairment of bodily function.
              Factors to be considered in determining industrial dis
         ability include the employee's medical condition prior to the 
         injury, immediately after the injury, and presently; the situs of 
         the injury, its severity and the length of the healing period; 
         the work experience of the employee prior to the injury and after 
         the injury and the potential for rehabilitation; the employee's 
         qualifications intellectually, emotionally and physically; earn
         ings prior and subsequent to the injury; age; education; motiva
         tion; 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 trans
         fer for reasons related to the injury is also relevant.  
         Likewise, an employer's refusal to give any sort of work to an 
         impaired employee may justify an award of disability.  McSpadden 
         v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980).  These are mat
         ters 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.  Neither does a rating of func
         tional 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 as 
         well as general and specialized knowledge to make the finding 
         with regard to degree of industrial disability.  See Christensen 
         v. Hagen, Inc., Vol. 1 No. 3 State of Iowa Industrial 
         Commissioner Decisions 529 (App. March 26, 1985); Peterson v. 
         Truck Haven Cafe, Inc., Vol. 1 No. 3 State of Iowa Industrial 
         Commissioner Decisions 654 (App. February 28, 1985).
              Compensation for permanent partial disability shall begin at 
         the termination of the healing period.  Compensation shall be 
         paid in relation to 500 weeks as the disability bears to the body 
         as a whole.  Section 85.34.
              As aforementioned, there are widely disparate expert opin
         ions.  The opinions are on opposite ends of the spectrum.  There 
         is one consensus, however.  Claimant is functionally impaired.
              There is the opinion of Thomas A. Korn, Ph.D., a neuropsy
         chologist and a specialist in head trauma.  He testified:  "Bob 
         Thayer is unemployable.  He cannot sustain competitive employ
         ment.  He is not a candidate for competitive employment.  Left to 
         Page   9
         his own resources, he will become a danger."  (Transcript A, p. 
         81, ll. 8-ll).
              Dr. Korn also testified that:
              Q. Do you foresee Bob Thayer being able to effectively 
                 compete on the open job market or do you foresee him 
                 to be a person if any work is going to be in a shel
                 tered workshop environment?
              A. For Bob Thayer adult day care, a work activity cen
                 ter, because I doubt that he is productive enough to 
                 be able to sustain himself even in sheltered employ
                 ment if they follow the department of labor guide
                 lines to the letter, or in a home craft program, is 
                 really about as good as you can expect for an out
                 come with Bob.
                   What you want for Mr. Thayer is activity,              
              structured activity.  If he has structured activity    
              he is less likely to get into trouble.
         (Tr. A, p. 84, l. 21 through p. 85, l. 9)
              On the other hand, defendants' neuropsychologist, Steven D. 
         Sherrets, Ph.D., testified that:
                 A.  In terms of that specific question, I do believe 
              that he sustained an injury to the brain at that time 
              and does continue to show some residual deficits of it.  
              In terms of precisely measuring the degree of the 
              deficits, it's difficult because I believe there's a 
              significant degree of psychological elevation in terms 
              of the results.  I don't believe that they are to the 
              point where they are significantly disabling at all.
                 Q.  How would you describe the level of the 
                 A.  My opinion in terms of looking at the overall 
              record and the results, I would classify the brain 
              injury as a mild one at this point in terms of where I 
              think the residuals are.
         (Tr. B, p. 20, l. 24 through p. 21, l. 14)
              The above two neuropsychologists have nearly equal qualifi
         cations.  Neither one is board certified in neuropsychology and 
         both have wide experiences.  They are both well respected.
              Then there is the opinion of James R. Hairston, Ph.D., 
         Department of Psychological Services, Marian Health Center.  Dr. 
         Hairston has a doctorate but he does not have as much expertise 
         in the area of neuropsychology.  He tested claimant in a number 
         of areas.  The test results are as follows:
              Bender Visual Motor Gestalt Test (BVMGT)
         Page  10
              Patient's Bender score (10) indicates organicity in    
         the Borderline area.
              Hooper Visual Organization Test (HVOT)
              Patient's score (16.5) indicates likelihood of         
         impairment of cogitive [sic] functioning is High.  The           
         degree of impairment is Moderate.
              Recognition Memory Test (RMT)
              Memory for Words score (27) is less than 5th                
         percentile for his age group.
              Memory for Faces (25) is less than the 5th             
         percentile for his age group.
              Visual Form Discrimination Test (VFDT)
              Patient's score (30) is less than the mean score for   
         his age group.
         Page  11
         Benton Visual Retention Test (VRT)
              Patient's score (3) is five (5) points below his       
         expected score (8) for his age group which is a        
         strong indication of impairment of cognitive                
         functioning involving memory.
         (Jt. Ex. A192)
              There is also the additional opinion of Dr. Hairston.  He 
         opined that claimant suffered from anxiety and depression (Ex. 
              Also, there is the written report of Steven B. Bisbing, 
         Ph.D., J.D.  He rendered the following opinion in his report of 
         November 6, 1990.  Dr. Bisbing wrote his report without the bene
         fit of even one examination of claimant.  His opinion does not 
         carry as much weight.  He wrote that:
              FINDING 2:  Mr. Thayer's neuropsychological complaints                  
              are exaggerated; neither serious or likely               
              permanent and demonstrating continuous                   
              When Mr. Thayer's complaints are compared with evidence 
              indicating his actual functioning it is clear that he 
              [sic] functioning far better that [sic] he theoreti
              cally should be.  This contradiction suggests, at the 
              very least, that his complaints are exaggerated; not 
              serious nor likely permanent.  There is objective evi
              dence that his hearing and wrist problems demonstrate 
              residual impairment.  However, there is no evidence 
              that either problem is so serious as to cause him to 
              alter his lifestyle or even forgo activities that he 
              has enjoyed in the past.  For example, despite state
              ments by Dr. [sic] Butler and Keane that either the 
              claimant could not or should not engage in heavy lift
              ing and strenuous physical labor, Mr. Thayer has gone 
              ahead and done so for a significant amount of time.  
              Clearly, while there may be some permanent impairment 
              to each of these injuries they are not serious or 
              As for Mr. Thayer's neuropsychological complaints, he 
              has complained of numerous problems with his memory, 
              equilibrium, headaches, vision, gait, thought process 
              and other functions from time to time.  However, when 
              these complaints are matched up with the various evi
              dence of his actual functioning it appears that these 
              complaints are also a lot less serious that [sic] what 
              is being claimed.  The most recent and clear example of 
              this contradiction is the conclusion by Dr. Korn in 
              December 1989 that Mr. Thayer is totally disabled and 
              likely to require intermediate care for the rest of his 
         Page  12
              life.  Only six months before Dr. Korn's examination, 
              Mr. Thayer was aggressively looking into new job oppor
              tunities.  What is more, in May 1990 (6 months after 
              Dr. Korn's conclusion), Dr. Butler concluded that Mr. 
              Thayer was also fit for reentry into the competitive 
              job market.
         (Jt. Ex. A-60)
              The opinion of Dr. Durward has been discussed previously.  
         The undersigned need not address his opinions again.
              There is the opinion of James L. Case, M.D., a neurologist 
         who prescribed various medications for claimant during the course 
         of his treatment.  Dr. Case opined the following relative to 
         claimant's condition:
         1.   Postconcussion syndrome characterized by headaches,    
         positional dizziness, memory loss, left anosmia,       
         and left hearing impairment.  These deficits appear    
         to be permanent but nonprogressive.
         2.   Headache characteristics suggest they are of a         
         vascular nature.  Exam suggests no progressive         
         intracranial pathology, and his 12/87 repeat CT scan   
         is also reassuring in this regard.
         3. Apparently nonsteroidals, tricyclics, and beta           
         blockers have not been tried previously.
              (Jt. Ex. A190)
         The neurologist recommended participating in the local Iowa Head 
         Injury Foundation (Jt. Ex. A191).  He too opined that claimant's 
         condition was permanent.
              All in all, this deputy concludes that equal weight is to be 
         given to the two opinions of the neuropsychologists.  They are 
         given equal consideration since neither one is board certified in 
         neuropsychology and since each one has vast experiences.  They 
         are both well respected.
              Dr. Durward and Dr. Case are also given equal weight with 
         respect to their opinions.  Both doctors deem claimant's condi
         tion as permanent.  Dr. Jones too is given the same weight.  Dr. 
         Butler's opinion is given great weight.
              Less weight is given to the opinion of Dr. Harrison as he 
         has little expertise in neuropsychology.  Little weight is given 
         to the opinion of Dr. Bisbing as he has never examined claimant 
         nor has Bisbing conferred with him.  Dr. Bisbing's opinion is 
         based on second hand information.  He has gathered no independent 
              The evidence is overwhelming.  Claimant is functionally 
         impaired.  The degree of functional impairment is somewhere 
         Page  13
         greater than slight but less than total impairment.
              Claimant is capable of engaging in some type of gainful 
         employment.  Previously, he had worked at his former position for 
         months following his fall.  Claimant's supervisor has testified 
         that subsequent to the work injury, claimant engaged in his regu
         lar duties of welding, cutting iron, using the band saw and oper
         ating an iron worker (Tr. A, p. 247).  Mr. Reinert has testified 
         that claimant was a good and dependable worker both before and 
         after the fall.  According to Mr. Reinert's testimony "Bob had 
         good quality of work."  (Tr. p. 258, l. 11).  William Post, a 
         co-employee, has testified that claimant was able to follow direc
         tions on the job.
              Mr. Reinert has testified that claimant was able to drive 
         solo to and from Dubuque on company business despite Mrs. 
         Thayer's claim that claimant is not a reliable driver and thus 
         unemployable.  Claimant, however, has demonstrated the contrary 
         through the Iowa State Department of Vocational Rehabilitation.  
         He has taken a mini training session in driving abilities.  He 
         has passed the exam without any problems.  It is quite apparent 
         to the undersigned that if claimant had been experiencing so many 
         difficulties with driving, Mrs. Thayer would not permit her two 
         small children to ride with claimant while he was driving a 
         vehicle.  During the day, and while he is babysitting, claimant 
         drives the children around the Storm Lake area.
              There is medical evidence in the record that claimant is 
         capable of handling truck driving and a fork lift operation.  The 
         undersigned is in agreement.  Claimant's argument that he is 
         incapable of handling a vehicle is without merit.
              Claimant also alleges that he is unemployable because he is 
         unable to count change.  The undersigned determines that claimant 
         is broadly overstating his deficits when he argues he cannot add 
         money.  During direct examination, Mr. McCullough handed claimant 
         change and asked claimant to count it back.  After five minutes 
         or so, claimant was unable to do so.  This deputy is unimpressed 
         with the theatrics presented to her.  What is much more persua
         sive is the fact that upon his return to work, claimant had 
         accepted checks from customers and made change when presented 
         with cash.  Claimant was also able to copy paper patterns after 
         initial instruction.  The aforementioned tasks were observed by 
         lay people who witnessed no observable memory difficulties.
              Jo Weeces, a rehabilitation counselor for the State of Iowa, 
         testified she did not know whether claimant was employable (Tr. 
         p. 187).  However, during the time she was assisting claimant, 
         she had no knowledge that claimant had worked subsequent to his 
         work injury.  It is clear to this deputy that Ms. Weeces was not 
         operating with all of the data necessary to render an opinion of 
         employability.  Therefore, her expert opinion must be accorded 
         less weight than if she had had all of the available information.
         Page  14
              The undersigned recognizes that claimant's academic perfor
         mance is less than average.  He graduated very near the bottom of 
         his class.  He is probably not suitable for college level train
         ing.  However, he is not as dull as claimant would have this 
         deputy believe.  Claimant can follow simple directions, he can 
         make patterns, read lists and road signs and read the newspaper.  
         Claimant may not return to welding.  Some jobs are outside of his 
         restrictions.  He is not precluded from employment.  So long as 
         he keeps within his restrictions, he is able to engage in such 
         physical labor as janitorial work, some lawn care operations, 
         light truck driving, package delivery, conservation work, parts 
         attendant, and sales work.  These positions pay approximately the 
         same rate which he had earned as a welder or they are lesser paid 
         positions.  Nevertheless, there is gainful employment which is 
         available to claimant.
              Claimant is a young man.  He is pleasant.  His appearance is 
         neat.  He is capable of engaging in productive employment.  
         However, it appears that claimant is willing to sit back.  There 
         is no question in this deputy's mind that claimant is leaning on 
         his wife for all types of support and care.  Claimant and his 
         spouse can benefit from a support group or from counseling.  
         Participation in the Iowa Head Injury Foundation is urged.  It is 
         disheartening to the undersigned to see someone like claimant 
         just give up on life.  Claimant needs encouragement to return to 
         the working world.  He has not been overly motivated.
              In light of all of the foregoing,  it is the determination 
         of the undersigned that claimant is entitled to a 60 percent per
         manent partial disability.  He is entitled to 300 weeks of bene
         fits at the stipulated rate of $197.76 per week.
              The commencement date for the payment of weekly benefits is 
         the second issue to discuss in this case.  It is difficult to 
         discern when claimant actually reached maximum medical improve
         ment.  His treating surgeon, Dr. Butler, provided several dates 
         on which claimant received maximum medical improvement.  It is 
         the determination that claimant reached maximum medical improve
         ment on May 9, 1989.  On that date claimant was able to return to 
         work with restrictions and from that point on claimant was able 
         and did participate in vocational rehabilitation.  Claimant's 
         permanent partial disability commences from May 10, 1989.
              The final issue before this deputy is whether defendants are 
         liable for the expenses of Thomas Korn, Ph.D.  Dr. Korn has sup
         plied the following itemization of his charges:
              Attached is my neuropsychological consultation report 
              on Robert Thayer.  Please review the report carefully, 
              if there are any points in the report which you feel 
              need additional explanation to improve their clarity 
              please call me and I will take appropriate action.  My 
              intention is to provide referring sources with as 
         Page  15
              explicit reports as I am able.
              Billing in the above case is as follows:
              11/29/89   Observation, interview and neuro-
                  psychological consultation
                  7.0 hours @ $85.00/hr          =    $595.00
                         Consumable fee               = 30.00
              12/7-12/89 Scoring, interpretation,
                 research and report preparation
                  5.25 hours @ $85.00/hr         =     446.25
                         Total                      $1,071.25
         (Claimant's Ex. F)
              Dr. Korn was retained by claimant as an expert witness.  The 
         psychologist was not hired to treat claimant.  Nor was the psy
         chologist authorized by defendants to treat claimant.  Dr. Korn 
         evaluated claimant prior to the exam conducted by Dr. Sherrets.  
         Dr. Korn's expenses cannot be assessed to defendants pursuant to 
         section 85.39.
              Section 85.39 permits an employee to be reimbursed for sub
         sequent examination by a physician of the employee's choice where 
         an employer-retained physician has previously evaluated 
         "permanent disability" and the employee believes that the initial 
         evaluation is too low.  The section also permits reimbursement 
         for reasonably necessary transportation expenses incurred and for 
         any wage loss occasioned by the employee's attending the subse
         quent examination.
              Defendants are responsible only for reasonable fees associ
         ated with claimant's independent medical examination.  Claimant 
         has the burden of proving the reasonableness of the expenses 
         incurred for the examination.  See Schintgen v. Economy Fire & 
         Casualty Co., File No. 855298 (App. April 26, 1991).  Defendants' 
         liability for claimant's injury must be established before defen
         dants are obligated to reimburse claimant for independent medical 
         examination.  McSpadden, 288 N.W.2d 181 (Iowa 1980).
              It is the determination of the undersigned that defendants 
         are liable for the expenses of Dr. Korn in the amount of $150.00 
         per day as governed by section 622.72.  That section provides:
              622.72  Expert witnesses -- fee.
           Witnesses called to testify only to an opinion 
         founded on special study or experience in any branch of 
         science, or to make scientific or professional examina
         tions and state the result thereof, shall receive addi
         tional compensation, to be fixed by the court, with 
         reference to the value of the time employed and the 
         degree of learning or skill required; but such addi
         tional compensation shall not exceed one hundred fifty 
         dollars per day while so employed.
         Page  16
              Defendants are liable for witness fees for Dr. Korn at the 
         rate of $150.00 per day.
              Defendants are to pay unto claimant three hundred (300) 
         weeks of permanent partial disability benefits commencing on May 
         10, 1989 at the stipulated rate of one hundred ninety-seven and 
         76/l00 dollars ($197.76) per week.
              Accrued benefits are to be paid in a lump sum together with 
         statutory interest at the rate of ten percent (10%) per year pur
         suant to rule 343 IAC 4.33.
              Defendants shall receive credit for all benefits previously 
              Costs are taxed to defendants including but not limited to 
         the expenses of Dr. Korn as aforementioned.
              Defendants shall file a claim activity report as requested 
         by this division and pursuant to rule 343 IAC 3.l.
              Signed and filed this ____ day of September, 1992.
                                       MICHELLE A. McGOVERN
                                       DEPUTY INDUSTRIAL COMMISSIONER
         Copies To:
         Mr. Jay P. Roberts
         Mr. John R. Walker, Jr.
         Attorneys at Law
         620 LaFayette Street
         P O Box 178
         Waterloo, Iowa  50704
         Mr. Charles T. Patterson
         Mr. Thomas M. Plaza
         Attorneys at Law
         701 Pierce Street  STE 200
         P O Box 3086
         Sioux City, Iowa  51102
         Mr. Colin J. McCullough
         701 West Main Street
         P O Box 428
         Sac City, IA 50583         
                                              Filed September 28, 1992
                                              MICHELLE A. McGOVERN
            ROBERT J. THAYER,             :
                 Claimant,                :
            vs.                           :
                                          :         File No. 836037
            MICHAEL REINERT, d/b/a OLSEN  :
            WELDING & MACHINE,            :      A R B I T R A T I O N
                 Employer,                :         D E C I S I O N
            and                           :
            GRINNELL MUTUAL,              :
                 Insurance Carrier,       :
                 Defendants.              :
            Claimant was awarded a 60 percent permanent partial 
            disability.  Claimant was hit on the head by a falling board 
            while he was working on scaffolding.  Approximately 45 
            minutes later, claimant walked off the scaffolding.  He 
            sustained a closed head injury, a rub fracture, and a left 
            wrist fracture which necessitated surgery.
            Claimant remained off work for a period of time.  He 
            returned to his former position as a welder after three 
            months.  Claimant worked in that capacity for many months.  
            Later claimant left the job because of left wrist and arm 
            pain.  An orthopedic surgeon performed a second surgery on 
            the left arm.
            Claimant never returned to work.  He alleged that his closed 
            head injury affected him so much that he was unable to work 
            in any capacity.
            There were disparate opinions from experts, but all agreed 
            claimant had sustained a closed head injury.  Their 
            differences dealt with the degree of severity.
            This deputy held that claimant is entitled to a 60 percent 
            permanent partial disability.
            Page   1
                     before the iowa industrial commissioner
            ROGER O. BROWN,               :
                 Claimant,                :
            vs.                           :      File Nos. 836538
            CEDAR RAPIDS MEATS, INC.,     :
            d/b/a FARMSTEAD FOODS & WILSON:
            FOOD COMPANY,                 :
                 Employer,                :     A R B I T R A T I O N
            and                           :        D E C I S I O N
            EMPLOYERS MUTUAL INS. CO.,    :
                 Insurance Carrier,       :
            and                           :
                 Defendants.              :
                              STATEMENT OF THE CASE
                 This is a proceeding in arbitration brought by Roger 
            Brown, claimant, against the Second Injury Fund, a special 
            fund administered by the Treasurer of the State of Iowa, 
            defendant, for workers' compensation benefits as a result of 
            an alleged second injury on October 1, 1986.  In his 
            petition, claimant alleges a prior impairment to have oc
            curred as a result of an injury in 1978.  On May 31, 1991, 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 con
            tested issues and stipulations which was approved and ac
            cepted as a part of the record of this case at the time of 
            the hearing.  The oral testimony and written exhibits re
            ceived during the hearing are set forth in the hearing tran
            Page   2
            According to the prehearing report, the parties have 
            stipulated to the following matters:
                 1.  If permanent disability benefits are awarded, they 
            shall begin as of March 7, 1987.
                 2.  Claimant's rate of weekly compensation in the event 
            of an award of weekly benefits from this proceeding shall be 
                 The parties submitted the following issues for determi
            nation in this proceeding:
                 I.  Whether claimant received an injury arising out of 
            and in the course of his employment on October 1, 1986.
                 2.  The extent of claimant's entitlement to permanent 
            disability benefits from the Second Injury Fund.
                                 findings of fact
                 Having heard the testimony and considered all the evi
            dence, the deputy industrial commissioner finds as follows:
                 A credibility finding is necessary to this decision as 
            the Second Injury Fund placed claimant's credibility at 
            issue during cross-examination.  From his demeanor while 
            testifying, claimant is found credible.
                 Claimant was employed by Cedar Rapids Meats d/b/a 
            Farmstead Foods and its predecessor company, Wilson Foods 
            Company (both hereinafter referred to as Farmstead) from 
            1962 until March 1990, when the meat packing plant where 
            claimant was working closed due to bankruptcy.  At all times 
            during this employment, claimant was performing manual labor 
            work in various departments at the packing plant.  
            Initially, claimant was assigned to belly vats where he 
            stuffed meat into forms and hung the meat on a "tree."  
            Although the weights in this job were light, claimant worked 
            repetitively in a moist, cool environment.  After a few 
            months, claimant was assigned to beef sides and he performed 
            this work for almost thirteen years.  This work involved 
            heavy lifting of meat and cans and pushing and pulling of 
            animal carcasses.  From 1975 until the plant closed in 1990, 
            claimant was assigned to a job called scaler/packer in which 
            he would lift boxes full of meat off a skid or roller 
            conveyor and stack these boxes on a pallet located opposite 
            the skid.  The boxes weighed from 25 to 75 pounds each and 
            claimant would handle 600 to 700 boxes each day.  Claimant 
            also was required to manually drag the pallets to his work 
            area.  This job was stressful on claimant's legs.  It was 
            while performing this job that claimant suffered two leg 
            injuries upon which the fund claim is based.  Claimant's 
            testimony with reference to all the above matters was credi
            ble and uncontroverted.
                 On or about October 1, 1986, claimant suffered an 
            injury to his right leg which arose out of and in the course 
            Page   3
            of his employment with Farmstead.  This injury was the 
            result of repetitive cumulative trauma or overuse of his 
            right leg in his work at Farmstead.  This occurred gradually 
            over a long period time and primarily when claimant was 
            working as a scaler/packer.  This injury consisted of an ac
            celeration of a degenerative disease of the knee which even
            tually required a partial knee replacement or arthroplasty 
            in October 1986.  These findings are based upon the uncon
            troverted views of the primary orthopedic surgeon, Hugh P. 
            MacMenamin, M.D., who performed the partial knee replacement 
            (Exhibit 1, pp. 44-45).  Following the right knee 
            arthroplasty, claimant suffered from a 25 percent permanent 
            partial impairment to the right lower extremity.  This find
            ing is again based upon the uncontroverted views of Dr. 
                 At the time of the injury of October 1, 1986, claimant 
            had previously suffered a 25 percent permanent partial im
            pairment to the left lower extremity due to his work at 
            Farmstead.  As a cumulative result of work traumas, claimant 
            in 1978 was compelled to have a partial replacement of his 
            left knee.  Again, these findings are based upon the uncon
            troverted views of Dr. MacMenamin that the bilateral knee 
            problems are work related due to cumulative trauma or 
            overuse syndrome which aggravated a preexisting condition.
                 In dispute was whether claimant's bilateral problems 
            developed simultaneously or at different times.  Dr. 
            MacMenamin, on page 44 of exhibit 1, answered in the affir
            mative to a question whether he would agree that claimant's 
            bilateral knee problems were "developing simultaneously but 
            yet could and did manifest themselves at different 
            occasions."  The undersigned would agree that between 1968 
            and 1986, claimant had recurring bilateral knee problems 
            according to the records of his orthopedic surgeons in 
            exhibit 1.  In 1963, he was off approximately six weeks 
            following surgical repair of a torn meniscus of the right 
            knee when he slipped on stairs at work.  In 1964, a hog fell 
            on his legs and he was off work for exploratory surgery to 
            the left knee.  In November 1985, claimant was placed on 
            light duty for acute pain in the right knee.  In 1969, he 
            twisted his knee (the records do not indicate which knee).  
            In 1970, claimant suffered from a recurrent effusion of the 
            left knee.  In 1971, claimant was off work for two months 
            following surgery to clean out the right knee.  In 1975, 
            claimant again had left knee problems requiring aspiration 
            and injection of steroid medication.
                 However, it is clear that permanent impairment occurred 
            as a result of claimant's prior separate and distinct knee 
            surgery in 1978.  Although no physician has given an impair
            ment rating for this earlier partial knee replacement, this 
            was the same surgery that was performed by Dr. MacMenamin in 
            October 1986, for which the doctor gave        a 25 percent 
            permanent partial impairment rating.  There is nothing in 
            the evidence to suggest that the 1978 surgery was any more 
            or less successful than the 1986 surgery.  Therefore, the 
            same amount of impairment is found for both separate 
            surgeries.  It also should be noted that claimant's 
            permanent partial impairment to the left leg probably 
            Page   4
            occurred even earlier.  Although claimant injured both legs 
            in the incident in 1964, he was primarily treated for left 
            knee problems and his physicians at the time advised 
            claimant that he should obtain a job where he would not be 
            on his feet too much, if possible (Exhibit 1, page 3).
                 Over the years, claimant has had prior carpal tunnel 
            syndrome and ulnar nerve compression problems as well as 
            back problems.  However, the evidence indicates that he 
            suffered no permanent partial impairment as a  result of 
            these problems or from treatment of these problems.
                 As a result of the prior and separate permanent partial 
            impairment of 1978 and the second work-related injury of 
            October 1, 1986, claimant has suffered a 30 percent loss of 
            earning capacity.  Although there is no formal work 
            restrictions in effect at this time, claimant is unable to 
            perform heavy work using his leg without adversely affecting 
            his knee replacements.  His physicians have stated that                                               
            the life of a knee replacement is dependent upon the amount 
            of its use.  Heavy use will result in a much shorter life of 
            the replacement.  In the event the knee replacement has to 
            be repaired, the knee may have to be fused.
                 Claimant's past employment primarily consists of driv
            ing a dump or straight truck, cement construction and wood
            working which included truck loading.  Claimant has also had 
            a history of farm labor work.  Except for truck driving, 
            claimant is unable to perform much of his former work today.  
            Since the Farmstead closure, claimant has been mostly unem
            ployed.  The local adverse labor market significantly 
            contributed to claimant's inability to find suitable work.
                 Claimant received training as an over-the-road semi-
            truck driver after leaving Farmstead and obtained a job as a 
            company driver earning 16 to 18 cents per mile.  Claimant 
            quit this job after only a few months as he did not like 
            being away from his family for extended periods of time.  
            Since that time, claimant has worked intermittently as a 
            fertilizer and dump truck driver.  Claimant is employable as 
            a truck driver but needs a job that fits into his desire for 
            a stable family life.  Claimant is working at the present 
            time from 30 to 50 hours per week depending upon the weather 
            and work availability.  Claimant is earning $5 per hour in 
            his part-time work but has no fringe benefits.  Claimant was 
            earning $9.20 per hour with fringe benefits at the time of 
            the Farmstead closure.
                 The finding of a loss of earning capacity in this case 
            was made without consideration of the alleged second injury 
            in 1988.  That injury involves a surgical replacement of the 
            left knee arthroplasty that was installed in 1978.  This 
            injury is subject to a pending workers' compensation claim 
            against the Second Injury Fund that was not consolidated 
            with this proceeding.
                                conclusions of law
                 I.  Claimant has the burden of proving by a 
            preponderance of the evidence that claimant received an 
            Page   5
            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.
                 It is not necessary that claimant prove his disability 
            results from a sudden unexpected traumatic event.  It is 
            sufficient to show that the disability developed gradually 
            or progressively from work activity over a period of time.  
            McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 
                 It the case sub judice, the October 1, 1986 injury was 
            found to be a work-related aggravation of a preexisting 
            condition due to overuse of his legs while working at 
                 II.  Claimant seeks additional disability benefits from 
            the Second Injury Fund under Iowa Code sections 85.63 
            through 85.69.  This fund was created to compensate an 
            injured worker for a permanent industrial disability result
            ing from the combined effect of two separate injuries.  The 
            purpose of such a scheme of compensation was to encourage 
            employers to hire or retain handicapped workers and 
            veterans.  See Anderson v. Second Injury Fund, 262 N.W.2d 
            789 (1978).  There are three requirements under the statute 
            to invoke Second Injury Fund liability.  First, there must 
            be a permanent loss or loss of use of one hand, arm, foot, 
            leg or eye.  Secondly, there must be a permanent loss or 
            loss of use of another such member or organ through a 
            compensable subsequent injury.  Third, there must be perma
            nent industrial disability to the body as a whole arising 
            from both the first and second injuries which is greater in 
            terms of relative weeks of compensation and the sum of the 
            scheduled allowances for those injuries.  If there is a 
            greater industrial disability due to the combined effects of 
            the prior loss and the second loss than equals the value of 
            the prior and second losses combined, then the fund will be 
            charged with the difference.  The Second Injury Fund v. 
            Neelans, 436 N.W.2d 355 (Iowa 1989).
                 In the case sub judice, it was found that claimant 
            suffered a 25 percent permanent partial impairment to the 
            right leg as a result of the compensable injury of October 
            1, 1986.  On October 1, 1986, it was found that claimant had 
            suffered from a prior 25 percent permanent partial impair
            ment to the left leg due to an injury and surgery in 1978.
                 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. 
            Page   6
            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).
                 Therefore, based upon the findings of permanent partial 
            impairment to both legs, claimant's permanent partial dis
            ability as a result of the compensable injury of October 1, 
            1986, and of the prior 1978 injury, is equivalent to 55 
            weeks of benefits for each injury under Iowa Code section 
            85.34(2)(o) which is 25 percent of 220 weeks, the maximal 
            allowable number of weeks for an injury to the leg in that 
                 Turning to the assessment of industrial disability as a 
            result of both qualifying injuries, the degree of permanent 
            disability must be measured pursuant to Iowa Code section 
            85.34(2)(u).  However, unlike scheduled member disabilities, 
            the degree of disability under this provision is not 
            measured solely by the extent of a functional impairment or 
            loss of use of a body member.  A disability to the body as a 
            whole or an "industrial disability" is a loss of earning 
            capacity resulting from the work injury.  Diederich v. 
            Tri-City Railway Co., 219 Iowa 587, 593, 258 N.W. 899 
            (1935).  A physical impairment or restriction on work 
            activity may or may not result in such a loss of earning 
            capacity.  The extent to which a work injury and a resulting 
            medical condition has resulted in an industrial disability 
            is determined from examination of several factors.  These 
            factors include the employee's medical condition prior to 
            the injury, immediately after the injury and presently; the 
            situs of the injury, its severity and the length of healing 
            period; the work experience of the employee prior to the 
            injury, after the injury and potential for rehabilitation; 
            the employee's qualifications intellectually, emotionally 
            and physically; earnings prior and subsequent to the injury; 
            age; education; motivation; functional impairment as a 
            result of the injury; and inability because of the injury to 
            engage in employment for which the employee is fitted.  Loss 
            of earnings caused by a job transfer for reasons related to 
            the injury is also relevant.  Olson v. Goodyear Service 
            Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963).  
            See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, 
            February 28, l985).
                 In this case, it was found that the combined effect or 
            industrial disability from the first and second injuries 
            resulted in a 30 percent loss of earning capacity.  Based 
            upon such a finding, claimant is entitled as a matter of law 
            Page   7
            to 150 weeks of permanent partial disability benefits under 
            Iowa Code section 85.34(2)(u), which is 30 percent of 500 
            weeks, the maximum allowable for an injury to the body as a 
            whole.  The fund is liable for the remaining amount of this 
            disability after first deducting 110 weeks of permanent 
            partial disability caused by the first and second injuries.  
            This remaining 40 weeks shall begin, as stipulated by the 
            parties, on March 7, 1987.  Interest on this award shall be 
            begin on the date of this decision.  Second Injury Fund v. 
            Braden, 459 N.W.2d 467 (Iowa 1990).
                 With reference to taxation of costs, although awarded 
            to claimant, the listing of claimant in exhibit 4 is unspe
            cific as to what many of these expenses represent.  The 
            undersigned directs the parties to read the administrative 
            rule on reimbursable costs as it is quite specific.  If the 
            parties cannot agree, they may submit a request for specific 
            taxation of costs along with proper documentation.
            Page   8
                 THEREFORE, it is ordered:
                 1.  The Second Injury Fund shall pay to claimant forty 
            (40) weeks of permanent partial disability benefits at the 
            rate of two hundred thirty-six and 24/100 dollars ($236.24) 
            per week from March 7, 1987.
                 2.  The Second Injury fund shall pay accrued weekly 
            benefits in a lump sum.
                 3.  The Second Injury Fund shall pay interest on weekly 
            benefits awarded herein as set forth in Iowa Code section 
            85.30 from the date of this decision.
                 4.  The Second Injury Fund shall pay the costs of this 
            action pursuant to rule 343 IAC 4.33, including reimburse
            ment to claimant for any filing fee paid in this matter.
                 5.  The Second Injury Fund shall file activity reports 
            upon payment of this award as requested by this agency 
            pursuant to rule 343 IAC 3.1.
                 Signed and filed this _____ day of June, 1991.
                                          LARRY P. WALSHIRE
                                          DEPUTY INDUSTRIAL COMMISSIONER
            Copies to:
            Mr James E Shipman
            Mr Matthew J Brandes
            Attorneys at Law
            1200 MNB Bldg
            Cedar Rapids IA 52401
            Mr John Bickel
            Attorney at Law
            500 MNB Bldg
            P O Box 2107
            Cedar Rapids IA 52406
            Mr Greg Knoploh
            Assistant Attorney General
            Tort Claims
            Hoover State Office Bldg
            Des Moines IA 50319
                      Filed June 27, 1991
                      Larry P. Walshire
            before the iowa industrial commissioner
            ROGER O. BROWN,               :
                 Claimant,                :
            vs.                           :      File Nos. 836538
            CEDAR RAPIDS MEATS, INC.,     :
            d/b/a FARMSTEAD FOODS & WILSON:
            FOOD COMPANY,                 :
                 Employer,                :     A R B I T R A T I O N
            and                           :        D E C I S I O N
            EMPLOYERS MUTUAL INS. CO.,    :
                 Insurance Carrier,       :
            and                           :
                 Defendants.              :
            Extent of disability benefits nonprecedential.
                                                          File No. 
                                                          A R B I T R A 
        T I O N
                                                    D E C I S I O N
        and                                               F I L E D
                                                      APR 18 1989
            Insurance Carrier,             IOWA INDUSTRIAL COMMISSIONER
             This is a proceeding in arbitration brought by Rosemary 
             Bennett, claimant, against her employer, Mercy Hospital Medical 
             Center, and Aetna Casualty & Surety Company, insurance carrier, 
             defendants. The case was heard by the undersigned on September 
             22, 1988 in the conference room at the Division of Industrial 
             Services. The case was fully submitted at the close of the 
            The record consists of the testimony of claimant. The 
        record also consists of the testimony of Kurtis Bennett, husband 
        of claimant. Testifying for defendants are Jeri Fontanini, 
        supervisor, and Nancy DeVore, workers' compensation coordinator 
        at defendant employer. The record also consists of Joint 
        Exhibits A-K, and N.
            Pursuant to the prehearing report and order approving the 
        same, which was filed on September 22, 1988, the parties 
              l) The existence of an employer-employee relationship 
             between claimant and employer at the time of the alleged injury;
             2) That claimant sustained an injury on December 20, 1985, 
             which arose out of the course of employment with employer; 
             3) That the injury is not a cause of permanent disability.
             The issues presented are as follows:
             l) Whether claimant is able to designate February 23, July 
             14 and October 23, 1987, as days where she was off work because 
             of her workers' compensation injury on December 20, 1985; and,
             2) Whether claimant is entitled to medical benefits under 
             section 85.27, other than treatment from William R. Boulden, M.D.
                                 FACTS PRESENTED
             Claimant has been employed as a ward secretary for defendant 
             employer. On December 20, 1985, claimant attempted to sit in a 
             chair reserved for one of the ward secretaries. Claimant 
             testified there was a slip of paper lying on the floor. As 
             claimant attempted to sit down, she slipped on the sheet of paper 
             and slid onto the floor. Claimant fell onto her buttocks. She 
             picked herself up and commenced working at that station. 
             According to claimant, the entire incident was witnessed by her 
            Claimant had been scheduled for her vacation at the time of 
        the above incident. After two weeks away from work, she returned 
        to her duties. Upon her return, claimant was treated for lower 
        back pain at the employee health clinic. Medical records 
        indicate the first visit occurred on January 9, 1986. Claimant 
        returned to thE clinic on January 22, 1986. Claimant again 
        sought attention in June of 1986.
            Claimant's medical records for June 2, 1986 indicate: 
        "Relates upper lumbar-lowest thoracic constantly since January 
        episode. Uses Nupain /c little relief, heat relieves...."
            Claimant continued with treatment through the employee 
        health clinic. She received physical therapy and hot packs. Her 
        physicians prescribed various kinds of pain medication.
            Claimant was eventually seen by William R. Boulden, M.D. In 
        his report of November 11, 1986, Dr. Boulden writes:
             The patient's complaints of pain are always in the back. 
             She states that sitting really aggravates her symptoms to 
             the most.
             Physical examination today shows the patient to have full 
             left and right lateral bending, extension and forward 
             flexion. Straight leg raising is negative bilaterally. 
             Deep tendon reflexes are equal and symmetrical in the knees 
             and ankles. No motor weakness. No sensory deficit. Lumbar 
             spine films from January of 1986 and November, today, do not 
             show any interval changes, and show just some osteoporosis. 
             There are really mild arthritic changes.
             Impression: Low back pain, etiology undetermined.
             In January of 1987, Dr. Boulden recommended an evaluation 
             for a pain center. He was not sure whether claimant would be 
             interested in such a treatment.
            James A. Frahm, M.D., then referred claimant to Sinesio 
        Misol, M.D. After he examined claimant on April 8, 1987, he 
        diagnosed claimant as follows:
             MRI seen by me are within normal limits. Bone scan 
             apparently also performed, reported as negative.
             Post strain dorsolumbar junction, after a fall. No evidence 
             of disc herniation or fracture pathology.
             Claimant testified she continued to experience difficulties 
             subsequent to the date of her injury. As a result, claimant 
             missed several days of work. From July 3, 1986 until February 
             23, 1987, claimant missed five days of work. These days were all 
             paid to claimant as workers' compensation days. Claimant also 
             testified she missed work on February 23, 1987, July 14,    
             1987, and October 23, 1987. She did not obtain a doctor's excuse 
             for each of those three days. Claimant was paid sick leave for 
             those days. The days were not allocated to workers' compensation.
             There is a policy at defendant employer's place of business 
             regarding sick leave and absenteeism. Employees are allowed only 
             a predetermined number of absences in a three month period. If 
             an employee exceeds that number, the employee is counseled or 
             disciplined in a progressive manner. Testimony during the 
             hearing revealed that claimant was counseled by her supervisor, 
             Jeri Fontanini and the department head, Linda Lundgren on January 
             7, 1988. There was written documentation detailing the 
             counseling session. According to the written documentation, 
             claimant was advised that:
             TIMES, ETC.) Attendance.- Sick Feb. 23, Sick March 12-27, 
             Sick July 14, Sick Oct 23, Sick Dec 21-Jan 1,
             SPECIFIC ACTION TO BE TAKEN & FOLLOW-UP DATE Rosemary will 
             be required to submit a doctors written statement to 
             employee Health Service for any future illness in the next 3 
             has another sick occurrence in the next 3 mo. She will be 
             Claimant testified she wanted time off from work to continue 
             with physical therapy sessions. She stated she could not have 
             the time off or else that time would result in an occurrence 
             under the sick leave policy.
            Jeri Fontanini also testified at the hearing. She reported 
        claimant was an excellent employee and claimant was in no danger 
        of being terminated. Ms. Fontanini stated claimant had had 
        several occurrences under the absentee policy but they were 
        removed from her record. Ms. Fontanini testified that with 
        respect to the three days in question, claimant failed to bring a 
        doctor's excuse and she neglected to mention that the three days 
        were related to her injury on December 20, 1985.
            Ms. Nancy DeVore testified for defendants. She reported she 
        is the coordinator for workers' compensation benefits at 
        defendant employer. She stated that the employee health clinic 
        is open for one hour per day and that employees with workers' 
        compensation complaints are sent to the health clinic. Referrals 
        from the clinic are then made to the appropriate physicians. Ms. 
        DeVore testified that claimant was referred to Dr. Boulden by the 
        employee health clinic because of Dr. Boulden's expertise in back 
        care. Ms. DeVore indicated that an absence allocated to a 
        workers' compensation injury is not "an occurrence" under the 
        sick leave and absentee policy. Finally, Ms. DeVore testified 
        that claimant is able to schedule time off for physical therapy 
        sessions so long as she schedules the sessions and provides at 
        least a one hour notice.
                            APPLICABLE LAW AND ANALYSIS
             The claimant must prove by a preponderance of the evidence 
             that her injury arose out of and in the course of her employment. 
             Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 
            In the course of employment means that the claimant must 
        prove her injury occurred at a place where she reasonably may be 
        performing her duties. McClure v. Union, et al., Counties, 188 
        N.W.2d 283 (Iowa 1971).
             Arising out of suggests a causal relationship between the 
             employment and the injury. Crowe v. DeSoto Consolidated School 
             District, 246 Iowa 402, 68 N.W.2d 63 (1955).
             The claimant has the burden of proving by a preponderance of 
             the evidence that the injury of December 20, 1985 is causally 
             related to the disability on which she now bases her 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).
             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).
             Claimant maintained three days missed in calendar year 1987 
             were days where she should have been credited with days missed 
             due to her work injury on December 20, 1985. Claimant's 
             testimony revealed she missed work because of back pain on 
             February 23, 1987, July 14, 1987, and October 23, 1987. Claimant 
             stated she did not consult a medical practitioner on any of the 
             three occasions. However, claimant did testify that she had no 
             history of back pain prior to her fall on December 20, 1985. 
             There was no testimony in the record that claimant was off work 
             for any reason other than for her back. Therefore, it is the 
             determination of the undersigned that these days are determined 
             to be causally related to her injury of December 20, 1985. 
             Benefits for these three days fall under temporary total 
             disability benefits as provided in section 85.33.
             The next issue to address is whether claimant is entitled to 
             alternate care under section 85.27. This section provides in 
             relevant part:
             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 
             Under section 85.27, the employer has the right to select 
             the medical care. The care must be offered promptly and without 
             undue inconvenience to the employee. England v. Western 
             Materials, Inc., Thirty-Second Biennial Report of the Iowa 
             Industrial Commissioner 201 (1974). The medical care under 
             section 85.27 must also be reasonable. Shilling v. Martin K. Eby 
             Construction, Co., Inc., II Iowa Industrial Commissioner Report 
             350 (Appeal Decision 1981).
            In the case at hand, claimant maintained she was 
        dissatisfied with the treatment provided by Dr. Boulden. 
        Nevertheless, claimant did not established that Dr. Boulden's 
        treatment was unreasonable. Dr. Boulden is an orthopedic 
        surgeon. He has expertise in back care. He has recommended 
        conservative treatment and possible treatment at a pain center. 
        None of these recommendations seem unreasonable in light of the 
        circumstances of this case. Additionally, the treatment 
        recommended by Dr. Boulden is not that different from the 
        treatment recommended by Sinesio Misol, M.D. As a consequence, 
        employer is not required to provide an alternate physician.
             The claimant has asserted problems with attending physical 
             therapy sessions for her back during work hours. Defendants, 
             during the hearing, presented testimony that physical therapy 
             sessions for claimant's back would be logged as time off due to 
             her work injury. These sessions would not result in any 
             disciplinary action so long as claimant provided at least a one 
             hour notice of the same. The issue now appears to be moot.
            As a final note, claimant requested treatment at the Mercy 
        Pain Center. Claimant's physician, Dr. Boulden, recommended an 
        evaluation for the same. Dr; Boulden is the authorized treating 
        physician. If it is his opinion that an evaluation and treatment 
        at a pain center is a proper mode of treatment for claimant, then 
        defendants are responsible for those reasonable and necessary 
        expenses. Defendants cannot invade the province of medical 
        professionals and determine what diagnostic tests and/or methods 
        of treatment are to be utilized. Pote v. Mickow Corp., File No. 
        694639 (Review-reopening Decision, Filed June 17, 1986); Martin 
        v. Armour Dial, Inc., File No. 754732 (Arbitration Decision, 
        Filed July 31, 1985).
             WHEREFORE, based on the evidence presented and the 
             principles of law previously cited, the following findings of 
             fact and conclusions of law are made:
            FINDING 1. As a result of claimant's work related injury on 
        December 20, 1985, she sustained temporary injuries to her back.
            Finding 2. As a result of her work injury, claimant missed 
        eight days of work, five days between July 3, 1986 and February 
        23, 1987, and also, February 23, 1987, July 14, 1987 and October 
        23, 1987.
            CONCLUSION 1. Claimant is entitled to 1.143 weeks of 
        temporary total disability benefits at the stipulated rate of 
        $186.12 per week.
            FINDING 3. Defendants have authorized Dr. Boulden as a 
        treating physician.
            Finding 4. The treatment provided by Dr. Boulden has been 
        reasonable and necessary.
             CONCLUSION 2. Defendants are liable for reasonable and 
             necessary medical treatment which may include, but is not limited 
             to future treatment at a pain center, if recommended by Dr. 
             Boulden, the authorized treating physician.
            FINDING 5. Dr. Misol is not an authorized treating 
             THEREFORE, defendants are to pay unto claimant one point 
             one-four-three (1.143) weeks of temporary total disability 
             benefits at a rate of one hundred eighty-six and 12/100 dollars 
             ($186.12) per week.
            Defendants are to pay future reasonable and necessary 
        medical expenses related to the claimant's back, including but 
        not limited to, the expenses incidental to treatment at a pain 
        center, if so deemed by an authorized treating physician.
            Accrued benefits are to be made in a lump sum together with 
        statutory interest at the rate of ten percent (10%) per year 
        pursuant to section 85.30, Code of Iowa, as amended.
            Defendants shall receive credit for all benefits paid.
            Costs of this action are assessed against the defendants 
        pursuant to Division of Industrial Services Rule 343-4.33..
            Defendants shall file a claim activity report upon payment 
        to this award.
            Signed and filed this 18th day of April, 1989.
                                     MICHELLE A. McGOVERN
                                     DEPUTY INDUSTRIAL COMMISSIONER
        Copies To:
        Mr. Lee H. Gaudineer
        Attorney at Law
        900 Des Moines Bldg.
        Des Moines, Iowa 50309
        Ms. Lorraine J. May
        Mr. Glenn Goodwin
        Attorneys at Law
        4th Floor Equitable Bldg.
        Des Moines, Iowa 50309
                                                Filed April 18, 1989
                                                MICHELLE A. McGOVERN
                                                File No. 836561
                                             A R B I T R A T I O N
                                                D E C I S I O N
             Insurance Carrier,
             Claimant sustained a back injury on the job. Claimant could 
             not sustain burden of proof that medical treatment she was 
             receiving was unreasonable and that alternate care was