BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         MICHAEL SCOLES,
 
          
 
               Claimant,
 
                                                      File No. 838048
 
          VS.
 
          
 
          A. C. DELLOVADE,                            A P P E A L
 
          
 
               Employer,
 
                                                      D E C I S I 0 N
 
          and
 
          
 
          KEMPER INSURANCE GROUP,
 
          
 
               Insurance Carrier,
 
               Defendants.
 
          
 
          
 
         
 
                              STATEMENT OF THE CASE
 
                                        
 
              Claimant appeals from an arbitration decision denying any 
 
         benefits beyond what claimant had already been paid.
 
         
 
              The record on appeal consists of the transcript of the 
 
         arbitration hearing and claimant's exhibits 2 through 28 and 30 
 
         through 32.  Neither party filed a brief on appeal.
 
         
 
                                      ISSUES
 
                                        
 
              Because neither party filed a brief on appeal this matter 
 
         will be considered generally without any specified errors.  The 
 
         issues considered by the deputy were:
 
         
 
              The extent of claimant's stipulated permanent disability and 
 
         the commencement date thereof;
 
         
 
              Whether claimant's asserted psychiatric/emotional problems 
 
         are causally related to his injury of October 6, 1986 and, if so, 
 
         whether defendants are liable for certain medical expenses 
 
         pursuant to Iowa Code section 85.27;
 
         
 
              The length of claimant's temporary total disability-healing 
 
         period; and
 
         
 
              Claimant's rate of compensation.
 
         
 
         
 
         
 
         SCOLES V. A. C. DELLOVADE
 
         Page 2
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                              REVIEW OF THE EVIDENCE
 
                                        
 
              The arbitration decision adequately and accurately reflects 
 
         the pertinent evidence and it will not be reiterated herein.
 
         
 
                                  APPLICABLE LAW
 
                                        
 
              The citations of law in the arbitration decision are 
 
         appropriate to the issues and evidence.
 
         
 
                                     ANALYSIS
 
                                        
 
              The analysis of the evidence in conjunction with the law in 
 
         the arbitration decision is adopted.
 
         
 
                                 FINDINGS OF FACT
 
                                        
 
              1. Claimant sustained an injury arising out of and in the 
 
         course of his employment on October 6, 1986, when an extension 
 
         cord fell on him.
 
         
 
              2. Claimant was treated by Edward R. Farrage, M.D., referred 
 
         to R. Schuyler Gooding, M.D., who released claimant to return to 
 
         work November 21, 1986, and who opined claimant would 
 
         progressively improve with no ongoing disability.
 
         
 
              3. Claimant declined to return to work feeling he was not 
 
         yet ready.
 
         
 
              4. Claimant began treating then with Patrick W. Bowman, 
 
         M.D., who rendered a diagnosis of degenerative disc disease, 
 
         found claimant to be eight percent permanently partially impaired 
 
         as a result thereof, and released claimant to return to work on a 
 
         trial basis March 9, 1987, imposing no specific restrictions.
 
         
 
              5. Dr. Bowman opined claimant might incur back trouble if he 
 
         continued physically demanding work.
 
         
 
              6. Claimant declined to return to work and made little 
 
         effort to find other employment.
 
         
 
              7. Claimant sought treatment in May 1987 for emotional 
 
         problems allegedly stemming from his injury.
 
         
 
              8. Claimant's testimony lacks credibility.
 
         
 
              9. Claimant has a one percent industrial disability as 
 
         result of his injury.
 
         
 
              10. Claimant did not improve under the care of Dr. Bowman.
 
         
 
         
 
         
 
         SCOLES V. A. C. DELLOVADE
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         Page 3
 
         
 
         
 
              11. Claimant reached maximum medical recovery at the time he 
 
         was released to return to work November 21, 1986, by Dr. Gooding.
 
         
 
              12. Claimant's rate of compensation is $247.06.
 
         
 
              13. Claimant has been paid 47 2/7 weeks of compensation at 
 
         the rate of $271.19 per week totaling $12,283.49.
 
         
 
                                CONCLUSIONS OF LAW
 
                                        
 
              Claimant has not established his emotional problems are 
 
         causally connected to his injury of October 6, 1986.
 
         
 
              Defendants are not responsible for medical expenses incurred 
 
         in treating claimant's emotional problems.
 
         
 
              Claimant has established a one percent permanent disability 
 
         for industrial purposes.as a result of his injury of October 6, 
 
         1986.
 
         
 
              Claimant has established his entitlement to healing period 
 
         benefits for the period from October 6, 1986 to November 21, 
 
         1986, inclusive.
 
         
 
              Claimant's rate of weekly compensation is $247.06.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed.
 
         
 
                                      ORDER
 
                                        
 
              THEREFORE, it is ordered:
 
         
 
              That as the prehearing report and order establishes claimant 
 
         has been paid for more than the amount of this award, claimant 
 
         shall take nothing further from these proceedings.
 
         
 
              That costs of this action including the costs of 
 
         transcription of the arbitration hearing are assessed against 
 
         claimant pursuant to Division of Industrial Services Rule 
 
         343-4.33.
 
         
 
              Signed and filed this 15th day of May, 1989.
 
         
 
         
 
         
 
         
 
         
 
                                         DAVID E. LINQUIST
 
                                         INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         SCOLES V. A. C. DELLOVADE
 
         Page 4
 
         
 
         
 
         Copies To;
 
         
 
         Mr. Sheldon M. Gallner
 
         Attorney at Law
 
         P.O. Box 1588
 
         803 Third Avenue
 
         Council Bluffs, Iowa 51502
 
         
 
         Mr. Thomas Plaza
 
         Attorney at Law
 
         P.O. Box 3086
 
         200 Home Federal Bldg.
 
         Sioux City, Iowa 51102
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                                      51402/40 -52204          
 
         1803
 
                                                      Filed May 15, 
 
         1989
 
                                                      DAVID E. 
 
         LINQUIST
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
                                        
 
           MICHAEL SCOLES,
 
           
 
             Claimant,
 
           
 
           vs.                                       File No. 838048
 
           
 
           A. C. DELLOVADE,                            A P P E A L
 
           
 
             Employer,                               D E C I S I O N
 
           
 
           and
 
           
 
           KEMPER INSURANCE GROUP,
 
           
 
             Insurance Carrier,
 
             Defendants.
 
         
 
         51402.40 - 52204
 
         
 
              Claimant's emotional problems alleged to be a result of his 
 
         work injury were not causally connected to the work injury.  
 
         Defendants were not responsible for medical expenses related to 
 
         treatment of the emotional problems.
 
         
 
         1803
 
         
 
              The parties stipulated that claimant's injury was the cause 
 
         of permanent disability.  Claimant was awarded one percent 
 
         industrial disability.  Deputy affirmed on appeal.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         MICHAEL SCOLES,
 
         
 
              Claimant,
 
                                                    File No. 838048
 
         vs.
 
         
 
         A. C. DELLOVADE,                        A R B I T R A T I 0 N
 
         
 
              Employer,                             D E C I S I 0 N
 
         
 
         and
 
         
 
         KEMPER INSURANCE GROUP,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Michael 
 
         Scoles, claimant, against A. C. Dellovade, employer, and Kemper 
 
         Insurance Group, insurance carrier, to recover benefits under the 
 
         Iowa Workers' Compensation Act as a result of an injury sustained 
 
         October 6, 1986.  This matter came on for hearing before the 
 
         undersigned deputy industrial commissioner September 24, 1987.  
 
         The record was considered fully submitted upon the receipt of 
 
         claimant's tax returns October 1, 1987.  The record in this case 
 
         consists of the testimony of the claimant, exhibits 2 through 28, 
 
         inclusive, and 30 through 32, inclusive.  Defendants objected to 
 
         exhibits 1 and 29 and the testimony of Jackie Scoles, claimant's 
 
         wife, on the basis that claimant's witness and exhibit list was 
 
         not served within the time period specific in the hearing 
 
         assignment order.  Paragraph 6 of that order states, in part: 
 
         "Only those witnesses listed will be permitted to testify at the 
 
         hearing unless their testimony is clearly rebuttal or 
 
         sur-rebuttal.  Medical records, practitioners reports and all 
 
         other written evidence shall not be admitted as exhibits at the 
 
         hearing unless they have been timely served upon an opposing 
 
         party as ordered herein." Compliance with this order is not 
 
         optional.  There is no dispute claimant did not serve the list as 
 
         ordered.  Therefore, defendants' objection is sustained.  
 
         Exhibits 1 and 29 and the testimony of Jackie Scoles are excluded 
 
         and have not been considered in making this decision.
 
         
 
                                  ISSUES
 
         
 
              Pursuant to prehearing report and order submitted and 
 
         approved September 24, 1987, the issues presented for 
 
         determination are:
 
         
 
              1.  The extent of claimant's stipulated permanent disability 
 
         and the commencement date thereof;
 
         
 
              2.  Whether claimant's asserted psychiatric/emotional 
 

 
         
 
         
 
         
 
         SCOLES V. A. C. DELLOVADE
 
         Page   2
 
         
 
         problems are causally related to his injury of October 6, 1986 
 
         and, if so, whether defendants are liable for certain medical 
 
         expenses pursuant to Iowa Code section 85.27;
 
         
 
              3.  The length of claimant's temporary total disability/ 
 
         healing period; and
 
         
 
              4.  Claimant's rate of compensation.
 
         
 
         
 
                                 FACTS PRESENTED
 
         
 
              Claimant testified he is a high school graduate who has 
 
         worked as an ironworker all of his adult life.  Claimant had a 
 
         previous work injury in May of 1981, to his neck.  He maintained 
 
         he recovered fully and completely from that injury and has not 
 
         been bothered by it since he returned to work some six to eight 
 
         months later.  Claimant filed an action with the industrial 
 
         commissioner as a result of that accident and recovered benefits 
 
         under a special case settlement. (Exhibit 25)  At the time of his 
 
         deposition for this current litigation, claimant testified he 
 
         never contemplated not returning to ironwork after recuperation, 
 
         (Ex. 21, pp. 30-31, 42, 47-50) while at the hearing, claimant 
 
         stated he had planned on doing something else but the money was 
 
         too good to leave.  Claimant denied any previous injury to his 
 
         back.
 
         
 
              Claimant incurred an injury to his back arising out of and 
 
         in the course of his employment on October 6, 1986, when an 
 
         extension cord weighing approximately ten pounds with a three-way 
 
         tail (Ex. 19) attached to it fell approximately 175 feet, struck 
 
         him in the mid-back, and wrapped around him "like an octopus" 
 
         with the plugs hitting him in the chest causing bruising to both 
 
         his back and chest.  Claimant recalled the blow "knocked the wind 
 
         out of" him but, despite increasing pain and stiffness, he worked 
 
         the remainder of the day.
 
         
 
              Claimant stated he was first treated by Edward R. Farrage, 
 
         M.D. with muscle relaxants and was then referred to R. Schuyler 
 
         Gooding, M.D., neurosurgeon, who released him shortly thereafter 
 
         for light duty work.  Claimant explained he then worked about 
 
         forty hours of light duty but asserted pain in his legs prevented 
 
         him from working any further.  At the request of defendants, 
 
         claimant then began treating with Patrick W. Bowman, M.D., who 
 
         recommended further therapy.  Claimant explained he did not feel 
 
         the pain had improved and when he was told by Dr. Bowman he 
 
         "could not return to work as an ironworker" without risking the 
 
         necessity of an operation, he stated he "went off the deep end."  
 
         While he asserted he was depressed from the time of the injury 
 
         and had mentioned this to his physicians, claimant did not seek 
 
         any care for the problem before May 1987.  Claimant did not 
 
         assert any psychological complaint at the time he answered 
 
         interrogatories in February 1987. (Ex. 28, p. 5)
 
         
 
              Claimant described he went into a depression and had 
 
         suicidal thoughts.  Through a former physical therapist and Dr. 
 
         Bowman, claimant was referred to Michael L. Egger, M.D., for 
 
         psychiatric help.  Claimant was hospitalized for a month and, as 
 
         of the time of the hearing, was still receiving therapy twice per 
 
         week.  Claimant stated he had no prior psychiatric problems.  
 

 
         
 
         
 
         
 
         SCOLES V. A. C. DELLOVADE
 
         Page   3
 
         
 
         Claimant denied being offered any vocational rehabilitation 
 
         services from defendants and asserted on his own initiative he 
 
         contacted a vocational rehabilitation consultant in early 
 
         September 1987.  Claimant maintained he wanted to make such a 
 
         contact earlier but waited both on the advice of counsel and 
 
         because he had planned to buy out his brother in their farming 
 
         operation.  However, claimant explained he does not now feel he 
 
         is physically capable of performing all the heavy work required 
 
         by such an operation.
 
         
 
              Claimant maintained he cannot return to ironwork because his 
 
         back is "killing" him, he would not be hired because of his 
 
         injury and he cannot do the work.  Claimant stated light duty 
 
         work is not available through the union hall and that his injury 
 
         affects his ability to lift, walk, sit or stand for very long.  
 
         He also asserted it has affected his lifestyle since his wife now 
 
         provides more income, he is "below her" on the "ladder" and he 
 
         must learn to "do without" since he is not qualified for any job 
 
         which might provide wages comparable to ironworking.
 
         
 
              Edward R. Farrage, M.D., reports he saw claimant on only one 
 
         occasion, October 10, 1986, and rendered a diagnosis of 
 
         "contusion of the lumbar spine, severe." (Ex. 18)  R. Schuyler 
 
         Gooding, M.D., neurological surgeon, reports claimant was 
 
         initially seen October 23, 1986 and indicates his initial 
 
         impression was a lumbar contusion to the low back superficial 
 
         musculature and suggested on November 21, 1986 claimant return to 
 
         work.  Dr. Gooding reports claimant declined saying he was not 
 
         yet ready.  He did not see claimant thereafter and in December 
 
         1986 concluded:
 
         
 
                 My overall impression is that the patient had a 
 
              superficial contusion type of injury to the lower 
 
              lumbar musculature, a condition which can be quite 
 
              annoying and even temporarily disabling, but a 
 
              condition which I would also expect to progressively 
 
              improve, with conservative measures, and with no 
 
              on-going disability.
 
         
 
         (Ex, 16)
 
         
 
              Claimant was first seen by Patrick W. Bowman, M.D., 
 
         orthopedic surgeon, November 24, 1986, who "had the patient 
 
         describe... several times the details of how this occurred, but 
 
         it never did come across very clear.  Suffice it to say that it 
 
         was of sufficient force that it threw him forward."  (Ex. 17, p. 
 
         1) Of the 1981 injury, Dr. Bowman stated claimant O said he was 
 
         off work about a month."  His impression was subacute lumbar 
 
         strain and expressed his opinion claimant's injury was probably 
 
         not serious.  Claimant was given medication and started on an 
 
         aggressive back strengthening and mobilization program. (Ex. 17, 
 
         pp. 2-3)  By February 9, 1987, Dr. Bowman was advising claimant 
 
         was under his care for a degenerative lumbar disc (Ex. 14), after 
 
         a positive CT scan documented such disease. (Ex. 13)  One month 
 
         later, claimant was given an eight percent total body impairment 
 
         as a result of this condition. (Ex. 12)  Although on March 19, 
 
         1987, Dr. Bowman reports: "It is my opinion that Mr. Mike Scoles, 
 
         because of his fairly significant, multiple orthopedic 
 
         difficulties, should not return to his usual type of gainful 
 
         employment as an iron worker," (Ex. 11), by March 30, 1987, he 
 

 
         
 
         
 
         
 
         SCOLES V. A. C. DELLOVADE
 
         Page   4
 
         
 
         states:
 
         
 
                 I told him at the time of his last visit that he 
 
              could go back to work on a trial basis.  If he found 
 
              that it just simply was not within his perceived 
 
              limitations, then I would recommend he find something 
 
              else.  I suspect, given his usual occupation of an iron 
 
              worker, that it will be necessary for him to find 
 
              lighter work.
 
         
 
         (Ex. 10)
 
         
 
              As an explanation of claimant's condition, Dr. Bowman wrote 
 
         to defendants' counsel May 1, 1987:
 
         
 
                 Computerized tomography study of the lumbar spine 
 
              shows evidence of wear and tear change, and this is 
 
              essentially what degenerative lumbar disc disease is.  
 
              This disease is caused by a wearing out of the spine 
 
              over the years.  It is not an acute thing.  It can, 
 
              however, be aggravated by specific incidents of trauma, 
 
              and this can cause increased disability and 
 
              impairment.
 
         
 
                I have no opinion at this time as to what portion of 
 
              the 8 percent impairment that I have given him based on 
 
              his CT Scan and physical findings is attributable to 
 
              the mishap and is attributable to chronic disease.
 
         
 
                Because of his persistent complaints of pain in spite 
 
              of work hardening, I told him that it may be necessary 
 
              for him to try to find something which is less 
 
              physically demanding.  The reason for this suggestion 
 
              are the changes on the CT Scan which suggest that in 
 
              the future if he tries to push himself physically, 
 
              recurrent and progressive symptoms may occur.  Thus it 
 
              is my opinion that he should find something lighter in 
 
              order to minimize the chance that he will have 
 
              significant trouble with his back in the future.
 
         
 
                Exactly what kind of restrictions he should observe 
 
              is unknown to me.  Before I would be in a position to 
 
              give specifics on that, I would suggest. ..our 
 
              rehabilitation section do a functional capacity 
 
              assessment which .... would give us some idea as to 
 
              whether a significant amount of functional overlay is 
 
              playing a major role in his puzzling lack of 
 
              improvement since his October of 1986 injury.
 
         
 
         (Ex. 9)
 
         
 
              The medical records of Jennie Edmundson Memorial Hospital 
 
         show claimant was admitted May 18, 1987 for comprehensive 
 
         psychiatric assessment and treatment involving individual and 
 
         group psychotherapy, and milieu and occupational therapy.  
 
         Claimant was described as cooperative, exhibiting mild anxiety, 
 
         and of low or borderline intellectual ability.  Claimant was 
 
         discharged June 9, 1987 with the understanding he would be 
 
         involved in twice weekly care and continue his medications 
 
         (antidepressants).  Claimant's psychiatrist, Michael Egger, M.D., 
 

 
         
 
         
 
         
 
         SCOLES V. A. C. DELLOVADE
 
         Page   5
 
         
 
         wrote on August 13, 1987, "I do not believe there will be any 
 
         permanent partial impairment to Mr. Scoles." (Ex. 2)  Claimant 
 
         was seen by Michael Taylor, M.D., on July 29, 1987 for 
 
         psychiatric evaluation.  Dr. Taylor's impression was that 
 
         claimant was presenting himself in an honest and forthright 
 
         manner making no attempt to present himself in an unrealistically 
 
         "sick" light.  Dr. Taylor acknowledges claimant did suffer a 
 
         period of depression (diagnosed as Major Depressive Disorder) but 
 
         the depression responded well to treatment with "no indication of 
 
         any psychiatric or functional limitations which would interfere 
 
         either in his ability to function on a day-to-day basis or with 
 
         his ability to carry out his usual and customary work 
 
         activities." (Ex. 3, p. 2)
 
         
 
              Claimant has been employed by defendant employer only a 
 
         short time before his accident.  Payroll history summary report 
 
         (Ex. 31) shows the following hours worked and wages earned:
 
         
 
              09/26/86             19.0 hours          265.05 gross
 
              10/03/86             36.0                502.20
 
              10/10/86             28.0                390.60
 
              10/17/86             40.0                558.00
 
              10/24/86             22.0                306.90
 
         
 
                                  APPLICABLE LAW
 
         
 
              An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
         employment.  Section 85.3(l).
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of October 6, 1986 is causally 
 
         related to the disability on which he now bases his claim.  
 
         Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). 
 
         Lindahl v. L. 0. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A 
 
         possibility is insufficient; a probability is necessary.  Burt v. 
 
         John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 
 
         (1955).  The question of causal connection is essentially within 
 
         the domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  The 
 
         expert opinion may be accepted or rejected, in whole or in part, 
 
         by the trier of fact.  Id. at 907.  Further, the weight to be 
 
         given to such an opinion is for the finder of fact, and that may 
 
         be affected by the completeness of the premise given the expert 
 
         and other surrounding circumstances.  Bodish, 257 Iowa 516, 133 
 
         N.W.2d 867.  See also Musselman v. Central Telephone Co., 261 
 
         Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              "[T]he term 'injury' as used in the Workmen's Compensation 
 
         Act, * * is broader than mere reference to some objective 
 
         physical break or wound to the body, but includes also the 
 
         consequences therefrom, including mental ailments or nervous 
 
         conditions.  Deaver v. Armstrong Rubber Co., 170 N.W.2d 455, 466 
 
         (Iowa 1969) citing Sollitt Construction Co. v. Walker, 127 Ind. 
 
         App. 213, 135 N.E.2d 623, 627 (1956).
 

 
         
 
         
 
         
 
         SCOLES V. A. C. DELLOVADE
 
         Page   6
 
         
 
         
 
              Iowa Code section 85.34(l) provides that if an employee has 
 
         suffered a personal injury causing permanent partial disability, 
 
         the employer shall pay compensation for a healing period from the 
 
         day of the injury until (1) the employee returns to work; or (2) 
 
         it is medically indicated that significant improvement from the 
 
         injury is not anticipated; or (3) until the employee is medically 
 
         capable of returning to substantially similar employment.
 
         
 
              Iowa Code section 85.34(2) provides that compensation for 
 
         permanent partial disability shall begin at the termination of 
 
         the healing period.  Iowa Code section 85.34(2)(u) provides that 
 
         compensation for a nonscheduled or body as a whole injury shall 
 
         be paid in relation to 500 weeks that the disability bears to the 
 
         body as a whole.
 
         
 
              Iowa Code section 85.27 provides, in 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.
 
         
 
              Iowa Code section 85.36 provides, in part:
 
         
 
                 The basis of compensation shall be the weekly 
 
              earnings of the injured employee at the time of injury 
 
              ....
 
         
 
                                   ANALYSIS
 
         
 
              The parties have stipulated claimant sustained an injury 
 
         which arose out of and in the course of his employment and that 
 
         the work injury is the cause of both temporary and permanent 
 
         disability.  To determine the extent of claimant's disability 
 
         (stipulated to be an industrial disability) examination into 
 
         claimant's credibility must first be made as it is considered 
 
         essential to the disposition of the case.
 
         
 
              Ordinarily, credibility of a witness would not be called 
 
         into question when there is no other witness testifying directly 
 
         to the contrary.  However, in a claim such as this when much of 
 
         the evidence, both medical and nonmedical, is based on claimant's 
 
         subjective feelings and representations, and where no objective 
 
         evidence of emotional problems, for example, exists, credibility 
 
         must and does play a pivotal role.
 
         
 
              Having observed the demeanor of the witness and having the 
 
         opportunity to review the documents and records submitted, 
 
         claimant is not found to be credible.  There are too many 
 
         inconsistencies, coincidences, unexplained and unexplainable 
 
         events and acts of questionable conduct to accept all of what 
 
         claimant has asserted.  This is particularly true with regard to 
 
         claimant's alleged emotional problems.
 

 
         
 
         
 
         
 
         SCOLES V. A. C. DELLOVADE
 
         Page   7
 
         
 
         
 
              Notwithstanding claimant's assertion his depression began at 
 
         the time he was injured, the first medical report to suggest 
 
         claimant was suffering from depression/emotional problems is 
 
         dated May 18, 1987, stating claimant was seen May 11, 1987 for 
 
         psychological assessment.  This is more than seven months after 
 
         his injury and after two doctors had released him from care.  In 
 
         addition, it is more than two months after Dr. Bowman, according 
 
         to claimant's testimony, told him "not to return to iron work" 
 
         which is when claimant "went off the deep end."  Interrogatories 
 
         propounded to claimant in February 1987 asked for his current 
 
         complaints.  Nothing concerning emotional problems and/or 
 
         depression is mentioned.  Nothing is mentioned in claimant's 
 
         original notice and petition.
 
         
 
              Claimant's 1981 injury, although to a different part of the 
 
         body, cannot be ignored simply because it appears claimant is 
 
         attempting to assert, in the case sub judice, an extraordinarily 
 
         similar set of facts.  At the time of his deposition May 14, 
 
         1987, claimant repeatedly testified he never contemplated having 
 
         to leave his job as an ironworker, that his physician said his 
 
         injury would heal and he would be able to return to work and that 
 
         the first time he had to face the possibility of leaving ironwork 
 
         was after the October 1986 injury.  Yet, claimant's physician 
 
         wrote on December 14, 1981 that claimant will not be able to 
 
         return to his previous employment.  This opinion appears to have 
 
         been rendered after a number of letters from claimant's counsel 
 
         who reported to the doctor claimant did not believe he could 
 
         return to ironwork, that claimant indicated his inability to work 
 
         was causing great anxiety, that claimant was possibly suffering 
 

 
         
 
         
 
         
 
         SCOLES V. A. C. DELLOVADE
 
         Page   8
 
         
 
         from "reactive depressive neurosis" and that he expressed a fear 
 
         claimant's "depression may become permanent."  In spite of all 
 
         this, there is no mention in the records of Jennie Edmundson 
 
         Hospital of any prior emotional problems at the time of 
 
         claimant's admission in May 1987.  Is it possible claimant simply 
 
         forgot about 1981? Further, at the time of hearing claimant 
 
         testified he did intend to leave ironwork after the 1981 injury 
 
         but the money was too good.  The question arises as to which 
 
         story one is to believe: that claimant did intend to leave 
 
         ironwork for good, that he never intended to do so, or that he 
 
         did intend to but could not give up the salary.  Claimant's 
 
         inability to stick to one story leads to his own demise.
 
         
 
              Claimant argues his emotional problems arise not only from 
 
         his injury, per se, but from his doctor's advice he cannot now 
 
         return to ironwork.  However, a careful reading of the medical 
 
         reports does not lead the undersigned to the same conclusion.  
 
         The first physician to treat claimant for any length was Dr. 
 
         Schuyler Gooding who suggested to claimant that, although the 
 
         type of contusion claimant suffered could be quite annoying and 
 
         temporarily disabling, he could return to work with no ongoing 
 
         progressively improve.  Claimant declined to return to work 
 
         "feeling" he was not yet ready.  Dr. Bowman reports he had a long 
 
         discussion with claimant February 9, 1987 about claimant's 
 
         prospects for returning to work, admits ironworks could be a 
 
         problem due to degenerative disc disease and that claimant seemed 
 
         fairly negative about the prospects of returning to work.  On 
 
         March 9, Dr. Bowman wrote: "it may be claimant will have to find 
 
         something lighter" but that claimant could go back to work on a 
 
         trial basis.  He opines claimant should find something lighter to 
 
         minimize the chances of future back troubles.  Dr. Bowman does 
 
         not report that as a result of the accident on October 6, 1986, 
 
         claimant cannot return to ironwork.  Rather, it appears clear Dr. 
 
         Bowman is concerned that if claimant continues with the physical 
 
         demands of ironwork, he might incur further problems.  Dr. Bowman 
 
         finds claimant 8 percent impaired as a result of degenerative 
 
         disc disease or the "wear and tear change" of the spine over the 
 
         years.  He gives no opinion as to what part, if any, of the 8 
 
         percent rating is attributable to claimant's injury.  Neither Dr. 
 
         Egger nor Dr. Taylor believe claimant permanently partially 
 
         impaired from his emotional problems.
 
         
 
              Functional disability is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963).  
 
         Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961).
 
         
 
              A finding of impairment to the body as a whole by a medical 
 
         evaluator does not equate to industrial disability.  This is so 
 
         as impairment and disability are not synonymous.  The degree of 
 
         industrial disability can in fact be much different than the 
 
         degree of impairment because in the first instance reference is 
 
         to loss of earning capacity and in the later to anatomical or 
 
         functional abnormality or loss.  Although loss of function is to 
 
         be considered and disability can rarely be found without it, it 
 
         is not so that a degree of industrial disability is 
 
         proportionally related to a degree of impairment of bodily 
 

 
         
 
         
 
         
 
         SCOLES V. A. C. DELLOVADE
 
         Page   9
 
         
 
         function.
 
         
 
              Factors to be considered in determining industrial 
 
         disability include the employee's medical condition prior to the 
 
         injury, immediately after the injury, and presently; the situs of 
 
         the injury, its severity and the length of healing period; the 
 
         work experience of the employee prior to the injury, after the 
 
         injury and potential for rehabilitation; the employee's 
 
         qualifications intellectually, emotionally and physically; 
 
         earnings prior and subsequent to the injury; age; education; 
 
         motivation; functional impairment as a result of the injury; and 
 
         inability because of the injury to engage in employment for which 
 
         the employee is fitted.  Loss of earnings caused by a job 
 
         transfer for reasons related to the injury is also relevant.  
 
         These are matters which the finder of fact considers collectively 
 
         in arriving at the determination of the degree of industrial 
 
         disability.
 
         
 
              There are no weighting guidelines that indicate how each of 
 
         the factors are to be considered.  There are no guidelines which 
 
         give, for example, age a weighted value of ten percent of the 
 
         total value, education a value of fifteen percent of total, 
 
         motivation - five percent; work experience - thirty percent, etc.  
 
         Neither does a rating of functional impairment directly correlate 
 
         to a degree of industrial disability to the body as a whole.  In 
 
         other words, there are no formulae which can be applied and then 
 
         added up to determine the degree of industrial disability. it 
 
         therefore becomes necessary for the deputy to draw upon prior 
 
         experience, general and specialized knowledge to make the finding 
 
         with regard to degree of industrial disability.  See Christensen 
 
         v. Hagen, Inc., (Appeal Decision, March 26, 1985); Peterson v. 
 
         Truck Haven Cafe, Inc., (Appeal Decision, February 28, 1985).
 
              Claimant is a young man (35), a high school graduate but of 
 
         admittedly limited intellectual ability.  He has a functional 
 
         impairment rating of 8 percent based on degenerative disc disease 
 
         and no specific work restrictions imposed by his treating doctor. 
 
          Claimant has no functional impairment rating from any other 
 
         physician he has seen.  His motivation to work is seriously in 
 
         question.  While he pleads his desire to work and his feelings of 
 
         impotence over his wife's rising career and his lack of work, his 
 
         actions bespeak of little effort to secure employment.  He claims 
 
         emotional problems because of not working while at the same time 
 
         does essentially nothing to change the situation.  He was 
 
         released to return to work by Dr. Gooding in November 1986 but 
 
         declined to do so.  He was released by Dr. Bowman in March 1987 
 
         to go back to work on, at least, a trial basis but declined to do 
 
         so.  The record fails to establish any reasonable basis for 
 
         claimant's failure to even attempt some kind of work.  Attempts 
 
         to contact a vocational rehabilitation counselor just prior to 
 
         hearing does not present a convincing argument he is desirous of 
 
         work when he had months before that to take some action and chose 
 
         not to.  He complains of defendants' failure to offer vocational 
 
         rehabilitation while at the same time representing to them his 
 
         intentions to continue in the farm operation.  What few attempts 
 
         claimant did make at looking for work are, at best, halfhearted 
 
         and of questionable sincerity.  Perhaps claimant's attitude is 
 
         best summarized with his own response as to why he had not sought 
 
         work:
 
         
 
              Q.  And you've not looked at any kind of jobs at all?
 

 
         
 
         
 
         
 
         SCOLES V. A. C. DELLOVADE
 
         Page  10
 
         
 
         
 
              A.  No.
 
         
 
              Q.  Is there any reason why you haven't, say, gone to a 
 
              Job Service and asked for, you know, a list of jobs 
 
              that you could maybe do?
 
         
 
              A.  Well, it's only been a few weeks since they have 
 
              let me go back to work.  I haven't really--
 
         
 
              Q.  Wasn't it about--
 
         
 
              A.  I suppose I will now.
 
         
 
              Q.  Wasn't it about March or so?
 
         
 
              A.  Yeah. I guess it was--you mean when they released 
 
              me?
 
         
 
              Q. Yeah?
 
         
 
              A. Yeah.
 
         
 
              Q.  Since March you haven't but you plan on--
 
         
 
              A.  Well, they have been sending my checks then, you 
 
              know.  I've been getting a check every week so I never 
 
              really thought about it--I don't think really--don't 
 
              feel like going down there and asking them what they--
 
         
 
              Q.  For a job?
 
         
 
              A.  Yeah. I will probably sooner or later.  As soon as 
 
              I get through this deal.
 
         
 
         (Cl. Dep. taken May 14, 1987, Ex. 21, pp. 65-66)
 
         
 
         It appears so long as claimant is receiving his money he is 
 
         content.  Yet, he would also have us believe working, 
 
         particularly in ironwork, is the most important thing in his 
 
         life.  Such an attitude presents two questions:  First, will 
 
         claimant return to ironwork "after this deal is over" (on the 
 
         assumption of getting an award much like 1981) and, second, is it 
 
         more probable claimant's emotional problems are his own doing 
 
         rather than caused by his injury.
 
         
 
              Surely one of the most puzzling aspects of this case in 
 
         arriving at a decision is the parties' stipulation that 
 
         claimant's injury of October 6, 1986 is the cause of permanent 
 
         disability even though defendants argue claimant should take 
 
         nothing from these proceedings and claimant phrases an issue for 
 
         determination as whether he is entitled to an award of permanent 
 
         partial disability.
 
         
 
              Courts are bound to enforce stipulations which parties may 
 
         validly make where they are not unreasonable or against good 
 
         morals or sound public policy, with certain exceptions, notably 
 
         in domestic relations cases.  Ordinarily they have no power to 
 
         strike out stipulations on their own motion without consent of 
 
         the parties or to abridge or amend such stipulations or modify or 
 

 
         
 
         
 
         
 
         SCOLES V. A. C. DELLOVADE
 
         Page  11
 
         
 
         alter them in any material detail against objection of the 
 
         parties or go beyond the terms thereof, or to make findings 
 
         contrary to the terms of the stipulation or render a judgment not 
 
         authorized by its terms.  In Re Estate of Clark, 181 N.W.2d 138 
 
         (Iowa 1970), 142 citing 83 C.J.S. Stipulations section 17, page 
 
         38.
 
         
 
              In order to warrant a court in interfering to relieve a 
 
         party from a stipulation there must be a showing of fraud, 
 
         collusion, mistake, accident or surprise, otherwise the court 
 
         would not be justified in setting it aside on less grounds than 
 
         would justify the setting aside of any other contract.  Bales v. 
 
         Muarry, 186 Iowa 649, 651, 171 N.W. 747, 748 (1919); Clayton 
 
         County v. Thein, 204 Iowa 911, 914, 216 N.W. 276, 277 (1927)
 
         
 
              "Stipulations are of two kinds:  First, some are mere 
 
              admissions of fact, simply relieving a party from the 
 
              inconvenience of making proof. * * * The setting aside 
 
              thereof may place the parties in no worse position than 
 
              they were when the stipulation was made.  Second, those 
 
              which have all the characteristics as concessions of 
 
              some rights as a consideration for those secured. * * * 
 
              Stipulations of the second class are entitled to all 
 
              the sanctity of an ordinary contract, * * * and where 
 
              the status quo cannot be re-established as to one of 
 
              the parties, it is only in a plain case of fraud, 
 
              mistake, or oppression that the court should set it 
 
              aside." Thayer v. Federal Life Ins. Co., 217 Wis. 282, 
 
              258 N.W. 849, 850; Paine v. C. & N. W. Ry. Co., 217 
 
              Wis. 601, 258 N.W. 846, 848.
 
         
 
              It cannot be the subject of dispute that this agency should 
 
         not be controlled by forms which were initially devised for the 
 
         parties' convenience.  Yet, the industrial commissioner has not 
 
         ruled on the force and effect of the prehearing report.  That 
 
         report was approved in this case by the undersigned and to ignore 
 
         its provisions without affording the parties the opportunity for 
 
         argument would appear to deny due process rights as the parties 
 
         are entitled to rely on the stipulations in the presentation of 
 
         their case.  There is no evidence in the record which might show 
 
         the stipulation was made based on fraud, collusion, mistake, 
 
         accident or surprise.  Therefore, unless and until the industrial 
 
         commissioner rules to the contrary, it is concluded the 
 
         stipulation is binding and an award of industrial disability is 
 
         required.
 
         
 
              Because claimant's testimony with regard to his asserted 
 
         emotional problems is not found to be credible, such problems 
 
         cannot be found to be causally connected to his injury and 
 
         defendants will not be held responsible for the medical expenses 
 
         incurred by claimant in his treatment.  Considering all the 
 
         elements of industrial disability, it is found claimant has 
 
         sustained a 1 percent disability for industrial purposes as a 
 
         result of his work injury October 6, 1986.
 
         
 
              Given the conclusion claimant's psychological problems are 
 
         not causally connected to his work injury, there are only two 
 
         possible dates when maximum medical recovery was reached pursuant 
 
         to Iowa Code section 85.34:  either November 21, 1986 when 
 
         claimant was released to return to work by Dr. Gooding or March 
 

 
         
 
         
 
         
 
         SCOLES V. A. C. DELLOVADE
 
         Page  12
 
         
 
         9, 1987 when he was released by Dr. Bowman.  There is no 
 
         indication claimant's condition improved under the care of Dr. 
 
         Bowman.  Claimant himself admits his condition has remained 
 
         essentially unchanged since the time of his accident.  Therefore, 
 
         it is concluded claimant reached maximum medical recovery as of 
 
         November 21, 1986.  Pursuant to Iowa Code section 85.35, 
 
         permanent partial disability benefits shall commence November 22, 
 
         1986.
 
         
 
              The final issue for determination is claimant's true rate of 
 
         compensation.  Claimant was employed by A. C. Dellovade less than 
 
         thirteen calendar weeks immediately preceding the injury.  
 
         Therefore, claimant's rate of weekly compensation should be 
 
         determined under Iowa Code section 85.36(7).  However, no 
 
         evidence was offered of the work available to other employees in 
 
         a similar occupation for thirteen weeks.  As a result of this 
 
         lack of evidence, claimant's gross weekly earnings will be 
 
         determined by dividing by three the total number of dollars 
 
         earned during the three weeks he worked for the employer.  Barker 
 
         v. City Wide Cartage, 1 Iowa Indus. CommOr Rep. 12 (Appeal Dec. 
 
         1980)  Thus 1157.85 divided by 3 equals $385.95 per week average 
 
         weekly wage, figuring four exemptions equals $247.06 weekly 
 
         compensation.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              Therefore, based on the evidence presented, the following 
 
         facts are found:
 
         
 
              1.  Claimant sustained an injury arising out of and in the 
 
         course of his employment on October 26, 1986 when an extension 
 
         cord fell on him.
 
         
 
              2.  Claimant was treated by Dr. Edward Farrage, referred to 
 
         Dr. Schuyler Gooding who released claimant to return to work 
 
         November 21, 1986, and who opined claimant would progressively 
 
         improve with no ongoing disability.
 
         
 
              3.  Claimant declined to return to work feeling he was not 
 
         yet ready.
 
         
 
              4.  Claimant began treating then with Dr. Patrick Bowman who 
 
         rendered a diagnosis of degenerative disc disease, found claimant  
 
         to be 8 percent permanently partially impaired as a result 
 
         thereof, and released claimant to return to work on a trial basis 
 
         March 9, 1987, imposing no specific restrictions.
 
         
 
              5.  Dr. Bowman opined claimant might incur back trouble if 
 
         he continued physically demanding work.
 
         
 
              6.  Claimant declined to return to work and made little 
 
         effort to find other employment.
 
         
 
              7.  Claimant sought treatment in May 1987 for emotional 
 
         problems allegedly stemming from his injury.
 
         
 
              8.  Claimant's testimony lacks credibility.
 
         
 
              9.  Claimant has a 1 percent industrial disability as a 
 
         result of his injury.
 

 
         
 
         
 
         
 
         SCOLES V. A. C. DELLOVADE
 
         Page  13
 
         
 
         
 
             10.  Claimant did not improve under the care of Dr. Bowman.
 
         
 
             11.  Claimant reached maximum medical recovery at the time he 
 
         was released to return to work November 21, 1986 by Dr. Gooding.
 
             
 
             12. Claimant's rate of compensation is $247.06.
 
         
 
             13. Claimant has been paid 47 2/7 weeks of compensation at 
 
         the rate of $271.19 per week totaling $12,283.49.
 
         
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Wherefore, based on the principles of law previously stated, 
 
         the following conclusions of law are made:
 
         
 
              1.  Claimant has not established his emotional problems are 
 
         causally connected to his injury of October 6, 1986.
 
         
 
              2.  Defendants are not responsible for medical expenses 
 
         incurred in treating claimant's emotional problems.
 
         
 
              3.  Claimant has established a 1 percent permanent 
 
         disability for industrial purposes as a result of his injury of 
 
         October 6, 1986.
 
         
 
              4.  Claimant has established his entitlement to healing 
 
         period benefits for the period from October 6, 1986 to November 
 
         21, 1986, inclusive.
 
         
 

 
         
 
         
 
         
 
         SCOLES V. A. C. DELLOVADE
 
         Page  14
 
         
 
              5.  Claimant's true rate of weekly compensation is $247.06.
 
         
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              As the prehearing report and order establishes claimant has 
 
         been paid for more than the amount of this award, claimant shall 
 
         take nothing further from these proceedings.
 
         
 
              Costs of this action are assessed against claimant.  
 
         Division of Industrial Services Rule 343-4.33.
 
         
 
         
 
              Signed and filed this 29th day of January, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                           DEBORAH A. DUBIK
 
                                           DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies to:
 
         
 
         Mr. Sheldon M. Gallner
 
         Attorney at Law
 
         P.O. Box 1588
 
         803 Third Avenue
 
         Council Bluffs, Iowa 51502
 
         
 
         Mr. Thomas Plaza
 
         Attorney at Law
 
         P.O. Box 3086
 
         200 Home Federal Building
 
         Sioux City, Iowa 51102
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                       1402.4; 1803
 
                                                       Filed 1-29-88
 
                                                       Deborah A. Dubik
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         MICHAEL SCOLES,
 
         
 
              Claimant,
 
                                                    File No. 838048
 
         vs.
 
         
 
         A.C. DELLOVADE,                         A R B I T R A T I 0 N
 
         
 
              Employer,                             D E C I S I 0 N
 
         
 
         and
 
         
 
         KEMPER INSURANCE GROUP,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1402.4
 
         
 
              Although claimant was the only witness to testify, his 
 
         testimony was found to be without credibility.  Emotional 
 
         problems alleged to be a result of his injury were not found 
 
         causally connected and defendants were not held responsible for 
 
         medical expenses.
 
         
 
         1803
 
         
 
              The parties' stipulation that claimant's injury was the 
 
         cause of permanent disability was held to be binding and claimant 
 
         was awarded 1% permanent partial disability for industrial 
 
         purposes.
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      5-1803
 
                      Filed July 24, 1991
 
                      PATRICIA J. LANTZ
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            CARLA S. CRABTREE,  :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :      File No. 858107
 
            WATERLOO INDUSTRIES,     :
 
                      :    A R B I T R A T I O N
 
                 Employer, :
 
                      :      D E C I S I O N
 
            and       :
 
                      :
 
            GALLAGHER & BASSETT,     :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            5-1803
 
            Claimant received a work-related injury, and underwent 
 
            carpal tunnel release.
 
            Defendants argue that due to an extended period of time 
 
            between the initial recommendation of surgery and the actual 
 
            surgery (14 months) claimant's impairment rating of 12 
 
            percent was too high.
 
            Claimant awarded 12 percent PPD benefits as the evidence 
 
            showed that defendants, who were in control of the medical 
 
            treatment, caused the delay.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            CHRISTOPHER R. BREMMER,       :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No.  838338
 
            KATUIN BROTHERS TRUCKING, INC.:
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            FIREMANS FUND INSURANCE CO.,  :    
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                                   INTRODUCTION
 
            
 
                 This is a proceeding in arbitration brought by 
 
            Christopher R. Bremmer, claimant, against Katuin Brothers 
 
            Trucking, Inc., employer and Firemans Fund Insurance 
 
            Company, insurance carrier, defendants, for benefits as the 
 
            result of an alleged injury which occurred on April 15, 
 
            1986.  A hearing was held at Dubuque, Iowa, on July 14, 
 
            1989, and the case was fully submitted at the close of the 
 
            hearing.  The record consists of the testimony of 
 
            Christopher R. Bremmer, claimant; William C. Jameson, 
 
            coemployee; Timothy J. Hoppman, coemployee; Walter E. 
 
            Katuin, owner and employer; claimant's exhibits 1 through 14 
 
            and defendants' exhibits A through D.
 
            
 
                                   Stipulations
 
            
 
                 The parties stipulated to the following matters at the 
 
            time of the hearing:
 
            
 
                 That an employer-employee relationship existed between 
 
            claimant and employer on April 15, 1986.
 
            
 
                 That the type of permanent disability, if the injury is 
 
            found to be a cause of permanent disability, is industrial 
 
            disability to the body as a whole.
 
            
 
                 That claimant's gross earnings for the entire time that 
 
            he worked for employer from April 14, 1986 to May 2, 1986 
 
            were $1,177.89.
 
            
 
                 That claimant is married and entitled to two 
 
            exemptions.
 
            
 
                 That claimant was off work from May 9, 1986 through May 
 
            23, 1986, but that claimant individually contends that he 
 
            was off work again from November 18, 1986 through June 20, 
 
            1987.
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                 That the provider of medical services would testify 
 
            that the fees charged were reasonable and defendants are not 
 
            offering contrary evidence.
 
            
 
                 That the provider of medical services would testify 
 
            that the treatment was reasonable and necessary treatment 
 
            for the alleged work injury and defendants are not offering 
 
            contrary evidence.
 
            
 
                 That the causal connection of the expenses to treatment 
 
            for a medical condition upon which claimant is now basing 
 
            his claim is admitted, but that the causal connection of 
 
            this condition to a work injury remains an issue to decided 
 
            by these proceedings.
 
            
 
                 That defendants make no claim for benefits paid prior 
 
            to hearing either as employee group nonoccupational group 
 
            health plan benefits or as workers' compensation benefits.
 
            
 
                 That there are no bifurcated claims.
 
            
 
                                      issues
 
            
 
                 The parties submitted the following issues for 
 
            determination at the time of the hearing:
 
            
 
                 Whether claimant sustained an injury on April 15, 1986 
 
            which arose out of and in the course of employment with 
 
            employer.
 
            
 
                 Whether the injury was the cause of either temporary or 
 
            permanent disability.
 
            
 
                 Whether claimant is entitled to temporary or permanent 
 
            disability benefits.
 
            
 
                 What is the proper rate of compensation.
 
            
 
                 Whether claimant is entitled to certain in unpaid 
 
            medical expenses.
 
            
 
                 Whether claimant is entitled to penalty benefits under 
 
            Iowa Code section 86.13(4).
 
            
 
                 
 
            
 
                 
 
            
 
                                 findings of fact
 
            
 
                                       INJURY
 
            
 
                 Claimant testified that while driving on a rough road 
 
            he was picked up bodily off the seat and his head struck the 
 
            roof of the cab and his neck went "click."  He contended 
 
            that the impact made a hole in the headliner of the roof of 
 
            the cab.
 
            
 
                 Claimant testified that he reported the injury to 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            Walter Katuin, employer, and William C. Jameson, a mechanic 
 
            (transcript pages 27-29).  Katuin denied that claimant had 
 
            reported the injury on the day it occurred.  Katuin 
 
            testified that claimant called him sometime after claimant 
 
            resigned on May 2, 1986.  Katuin testified that he did not 
 
            believe claimant and did not report the injury to the 
 
            workers' compensation carrier (t. pp. 134-138).  Jameson, a 
 
            mechanic, testified that claimant did tell him that while 
 
            driving he hit a bump and flew up and hit his head against 
 
            the cab damaging the headliner.  Jameson believed that 
 
            Timothy J. Hoppman, another mechanic, was present at this 
 
            time, but he was not sure (t. pp. 87 & 88).  Jameson 
 
            testified, "The headliner was knocked out." (t. p. 89).  
 
            Jameson terminated employment with employer in June of 1986 
 
            (t. pp. 84 & 85).  Hoppman, a 10 1/2 year employee of 
 
            employer, who is still employed there, had no recollection 
 
            of claimant reporting an injury (t. pp. 111-115), but he was 
 
            not certain (t. pp. 122 & 126).  
 
            
 
                 Claimant was treated by Tom F. Greenawalt, D.C., on May 
 
            9, 1986 and James A. Pearson, M.D., an orthopedic surgeon, 
 
            on November 18, 1986.  Both Dr. Greenawalt and Dr. Pearson 
 
            recorded the history that claimant bumped his head on the 
 
            roof of the truck while driving on a rough road (exhibit 2, 
 
            pp. 9 & 12; ex. 3, p. 18; ex. 4, p. 20; ex. 5, p. 22; ex. 6, 
 
            p. 24; ex. 7, p. 26).  Both physicians treated claimant on 
 
            the basis of this history and accepted it as a cause of 
 
            claimant's complaints.  Claimant denied there was any other 
 
            cause for these complaints.  Defendants introduced no 
 
            evidence, medical or otherwise, witnesses or exhibits, which 
 
            rebut, controvert, contradict or refute claimant's testimony 
 
            and the history accepted and used by the two treating 
 
            physicians.  
 
            
 
                 Therefore, it is determined that claimant sustained an 
 
            injury on April 15, 1986, which arose out of and in the 
 
            course of employment with employer.
 
            
 
                      CAUSAL CONNECTION - TEMPORARY DISABILITY
 
            
 
                 Dr. Greenawalt saw claimant on May 9, 1986.  He 
 
            diagnosed acute traumatic strain of the cervical spine level 
 
            C5/6, C6/7 with irritation of the lower left cervical 
 
            nerves.  He took claimant off work on May 9, 1986; saw 
 
            claimant on May 10, 12, 14 and 16, 1986 and released 
 
            claimant to return to work on May 23, 1986 (ex. 2, pp. 9 & 
 
            10).  In a narrative medical report dated December 3, 1986, 
 
            to the insurance carrier, Dr. Greenawalt stated, "He was 
 
            totally disabled while under my care May 9, 1986 through May 
 
            23, 1986." (ex. 5, p. 23).  Therefore, it is determined that 
 
            the injury was the cause of temporary disability from May 9, 
 
            1986 through May 23, 1986.
 
            
 
                 Claimant suffered a recurrence of his neck pain and 
 
            returned to Dr. Greenawalt on November 12, 1986; November 
 
            15, 1986; and November 16, 1986.  Claimant testified, "I 
 
            came to the conclusion that a chiropractor wasn't doing me 
 
            any good and I went to see a medical doctor." (t. p. 38).  
 
            Dr. Pearson saw claimant on November 18, 1986 and diagnosed 
 
            a cervical disc syndrome, probable ruptured cervical disc.  
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            He placed claimant on bed rest and cervical traction.  On 
 
            November 25, 1986, Dr. Pearson ordered another week of 
 
            absolute bed rest.  However, during this same period of 
 
            time, November 25, 1986 to December 1, 1986, claimant was 
 
            receiving workers' compensation temporary disability 
 
            benefits from another insurance carrier for a hernia claim 
 
            that occurred while working for another employer on 
 
            September 24, 1986 (defendants' ex. A & ex. B, pp. 3 & 4).  
 
            Claimant should not be permitted to draw temporary 
 
            disability benefits from two separate and distinct injuries 
 
            for the same period of time.  Therefore, it is determined 
 
            that claimant is not entitled to temporary disability 
 
            benefits for this period of time.  
 
            
 
                 Defendants noted that claimant had previous injuries to 
 
            his lower back and a degenerative spinal condition for which 
 
            he had been treated off and on since 1975 (ex. D, t. pp. 
 
            66-77).  Nevertheless, Dr. Pearson clearly established 
 
            causal connection to permanent disability by his letter of 
 
            January 6, 1987 to the insurance carrier in which he stated:
 
            
 
                 Having received your letter of December 9, 1986 I 
 
                 would like to respond that I feel Mr. Bremmer did 
 
                 not have a known previous injury to his cervical 
 
                 spine.  The patient's deterioration in his 
 
                 cervical spine as that of a nature aging process 
 
                 and so be it that it was present at the time of 
 
                 his injury on April 15, 1986, that was the primary 
 
                 insult that he sustained which is producing his 
 
                 disability at this time.  I like to refer to it as 
 
                 an injury superimposed on a pre-existing 
 
                 degenerative disc problem.  I do not feel that he 
 
                 necessarily had any injury at all before this 
 
                 insult occured [sic] while he was driving and 
 
                 struck his head on the ceiling on his truck.  I 
 
                 see many patients who have never injured their 
 
                 neck at all and have these changes present.  It 
 
                 happens that the patient became symptomatic with 
 
                 pain and was disabled as a result of this accident 
 
                 and therefore I feel that there is a direct 
 
                 relationship to his current disability and the 
 
                 actual occurence [sic] of his injury.
 
            
 
            (ex. 6, p. 24)
 
            
 
                 On February 17, 1988, Dr. Pearson wrote, "Christopher 
 
            Bremmer currently has 10% permanent impairment and loss of 
 
            physical function to his whole body as a result of the work 
 
            incurred injury on or about April 15, 1986 (ex. 7, p. 26).  
 
            Defendants introduced no opposing medical evidence to rebut, 
 
            controvert, contradict or refute Dr. Pearson's statement on 
 
            either causal connection or his permanent impairment rating.  
 
            There is no opposing impairment rating from any doctor 
 
            introduced by defendants.
 
            
 
            
 
                 Therefore, it is determined that the injury of April 
 
            15, 1986, was the cause of permanent disability.
 
            
 
                        ENTITLEMENT - INDUSTRIAL DISABILITY
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
                 Claimant was 42 years old at the time of the injury and 
 
            45 years old at the time of hearing.  He had the equivalent 
 
            of a high school education which he acquired in his native 
 
            England where he was born and raised.  His prior 
 
            employments, and for that matter current employments, 
 
            included (1) semi-truck diesel mechanic of sorts; (2) 
 
            over-the-road trucker as an owner-operator and as a driver; 
 
            (3) a commercial passenger bus driver; and (4) a chartered 
 
            tour bus driver.  The employment with Katuin was a temporary 
 
            employment while claimant was waiting to be recalled for a 
 
            job as a tour bus driver for one of his former employers (t. 
 
            pp. 20-26, 49-54).  
 
            
 
                 Claimant testified that he felt that he was precluded 
 
            from heavy lifting while loading and unloading as well as 
 
            chaining and tarping semi-trailers.  Claimant did not 
 
            introduce any medical evidence of restrictions or 
 
            limitations on his employment, but if the orthopedic 
 
            surgeon, Dr. Pearson, clinically diagnosed, "...a ruptured 
 
            cervical disc superimposed on degenerative disc disease of 
 
            the cervical spine." (ex. 4, p. 20) then, as a practical 
 
            matter claimant is foreclosed from heavy lifting and 
 
            chaining and tarping semitrailers.  At the age 42-45 
 
            claimant was at the peak of his earnings career when he 
 
            sustained this injury and his loss is greater than it would 
 
            be for a younger or older employee.  Claimant's permanent 
 
            physical and functional impairment rating is 10 percent to 
 
            the body as a whole.  Claimant has been able to work since 
 
            the injury as a truck driver and as a bus driver and 
 
            claimant did not establish any actual loss of earnings since 
 
            the injury (t. pp. 62-64, 79-83).  Wherefore, from the 
 
            foregoing information, it is determined that claimant 
 
            sustained an industrial disability of 10 percent to the body 
 
            as a whole and is entitled to 50 weeks of permanent partial 
 
            disability benefits.
 
            
 
                                RATE OF COMPENSATION
 
            
 
                 Claimant worked for employer for three weeks.  During 
 
            the first week claimant's gross pay was $386.72 (def. ex. C, 
 
            p. 1; jt. ex. 9, p. 29).  During the second week, claimant 
 
            earned a gross pay of $370.69 (def. ex. C, p. 2; jt. ex. 9, 
 
            p. 30).  During the third week, claimant earned gross pay of 
 
            $420.48 (def. ex. C, p. 3; jt. ex. 9, p. 28).  On the first 
 
            report of injury, which was a joint exhibit not objected to 
 
            by either party, in item 42 there is a question, "Does the 
 
            employee have more than 13 weeks completed employment with 
 
            your firm?"  This question is answer, "no."  Following that 
 
            appears this question and answer, "If no, estimate what 
 
            employee would have earned in last 13 weeks had he been 
 
            employed. $5,104.19 î 13 = $392.63."  (ex. 10).  Defendants 
 
            presented an exhibit in evidence at the hearing labeled, 
 
            "Payroll wages on 2nd quarter of 1986 of closest comparable 
 
            wages." (def. ex. C, p. 5).  This exhibit shows 13 weeks of 
 
            wages as follows:
 
                 
 
                       3-22-86                      $ 149.94
 
                       3-29-86                        255.46
 
                       4-05-86                         74.97
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
                       4-12-86                          0.00
 
                       4-19-86                        224.91
 
                       4-26-86                        330.02
 
                       5-03-86                        331.90
 
                       5-10-86                        449.82
 
                       5-17-86                        870.97
 
                       5-24-86                        299.88
 
                       5-31-86                        401.17
 
                       6-07-86                        524.79
 
                       6-14-86                        374.85
 
            
 
                                     Gross Wages   $4,288.68  î 13 = 
 
            329.89
 
                                                              M 2  = 
 
            209.15
 
            
 
                 Katuin testified that this was an individual who had 
 
            the closest comparable wages and that it was a fair and 
 
            accurate representation of what claimant would have been 
 
            paid if he had been there for 13 weeks (t. pp. 139 & 140).  
 
            Another joint exhibit, which was not objected to by either 
 
            party, was a letter from the Iowa Industrial Commissioner to 
 
            claimant which indicated that his gross weekly earnings for 
 
            this claim were $393 and that his weekly rate of 
 
            compensation would be $244.94 (ex. 11).  Katuin did not 
 
            explain why the comparable individual was in fact comparable 
 
            with what claimant would have earned.  The 13 weeks used in 
 
            defendants' calculation introduced at the hearing is not 
 
            "the last completed period of 13 consecutive calendar weeks 
 
            immediately preceding the injury."  Iowa Code section 
 
            85.36(6)(7).  Defendants' time card on claimant showed that 
 
            the last completed week of employment was May 3, 1986 (def. 
 
            ex. C, p. 4).  Defendants' calculation uses June 14, 1986 as 
 
            the last completed week of employment.  
 
            
 
                 Therefore, claimant's calculation introduced at the 
 
            hearing for a comparable employee does not follow the 
 
            statutory instructions for calculating the rate.  
 
            Furthermore, defendants' comparable calculation does not 
 
            appear to be consistent with what claimant actually earned 
 
            during the three weeks that he was employed by employer.  
 
            Claimant's actual gross wages of $386.72, $370.69, and 
 
            $420.48 are fairly consistent and more comparable with the 
 
            information that employer put on the first report of injury 
 
            than with the calculation that they prepared for the 
 
            hearing.  Therefore, it is determined that the most reliable 
 
            evidence to determine "the amount the employee would have 
 
            earned had the employee been so employed by the employer the 
 
            full 13 calendar weeks immediately preceding the injury and 
 
            had worked, when work was available to other employees in a 
 
            similar occupation" [Iowa Code section 86.36(7)] is 
 
            $5,104.19 î 13 yielding a gross weekly wage of $392.63.  This 
 
            gross weekly wage results in a rate of compensation of 
 
            $244.94.  (Workers' Compensation Benefit Schedule, July 1, 
 
            1985; jt. ex. 11).  Defendants have submitted two 
 
            conflicting rates of compensation.  It is determined that 
 
            the rate of $244.94 is the most reliable rate for the 
 
            reasons set forth above.
 
            
 
                                 MEDICAL BENEFITS
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
                 Defendants agreed to pay the charges of Dr. Greenawalt 
 
            (jt. ex. 13).  The parties further agreed that defendants 
 
            paid $125 of Dr. Pearson's bill (t. pp. 8 & 9; jt. ex. 12).  
 
            The balance of Dr. Pearson's charges are as follows:
 
            
 
                 November 25, 1986                        $ 25.00
 
                 January 6, 1987                            25.00
 
                 December 31, 1987 - office visit           25.00
 
                                     x-ray                  65.00
 
                 March 11, 1988                             25.00
 
            
 
                                    Balance Due           $165.00
 
            
 
            
 
                 The remaining charges of $15 on February 13, 1987 for 
 
            copies, $10 on February 22, 1988 for a special report for an 
 
            attorney and $30 on March 22, 1988 for another special 
 
            report for an attorney are not allowable under Iowa Code 
 
            section 85.27 as medical expenses for the care and treatment 
 
            of claimant and are disallowed at this time.  Therefore, it 
 
            is determined that defendants are liable to claimant for 
 
            $165 of the balance due in medical expenses for care and 
 
            treatment owed to Dr. Pearson.
 
            
 
                 
 
            
 
                                 PENALTY BENEFITS
 
            
 
                 Claimant has asserted a claim for penalty benefits 
 
            under Iowa Code section 86.13(4) for delay in the 
 
            commencement of benefits without reasonable or probable 
 
            cause or excuse.  Katuin denied that claimant reported the 
 
            injury on April 15, 1986, when he turned the truck in.  He 
 
            further testified that he did not believe that claimant 
 
            sustained an injury as claimant described.  For this reason 
 
            he did not turn in a workers' compensation claim until the 
 
            carrier contacted him for information about the claim.  
 
            Hoppman had no recollection that claimant reported an injury 
 
            as claimant alleged.  There was no evidence to establish 
 
            when Jameson, and his testimony that claimant did report an 
 
            injury, was discovered.  Claimant's attorney, in his letter 
 
            dated January 8, 1987, to the insurance carrier claiming 
 
            penalty benefits under Iowa Code section 86.13(4), made no 
 
            mention of Jameson's testimony at that time (ex. 14).  Even 
 
            though the insurance company representative agreed to pay 
 
            claimant's medical bill with Dr. Greenawalt and $125 of the 
 
            bill with Dr. Pearson this did not constitute an admission 
 
            of liability for temporary or permanent disability benefits 
 
            (ex. 13, p. 35).  Voluntary medical payments are not an 
 
            admission of liability.
 
            
 
                 Therefore, it is determined that claimant did not 
 
            suffer an unreasonable delay in the commencement of his 
 
            workers' compensation benefits for the reason that 
 
            defendants were justified in their suspicion that claimant 
 
            had not sustained a work-related injury because Katuin 
 
            contended that claimant did not report an injury until he 
 
            called in on the telephone sometime after he resigned on May 
 
            2, 1986.  Even though, by hindsight, it now appears that 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            claimant is entitled to workers' compensation benefits based 
 
            on subsequent medical reports and the testimony of Jameson, 
 
            it cannot be said that defendants' delay in the commencement 
 
            or payment of benefits occurred without reasonable or 
 
            probable cause or excuse.  Iowa Code section 86.13(4).
 
            
 
                                conclusions of law
 
            
 
                 Wherefore, based on the evidence presented and the 
 
            foregoing principles of law, these conclusions of law are 
 
            made:
 
            
 
                 That claimant did sustain an injury on April 15, 1986, 
 
            which arose out of and in the course of employment with 
 
            employer.  Iowa Code section 85.3(1); McDowell v. Town of 
 
            Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. 
 
            Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
            
 
                 That the injury was the cause of healing period 
 
            disability from May 9, 1986 through May 23, 1986.  Bodish v. 
 
            Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965); Lindahl 
 
            v. L.O. Boggs Co., 236 Iowa 296 18 N.W.2d 607 (1945).
 
            
 
                 That claimant is entitled to 2.143 weeks of healing 
 
            period benefits for this period of time.
 
            
 
                 That claimant was also temporarily disabled for the 
 
            period from November 18, 1986 to December 1, 1986, a period 
 
            of 1.857 weeks for bed rest as ordered by Dr. Pearson.
 
            
 
                 That claimant is not entitled to healing period 
 
            benefits for this period of time for this injury because 
 
            claimant was already drawing temporary disability benefits 
 
            on another workers' compensation claim with another employer 
 
            and insurance carrier at this same period of time.
 
            
 
                 That claimant has sustained a 10 percent industrial 
 
            disability to the body as a whole.  Diederich v. Tri-City R. 
 
            Co., 219 Iowa 587, 593, 258 N.W. 899 (1935); Olson v. 
 
            Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 
 
            (1963).
 
            
 
                 That claimant is entitled to 50 weeks of permanent 
 
            partial disability benefits.  Iowa Code section 85.34(2)(u).
 
            
 
                 That the proper rate of compensation is $244.94 per 
 
            week.  Iowa Code sections 85.36(6) and (7).
 
            
 
                 That claimant is entitled to $165 in medical expenses.  
 
            Iowa Code section 85.27.
 
            
 
                 That claimant did not sustain the burden of proof by a 
 
            preponderance of the evidence that he is entitled to penalty 
 
            benefits.  Iowa Code section 86.13(4).
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 That defendants pay to claimant two point one four 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            three (2.143) weeks of healing period benefits at the rate 
 
            of two hundred forty-four and 94/100 dollars ($244.94) per 
 
            week in the total amount of five hundred twenty-four and 
 
            91/100 dollars ($524.91) for the period from May 9, 1986 
 
            through May 23, 1986.
 
            
 
                 That defendants pay to claimant fifty (50) weeks of 
 
            permanent partial disability benefits at the rate of two 
 
            hundred forty-four and 94/100 dollars ($244.94) per week in 
 
            the total amount of twelve thousand two hundred forty-seven 
 
            dollars ($12,247) commencing on May 23, 1986.
 
            
 
                 That all accrued benefits are to be paid in a lump sum.
 
            
 
                 That interest will accrue pursuant to Iowa Code section 
 
            85.30. 
 
            
 
                 That defendants have paid no benefits prior to hearing 
 
            and are not entitled to any credits.
 
            
 
                 That defendants pay to claimant or the provider of 
 
            medical services one hundred sixty-five dollars ($165) for 
 
            the unpaid portion of the bill of Dr. Pearson for care and 
 
            treatment.
 
            
 
                 That the costs of this action, including the cost of 
 
            the transcript, are charged to defendants pursuant to 
 
            Division of Industrial Services Rule 343-4.33.
 
            
 
                 That defendants file claim activity reports as 
 
            requested by this agency pursuant to Division of Industrial 
 
            Services Rule 343-3.1.
 
            
 
                 Signed and filed this ____ day of May, 1990.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          WALTER R. McMANUS, JR.
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Stephen J. Juergens
 
            Attorney at Law
 
            200 Security Bldg.
 
            Dubuque, Iowa  52001
 
            
 
            Ms. Dorothy Kelley
 
            Attorney at Law
 
            500 Liberty Bldg.
 
            Des Monies, Iowa  50309
 
            
 
            
 
            
 
 
         
 
         Page   1
 
         
 
         
 
         
 
         
 
                                       51107; 51108.50; 51401; 51402.20; 
 
                                       51402.30; 51402.40; 51402.60; 1802; 
 
                                       51802; 52501; 52505; 52700; 3001; 
 
                                       3002; 3003; 4000
 
                                       Filed May 31, 1990
 
                                       Walter R. McManus, Jr.
 
         
 
                           before the iowa industrial 
 
                                   commissioner
 
         ____________________________________________________________
 
                                       :
 
         CHRISTOPHER R. BREMMER,       :
 
                                       :
 
              Claimant,                :
 
                                       :
 
         vs.                           :
 
                                       :      File No.  838338
 
         KATUIN BROTHERS TRUCKING, INC.:
 
                                       :  A R B I T R A T I O N
 
              Employer,                :
 
                                       :      D E C I S I O N
 
         and                           :
 
                                       :
 
         FIREMANS FUND INSURANCE CO.,  :    
 
                                       :
 
              Insurance Carrier,       :
 
              Defendants.              :
 
         ___________________________________________________________
 
         
 
         51107; 51108.50; 51401; 51402.20; 51402.30; 51402.40; 51402.60;
 
         
 
              It is determined that claimant sustained an injury arising 
 
         out of and in the course of employment which was the cause of 
 
         temporary disability, permanent disability, and unpaid medical 
 
         benefits.  Claimant's version was supported by an independent 
 
         witness.  Both doctors supported his claim of work injury, 
 
         temporary disability and permanent disability.  Defendants 
 
         introduced no opposing evidence, but rather relied on employer's 
 
         suspicions that claimant was not injured because according to 
 
         employer's perceived recollection claimant did not report the 
 
         injury until a few days after he resigned.
 
         
 
         1802
 
         
 
              Healing period awarded for the first period of time off work 
 
         verified by treating physician.  Claimant had another period of 
 
         time off work verified by his treating physician, but no award of 
 
         healing period was made because he was drawing workers' 
 
         compensation for temporary disability for this same period of 
 
         time from another employer for a different injury.
 
         
 
         51802
 
         
 
              Industrial disability award of 10 percent was the same as 
 
         the impairment rating.  Claimant failed to prove loss of actual 
 
         earnings or medically imposed work restrictions.
 
         
 

 
         
 
         Page   2
 
         
 
         
 
         
 
         
 
         52501; 52505; 52700
 
         
 
              Claimant awarded unpaid medical benefits of $165.
 
         
 
         3001; 3002; 3003
 
         
 
              Defendants introduced conflicting wage information.  The one 
 
         most favorable to claimant was the most reliable and accurate 
 
         rate.  Employer's low rate appeared to be an afterthought and was 
 
         not really strongly supported by other evidence.
 
         
 
         4000
 
         Penalty benefits not awarded.  Voluntary payment of medical 
 
         benefits are not an admission of liability for temporary and 
 
         permanent disability benefits.   
 
         
 
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ------------------------------------------------------------
 
            CHRISTOPHER BREMMER,          :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 838338
 
            KATUIN BROTHERS TRUCKING,     :
 
                                           R E V I E W - R E O P E N I N G
 
                 Employer,                :
 
                                          :        D E C I S I O N
 
            and                           :
 
                                          :
 
            FIREMANS FUND INSURANCE,      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ------------------------------------------------------------
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in review-reopening brought by 
 
            Christopher R. Bremmer seeking benefits in addition to those 
 
            which were awarded in the decision entered May 31, 1990.  
 
            That hearing was conducted July 14, 1989.  That decision 
 
            found that the claimant's injury of April 15, 1986, produced 
 
            a 10 percent permanent partial disability.  The decision 
 
            does not contain a finding as to the actual diagnosis.  
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 James A. Pearson, M.D., a board certified orthopedic 
 
            surgeon, treated claimant both prior and subsequent to the 
 
            arbitration hearing of July 14, 1989.  Dr. Pearson had 
 
            diagnosed claimant as having a ruptured cervical disc and 
 
            felt that he was a candidate for surgery as far back as 1987 
 
            and 1988.  (claimant's exhibit 1, pages 6-8, defendants' ex. 
 
            C, p. 16).  Claimant had complaints of pain and numbness in 
 
            his left arm in 1987 and 1988.  Dr. Pearson stated that the 
 
            only real difference between claimant's condition in 1987-88 
 
            and what he found in 1992 was that the pain and numbness in 
 
            the left arm had become more constant.  (cl. ex. 1, pp. 
 
            8-9).  Dr. Pearson continues to feel that claimant is a 
 
            candidate for cervical fusion surgery.  He feels that if 
 
            claimant has the surgery he would probably still be able to 
 
            work driving a truck.  (cl. ex. 1, pp. 16-17).  Dr. Pearson 
 
            has raised claimant's impairment rating from 10 percent to 
 
            15 percent based on further degeneration in claimant's 
 
            spine.  (cl. ex. 1, p. 13, def. ex. C, p. 20).  Dr. Pearson 
 
            relates the impairment to the injury in 1986.  (cl. ex. 1, 
 
            pp. 13-14).  Dr. Pearson has not taken claimant off work 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            since the arbitration hearing in 1989.  (cl. ex. 1, pp. 
 
            14-15).
 
            
 
                 Claimant was treated by Phillip Lockhart, D.C.  Dr. 
 
            Lockhart feels that claimant's continuing symptoms and 
 
            complaints are causally related to the 1986 injury.  (cl. 
 
            ex. 6, pp. 14, 21 & 26).  According to Dr. Lockhart claimant 
 
            had shown some improvmement in his cervical range of motion 
 
            with care that was provided in 1991 and 1992.  (cl. ex. 6, 
 
            pp. 4, 9 & 10).  Claimant ceased care with Dr. Lockhart in 
 
            March 1992.  Dr. Lockhart had taken claimant off work 
 
            starting December 2, 1991.  (cl. ex. 7).  
 
            
 
                 Despite being taken off work by Dr. Lockhart claimant 
 
            continued to drive a truck for Paisley Trucking.  (def. ex. 
 
            F).  Records indicate that claimant drove 13,091 miles for 
 
            the employer in December 1991.  The records indicate that he 
 
            worked eight days in January, ten days in February, 13 in 
 
            March and 17 in April 1992. 
 
            
 
                 David J. Boarini, M.D., was hired to conduct an 
 
            independent medical examination for purposes of this 
 
            litigation.  He felt that the only problem in claimant's 
 
            neck was degenerative and that it was not related to trauma.  
 
            (def. ex. H, pp. 11-14).  He felt that claimant did not have 
 
            a herniated cervical disc because claimant did not have pain 
 
            in his left arm going down to the thumb.  (def. ex. H, pp. 
 
            9, 1- & 21).
 
            
 
                 At the time of the arbitration hearing in 1989 claimant 
 
            was employed driving a bus for Iowa Coaches.  He quit that 
 
            job in order to drive a truck for Paisley Trucking.  He owns 
 
            his own truck but in late 1992 he parked the truck and 
 
            resumed driving a bus.  He has done little in the way of bus 
 
            driving since that occurred.  
 
            
 
                 Dr. Pearson has suggested surgery both prior and 
 
            subsequent to the arbitration hearing.  Claimant seems 
 
            equivocal about whether or not he desires to have surgery.  
 
            He has never returned to ask Dr. Pearson to perform the 
 
            surgery.  He has never requested that the insurance carrier 
 
            authorize Dr. Pearson to perform the suggested surgery.  At 
 
            the review-reopening hearing claimant testified that his 
 
            physical condition hasn't changed appreciabley since the 
 
            arbitration hearing.  
 
            
 
                 It is found that the evidence fails to show that it is 
 
            probable that any substantial change in circumstances or 
 
            condition has occurred since the arbitration hearing in 
 
            1989.  Claimant has a history of degenerative changes in his 
 
            spine going back at least 10 years prior to 1986.  He had 
 
            left arm pain and numbness complaints in 1987 and 1988.  He 
 
            had been diagnosed as having a herniated cervical disc in 
 
            1987 and 1988.  Those same conditions persisted at the time 
 
            of the review-reopening hearing in 1994. 
 
            
 
                 While Dr. Lockhart did issue a statement releasing 
 
            claimant from working, claimant continued to work as a truck 
 
            driver.  He may have worked less than normal but it cannot 
 
            be determined whether this was due to disability or due to 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            lack of work being available from Paisley Trucking.  Dr. 
 
            Pearson did not take claimant off work due to the injury.  
 
            
 
                 The assessment made by Dr. Pearson in this case is 
 
            found to be correct.  Where the assessments from Drs. 
 
            Lockhart and Boarini differ from that of Dr. Pearson they 
 
            are rejected.  In particular it is found that claimant does 
 
            have a small herniated cervical disc on the left side.  This 
 
            finding is supported by the left arm symptoms and the MRI 
 
            scan conducted in February 1992.  Dr. Boarini's opinion that 
 
            there is not a herniated disc seems to ignore the fact that 
 
            claimant has pain and numbness symptoms in his left arm and 
 
            his opinion is therefore rejected.  Dr. Pearson's opinion of 
 
            causation between the current problems and the 1986 injury 
 
            is likewise accepted over that of Dr. Boarini.  The record 
 
            shows a clear continuing course of complaints which had 
 
            their onset with the 1986 injury.  While the injury was an 
 
            aggravation of a preexisting condition, the record shows a 
 
            marked change in symptoms which has persisted.  The 
 
            diagnosis of a herniated disc is corroborated by the MRI 
 
            scan conducted in 1992.  
 
            
 
                 Dr. Pearson had raised claimant's permanent impairment 
 
            rating from 10 percent to 15 percent.  There is nothing in 
 
            the record which indicates, however, that either the 
 
            corroboration of the diagnosis or the change in impairment 
 
            rating has had any appreciable effect on claimant's ability 
 
            to work and earn a living for himself.  
 
            
 
                 The record fails to show that the claimant was disabled 
 
            from working during the period running from December 2, 1991 
 
            through April 6, 1992.  
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 Upon review-reopening, claimant has the burden to show 
 
            a change in condition related to the original injury since 
 
            the original award or settlement was made.  The change may 
 
            be either economic or physical.  Blacksmith v. All-American, 
 
            Inc., 290 N.W.2d 348 (Iowa 1980); Henderson v. Iles, 250 
 
            Iowa 787, 96 N.W.2d 321 (1959).  A mere difference of 
 
            opinion of experts as to the percentage of disability 
 
            arising from an original injury is not sufficient to justify 
 
            a different determination on a petition for 
 
            review-reopening.  Rather, claimant's condition must have 
 
            worsened or deteriorated in a manner not contemplated at the 
 
            time of the initial award or settlement before an award on 
 
            review-reopening is appropriate.  Bousfield v. Sisters of 
 
            Mercy, 249 Iowa 64, 86 N.W.2d 109 (1957).  A failure of a 
 
            condition to improve to the extent anticipated originally 
 
            may also constitute a change of condition.  Meyers v. 
 
            Holiday Inn of Cedar Falls, Iowa, 272 N.W.2d 24 (Iowa Ct. 
 
            App. 1978).
 
            
 
                 Impairment ratings are commonly seen in conjunction 
 
            with the existence of industrial disability but impairment 
 
            ratings do not equate to industrial disability.  A change of 
 
            5 percent, one way or the other, in a rating of permanent 
 
            impairment does not necesarily indicate any change in the 
 
            extent of industrial disability.  Impairment ratings do not 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            cause disability.  Activity restrictions are much more 
 
            significant when assessing the extent of disability than the 
 
            percentage rating of impairment.  There is nothing in the 
 
            record of this case to indicate that any medically advised 
 
            activity restrictions have changed since the arbitration 
 
            hearing.  There is no other substantial evidence showing any 
 
            substantial change in claimant's condition has occurred 
 
            since the arbitration hearing.  It is therefore concluded 
 
            that claimant has failed to carry the burden of proving by a 
 
            preponderance of the evidence that there has been a 
 
            substantial change in his condition that has occurred since 
 
            the time of the arbitration hearing.  He is therefore not 
 
            entitled to recover any additional permanent partial 
 
            disability benefits.
 
            
 
                 Section 85.34(1) provides that healing period benefits 
 
            are payable to an injured worker who has suffered permanent 
 
            partial disability until (1) the worker has returned to 
 
            work; (2) the worker is medically capable of returning to 
 
            substantially similar employment; or (3) the worker has 
 
            achieved maximum medical recovery.  The healing period can 
 
            be considered the period during which there is a reasonable 
 
            expectation of improvement of the disabling condition.  See 
 
            Armstrong Tire & Rubber Co. v. Kubli, 312 N.W.2d 60 (Iowa 
 
            Ct. App. 1981).  Healing period benefits can be interrupted 
 
            or intermittent.  Teel v. McCord, 394 N.W.2d 405 (Iowa 
 
            1986).
 
            
 
                 With regard to the claim for additional healing period, 
 
            claimant has likewise failed to prove by a preponderance of 
 
            the evidence that he was disabled from working during the 
 
            period from December 2, 1991 through April 6, 1992.  He is 
 
            therefore not entitled to recover additional weekly 
 
            compensation for healing period.  
 
            
 
                 The employer shall furnish reasonable surgical, 
 
            medical, dental, osteopathic, chiropractic, podiatric, 
 
            physical rehabilitation, nursing, ambulance and hospital 
 
            services and supplies for all conditions compensable under 
 
            the workers' compensation law.  The employer shall also 
 
            allow reasonable and necessary transportation expenses 
 
            incurred for those services.  The employer has the right to 
 
            choose the provider of care, except where the employer has 
 
            denied liability for the injury.  Section 85.27.  Holbert v. 
 
            Townsend Engineering Co., Thirty-second Biennial Report of 
 
            the Industrial Commissioner 78 (Review-reopen 1975).
 
            
 
                 The assessment of this case made by Dr. Pearson has 
 
            been found to be correct.  Claimant is entitled to have 
 
            cervical surgery as recommended by Dr. Pearson if his 
 
            symptoms are sufficiently severe that he desires to undergo 
 
            the procedure.  Claimant has not, thusfar, made a request to 
 
            have the surgery performed and defendants are not entitled 
 
            to require him to undergo that procedure.  Since claimant is 
 
            not seeking authorization for surgery, no express order 
 
            regarding provision of such surgery will be made in this 
 
            decision.
 

 
            
 
            
 
            Page   5
 
            
 
                                     ORDER
 
            
 
                IT IS THEREFORE ORDERED that claimant take nothing form 
 
            this proceeding.
 
            
 
                 It is further ordered that each party pay the costs it 
 
            incurred in participating in this proceeding pursuant to 
 
            rule 343 IAC 4.33.
 
            
 
                 Signed and filed this __________ day of March, 1994.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
            Copies to:
 
            
 
            Mr. Stephen J. Juergens
 
            Attorney at Law
 
            200 Security Bldg
 
            Dubuque, Iowa  52001
 
            
 
            Ms. Dorothy Kelley
 
            Attorney at Law
 
            1000 Des Moines Bldg
 
            Des Moines, Iowa  50309
 
            
 
                 
 
            
 
 
            
 
            
 
            
 
                                               2905 1802
 
                                               Filed March 22, 1994
 
                                               Michael G. Trier
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ------------------------------------------------------------
 
            CHRISTOPHER BREMMER,     
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                                 File No. 838338
 
            KATUIN BROTHERS TRUCKING,     
 
                                         R E V I E W - R E O P E N I N G
 
                 Employer, 
 
                                                 D E C I S I O N
 
            and       
 
                      
 
            FIREMANS FUND INSURANCE, 
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ------------------------------------------------------------
 
            
 
            
 
            2905
 
            Claimant failed to prove the requisite change of condition 
 
            necessary to reopen and reassess his award.  The principle 
 
            treating physician raised the permanent impairment rating by 
 
            5 percent but there was no corresponding change in activity 
 
            restrictions.  Claimant characterized his condition at the 
 
            time of the review-reopening hearing as being about the same 
 
            as it was at the time of the arbitration hearing.
 
            
 
            1802
 
            A recommendation to be off work from a treating chiropractor 
 
            was held to not be sufficient to reinstitute healing period 
 
            benefits since the claimant continued working and the 
 
            principle treating orthopedic surgeon had not recommended 
 
            that claimant be off work.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            ROGER BOLEYN,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :        File No. 838421
 
            vs.                           :
 
                                          :
 
            COCA COLA BOTTLING COMPANY,   :     A R B I T R A T I O N
 
                                          :
 
                 Employer,                :        D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            NATIONAL UNION FIRE INSURANCE,:
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Roger 
 
            Boleyn, claimant, against Coca Cola Bottling Company, 
 
            employer, and National Union Fire Insurance Company, 
 
            insurance carrier, to recover benefits under the Iowa 
 
            Workers' Compensation Act as a result of an injury sustained 
 
            October 30, 1986.  This matter came on for hearing before 
 
            the undersigned deputy industrial commissioner April 23, 
 
            1990.  The record was considered fully submitted at the 
 
            close of the hearing.  The record in this case consists of 
 
            the testimony of claimant and his wife, Marlys, Jane Boleyn, 
 
            and claimant's Exhibits 1 through 12, inclusive, which were 
 
            received without objection.
 
            
 
                                      issues
 
            
 
                 Pursuant to the prehearing report and order submitted 
 
            and approved April 23, 1990, the following issues are 
 
            presented for resolution:
 
            
 
                 1.  Whether the injury of October 30, 1986, is the 
 
            cause of the disability on which claimant now bases his 
 
            claim;
 
            
 
                 2.  Claimant's entitlement to weekly benefits including 
 
            healing period and permanent partial disability benefits, if 
 
            any;
 
            
 
                 3.  Claimant's entitlement to certain medical expenses 
 
            under Iowa Code section 85.27; and
 
            
 
                 4.  The matter of credit pursuant to Iowa Code section 
 
            85.38(2).
 
            
 
                 The parties have agreed, however, under paragraph 12 of 
 
            the prehearing report and order that the commissioner need 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            not rule on medical expenses and the issue of credit.  The 
 
            parties state "if the commissioner determines the 
 
            compensability, the parties will stipulate on these issues."  
 
            Therefore, these two issues will not be addressed in the 
 
            decision.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy industrial commissioner, having 
 
            heard the testimony and considered all of the evidence, 
 
            finds that:
 
            
 
                 Claimant, age 42, who acquired a GED in 1967, began 
 
            employment with John Deere in 1974 first as a machine 
 
            operator and then as a tractor mechanic tearing apart and 
 
            reassembling tractors.  When claimant was laid off from this 
 
            employment in 1983 he attended Northeast Iowa Community 
 
            College and received a diploma in plumbing/heating and 
 
            refrigeration after one year of study.  Immediately 
 
            thereafter, claimant went to work for a vending company in 
 
            Kansas City repairing vending machines until he secured work 
 
            with defendant employer Coca Cola in approximately May of 
 
            1985.
 
            
 
                 With defendant employer, claimant's responsibilities 
 
            were to remove, repair and install vending machines.  
 
            Claimant was injured on October 30, 1986 while moving a 
 
            machine down some stairs.  A coworker lost control of the 
 
            cart and claimant attempted to control the machine from 
 
            beneath.  This proved unsuccessful and claimant "rode" the 
 
            machine to the bottom of the stairs.  Claimant felt pain in 
 
            his back and hip and when he reported for work the next day, 
 
            the pain extended into his arms and legs.
 
            
 
                 Claimant treated with a chiropractor for a couple of 
 
            weeks until defendant employer referred him to John R. Moes, 
 
            M.D., on November 10, 1986.  Claimant was started on muscle 
 
            relaxants and physical therapy and improved slowly until he 
 
            was referred to David F. Poe, M.D., for further evaluation 
 
            in January 1987.  Dr. Poe diagnosed lumbar disk disease at 
 
            L5 noting that a CT scan of the lumbar spine showed a 
 
            herniated disk at L5-S1 and indicated claimant was improving 
 
            nicely, although incompletely, with conservative measures.  
 
            Dr. Poe noted claimant's pain was severe enough that he was 
 
            unable to return to work and recommended claimant consider a 
 
            myelogram and post-myelogram CT.  Dr. Poe referred claimant 
 
            to HoSung Chung, M.D., neurological surgeon, who performed 
 
            an omnipaque lumbar myelogram on April 13, 1987 which 
 
            demonstrated a herniated disk at L5-S1 on the left side.  
 
            Dr. Chung recommended surgery and claimant requested to be 
 
            seen at the University of Iowa Hospitals and Clinics.  
 
            Claimant was seen in Iowa City beginning June 29, 1988 and 
 
            received a series
 
            
 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            of facet injections which improved his condition.  Claimant 
 
            was released from care on November 23, 1988 when:
 
            
 
                 Physical examination is unchanged.  He has 5/5 
 
                 motors throughout.  Very little pain now with 
 
                 hyperextension of his back as compared to how he 
 
                 was several months ago.
 
            
 
                    PLAN:  Due to his continued improvement, that 
 
                 we feel that we do not need to follow him too 
 
                 closely at this point, however he would like an 
 
                 appointment for next July.  He was told that if he 
 
                 continues to improve and doesn't need the 
 
                 appointment, to simply cancel.  If not, we will 
 
                 see him then.
 
            
 
            (Claimant's Exhibit 10, p. 9)
 
            
 
                 Claimant, in the fall of 1987, began attending 
 
            Northeast Iowa Community College and acquired, on May 30, 
 
            1989, a computer electronics degree.  Claimant recalled his 
 
            physicians had advised him he could not return to "heavy" 
 
            work and therefore on his own initiative, pursued a 
 
            "lighter" line of work.  In the fall of 1988, claimant was 
 
            recalled to return to work with John Deere.  Claimant felt 
 
            his chances of retaining employment with John Deere would be 
 
            better if he completed his education and therefore requested 
 
            and received an educational leave.  Claimant returned to 
 
            work for John Deere May 30, 1989 and works as a tool fitter 
 
            dealing with computer controlled robotics.  Claimant paid 
 
            for his own education ($5,600) and purchased his own 
 
            computer ($7,000).  Claimant described this as very light 
 
            (requiring lifting no more than 10 pounds), and independent 
 
            work which gives him the freedom to stand, sit or move 
 
            around as necessary.  Claimant currently earns $14.65 per 
 
            hour, was earning $12 to $13 per hour at the time of his 
 
            layoff and $6.00 with defendant employer.  Claimant would 
 
            have returned to work for John Deere if recalled regardless 
 
            of his injury, but could not return to work for defendant 
 
            employer because he had restrictions imposed on his 
 
            employability.
 
            
 
                 Claimant was involved in an automobile accident in 1974 
 
            which resulted in neck, shoulder and low back pain and which 
 
            caused him to seek medical treatment at various times from 
 
            1974 through 1983.  The injuries and pain were not disabling 
 
            and claimant was able to maintain an active lifestyle as 
 
            well as fulfill all the responsibilities of his job at John 
 
            Deere.
 
            
 
                 Claimant underwent an independent medical examination 
 
            on January 8, 1988 with Arnold E. Delbridge, M.D.  On 
 
            January 30, 1988, Dr. Delbridge reported that in addition to 
 
            taking claimant's history, examining him and taking and 
 
            reviewing x-rays of his lumbar spine and pelvis, he reviewed 
 
            claimant's medical
 
            
 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            records which were received prior to the preparation of the 
 
            report.  Dr. Delbridge advised claimant's counsel:
 
            
 
                    X-rays of Mr. Boleyn's lumbar spine taken 
 
                 1-8-88 in my office reveal that he has well 
 
                 maintained disc spaces, and he has no 
 
                 spondylolysis, no sponlylolisthesis.  AP of the 
 
                 pelvis reveals well maintained hip joint spaces 
 
                 and normal bony structures.
 
            
 
                    According to x-ray reports he has a protruded 
 
                 disc at the lumbosacral interspace and also 
 
                 stenosis at the left lateral recess at the 
 
                 lumbosacral interspaces.
 
            
 
                    On examination of Mr. Boleyn on January 8, 
 
                 1988, he was found to have a normal range of 
 
                 motion of his thoracolumbar spine.  He had 
 
                 negative straight leg raising.  He had no 
 
                 neurologic abnormalities of his lower extremities, 
 
                 his reflexes were symmetrical, dorsiflexors of his 
 
                 toes were strong and the plantar flexion of his 
 
                 feet was strong.
 
            
 
                    ....
 
            
 
                    My diagnosis of Roger Boleyn is thoracolumbar 
 
                 pain with some suggestion of radicular pain down 
 
                 his left lower extremity but without neurologic 
 
                 deficit.
 
            
 
                    ....
 
            
 
                    At the present time after examining Mr. Boleyn, 
 
                 taking his history, reviewing his x-rays and 
 
                 various records, I concluded that Mr. Boleyn has a 
 
                 5% impairment of the body as a whole....His 
 
                 lifting restrictions at this point would be no 
 
                 more than 30 pounds on a maximal basis and 25 
 
                 pounds on a repetitive basis.  He would be limited 
 
                 to pushing and pulling that amount as well.
 
            
 
                    Since he had previous problems an allocation of 
 
                 the impairment and disability is appropriate.  I 
 
                 concluded that the impairment related to this 
 
                 episode is 3%...
 
            
 
            (Ct. Ex. 1, p. 3)
 
            
 
                 On March 25, 1987, David F. Poe, M.D., opined:
 
            
 
                 Specifically I would assign him a permanent 
 
                 partial disability rating in the range of fifteen 
 
                 percent (15%) whole body.  The permanency rating 
 
                 is related to his lumbar disc disease at L5.  This 
 
                 lumbar disc disease has been longstanding as 
 
                 evidenced by the disc space narrowing on x-ray and 
 
                 is evidenced by the CT scan.  This was aggravated 
 
                 by a flexion injury at work on October 30, 1986 
 
                 and would fall in the category of aggravation of a 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                 preexistent condition.
 
            
 
                    I would be unable to determine with any degree 
 
                 of scientific accuracy what amount of his 15% 
 
                 permanency was related to this acute episode and 
 
                 what degree would be related to his longstanding 
 
                 problem.  I believe his best treatment would be 
 
                 conservative and that would be a temporary weight 
 
                 lifting restriction of at least 25 lbs., walking, 
 
                 swimming, physical therapy.  With proper 
 
                 rehabilitation I would hope that he could return 
 
                 to light duty and eventually return to his old 
 
                 job.
 
            
 
            (Cl. Ex. 2, p. 16)
 
            
 
                         reasoning and conclusions of law
 
            
 
                 An employee is entitled to compensation for any and all 
 
            personal injuries which arise out of and in the course of 
 
            the employment.  Section 85.3(1).
 
            
 
                 There is no dispute that claimant, on October 30, 1986, 
 
            sustained an injury arising out of and in the course of his 
 
            employment.  The first question presented for resolution is 
 
            whether this injury is the cause of the disability on which 
 
            claimant now bases his claim.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of October 30, 
 
            1986 is causally related to the disability on which he now 
 
            bases his claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
            N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 296, 18 
 
            N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 Expert medical evidence must be considered with all 
 
            other evidence introduced bearing on the causal connection.  
 
            Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts 
 
            need not be couched in definite, positive or unequivocal 
 
            language.  Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 
 
            1974).  However, the expert opinion may be accepted or 
 
            rejected, in whole or in part, by the trier of fact.  Id. at 
 
            907.  Further, the weight to be given to such an opinion is 
 
            for the finder of fact, and that may be affected by the 
 
            completeness of the premise given the expert and other 
 
            surrounding circumstances.  Bodish, 257 Iowa 516, 133 N.W.2d 
 
            867.  See also Musselman v. Central Telephone Co., 261 Iowa 
 
            352, 154 N.W.2d 128 (1967).
 
            
 
                 While a claimant is not entitled to compensation for 
 
            the results of a preexisting injury or disease, the mere 
 
            existence at the time of a subsequent injury is not a 
 
            defense.  Rose v. John Deere Ottumwa Works, 247 Iowa 900, 
 
            908, 76 N.W.2d 756, 760-61 (1956).  If the claimant had a 
 
            preexisting condition or disability that is aggravated, 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            accelerated, worsened or lighted up so that it results in 
 
            disability, claimant is entitled to recover.  Nicks v. 
 
            Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, 815 
 
            (1962).
 
            
 
                 When an aggravation occurs in the performance of an 
 
            employer's work and a causal connection is established, 
 
            claimant may recover to the extent of the impairment.  
 
            Ziegler v. United States Gypsum Co., 252 Iowa 613, 620, 106 
 
            N.W.2d 591, 595 (1960).
 
            
 
                 The Iowa Supreme Court cites, apparently with approval, 
 
            the C.J.S. statement that the aggravation should be material 
 
            if it is to be compensable.  Yeager v. Firestone Tire & 
 
            Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961); 100 C.J.S. 
 
            Workmen's Compensation sec. 555(17)a.
 
            
 
                 Without question, claimant had prior back problems.  
 
            Claimant had an automobile accident in 1974 where at least 
 
            some of the injuries involved were with his thoracolumbar 
 
            spine, the area of his current problems.  Records from 
 
            claimant's personnel file at John Deere also reflect a 
 
            sprain in December of 1975 to the left lumbar back when he 
 
            was carrying some carpeting and which required 
 
            hospitalization; an incident in May of 1988 while shoveling 
 
            dirt which led to daily chiropractic treatments; in addition 
 
            to treatment in 1976 relating to his automobile accident.  
 
            Notwithstanding these incidents and treatments, claimant was 
 
            not restricted as a result thereof from carrying out the 
 
            responsibilities of his job nor from the overall enjoyment 
 
            of his life.  This is not true following the injury of 
 
            October 30, 1986.  While claimant clearly had a preexisting 
 
            condition, the incident of October 30, 1986 materially 
 
            aggravated this condition.  Dr. Poe and Dr. Delbridge both 
 
            conclude claimant aggravated his preexisting condition.  The 
 
            undersigned concludes claimant has shown an entitlement to 
 
            recover benefits pursuant to Nicks, 254 Iowa 130, 115 N.W.2d 
 
            812.  The greater weight of evidence establishes a causal 
 
            connection between the injury of October 30, 1986 and the 
 
            disability on which claimant now bases his claim.
 
            
 
                 Attention is thus turned to the extent of claimant's 
 
            permanent partial disability.  Claimant has ratings of 
 
            permanent partial impairment ranging from 5 percent (3 
 
            percent related to the incident of October 30, 1986) to 15 
 
            percent of the body as a whole.
 
            
 
                 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, expe
 
            rience and inability to engage in employment for which he is 
 
            fitted.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 
            125 N.W.2d 251 (1963).  Barton 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 disabil
 
            ity.  This is so as impairment and disability are not syn
 
            onymous.  Degree of industrial disability can in fact be 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            much different than the degree of impairment because in the 
 
            first instance reference is to loss of earning capacity and 
 
            in the latter to anatomical or functional abnormality or 
 
            loss.  Although loss of function is to be considered and 
 
            disability can rarely be found without it, it is not so that 
 
            a degree of industrial disability is proportionally related 
 
            to a degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial 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 healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  These are matters which the 
 
            finder of fact considers collectively in arriving at the 
 
            determination of the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  There are no 
 
            guidelines which give, for example, age a weighted value of 
 
            ten percent of the total value, education a value of fifteen 
 
            percent of total, motivation - five percent; work experience 
 
            - thirty percent, etc.  Neither does a rating of functional 
 
            impairment directly correlate to a degree of industrial 
 
            disability to the body as a whole.  In other words, there 
 
            are no formulae which can be applied and then added up to 
 
            determine the degree of industrial disability.  It therefore 
 
            becomes necessary for the deputy to draw upon prior 
 
            experience, general and specialized knowledge to make the 
 
            finding with regard to degree of industrial disability.   
 
            See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, 
 
            February 28, 1985); Christensen v. Hagen, Inc., (Appeal 
 
            Decision, March 26, l985).
 
            
 
                 Claimant is 42 years old, who, until his injury of 
 
            October 30, 1986 was earning his living in primarily heavy, 
 
            although skilled, labor.  Claimant has restrictions on his 
 
            employability including a lifting restriction.  The 
 
            undersigned is not convinced that claimant's Exhibit 12, 
 
            page 1, lifted those restrictions.  At hearing, claimant 
 
            could not recall the return to work slip without 
 
            restrictions with any specificity and defendants did not 
 
            present any evidence on its applicability to claimant's 
 
            injury of October 30, 1986.  Claimant specifically testified 
 
            that exhibit "may have come from Iowa City" but he "really 
 
            did not know."  Defendants' suggestion that it was given 
 
            with regard to claimant's back injury is insufficient to 
 
            make such a connection.  The greater weight of medical 
 
            evidence establishes claimant still has restrictions on his 
 
            employability.
 
            
 
                 At the time of his injury, claimant was earning 
 
            approximately $6 per hour with defendant.  Claimant is 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            currently earning $14.65 per hour, more than twice his 
 
            earnings with defendant employer.  However, claimant has 
 
            this wage increase for two reasons:  First, he returned to 
 
            work with John Deere and, second, he was sufficiently 
 
            motivated to return to work by seeking retraining.  Each of 
 
            these reasons must be examined closely as each bears 
 
            substantially on claimant's industrial disability.
 
            
 
                 This claimant is probably the most motivated individual 
 
            the undersigned has seen in a hearing.  When claimant was 
 
            initially laid off from John Deere in 1983, he sought 
 
            retraining in order to maintain employment.  Claimant's 
 
            retraining was successful and he secured employment with 
 
            defendant.  When he was advised his injury of October 30, 
 
            1986 would prohibit him from engaging in much of the work 
 
            for which he was suited by experience and education 
 
            (specifically, his work at John Deere and his retraining in 
 
            refrigeration), claimant again returned to school and at his 
 
            own expense, successfully sought retraining once again.  As 
 
            a result of this initiative, claimant has embarked on a 
 
            totally new avenue of employment, potentially leaving behind 
 
            the heavy labor he once had to do to earn a living.  It is 
 
            unfortunate, both morally and legally, that defendant Coca 
 
            Cola did not provide claimant witation is largely 
 
                 destroyed; yet if full benefits continue to be 
 
                 paid to him as if he were not earning, the 
 
                 financial incentive to the employer to put up the 
 
                 money necessary for the rehabilitation is equally 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
                 destroyed.
 
            
 
                 As the industrial commissioner stated in Henry v. Iowa-
 
            Illinois Gas & Electric Company, file No. 691991, Appeal 
 
            Decision filed April 17, 1987, cases in which the claimant 
 
            accomplishes rehabilitation on his own without the 
 
            assistance of the employer inclined one not to penalize 
 
            those laudable efforts with a loss of benefits.  Likewise, 
 
            defendant employer failed to provide claimant with any type 
 
            of employment because of his working restrictions.  In 
 
            McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980), 
 
            the Iowa Supreme Court found that a defendant employer's 
 
            refusal to give any sort of work to a claimant after he 
 
            suffers an injury may justify an award of disability.
 
            
 
                 The second factor which plays a major role in 
 
            claimant's industrial disability is his return to work with 
 
            John Deere.  Part of the reason claimant was able to so 
 
            quickly turn his retraining into employment is due to his 
 
            seniority with that company.  Again, defendants will take 
 
            advantage of something with which they had nothing to do.  
 
            The undersigned will not speculate whether or not claimant 
 
            would have been able to secure employment in computer 
 
            controlled robotics after completing the educational 
 
            program.  However, the undersigned would deign to state that 
 
            he probably would not have gotten employment at the wages he 
 
            is currently earning had he not had those prior years of 
 
            experience with John Deere.
 
            
 
                 Clearly, claimant is prohibited as a result of his 
 
            injury and restrictions from engaging in much of his prior 
 
            employment.  However, in light of his retraining, how much 
 
            of that prior employment is applicable here?  To illustrate, 
 
            if a law student is injured while working during the summer 
 
            on road construction and, during the course of healing, 
 
            returns to school, successfully passes the bar examination 
 
            and secures employment paying wages far in excess of what 
 
            was earned in the construction industry, is industrial 
 
            disability determined based on the lawyer's position now or 
 
            based on the prior employment to which he or she might never 
 
            return?  The supreme court faced the reverse of this issue 
 
            recently in the case of Byrnes v. Donaldson's, Inc., 451 
 
            N.W.2d 810 (Iowa 1990).  In that case, claimant, a factory 
 
            worker, received a permanent facial scar from burns arising 
 
            out of and in the course of her employment.  Claimant 
 
            planned on entering the real estate industry where her 
 
            facial scar may have had more of an impact on her earning 
 
            capacity than her work as a factory worker.  The court held 
 
            that to prevail on an Iowa Code section 85.34(2)(t) claim, a 
 
            claimant must prove that she is unable to perform in the 
 
            industry which she worked in at the time of the injury.  
 
            Potential loss of earnings in different industries does not 
 
            entitle the claimant to benefit under that section of the 
 
            law.
 
            
 
                 The difference between Byrnes and the case sub judice 
 
            is that claimant actually has gone into a totally different 
 
            line of work here where the claimant in Byrnes had only 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            thought about real estate.  This agency has always 
 
            considered claimant's potential for rehabilitation in 
 
            assessing industrial disability.  Further, it has long been 
 
            the rule that claimant's position at the time of the hearing 
 
            is what is considered in determining industrial disability 
 
            not what may happen to claimant in the future.  Therefore, 
 
            we must look at claimant's current employment track, the 
 
            fact that he is now trained in the art of computers, to 
 
            determine his industrial disability, not the fact that a 
 
            substantial portion of the labor market is no longer 
 
            available to him because of his injury.  If claimant must 
 
            return to the heavy labor he was previously doing, that is 
 
            left to a review-reopening proceeding.
 
            
 
                 Considering then all the elements of industrial 
 
            disability, it is concluded that claimant, as a result of 
 
            the injury of October 30, 1986, has sustained a permanent 
 
            partial disability of 20 percent for industrial purposes 
 
            entitling him to 100 weeks of permanent partial disability 
 
            benefits.
 
            
 
                 The final issue for resolution is the length of 
 
            claimant's healing period.  Claimant requests healing period 
 
            from October 30, 1986 until August 17, 1988 while defendants 
 
            argue claimant's healing period should end May 17, 1987.
 
            
 
                 Iowa Code section 85.34(1) provides:
 
            
 
                    If an employee has suffered a personal injury 
 
                 causing permanent partial disability for which 
 
                 compensation is payable as provided in subsection 
 
                 2 of this section, the employer shall pay to the 
 
                 employee compensation for a healing period, as 
 
                 provided in section 85.37, beginning on the date 
 
                 of injury, and until the employee has returned to 
 
                 work or it is medically indicated that significant 
 
                 improvement from the injury is not anticipated or 
 
                 until the employee is medically capable of 
 
                 returning to employment substantially similar to 
 
                 the employment in which the employee was engaged 
 
                 at the time of injury, whichever occurs first.
 
            
 
                 Dr. Poe opined claimant reached "the period of maximum 
 
            healing" as of the time of his May 6, 1987 letter.  See 
 
            claimant's Exhibit 2, page 3.  Dr. Delbridge set the date as 
 
            May 11, 1987.   See claimant's Exhibit 1, page 2.  However, 
 
            claimant continued to have treatment in Iowa City beginning 
 
            in June 1988 and that treatment improved claimant's overall 
 
            condition.  As claimant's condition did continue to improve, 
 
            it is determined that he is entitled to healing period 
 
            benefits for the period from October 30, 1986 through August 
 
            17, 1988, at which time it appears claimant stabilized in 
 
            his condition.  See claimant's Exhibit 10, page 7.
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 Defendants shall pay unto claimant one hundred (100) 
 
            weeks of permanent partial disability benefits commencing 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            August 18, 1988 at the stipulated rate of one hundred 
 
            ninety-three and 70/100 dollars ($193.70) per week.
 
            
 
                 Defendants shall pay unto claimant ninety-four (94) 
 
            weeks of healing period benefits for the period from October 
 
            30, 1986 through August 17, 1988 at the stipulated rate of 
 
            one hundred ninety-three and 70/100 dollars ($193.70) per 
 
            week.
 
            
 
                 Defendants shall receive credit for all disability 
 
            benefits previously paid.
 
            
 
                 Benefits that have accrued shall be paid in a lump sum 
 
            together with statutory interest thereon, pursuant to Iowa 
 
            Code section 85.30.
 
            
 
                 Costs of this action are assessed against defendants, 
 
            pursuant to Division of Industrial Services Rule 343-4.33.
 
            
 
                 Defendants shall file activity reports on the payment 
 
            of this award and as requested by this agency, pursuant to 
 
            Division of Industrial Services Rule 343-3.1.
 
            
 
                 
 
                 Signed and filed this _____ day of June, 1990.
 
            
 
            
 
            
 
            
 
                                          
 
            _______________________________
 
                                          DEBORAH A. DUBIK
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies to:
 
            
 
            Mr Robert D Fulton
 
            Attorney at Law
 
            6th Flr 1st Natl Bldg
 
            P O Box 2634
 
            Waterloo IA 50704
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            
 
            Mr Jay P Roberts
 
            Attorney at Law
 
            528 W Fourth
 
            P O Box 1200
 
            Waterloo IA 50704
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               1803; 1807
 
                                               Filed June 25, 1990
 
                                               Deborah A. Dubik
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            ROGER BOLEYN,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :        File No. 838421
 
            vs.                           :
 
                                          :
 
            COCA COLA BOTTLING COMPANY,   :     A R B I T R A T I O N
 
                                          :
 
                 Employer,                :        D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            NATIONAL UNION FIRE INSURANCE,:
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            ___
 
            
 
            1803; 1807
 
            
 
            Claimant was a long-term employee of John Deere working as a 
 
            tractor mechanic.  Claimant was laid off, got retraining in 
 
            plumbing/heating and refrigeration and secured work with 
 
            defendant.  Claimant injured his back and could not return 
 
            to work with defendant due to restrictions.  Claimant sought 
 
            retraining and after one year acquired a computer 
 
            electronics degree.  Claimant returned to work for John 
 
            Deere at twice his salary with defendant utilizing his new 
 
            degree.
 
            Claimant's motivation should not be a penalty and defendant, 
 
            who refused to rehire, should not have benefit where they 
 
            played no part in retraining.
 
            Claimant awarded 20% permanent partial disability benefits.