BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         SAMUEL SCIARROTTA,
 
          
 
               Claimant,
 
                                                 File NO. 838638
 
          VS.
 
          
 
          DEUTZ-ALLIS CORPORATION,            A R B I T R A T I 0 N
 
          
 
               Employer,
 
                                                 D E C I S I 0 N
 
          VS.
 
          
 
          AMERICAN MOTORISTS INSURANCE,
 
          
 
               Insurance Carrier,
 
               Defendants.
 
          
 
          
 
          
 
                                   INTRODUCTION
 
                                        
 
              This is a proceeding in arbitration brought by the claimant, 
 
         Samuel P. Sciarrotta, against Deutz-Allis Corporation, and 
 
         American Motorists Insurance, insurance carrier, to recover 
 
         benefits as a result of an injury sustained on October 27, 1986.  
 
         This matter came on for hearing before the undersigned deputy 
 
         industrial commissioner in Des Moines, Iowa, on February 27, 
 
         1989.  The record consists of the testimony of claimant, joint 
 
         exhibit 1, and claimant's exhibits 1.
 
         
 
                                      ISSUES
 
                                        
 
              The issues for resolution are:
 
         
 
              1. Whether claimant's disability is causally connected to 
 
         his injury of October 27, 1986; and
 
         
 
              2. The nature and extent of claimant's disability.
 
         
 
                              REVIEW OF THE EVIDENCE
 
                                        
 
              Claimant testified that he developed a stress induced 
 
         depressive condition while working for the employer resulting in 
 
         claimant leaving his employment on October 24, 1986.  Claimant 
 
         stated that he began employment with defendant employer on April 
 
         4, 1980 as a sales finance representative.  Claimant indicated 
 
         his duties mainly involved obtaining retail financing for 
 
         dealers, informing dealers of changes, supplying dealers with the 
 
         necessary documents, doing the wholesale audits and checking 
 
         repossessed equipment.  Claimant emphasized that when he first 
 
         went to work for defendant employer there was no collection
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         SCIARROTTA V. DEUTZ-ALLIS CORPORATION 
 
         Page 2
 
         
 
         
 
         of accounts involved in his work.  Claimant testified that as the 
 
         farm economy changed for the worse, his job duties for .the 
 
         employer changed resulting in claimant spending more time 
 
         confronting and attempting to collect delinquent customer 
 
         accounts and dealing with more repossessions by the dealers.  
 
         Claimant stated that his hours of work increased and his employer 
 
         was constantly changing the finance programs and rebates every 
 
         month.  Claimant stated that this required more time educating 
 
         himself and the dealers with a constant changing program as the 
 
         economy worsened.  Claimant emphasized that collections were 
 
         getting harder as the farmers and dealers were having more 
 
         equipment repossessed as they had no money to make their 
 
         payments.  The claimant said that he was driving several hours a 
 
         week, eating late, losing sleep, and working into the evening 
 
         hours putting in over seventy hours a week.  Claimant described 
 
         various troublesome accounts and ordeals with dealers and some 
 
         unethical conduct resulting in litigation.  Claimant stated that 
 
         he was personally named in a $100,000 lawsuit brought by a 
 
         distraught and upset farmer.  Claimant stated that his past due 
 
         accounts increased, he was being threatened by farmers and 
 
         dealers, in person and on the phone, and pressure was increasing 
 
         from his employer.  Claimant testified that just prior to his 
 
         last day of work, his employer told him not to come in until 
 
         claimant collected a $50,000 account which was unsecured or have 
 
         the debtor-farmer sign over some property and claimant knew the 
 
         customer could not pay or give up any property.
 
         
 
              Claimant testified that the stress of his work, loss of 
 
         sleep and turmoil in the work place was affecting him to such a 
 
         degree that he could no longer do his job and his last day of 
 
         work was Friday, October 24, 1986.  Claimant was placed off work 
 
         by his doctor on October 27, 1986.
 
         
 
              Claimant stated that he had a history of diabetes beginning 
 
         in 1981 or 1982, and that his work problems resulted in claimant 
 
         not eating properly.  Claimant testified that he had no medical 
 
         problems prior to his employment with the employer in 1980.  
 
         Claimant stated that he received a letter from his employer in 
 
         March 1987 firing claimant as the employer did not think there 
 
         was sufficient evidence why claimant was not working.  Claimant 
 
         stated that he sought work in October 1987 and worked at a 
 
         friend's used car lot for two weeks.  Claimant indicated that he 
 
         was not himself these two weeks and had a memory and 
 
         communication problem and could not continue working.  Claimant 
 
         said his friend was trying to help him and that his friend knew 
 
         claimant needed,some help.  Claimant contended that he was not 
 
         able to work because of his medical condition and indicated that 
 
         Dr. Taylor did not relapse him to work until September 1988.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         SCIARROTTA V. DEUTZ-ALLIS CORPORATION
 
         Page 3
 
         
 
         
 
              On October 27, 1986, Stephen C. Gleason, D.O., wrote a 
 
         .letter to "To Whom It May Concern":..
 
         
 
                 According to patient history on repeated visits to this 
 
              clinic increased stress on his job appears to have resulted 
 
              in his inability to medically or emotionally continue work 
 
              at the current level.  This patient is suffering from stress 
 
              related illnesses in addition to diabetes and hypertension.  
 
              He would benefit by stress reduction, reduction in work load 
 
              and better diabetic control, including improved compliance 
 
              with diabetic diet.
 
         
 
         (Joint Exhibit 1, page 1)
 
         
 
              Dr. Gleason referred claimant to Jerald L. Catron, Ph.D., a 
 
         licensed psychologist, who wrote on November 21, 1986:
 
         
 
              My diagnosis psychologically was that of adjustment disorder 
 
              with mixed disturbance of emotions and conduct, was [sic] 
 
              well as psychological factors affecting physical condition.  
 
              As he seems to have shown improvement in virtually every 
 
              area of initial symptomatic complaint, it would appear that 
 
              he has a good prognosis if he can continue minimizing major 
 
              sources of stress in his life, such as job pressure.  
 
              However, he has improved to the point that he has decided to 
 
              consider pursuing a different position which would be less 
 
              stressful for him, and I regard this as an additional sign 
 
              of improvement.
 
              
 
         (Jt. Ex. l,p. 4)
 
         
 
              Claimant's employer referred claimant to Edward J. Hertko, 
 
         M.D., who wrote on December 9, 1986:
 
         
 
                 My working diagnosis on Mr. Sciarrotta are as follows: 1) 
 
              Diabetes Mellitus, Type II, mildly uncontrolled; 2) Arterial 
 
              Hypertension, treated; 3) Exogenous Obesity; 4) Chronic 
 
              anxiety and/or agitated depression.
 
              
 
                 In conclusion, I believe that Mr. Sciarrotta is not 
 
              disabled on the basis of diagnosis 1, 2, or 3. If he is, it 
 
              is on the basis of number 4, which is causing him 
 
              difficulties at the present time.  I do not consider his 
 
              diabetes to be that bad at this point, in as much as, his 
 
              hemoglobin Alc is 8.1, and this is a test that reflects what 
 
              his blood sugars have been doing for the last two months.  
 
              The upper limits of normal for this test is 8.0, therefore,
 
              
 
         SCIARROTTA V. DEUTZ-ALLIS CORPORATION 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         Page  4
 
         
 
         
 
              it is slightly elevated.  In addition, his high blood 
 
              pressure is somewhat elevated at the present time, but this 
 
              could have been due to the fact that he was somewhat anxious 
 
              and nervous when he came into [sic] see me.  I believe that 
 
              his main area of problems is his mental status.  If he could 
 
              receive some treatment or counseling, I believe that he 
 
              should be able to resume his previous area of employment.
 
              
 
         (Jt. Ex. 1, p. 6)
 
         
 
              On March 16, 1987, Dr. Gleason wrote:
 
         
 
                 Because of the work schedule and demands placed upon him, 
 
              it was impossible for him to maintain a reasonable diet 
 
              program with respect to his diabetes.  It should be noted, 
 
              however, that his uncontrolled diabetes is not the most 
 
              critical factor in his recent disability and that the 
 
              psychosocial aspects of his job are the major reason for his 
 
              limitations.  With adjustments as to the length of work time 
 
              and modifications in responsibilities so that he would not 
 
              be under threat of life, limb, or job related civil 
 
              litigation, I feel Sam Sciarrotta could return to work after 
 
              completion of treatment for depression.
 
              
 
         (Jt. Ex. 1, p. 9)
 
         
 
              On August 5, 1988, Michael J. Taylor, M.D., wrote:
 
         
 
                 Any pressure that would be put on Mr. Sciarrotta, at this 
 
              point, to return to work, in his current condition, would 
 
              be, in my opinion, counterproductive to my efforts to get 
 
              his depression cleared so that he can return to work.  The 
 
              current financial stress that he is experiencing, since his 
 
              Workers' Comp benefits have been stopped, is certainly not 
 
              helping the situation either.  I continue to be optimistic 
 
              that, with continued treatment, Mr. Sciarrotta's condition 
 
              will improve to the point that, in the not too far distant 
 
              future, he will be capable of returning to his usual and 
 
              customary work.
 
              
 
         (Jt. Ex. 1, p. 27)
 
         
 
              On September 29, 1988, Dr. Taylor wrote:
 
         
 
                 Mr. Sciarrotta has now done very well on the 
 
              antidepressant medication that he is taking.  He is free of 
 
              depressive symptoms.  He is actively seeking employment.  
 
              Effective today, I released him to resume
 
         
 
         SCIARROTTA V. DEUTZ-ALLIS CORPORATION
 
         Page 5
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              usual and customary work activities without restriction.
 
              
 
         (Jt. Ex. 1, p. 29)
 
         
 
              Dr. Taylor wrote on December 8, 1988:
 
              
 
                 At the time of my September 29, 1988, letter, I saw no 
 
              evidence of any "permanent impairment" of a psychiatric 
 
              nature.  There are no psychiatric restrictions to Mr. 
 
              Sciarrotta's work activity.
 
         
 
         (Jt. Ex. 1, p. 30)
 
         
 
              On February 8, 1989, Dr. Taylor wrote:
 
              
 
              I write to inform you that it is my opinion, within a 
 
              reasonable degree of medical certainty, that between the 
 
              period of time of November 1, 1986 and September 29, 1988 
 
              Mr. Sciarrotta was incapable of doing the work that he had 
 
              been performing with the Deutz-Allis Corporation.  He was 
 
              unable to work during that period of time because of his 
 
              Major Depressive Disorder which was, in my opinion, directly 
 
              causally related to his work experience at Deutz-Allis.
 
              
 
              Mr. Sciarrotta has also informed me that there is a question 
 
              as to how long he will need to continue on the 
 
              antidepressant medications that he is presently taking.  I 
 
              am unable to answer that question with any degree of 
 
              severity.  Generally speaking, I wait until the patient has 
 
              been asymptomatic for four to five months before beginning a 
 
              trial of tapering the dose of antidepressant.  It is 
 
              impossible to predict how quickly the antidepressant can be 
 
              tapered and stopped.
 
              
 
         (Jt. Ex. 1, p. 31)
 
         
 
                                 LAW AND ANALYSIS
 
                                        
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of October 27, 1986 is causally 
 
         related to the disability on which he now bases his claim.  
 
         Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). 
 
         Lindahl v. L.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A 
 
         possibility is insufficient; a probability is necessary. Burt v. 
 
         John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 
 
         (1955).  The question of causal connection is essentially within 
 
         the domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.
 
         
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         SCIARROTTA V. DEUTZ-ALLIS CORPORATION 
 
         Page 6
 
         
 
         
 
         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).
 
         
 
              Iowa Code section 85.33(l) provides:
 
         
 
                 Except as provided in subsection 2 of this section, the 
 
              employer shall pay to an employee for injury producing 
 
              temporary total disability weekly compensation benefits, as 
 
              provided in section 85.32, until the employee has returned 
 
              to work or 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.
 
              
 
              In cases involving alleged mental injuries which are not the 
 
         result of physical trauma, the required showing to establish a 
 
         compensable mental injury arising out of employment vary from 
 
         state to state.  See Sersland, Mental Disability Caused by Mental 
 
         Stress: Standards of Proof in Workers' Compensation Cases, 33 
 
         Drake L.Rev. 751 (1984).  The Iowa Supreme Court has not yet 
 
         decided what rule applies in this state.  The court has only 
 
         stated that claimant's employment must provide more than a "stage 
 
         for the nervous injury."  Newman v. John Deere Ottumwa Works, 372 
 
         N.W.2d 199 (Iowa 1985).  This agency has indicated preference for 
 
         the so-called "objective" or "Wisconsin" rule which was first 
 
         expressed in School District #1 v. Department of Industry, L. & 
 
         H.R., 62 Wis.2d 370, 215 N.W.2d 373 (1974) and later in Swiss 
 
         Colony v. Dept. of ILAR, 72 Wis.2d 46, 240 N.W.2d 128 (1976).  
 
         See    Schreckengast v. Hammermills, Inc., IV Iowa Industrial 
 
         Commissioner Report 305 (Appeal Decision 1983).  However, this 
 
         agency's decision in Schreckengast was appealed to the Iowa 
 
         Supreme Court which affirmed the agency on other grounds.  
 
         Whether or not the ruling from this agency in Schreckengast is 
 
         binding in this case, the Wisconsin rule appears to be the best 
 
         approach and is favored by Professor Larson in his treatise on 
 
         workers' compensation law.  See Larson, The Law of Workmen's 
 
         Compensation, Vol. 1B, p. 7-637 et. seq., section 42.23(b). The 
 
         rule insures that the claimed emotional difficulty is truly work 
 
         related given the difficulties surrounding proof of the existence 
 
         and nature of emotional harm.  Furthermore, the rule is 
 
         consistent with the concept in personal injury cases long 
 
         recognized in Iowa that damages are more difficult to recover in 
 
         a case involving only an emotional injury than a case involving a 
 
         physical injury.  Barnhill v. Davis, 300 N.W.2d 104 (Iowa 1981), 
 
         negligent infliction of emotional harm;
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         SCIARROTTA V. DEUTZ-ALLIS CORPORATION
 
         Page 7
 
         
 
         
 
         Barnett v. Collection Service Co., 214 Iowa 1303, 1312, 242 N.W. 
 
         25, 28 (1932), intentional infliction of emotional harm.
 
         
 
              Under the Wisconsin rule, a nontraumatically caused mental 
 
         injury is compensable only when the injury "resulted from a 
 
         situation of greater dimensions than the day-to-day mental 
 
         stresses and tensions which all employees must experience."  
 
         Swiss Colony, 240 N.W.2 at 130.  In other words, there are two 
 
         issues which must be resolved before finding an injury arising 
 
         out of employment--medical and legal causation.  The medical 
 
         causation issue is strictly an examination into the cause and 
 
         effect relationship between the stresses and tensions at work and 
 
         the mental difficulties.  If the medical causation issue is 
 
         resolved in favor of the claimant, legal causation is next 
 
         examined.  This determination concerns the issue of whether the 
 
         work stresses and tensions (viewed objectively, not as perceived 
 
         by claimant) were "out of the ordinary from the countless 
 
         emotional strains and differences that employees encounter daily 
 
         without serious injury."  School District #1, 215 N.W.2d at 377.
 
         
 
              This 49-year-old claimant began working for the employer in 
 
         1980 and his work became stressful due to the deteriorating 
 
         economy, in particular, the farm economy.  This claimant was 
 
         dealing with implement dealers and farmers who were caught in the 
 
         economic downturn and were not able to pay their bills.  This 
 
         claimant dealt daily with these individuals and fronted for the 
 
         employer and took verbal and psychological abuse.  Claimant was 
 
         putting in longer hours attempting to please the employer and 
 
         even became involved personally as a defendant in a lawsuit 
 
         although he was performing his duty as an employee of defendant 
 
         employer.  Claimant's last day of work.for the employer was 
 
         October 24, 1986, and upon seeing Dr. Gleason did not return to 
 
         work and has not returned to defendant employer's business to 
 
         this date.  Claimant has only a high school education and his 
 
         prior background involves some manual and nonmanual labor.  
 
         Sixteen years prior to his injury, claimant has been primarily 
 
         involved in the finance credit industry.  Claimant's job with 
 
         defendant employer was the best job he has ever had as to salary 
 
         and benefits.
 
         
 
              The greater weight of evidence indicates that claimant's 
 
         injury and psychological problems resulted from more than the 
 
         normal day to day mental stresses and tensions which all 
 
         employees must experience in their ' employment.  Claimant's 
 
         disabilities were causally related to his job and injury 
 
         culminating on October 27, 1986.
 
         
 
              The parties stipulated that claimant was off work beginning 
 
         October 27, 1986 to September 29, 1988, inclusive.  It was during 
 
         this time that claimant was being treated and the medical 
 
         evidence indicates that claimant most likely will recover from 
 
         his condition and be able to return to work.  Dr. Taylor released
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         SCIARROTTA V. DEUTZ-ALLIS CORPORATION 
 
         Page 8
 
         
 
         
 
         claimant to return to work on the date of his September 29, 1988 
 
         letter in which he also stated that he had diagnosed claimant's 
 
         condition as a major depressive disorder which he felt was 
 
         causally related to the circumstances of his employment.  There 
 
         were no restrictions attached to the work release.  Claimant was 
 
         temporarily totally disabled beginning October 27, 1986 to and 
 
         including September 29, 1988.  Claimant's disability is causally 
 
         connected to claimant's injury of October 27, 1986.
 
         
 
              Dr. Taylor shortly thereafter wrote, "I saw no evidence of 
 
         any permanent impairment of a psychiatric nature.  There are no 
 
         psychiatric restrictions to Mr. Sciarrotta's work activity."  Dr. 
 
         Taylor had indicated in February 1989 that he did not know how 
 
         long claimant needed to continue on an antidepressant medication 
 
         that he was presently taking and could not answer that situation 
 
         with any degree of severity.  He indicated that he would have to 
 
         wait until the patient has been asymptomatic for four to five 
 
         months before beginning a trial of tapering the dose of 
 
         antidepressant.  He stated that it was impossible to predict how 
 
         quickly the antidepressant can be tapered and stopped.  The 
 
         record indicates that claimant had a good medical history prior 
 
         to working for defendant employer and that his psychological and 
 
         physical problems began approximately the last year before he 
 
         left his employment and culminated to such an extent he had to 
 
         leave his employment on his last day of work on October 24, 1986.
 
         
 
              The record shows that claimant began looking for work in 
 
         September 1988.  Claimant is seeking a low stress type of job, 
 
         forty hours per week.  Claimant testified that he has enrolled in 
 
         job service and checks every Friday for state jobs.  He indicated 
 
         that the hourly rate of jobs would be approximately $5.65 per 
 
         hour plus insurance benefits.  Claimant further indicated that if 
 
         he was working for defendant employer at this time, based on his 
 
         past history of increases and benefits, he would be making 
 
         $33,000 with expenses paid plus fringe benefits of pension plan, 
 
         health insurance, disability, and eye and dental insurance.  The 
 
         record shows that claimant was making approximately $25,513.50 
 
         for the ten months he worked in 1986 for defendant employer.
 
         
 
              Claimant appears not to have began a concerted effor to find 
 
         employment until Dr. Taylor released him on September 29, 1988.  
 
         When claimant applied for unemployment compensation in March of 
 
         1988, Dr. Taylor responded to the.job service request for a 
 
         medical report on April 26, 1988 by stating claimant's nature of 
 
         disability as "major depressive disorder."  Dr. Taylor indicated 
 
         in this report that claimant "could not perform occupation from 
 
         October 30, 1986 to present."
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              Claimant testified he was looking for a less stressful job.  
 
         Claimant never requested to return to defendant employer.  
 
         Claimant indicated he was dissatisfied with defendant employer.
 
         
 
         
 
         
 
         SCIARROTTA V. DEUTZ-ALLIS CORPORATION 
 
         Page 9
 
         
 
         
 
         It is true that they fired claimant because claimant was not able 
 
         to do the work.  This action by the employer under the 
 
         circumstances existing then, is understandable.  Claimant's lack 
 
         of requesting the return of his job when he became well and 
 
         released by his doctor does not enable this deputy to apply the 
 
         Blacksmith case to the claimant as contended by claimant.
 
         
 
              Claimant has been released by his doctor with no 
 
         restrictions.  There is no evidence that claimant could not do 
 
         his former work.  He chooses not to seek such employment even 
 
         though his background has been in the consumer finance business.  
 
         This choice is claimant's right, but this deputy can not 
 
         speculate as to whether claimant could perform certain work.  
 
         Claimant does not have a proven loss of earning capacity.  
 
         Claimant has no physical impairment.
 
         
 
              This claimant was temporary totally disabled from October 
 
         27, 1986 to and including September 29, 1988.
 
         
 
                                 FINDINGS OF FACT
 
                                        
 
              WHEREFORE, it is found:
 
         
 
              1. Claimant incurred a stress induced depression condition 
 
         while working for defendant employer which resulted in claimant 
 
         leaving his job as of October 27, 1986.
 
         
 
              2. Claimant's last day of work for defendant employer was 
 
         October 24, 1986.
 
         
 
              3. Claimant was released to return to work with no 
 
         restrictions on September 29,.1988.
 
         
 
              4. Claimant was temporary totally disabled as a result of 
 
         his injury of October 27, 1986, beginning October 27, 1986 to and 
 
         including September 29, 1988.
 
         
 
              5. Claimant has no loss of earning capacity as a result of 
 
         his October 27, 1986 injury.
 
         
 
              6. Claimant has no functional impairment as a result of his 
 
         October 27, 1986 injury.
 
         
 
              7. Claimant has no current permanent impairment of a 
 
         psychiatric nature as a result of his injury of October 27, 1986.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              8. Claimant needs to continue to take antidepressant 
 
         medication because of his injury of October 27, 1986.
 
         
 
              9. Claimant has not been fully employed since October 24, 
 
         1986 .
 
         
 
         
 
         
 
         SCIARROTTA V. DEUTZ-ALLIS CORPORATION
 
         Page 10
 
         
 
         
 
              10. Claimant did not seek a return of his employment with 
 
         defendant employer at any time since claimant left his employment 
 
         on October 27, 1986.
 
         
 
                                   CONCLUSIONS
 
                                        
 
              THEREFORE, it is concluded:
 
         
 
              Claimant's injury arose out of and in the course of his 
 
         employment on October 27, 1986.
 
         
 
              Claimant's temporary total disability is causally connected 
 
         to his injury of October 27, 1986.
 
         
 
              Claimant was released to return to work with no restrictions 
 
         on September 29, 1988.
 
         
 
              Claimant was temporary totally disabled beginning October 
 
         27, 1986 to and including September 29, 1986.
 
         
 
              Claimant did not seek a return to his employment with 
 
         defendant employer since he left his employment on October 27, 
 
         1986.
 
         
 
              Claimant has no loss of earning capacity.  Claimant has no 
 
         industrial disability.
 
         
 
                                      ORDER
 
                                        
 
              THEREFORE, it is ordered:
 
         
 
              Claimant is entitled to one hundred point five seven one 
 
         (100.571) weeks of temporary total disability benefits for the 
 
         period beginning October 27, 1986 and ending on September 29, 
 
         1988, inclusive, at the rate of three hundred thirteen and 47/100 
 
         dollars ($313.47) per week.
 
         
 
              Defendants shall pay the accrued weekly benefits in a lump 
 
         sum.
 
         
 
              Defendants shall be given credit for benefits previously 
 
         paid.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Defendants shall pay interest on benefits awarded herein as 
 
         set forth in Iowa Code section 85.30.
 
         
 
              Defendants shall pay the costs of this action pursuant to 
 
         Division of Industrial Services Rule 343-4.33.
 
         
 
              Defendants shall file an activity report upon  payment of 
 
         this award as required by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
         
 
         
 
         
 
         SCIARROTTA V. DEUTZ-ALLIS CORPORATION
 
         Page 11
 
         
 
         
 
              Signed and filed this 18th day of April, 1989.
 
         
 
         
 
         
 
                                         BERNARD J. O'MALLEY
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies to:
 
         
 
         Mr. Robert W. Pratt
 
         Attorney at Law
 
         1913 Ingersoll Ave.
 
         Des Moines, IA 50309
 
         
 
         Mr. Joseph S. Cortese II
 
         Attorney at Law
 
         500 Liberty Bldg
 
         Des Moines, IA 50309
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
                                            
 
 
 
 
 
 
 
 
 
 
 
                                            1402.40; 1801; 2204 
 
                                            Filed April 18, 1989 
 
                                            Bernard J. O'Malley
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         SAMUEL SCIARROTTA,
 
         
 
              Claimant,
 
                                                 File NO. 838638
 
         VS.
 
         
 
         DEUTZ-ALLIS CORPORATION,               A R B I T R A T I 0 N
 
         
 
              Employer,
 
                                                 D E C I S I 0 N
 
         VS.
 
         
 
         AMERICAN MOTORISTS INSURANCE,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1801; 2204
 
         
 
         Claimant was temporary totally disabled for approximately two 
 
         years due to the unusual day-to-day mental stresses and tensions 
 
         of his job as a consumer finance bill collector during a time in 
 
         which the farm economy had substantially deteriorated.  Claimant 
 
         had been physically threatened by customers and also sued for 
 
         substantial damage by a customer whose debt claimant was trying 
 
         to collect for the employer.  Claimant developed a temporary 
 
         major depressive disorder.
 
         
 
         1402.40
 
         
 
              Doctor gave claimant full release without restrictions.  
 
         Claimant made no attempt to re-enter the consumer finance field 
 
         in which he had years of experience and the greatest earning 
 
         capacity.
 
         
 
              No mental or physical impairment or industrial disability 
 
         found.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         RICK J. FINCHAM,
 
         
 
              Claimant,
 
                                                 File No. 838639
 
         vs.
 
                                              A R B I T R A T I O N
 
         CITY OF NEVADA,
 
                                                 D E C I S I O N
 
              Employer,
 
                                                    F I L E D
 
         and
 
                                                   DEC 8 1989
 
         NORTHWESTERN NATIONAL,
 
                                          IOWA INDUSTRIAL COMMISSIONER
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Rick Fincham, 
 
         claimant, against city of Nevada, employer, and Northwest 
 
         National Insurance Company, insurance carrier, to recover 
 
         benefits under the Iowa Workers, Compensation Law as a result of 
 
         an injury sustained January,9, 1986.  This matter came on for 
 
         hearing before the undersigned deputy industrial commissioner on 
 
         August 19, 1988 and was considered fully submitted upon receipt 
 
         of exhibit IX(B). The record in this case consists of the 
 
         testimony of claimant and Bill Selby; and joint exhibits I 
 
         through IX(B), inclusive.
 
         
 
                                      ISSUES
 
         
 
              Pursuant to the prehearing report and order submitted and 
 
         approved August 19, 1988, the following issues are presented for 
 
         resolution:
 
         
 
              1.  Whether the work injury of January 9, 1986 was the cause 
 
         of temporary psychological problems for the claimant.  (The 
 
         parties have stipulated that the work injury is the cause of a 
 
         temporary and permanent physical disability and claimant makes no 
 
         claim for permanent disability as to his asserted psychological 
 
         problems.);
 
         
 
              2.  The extent of claimant's entitlement to weekly benefits; 
 
         and
 
         
 
              3.  Claimant's entitlement to medical benefits under Iowa 
 
         Code section 95.27.
 
         
 
                                 FACTS PRESENTED
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              Claimant sustained an injury which arose out of and in the 
 
         course of his employment on January 9, 1986, when, while reading 
 
         a water meter, he stepped into a window well covered with snow 
 
         and fell, experiencing immediate back pain.  Claimant testified 
 
         he missed approximately two weeks of work while under the care of 
 
         Rod R. Rebarcak, D.C., who referred claimant to Mark P. 
 
         Brodersen, M.D., orthopedic surgeon at the McFarland Clinic in 
 
         Ames, Iowa. Claimant stated that Dr. Brodersen treated him with 
 
         medication and exercises and advised him that so long as he was 
 
         working he would not get better since the work was not conducive 
 
         to healing a herniated disc.
 
         
 
              Claimant testified that following his injury he began 
 
         developing psychological problems in the form of depression for 
 
         which he sought treatment at the McFarland Clinic.  Claimant 
 
         described feeling so depressed that he could not function as a 
 
         worker or as a human being and that he was so afraid of 
 
         "rupturing a disc" at work that he submitted his resignation to 
 
         the employer. Claimant stated that after he submitted this 
 
         resignation his depression became worse and he was feeling 
 
         intense pain in his low back and left leg.  Claimant recalled 
 
         that about this time he was hospitalized for both his back and 
 
         psychological problems for approximately twelve days.  Claimant 
 
         admitted that by the time of his hospitalization he had had 
 
         several extramarital affairs which were a "complicating factor" 
 
         but not the "sole reason" he landed in the hospital.
 
         
 
              Claimant denied having any psychological.problems prior to 
 
         January 1986, admitted that after his injury he was drinking 
 
         heavily "probably to try to alleviate the anxiety" in his life 
 
         and denied that he had an alcohol problem prior to January 9, 
 
         1986, stating that alcohol did not "interfere" with his life or 
 
         constitute a "major problem."  Claimant acknowledged that he had 
 
         had prior problems with his back for which he sought medical 
 
         treatment from a chiropractor but maintained that he continued to 
 
         work and that the problems did not incapacitate him.
 
         
 
              Claimant stated that he did not look for work after 
 
         resigning his employment on May 16, 1986 until.he moved to 
 
         California in July or August 1986 and secured employment as a 
 
         security guard.  Claimant explained that he voluntarily left 
 
         this employment "to get retrained" and that he took classes in 
 
         electronic assembly beginning in May 1987.  Claimant testified 
 
         that during this time he began treatment at the Sonoma County 
 
         Mental Clinic where he worked with Emily Foster, Ph.D., through 
 
         August 12, 1987.  Claimant offered that he has not seen any 
 
         mental health professionals since then, that he has had no 
 
         further problems with his depression, and that he is not 
 
         currently on any medication for either his back or his psyche.
 
         
 
              Claimant explained that presently he is constantly aware of 
 
         a dull ache in his back and left leg and foot, that he cannot 
 
         sit, stand or walk for long periods of time and that he watches 
 
         how he lifts and moves.  Claimant attested to doing low back 
 
         exercises every day and using muscle relaxers "if [he] has a 
 
         setback."
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              On cross-examination, claimant acknowledged he did not 
 
         attempt to secure any other employment with the City of Nevada 
 
         since he knew he would not be able to and stated that he was 
 
         hardly in a state of mind to be retrained for any other position 
 
         with the city at that time.  Claimant testified that with the 
 
         electronics training he has there is no trouble securing and 
 
         retaining employment.
 
         
 
              Bill Selby, who identified himself as a 22 year employee 
 
         with defendant employer responsible for zoning enforcement, 
 
         safety, and building and inspection, testified claimant was a 
 
         very good employee, that he was surprised by claimant's 
 
         ,resignation, and that he would have taken claimant back and 
 
         found a place for him had such a request been made.  Mr. Selby 
 
         acknowledged there were no posted job openings at the time 
 
         claimant resigned but maintained he would have found something or 
 
         created a job for such a good employee.
 
         
 
              The medical records of Rod R. Rebarcak, D.C., show claimant 
 
         was treated for lumbosacral strain with associated paraspinal 
 
         spasticity, radiculitis radiating the trajectory of the right 
 
         sciatic plexus, acute, moderate, and post-traumatic, secondary to 
 
         neurospinal compression syndrome at L4-L5 and complicated by 
 
         spondylolisthesis, discopathy at L4-5 when he was first seen in 
 
         March of 1984.  Dr. Rebarcak's records include an undated letter 
 
         which reports that he referred claimant to Dr. Brodersen, of the 
 
         McFarland Clinic, "due to the erratic progress" of his condition.
 
         
 
              Mark P. Brodersen, M.D., began treating claimant February 
 
         14, 1986 and advised claimant's counsel on August 16, 1986 that:
 
         
 
                   [A] CT scan was performed of the lumbar spine which 
 
              showed that he had a fairly large herniated disc at the L4-5 
 
              level extending to the left side.  This appeared to be 
 
              responsible for his symptoms and so an epidural steroid 
 
              injection was performed on 2/21/86.  He has made some 
 
              progress, but had a flare-up in the late part of March.  A 
 
              second epidural injection was performed on 4/4/86.  Because 
 
              of the aggravation that his job caused his back, he finally 
 
              gave this up.  As I understand, he seems to.be doing better 
 
              at the present time and is trying to adjust his life to meet 
 
              the restrictions that his back has placed upon him.  I agree 
 
              with this approach.  I have discussed on several occasions, 
 
              the importance of vocational rehabilitation in trying to 
 
              find a job that will not stress his back.
 
         
 
         (Joint Exhibit I(C), Pages 34-35)
 
         
 
              Dr. Brodersen's office note of May 1, 1986 reflects some 
 
         concern over claimant's emotional stability and states:
 
         
 
                   Rick returns in regards to his back.  He appears to be 
 
              completely befuddled by his situation.  He seems quite 
 
              depressed.  I discussed the options with him.  He feels that 
 
              he emotionally cannot make any decisions at this point in 
 
              time because of his depression and other psychiatric 
 
              problems.  I discussed this with Larry Marshall.  I feel 
 
              that this man is a danger to himself as he is now in terms 
 
              of the potential for suicide and inability to handle 
 
              himself.  Larry agrees with me.  We ,will have seen by 
 
              Doctor Dodd in regards to admitting him for his current 
 
              emotional problems.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
         (Jt. Ex. I(C), p. 31)
 
         
 
              In a letter dated August 14, 1986, Jack L. Dodd, M.D., 
 
         reported on claimant's care to claimant's counsel, advising:
 
         
 
              Mr. Fincham presented for treatment in February of 1986. 
 
              Upon his presentation, it was noted that he was in fact 
 
              depressed.  He was treated primarily with psychotherapy 
 
              and his condition slowly worsened and he was admitted to 
 
              the psychiatric ward of Mary Greeley Medical Center on May 
 
              1, 1986 and was treated there until May 13, 1986 for a 
 
              major recurrent depression....Upon being discharged from 
 
              the hospital, he has been followed periodically as an 
 
              outpatient and has shown improvement.....He was last seen 
 
              on August 6, 1986 and at that time expressed a sense of 
 
              general improvement in his well being.... Mr. Fincham had 
 
              complained of back pain with associated sciatic pain prior 
 
              to coming to the hospital and it did appear to be a 
 
              complicating factor in his depression.  It is not my 
 
              impression that the back pain represents the sum and total 
 
              reason that he was depressed, but there is no doubt in my 
 
              mind that it was a contributing factor because of the time 
 
              sequence and also because it is known that depression is 
 
              frequently a sequelae to disabling back injuries.  We are 
 
              encouraging Mr. Fincham to stay on antidepressant 
 
              medication and to follow up in outpatient treatment for at 
 
              least a year after his discharge from the hospital.  It is 
 
              my opinion that the patient does have a family history of 
 
              depression and may experience other depression during his 
 
              life.
 
         
 
         (Jt. Ex. I(D), p. 44)
 
         
 
              Claimant's admission note dated May 1, 1986 from Dirk 
 
         Scholten, M.D., reflects the history that:
 
         
 
              Notes that he comes from a family in which there is a fairly 
 
              strong history of depression as manifest by significant 
 
              depressive illness in his mother and suicide in his 
 
              grandfather and an uncle.
 
         
 
                   There has been a dysfunctional marriage for the last 
 
              couple of years.  He has been involved in three affairs. 
 
              Recently he told his wife about this.  There is an effort to 
 
              salvage the marriage and make some reconciliation.
 
         
 
         (Jt. Ex. I (E), p. 58)
 
         
 
              Claimant underwent a psychological evaluation on November 3, 
 
         1987 which was conducted by John Watts Podboy, Ph.D., Clinical 
 
         Psychologist, Kenwood, California.  Dr. Podboy concluded a rather 
 
         lengthy report.by recording this summary and recommendations:
 
         
 
                   RICHARD JOHN FINCHAM is a 36 year old male who 
 
              attributes considerable back difficulties and psychological 
 
              problems to an alleged on-the-job injury occurring during 
 
              January of 1986.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
                   However, information which he has provided to various 
 
              care givers is inconsistent, for example, stating at one 
 
              point to a physician that he had had a problem for some five 
 
              to six years prior to 1986, and presenting himself for 
 
              treatment due to the fact that he had been shoveling some 
 
              snow and had developed pain in the lower back area.
 
         
 
                   Evidently, after speaking with his sister who 
 
              encouraged him, according to information presented to this 
 
              examiner, that he seek compensation for on-the-job 
 
              difficulties, he thought further about his problems and 
 
              then, while an inpatient, stated that he had had back 
 
              problems for some ten years, and in fact, had not only been 
 
              shoveling snow but had stepped in a hole that had been 
 
              obscured by the snow.
 
         
 
                   While in the hospital, that is, at the Mary Greeley 
 
              Medical Center, from a psychological perspective, Mr. 
 
              Fincham presented as an individual who was rather seriously 
 
              depressed and was so treated.
 
         
 
                   Thereafter, he recovered very quickly with Jack Dodd, 
 
              M.D., stating in a letter dated August 14, 1986 to 
 
              attorney.Dennis Hanssen, in part, "he was last seen on 
 
              August 6, 1986 and at that time expressed a sense of general 
 
              improvement in his wellbeing."
 
         
 
                   Setting aside for a moment the inconsistencies in Mr. 
 
              Fincham's recollection of those events which reportedly 
 
              contributed to his low back difficulties and psychological 
 
              problems, it is significant to note that the family history 
 
              is positive for depression and alcohol abuse with Mr. 
 
              Fincham, by his own admission reaching a point where he not 
 
              only abused alcohol, but experimented with a variety of 
 
              hallucinogenic substances, to the extent where he was 
 
              eventually advised that he should address his pattern of 
 
              substance abuse.
 
         
 
                   Finally, it appears as though Mr. Fincham's depression, 
 
              that is, that which resulted in him being hospitalized in 
 
              May of 1986, may have been entirely related to his guilt 
 
              about out his extramarital affairs and the fact that he was 
 
              abusing a depressant drug, namely, ethanol.
 
         
 
                   It should also be noted that Mr. Fincham, after his 
 
              hospitalization, was able to mobilize his resources, travel 
 
              from Iowa to California to locate a new area of the country 
 
              in which to reside, and complete that move during late 
 
              October of 1986.  This is not the sort of major undertaking 
 
              which a significantly depressed person can initiate and 
 
              complete, and this move, in conjunction with Mr. Fincham's 
 
              ability to complete a training program and seek, secure and 
 
              maintain employment raises further questions about the 
 
              extent of his depression.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
                   In summary, this examiner is unable to determine that 
 
              any relationship exists between Mr. Fincham's alleged injury 
 
              of January 9, 1986 and any subsequent medical, psychological 
 
              or psychiatric interventions which took place thereafter up 
 
              to and including the present time.
 
         
 
                   The available records, as well as the material directly 
 
              elicited from Mr. Fincham during the course of this 
 
              examination, are replete with inconsistencies 
 
              contradictions, and deliberate omissions to such an extent 
 
              that this examiner can find no basis for Mr. Fincham's claim 
 
              of physical and psychological injuries resulting from [sic] 
 
              alleged accident while working for the City of Nevada, Iowa.
 
         
 
                   Although there is no pervasive evidence that an on-job 
 
              injury occurred, if it did occur as alleged by Mr. Fincham, 
 
              at this time his level of impairment is minimal, consisting 
 
              of discomfort" but is not disabling.
 
         
 
         (Jt. Ex. I(I), p. 77-78)
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
         employment.  Section 85.3(1).
 
         
 
              The parties do not dispute that on January 9, 1986 claimant 
 
         fell in a window well sustaining an injury to his back which 
 
         arose out of and in the course of his employment and which is the 
 
         cause of both temporary and permanent disability.  Of first 
 
         concern is a determination of whether claimant's asserted 
 
         psychological problems, for which claimant requests temporary 
 
         total disability benefits for the period from January 9, 1986 
 
         through August 31, 1987, except for three weeks when he was 
 
         employed as a security guard, are causally connected to the 
 
         injury.
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of January 9, 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 vs. 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).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              The undersigned would conclude that the greater weight of 
 
         evidence would establish that claimant was predisposed to having 
 
         a major depressive episode.  In addition to the physical trauma 
 
         of this work injury, claimant is positive for a family history of 
 
         depression and alcohol abuse.  Claimant engaged in a number of 
 
         extramarital affairs which he disclosed to his wife and was going 
 
         through what he described as "marital difficulties" at the time 
 
         of his hospitalization at.Mary Greeley in Ames.  Claimant 
 
         reported a "dysfunctional marriage for the last couple of years" 
 
         to Dr. Scholten.  Claimant abused alcohol both before and after 
 
         the injury although he maintains alcohol abuse was not a "major 
 
         problem" prior to the injury.  Such a statement can only lead to 
 
         the conclusion that it was still a problem, whether it could be 
 
         described as major or not.  According to Dr. Podboy's report, 
 
         claimant admitted to the use and abuse of oral amphetamines, 
 
         hallucinogenic mushrooms, LSD, and psylocybin.  In addition, 
 
         claimant moved to California without any definite,job prospects, 
 
         a move which was planned but nevertheless the cause of some 
 
         anxiety.
 
         
 
              The Iowa Supreme Court in Blacksmith v. All-American, Inc., 
 
         290 N.W.2d 348 (Iowa 1980) stated at 354:
 
         
 
              A cause is proximate.if it is,a substantial factor in 
 
              bringing about the result.  See Holmes v. Bruce Motor 
 
              Freight, Inc., 215 N.W.2d 296, 297 (Iowa 1974).  It only 
 
              needs to be one cause; it does not have to be the only 
 
              cause. See Langford v. Keller Excavating & Grading, Inc., 
 
              191 N.W.2d at 670.
 
         
 
              No reasonable person could deny that claimant's work injury 
 
         was a cause of his seeking and receiving psychological counseling 
 
         or that it was not the only cause.  The question becomes, as the 
 
         court stated in Blacksmith, whether or not the work injury was a 
 
         substantial factor in bringing about the need for treatment.
 
         
 
              Dr. Podboy concluded that he was unable to determine any 
 
         relationship existed between claimant's alleged injury of January 
 
         9, 1986 and any subsequent medical psychological or psychiatric 
 
         interventions which took place thereafter.  Dr. Podboy, a 
 
         psychologist, received his degree in rehabilitation psychology 
 
         and appears to have concentrated in the areas of 
 
         learning/developmentally disabled and the juvenile delinquent 
 
         based on the information provided in his curriculum vitae.  Dr. 
 
         Podboy questioned the existence of any injury which is somewhat 
 
         disturbing in light of the parties' stipulation in this case.
 
         
 
              Dr. Dodd found claimant's injury to be a "complicating 
 
         factor in his depression" and that although  it was not the only 
 
         reason claimant was depressed "it was a contributing factor 
 
         because of the time sequence and also because it is known that 
 
         depression is frequently a sequelae to disabling back injuries."  
 
         The opinion of Dr. Dodd, a psychiatrist, certified by the 
 
         National Board of Medical Examiners and the American Board of 
 
         Psychiatry and Neurology, is found to be entitled to greater 
 
         weight than that of the psychologist.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Accordingly, it is concluded that the interaction between 
 
         claimant's injury of January 9, 1986, his inability to continue 
 
         working at his regular job, and the anxiety caused by leaving 
 
         that job combined to constitute a substantial factor in causing 
 
         the need for psychological counseling.
 
         
 
              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.
 
         
 
              As the employer is responsible for furnishing all medical 
 
         care causally connected to the injury, it is concluded that 
 
         claimant is entitled to medical benefits for the psychiatric 
 
         treatment which he received both in Iowa and in California.
 
         
 
              Claimant does not assert any permanent disability as a 
 
         result of his psychological problems.  It has been stipulated 
 
         that the injury to claimant's back on January 9, 1986 is the 
 
         cause of a permanent partial disability to the body as a whole.
 
         
 
              On August 16, 1986, Dr. Brodersen opined that claimant was 
 
         "stabilized enough to state that he has a five percent impairment 
 
         of the person as a whole on the basis of his disc problem."
 
         
 
              Functional impairment is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963). 
 
         Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961).
 
         
 
              A finding of impairment to the body as a whole found by a 
 
         medical evaluator does not equate to industrial disability.  This 
 
         is so as impairment and disability are not synonymous.  Degree of 
 
         industrial disability can in fact be much different than the 
 
         degree of impairment because in the first instance reference is 
 
         to loss of earning capacity and in the latter to anatomical or 
 
         functional abnormality or loss.  Although loss of function is to 
 
         be considered and disability can rarely be found without it, it 
 
         is not so that a degree of industrial disability is 
 
         proportionally related to a degree of impairment of bodily 
 
         function.
 
         
 
              Factors to be considered in determining industrial 
 
         disability include the employee's medical condition prior to the 
 
         injury, immediately after the injury, and presently; the. situs 
 
         of the injury, its severity and the length of healing period; the 
 
         work experience of the employee prior to the injury, after the 
 
         injury and potential for rehabilitation; the employee's 
 
         qualifications intellectually, emotionally and physically; 
 
         earnings prior and subsequent to the injury; age; education; 
 
         motivation; functional impairment as a result of the injury; and 
 
         inability because of the injury to engage in employment for which 
 
         the employee is fitted. Loss of earnings caused by a job transfer 
 
         for reasons related to the injury is also relevant.  These are 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         matters which the finder of fact considers collectively in 
 
         arriving at the determination of the degree of industrial 
 
         disability.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              There are.no weighting guidelines that indicate how each of 
 
         the factors are to be considered.  There are no guidelines which 
 
         give, for example, age a weighted value of ten percent of the 
 
         total value, education a value of fifteen percent of total, 
 
         motivation - five percent; work experience - thirty percent, etc. 
 
         Neither does a rating of functional impairment directly correlate 
 
         to a degree of industrial disability to the body as a whole.  In 
 
         other words, there are no formulae which can be applied and then 
 
         added up to determine the degree of industrial disability.  It 
 
         therefore becomes necessary for the deputy to draw upon prior 
 
         experience, general and specialized knowledge to make the finding 
 
         with regard to degree of industrial disability.  See Peterson v. 
 
         Truck Haven Cafe, Inc., (Appeal Decision, February 28, 1985); 
 
         Christensen v. Hagen, Inc., (Appeal Decision, March 26, 1985).
 
         
 
              Claimant is 37 years old, is a high school graduate with two 
 
         years of college completed at the-University of Northern Iowa.  
 
         He sought and successfully completed a microelectronics training 
 
         course which has allowed him to embark on a new career in 
 
         California which demands very little of him physically.  Claimant 
 
         is currently working at a wage scale at $5.40 to $5.94 per hour 
 
         whereas, while employed with defendant, he was last earning 
 
         approximately $9.54 per hour.  Claimant, however, was neither 
 
         forced to relocate nor leave his job with defendant on account of 
 
         his injury.  While the undersigned may not dispute claimant was 
 
         unable to continue in his position of meter reader/laborer due to 
 
         the residuals of his injury, it is also not subject to dissention 
 
         that claimant made no effort to secure other employment with 
 
         defendant, having submitted his resignation to the city without 
 
         discussing the situation with his supervisor.  Mr. Selby 
 
         maintained and established to the satisfaction of the undersigned 
 
         that "a place" would have been found for claimant had claimant 
 
         elected to remain in Iowa.  However, what that "place" may have 
 
         been is a sheer speculation at this stage since no positions were 
 
         available with the city at the time of claimant's resignation and 
 
         it is easy for defendant to assert that "a place" would have been 
 
         found using as security the fact that claimant is now in 
 
         California.  Notwithstanding, claimant's actual earnings and his 
 
         capacity to earn have been adversely affected as a result of the 
 
         work injury of JAnuary 9. 1986.
 
         
 
              Claimant has restrictions on his employability imposed by 
 
         Dr. Brodersen which include:
 
         
 
              In general, I would feel that this man should not 
 
              participate in a job situation that would require the 
 
              lifting of objects greater than 30 pounds and as well, 
 
              repetitive lifting, bending, or twisting.  It would be to 
 
              his benefit to be able to change positions from a sitting to 
 
              a standing position on occasion.
 
         
 
         (Jt. I(C), p. 35)
 
         
 
              The record would establish all of claimant's prior 
 
         experience is essentially as an unskilled laborer.  Claimant has 
 
         work experience on road crews, cleaning and reconditioning cars, 
 
         as a "stock man" in a factory, as a garbage collector, and in 
 
         assembly producing frozen baking products.  Claimant is currently 
 
         employed, as indicated above, assembling subassemblies for 
 
         precision electronic scale equipment, an area of work where there 
 
         is, according to claimant, "no trouble finding jobs" if properly 
 
         trained.  Claimant acknowledged he is trained for several 
 
         different aspects of the microelectronics industry and likes what 
 
         he is doing.  Claimant also had employment as a security job once 
 
         he moved out to California.  Claimant left his employment 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         voluntarily to seek retraining and not due to.any ramifications 
 
         of his injury.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant is not currently under any medical care and has not 
 
         had any treatment for his back since approximately the fall of 
 
         1986.  Claimant has had a history of back trouble but the record 
 
         would support the conclusion that such trouble was not disabling 
 
         until the injury of January 9, 1986.  Claimant has not had any 
 
         impairment rating prior to this injury nor is there any 
 
         indication that claimant had any impairment, worked under any 
 
         restrictions or was unable to carry out any function of his 
 
         employment.  The mere fact that claimant had prior medical 
 
         treatment for his back does not necessitate a conclusion that 
 
         claimant had a prior disability. Defendants' request for an 
 
         apportionment in this matter is not appropriate and will not be 
 
         honored.
 
         
 
              Considering then all the elements of industrial disability, 
 
         it is found that claimant has sustained a permanent partial 
 
         disability of 15 percent for industrial purposes as a result of 
 
         the injury of January 9, 1986 entitling him to 75 weeks of 
 
         permanent partial disability benefits.
 
         
 
              The final issue for resolution is the extent of claimant's 
 
         entitlement to healing period benefits.  Claimant requests 
 
         benefits from the date of injury up to and including August 31, 
 
         1987 except for the period of time when he was employed as a 
 
         security guard.
 
         
 
              Iowa Code section 85.34(1) 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.
 
         
 
              A healing period may be interrupted by a return to work. 
 
         Riesselman v. Carroll Health Center, 3 Iowa Industrial 
 
         Commissioner Reports 209 (Appeal Decision 1982)
 
         
 
              Claimant testified that following his injury on January 9, 
 
         1986, he probably returned to work the next day and did not leave 
 
         work until he was advised to do so by Dr. Rebarcak who 
 
         recommended claimant be excused from all work for two weeks due 
 
         to low back and leg pain.  Claimant then returned to work and 
 
         worked until his admission to the psychiatric ward for the period 
 
         of May 1, 1986 through May 13, 1986.  On August 14, 1986, Dr. 
 
         Dodd noted that claimant was last seen on August 6, 1986 at which 
 
         time claimant "expressed a sense of general improvement in his 
 
         wellbeing." Claimant was encouraged to follow up in outpatient 
 
         treatment for one year after his discharge from the hospital.  
 
         Dr. Dodd did not indicate claimant was not able to work during 
 
         this period of time. Dr. Brodersen found claimant to be "stable 
 
         enough" on August 16, 1986.  Claimant has not had any subsequent 
 
         care for his back since his release from Dr. Brodersen's care.  
 
         Joint Exhibit 3, subdivision B, would show that claimant was paid 
 
         his regular wages during January of 1986.  Therefore, as 
 
         claimant's psychological condition has been found to be causally 
 
         connected to his employment, the undersigned would conclude that 
 
         claimant's healing period ran from May 1, 1986 up to and 
 
         including August 16, 1986, a period of 15.429 weeks.  Although 
 
         claimant sought additional treatment for his depression while in 
 
         California, the greater weight of evidence would not establish 
 
         claimant was in any way disabled from seeking or securing 
 
         employment during this period of time.  Claimant was employed as 
 
         a security guard and, as previously noted, did not leave this 
 
         employment due to any inability to work but rather as a result of 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         his desire to be retrained.  Claimant sought unemployment 
 
         insurance benefits and presented himself as available for work 
 
         and particularly work as a meter reader.  Benefits paid during a 
 
         period of temporary total disability or healing period 
 
         contemplate an improvement in the worker's condition.  Healing 
 
         period does not continue during a time in which a worker is 
 
         getting treatment that is maintenance in nature.  DeRochie v. 
 
         City of Sioux City, II Iowa Industrial Commissioner Report 112 
 
         (Appeal Decision 1982).  Therefore, although defendants are 
 
         liable for any costs associated with the California treatment 
 
         (and, according to joint exhibit 2, there do not appear to be any 
 
         disputed expenses), claimant has not shown any further 
 
         entitlement to temporary total disability benefits during this 
 
         period of time as the record fails to support a conclusion that 
 
         claimant was temporary totally disabled.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                                 FINDINGS OF FACT
 
         
 
              Wherefore, based on the evidence presented, the following 
 
         findings of fact are made:
 
         
 
              1.  Claimant sustained an injury on January 9, 1986 which 
 
         arose out of and in the course of his employment.
 
         
 
              2.  The parties have stipulated and agreed that this injury 
 
         is the cause of both temporary and permanent disability.
 
         
 
              3.  Claimant has sustained a permanent partial impairment as 
 
         a result of the injury of January 9, 1986.
 
         
 
              4.  Claimant has prior work experience generally as an 
 
         unskilled laborer but is a high school graduate and has two years 
 
         of college education.
 
         
 
              5.  Claimant has work restrictions on his employability 
 
         which prohibit him from engaging in much of the work for which he 
 
         is fitted by experience.
 
         
 
              6.  Claimant has sought retraining in California and is 
 
         currently employed in a stable job.
 
         
 
              7.  Claimant has suffered both a loss of earnings and a loss 
 
         of earning capacity as a result of the injury of January 9, 1986.
 
         
 
              8.  The interaction between claimant's injury of January 9, 
 
         1986, his inability to continue working at his regular job, and 
 
         the anxiety caused by leaving that job combine to constitute a 
 
         substantial factor in causing a need for psychological 
 
         counseling.
 
         
 
              9.  Claimant is entitled to medical expenses for the 
 
         treatment of the psychological counseling.
 
         
 
              10.  Claimant's healing period ran from May 1, 1986 up to 
 
         and including August 16, 1986, a period of 15.429 weeks.
 
         
 
              11. As a result of the injury of January 9, 1986, claimant 
 
         has sustained a permanent partial disability of 15 percent for 
 
         industrial purposes.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Therefore, based on the principles of law previously cited 
 
         and discussed, the following conclusions of law are made.
 
         
 
              1.  As a result of the injury on January 9, 1986, claimant 
 
         has sustained a permanent partial disability of 15 percent for 
 
         industrial purposes.
 
         
 
              2.  Claimant has established that the injury of January 9, 
 
         was the cause of a temporary psychological disorder.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              3.  Claimant is entitled to expenses associated with the 
 
         treatment of the temporary psychological disorder.
 
              
 
              4.  Claimant is entitled to 15.429 weeks of healing period 
 
         benefits for the period from May 1, 1986 up to and including 
 
         August 16, 1986.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              Defendants shall pay unto claimant fifteen point four,two 
 
         nine (15.429) weeks of healing period benefits for the period 
 
         from May 1, 1986 up to and including August 16, 1986, at the 
 
         stipulated rate of two hundred sixty-two and 38/100 dollars 
 
         ($262.38) per week.
 
         
 
              Defendants shall pay unto claimant seventy-five (75) weeks 
 
         of permanent partial disability benefits commencing August 17, 
 
         1986, at the stipulated rate of two hundred sixty-two and 38/100 
 
         dollars ($262.38) per week.
 
         
 
              Defendants shall pay all disputed medical expenses for the 
 
         treatment of claimant's psychological condition.
 
         
 
              Defendants shall receive credit for all disability benefits 
 
         previously paid.
 
         
 
              All benefits that have accrued shall be paid in a lump sum 
 
         together with statutory interest thereon pursuant to Iowa Code 
 
         section 86.30.
 
         
 
              Costs are assessed against defendants pursuant to Division 
 
         of Industrial Services Rule 343-4.33.
 
         
 
         
 
              Signed and filed this 8th day of December, 1989.
 
         
 
         
 
         
 
         
 
         
 
                                       DEBORAH A. DUBIK
 
                                       DEPUTY INDUSTRIAL COMMISSIONER.
 
         
 
         Copies To:
 
         
 
         Mr. Dennis L. Hanssen
 
         Attorney at Law
 
         Terrace Center Ste 111
 
         2700 Grand Ave
 
         Des Moines, IA  50312
 
         
 
         Mr. William D. Scherle
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         Attorney at Law
 
         803 Fleming Bldg
 
         Des Moines, IA  50309
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
                                       
 
 
 
 
 
 
 
 
 
 
 
                                       51803; 1801; 1402.60
 
                                       Filed December 8, 1989
 
                                       Deborah A. Dubik
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         RICK J. FINCHAM,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                 File No. 838639
 
         CITY OF NEVADA,
 
                                              A R B I T R A T I 0 N
 
              Employer,
 
                                                 D E C I S I 0 N
 
         and
 
         
 
         NORTHWESTERN NATIONAL,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         51803
 
         
 
              Claimant established he sustained a 15% industrial 
 
         disability for injury to back.
 
         
 
         
 
         1801; 1402.60
 
         
 
              Claimant established causal connection between injury and 
 
         psychological problems so as to be entitled to temporary total 
 
         disability and medical benefits.  Although claimant had a number 
 
         of other factors which contributed to his psychological problems, 
 
         injury was found to be a substantial factor in bringing about the 
 
         result citing Blacksmith, 290 N.W.2d 348 at 354.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JOSEPH VANSEVEREN,
 
         
 
              Claimant,
 
         VS.
 
         
 
                                         File No. 838679
 
         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 GROUP,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Joseph Van 
 
         Severen against A. C. Dellovade, Inc., employer, and Kemper Group 
 
         insurance carrier, to recover benefits under the Iowa Workers' 
 
         Compensation Law as a result of an injury sustained on November 
 
         13, 1986.  This matter came on for hearing before the undersigned 
 
         deputy industrial commissioner on September 14, 1988 and was 
 
         considered fully submitted upon receipt of the parties' briefs on 
 
         December 21, 1988.  The record in this case consists of the 
 
         testimony of claimant and Patricia Conway; claimant's exhibits 1 
 
         through 59, inclusive; and defendants' exhibits A through L, 
 
         inclusive.  Claimant's objections to defendants' exhibits A 
 
         through K are overruled and the exhibits are admitted for their 
 
         probative value.
 
         
 
                                      ISSUES
 
         
 
              Pursuant to the prehearing report and order submitted and 
 
         approved September 14, 1988, the following issues are presented 
 
         for resolution:
 
         
 
              1. The extent of claimant's healing period; and
 
         
 
              2. The nature and extent of claimant's entitlement to 
 
         permanent partial disability benefits and the commencement date 
 
         thereof.
 
         
 
         
 
         
 
         VANSEVEREN.V. A. C. DELLOVADE
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         Page 2
 
         
 
         
 
              Also disputed is claimant's entitlement to benefits under 
 
         Iowa Code section 85.27. This issue, however, was not listed as 
 
         an issue on the hearing assignment order and, accordingly, the 
 
         undersigned is without jurisdiction to consider it.  See Joseph 
 
         Pressood v. Iowa Beef Processors, (Appeal Decision filed November 
 
         14, 1986) holding an issue not noted on the hearing assignment 
 
         order is an issue that is waived.
 
         
 
                                 FACTS PRESENTED
 
         
 
              Claimant sustained an injury which arose out of and in the 
 
         course of his employment on November 13, 1986 when a stepladder 
 
         "kicked out" and claimant fell approximately eight to ten feet.  
 
         Claimant stated he felt pain in his lower back, that he fell on 
 
         his right knee, and that some material fell on his neck, shoulder 
 
         and hip.  Claimant recalled that after a try at bed rest which 
 
         prove unsuccessful, he was hospitalized for ten days and when he 
 
         was released therefrom, he was still in pain and did not feel 
 
         much better.  Claimant explained that he felt pain in his lower 
 
         back into his right leg and foot, that he could not raise his arm 
 
         higher than shoulder level, and that his neck and toe hurt.
 
         
 
              Claimant stated he was originally under the care of Maurice 
 
         Margules, M.D., but that when defendant insurance carrier would 
 
         not authorize Dr. Margules' care he was referred to Patrick W. 
 
         Bowman, M.D., underwent some treatment at a pain clinic and had 
 
         arthroscopic surgery done on his knee by R. Michael Gross, M.D.  
 
         Claimant testified that neither of the surgical procedures done 
 
         on his knee helped and that he last saw Dr. Gross in April of 
 
         1988. claimant explained he continued to see Dr. Bowman for pain 
 
         down the back of his leg and that in May of 1988, he was released 
 
         by both Drs. Bowman and Gross and told to find a different line 
 
         of work.
 
         
 
              Claimant described his current symptoms as a constant pain 
 
         running down his leg and that his knee goes out on him regularly.  
 
         Claimant denied any problem with his neck or shoulder.  Claimant 
 
         stated he did not believe he could do ironwork, his regular work, 
 
         because he could not sustain the constant bending over to work 
 
         with rods, has difficulties standing for more than 45 minutes, 
 
         and has difficulty sitting for more than two hours.  Claimant 
 
         testified he has not worked and has not engaged in any activity 
 
         outside of walking the picket line for "three or four or five 
 
         weeks" from 6:00 a.m. to 1:00 p.m. Claimant stated that after 
 
         performing this duty he was "stiff, very stiff" and had to lie 
 
         down and soak once he got home.
 
         
 
              Claimant explained he has been an ironworker since 1971 and 
 
         on November 13, 1986 was earning $15 to $16 per hour with 
 
         benefits and $13.10 per hour without benefits.  Claimant attested 
 
         to an injury in 1977 when a building collapsed and he suffered a
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         VANSEVEREN V. A. C. DELLOVADE 
 
         Page 3
 
         
 
         
 
         "cracked vertebra" and was rated as having a 15 percent permanent 
 
         partial impairment.  Claimant also stated he was injured in 1983 
 
         when he twisted his mid, not lower, back.  Claimant denied being 
 
         advised not to return to ironwork after either injury and that 
 
         each time was able to return to work without restrictions.
 
         
 
              On cross-examination, claimant revealed he settled the 1977 
 
         injury on the basis of a 25 percent industrial disability and the 
 
         1983 case on a percent impairment basis in the state of Nebraska.  
 
         When confronted with information that he had been advised not to 
 
         return to work as an ironworker after the 1983 injury and with 
 
         information that restrictions had been placed on his 
 
         employability, claimant stated he "sort of" recalled such advice 
 
         "generally." During discovery in this case, claimant was asked in 
 
         interrogatories:
 
         
 
                 4. State the dates, places, and general nature of each 
 
              and every bodily injury sustained by the claimant since 
 
              birth to date.  For the purpose of these Interrogatories, 
 
              bodily injury, injury, or injuries shall include any 
 
              personal injury or condition which might be claimed or is 
 
              claimed to be compensable under the Iowa Workmen's 
 
              Compensation Act.
 
         
 
         (Defendants' Exhibit H. page 2)
 
         
 
              Claimant answered:
 
         
 
                 September 16, 1977 - Compression fractures to L-1 lumbar 
 
              and dorsal regions.  Hospitalized in Bergan Mercy Hospital.  
 
              On 9/16/77, I fell 10 feet from a scaffold whiled [sic] 
 
              employed by all purpose utilities. We were subcontractor at 
 
              the County Home in Sidney, Iowa.
 
              
 
              In 1983, I strained a muscle in my back.  I was lifting a 
 
              steel bar while doing iron work at the gas building located 
 
              at 29th & Dodge Streets in Omaha, NE. the pain resolved 
 
              after a few days and I returned to work.
 
         
 
         (Def.Ex. H, p. 2)
 
         
 
              At hearing, claimant acknowledged he was off work for seven 
 
         months following the 1983 injury and was not given a full release 
 
         to return to work.  In addition, claimant was asked in 
 
         interrogatory No. 5:
 
         
 
              5. If the claimant has ever made claims for compensation or 
 
              benefits under a nonoccupational insurance plan or brought 
 
              actions for bodily injuries
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         VANSEVEREN V. A. C. DELLOVADE 
 
         Page 4
 
         
 
         
 
              other than for the occurrence alleged herein, state the date 
 
              and place of each such claim or action, giving the name and 
 
              address of the employer, nonoccupational insurance carrier, 
 
              or defendant in each case, as well as the amount of any 
 
              settlement and the percentage of disability said settlement 
 
              was based upon, including the specific area of the body 
 
              which was disabled.
 
         
 
         (Def.Ex. H, p. 3)
 
         
 
              Claimant responded with information on the 1977 injury and 
 
         disclosed no information on the 1983 injury.  Claimant asserted, 
 
         however, that he did not recall any restrictions being imposed 
 
         and if restrictions were imposed what those restrictions might 
 
         have been.
 
         
 
              Patricia Conway, who identified herself as a vocational 
 
         consultant with Crawford Health and Rehabilitation Services, 
 
         testified she first met with claimant on May 23, 1988 at the 
 
         request of defendant insurance carrier and that she last met him 
 
         for the eighth time on September 7, 1988.  Ms. Conway explained 
 
         she administered a number of tests to claimant and found him to 
 
         be of average to above average in aptitude and that although she 
 
         tried to develop a rehabilitation plan with claimant, claimant 
 
         did not have such a plan at the time of hearing, describing 
 
         claimant as lacking direction vocationally.  Ms. Conway stated 
 
         that he had a difficult time getting more than one word answers 
 
         from claimant, that claimant gave no indication of direction and 
 
         no feedback to any of her suggestions.  Ms. Conway asserted 
 
         claimant had conducted no independent job search and that his 
 
         ideas of becoming a helicopter pilot or a train engineer were not 
 
         realistic, both from a vocational standpoint and from an 
 
         employment standpoint.  Ms. Conway opined that in light of the 
 
         restrictions imposed on claimant following his 1983 injury, he 
 
         was capable of performing sedentary and light jobs and that the 
 
         restrictions imposed on him following the most recent injury did 
 
         not change his position vocationally since he can perform 
 
         sedentary and light work now, as his medical restrictions are not 
 
         much different now than they were in 1984.  Ms. Conway opined 
 
         that the injury of November 13, 1986 did not cause any loss of 
 
         earnings since it did not change claimant vocationally based on 
 
         his medical restrictions.
 
         
 
              Patrick W. Bowman, M.D., saw claimant on January 26, 1987 at 
 
         the request of defendant insurance carrier and on that date 
 
         reported:
 
         
 
              HISTORY:
 

 
              
 
 
 
 
 
 
 
 
 
 
 
              
 
               Joseph Van Severen is a 35 year old male who suffered
 
              an injury on the job on 13 November 1986.  He stated
 
         
 
         
 
         
 
         VANSEVEREN V. A. C. DELLOVADE
 
         Page 5
 
         
 
         
 
              that he fell off a ladder, falling approximately 8 feet.  He 
 
              landed on his right shoulder and neck.
 
              
 
                 Since that time he has had fairly severe pain in his 
 
              right knee, right shoulder, at the base of his neck, between 
 
              his shoulder blades and also his lumbosacral area.  He also 
 
              is describing some radicular pain down his right lower 
 
              extremity.
 
              
 
                 He was seen by Drs. Miller and Margules.  Dr. Margules 
 
              carried out a lumbar myelogram which was normal.  
 
              Conservative modalities have been recommended.  He feels 
 
              that he is gradually getting worse.  He has been to physical 
 
              therapy without benefit.
 
              
 
                 His pain is quite mechanical in nature being aggravated 
 
              by activity.  He says nothing eases his pain.  He is unable 
 
              to get comfortable at night.  He says he has increased pain 
 
              with coughing in his leg.  He says he is worse at.the end of 
 
              the day.  He is currently taking no medications regularly.
 
              
 
                 He has a history of being completely free of pain prior 
 
              to this fall.  His general health is reasonably good.  He 
 
              does have a history of back problems in the past.  He saw 
 
              Dr. Klein back in 1970 after a fall at work which caused a 
 
              compression fracture at Ll.  He was laced in a Jewett 
 
              hyperextension brace and was off work approximately 7 
 
              months.  He said he recovered completely from that and had 
 
              absolutely no residual symptoms in his mind.
 
              
 
              PHYSICAL EXAMINATION:
 
              
 
              Physical examination reveals an alert, cooperative man.  He 
 
              seems quite depressed to me.  He walks with a slight limp on 
 
              the right.  His pelvis is slightly low on the left.
 
              
 
              Forward flexion is limited approximately 50 percent at the 
 
              lumbosacral juncture.  His neck motion is limited 
 
              approximately 50 percent as well.  There is associated 
 
              muscle spasm in his neck and low back.
 
              
 
              He has a bicipital tendonitis of the right shoulder with 
 
              associated pain and restriction of movement.
 
              
 
              He has no neurologic deficits in his upper or lower 
 
              extremities.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         VANSEVEREN V. A. C. DELLOVADE 
 
         Page 6
 
         
 
              
 
              He has tenderness of his great toe on the right side with 
 
              swelling and pain.
 
              
 
              He has tenderness about the knee on the right side.  There 
 
              is no effusion.  He has good range of motion and no 
 
              instability.  There is tenderness about the patella.
 
              
 
              He has no neurologic deficits in his upper extremities.  The 
 
              pulses are intact above and below.  There is no atrophy 
 
              present.
 
              
 
              X-RAYS:
 
              
 
              X-rays of his right shoulder are normal.
 
              
 
              X-rays of his neck are within normal limits.
 
              
 
              X-rays of his right great toe show degenerative changes at 
 
              the metatarsal phalangeal joint.  There is a small ossicle 
 
              off the edge of the joint and generalized narrowing present.
 
              
 
              Lumbar spine x-rays are essentially within normal limits.
 
              
 
              His right knee x-rays are within normal limits.
 
              
 
              IMPRESSION:
 
              
 
              1. Bicipital tendonitis, right.
 
              
 
              2. Subacute cervical strain.
 
              
 
              3. Synovitis, right knee.
 
              
 
              4. Degenerative arthritis, right great toe.
 
              
 
              5. Status post compression fracture, Ll.
 
              
 
              6. Degenerative lumbar disc disease.
 
              
 
              ..It took him an extended period of time to return to work 
 
              before, and I am afraid that we are headed that way now 
 
              unless we can get a handle on all of this.
 
         
 
         (Claimant's Exhibit 31)
 
         
 
         
 
         
 
         VANSEVEREN V. A. C. DELLOVADE
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         Page 7
 
         
 
         
 
              Dr. Bowman provided claimant with some medication, referred 
 
         claimant to the spine center for a back conditioning program and 
 
         injected the right shoulder with a steroid.
 
         
 
              On May 26, 1987, Dr. Bowman advised defendant insurance 
 
         carrier on claimant's continued care, stating:
 
         
 
              As you can see, when I first saw him for this injury of 13 
 
              November 1986 on 26 January 1987, his right knee was a 
 
              source of complaint.  It has been aching all along, and I 
 
              note that on 11 March 1987 I noticed a considerable swelling 
 
              in the knee.  Also, in reviewing my pain chart done 
 
              initially, the right knee is marked by Joseph as a source of 
 
              considerable pain for him.  According to him, the knee was 
 
              injured in the fall.
 
              
 
                 Because there were no specific physical findings for torn 
 
              cartilage, I pretty much ignored this, assuming that it was 
 
              ligamentous, and anticipating improvement with time.  
 
              Because of persistent symptoms there, he did undergo 
 
              arthroscopy on 30 April 1987, and a large area of 
 
              osteochondritis dissecans was found over the medial femoral 
 
              condyle.  This means that a chunk of cartilage in the knee 
 
              was found to be loose along with the underlying bone.  This 
 
              is on the weight bearing surface and is unfortunately a 
 
              fairly serious condition.  In our office we are 
 
              subspecialized, and I asked Dr. Mike Gross who is our 
 
              arthroscopist to take a look, and it was he who actually did 
 
              the arthroscopy and removed his fragment.  The study was 
 
              videotaped from beginning to end, and we would be happy to 
 
              give you access to that if it would be helpful.
 
              
 
                 What this arthroscopy documented was that not only does 
 
              Mr. Van Severen have legitimate disease in his knee, he has 
 
              unfortunately a serious problem there.
 
              
 
                 He will be on crutches for at least the next 6 weeks or 
 
              so, and his weight bearing on this limb will be limited 
 
              after that for an indefinite period of time.  This kind of 
 
              condition can lead to early arthritic changes in the joint, 
 
              and I think will seriously jeopardize his prospects for 
 
              returning to work as a steel worker.
 
              
 
                 I have reviewed the notes and nowhere do I see any 
 
              reference by Joseph to a problem with his foot.  As you 
 
              know, he had a rather large ossicle over the big toe there 
 
              which I removed at the same time.  This was a rather minor 
 
              and somewhat incidental thing.  I think he should do well 
 
              with it.  Whether it is actually work
 
         
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         VANSEVEREN V. A. C. DELLOVADE 
 
         Page 8
 
         
 
         
 
              related I do not know.  I have talked to him, and he says 
 
              that he jammed this toe in the course of the fall but simply 
 
              did not bring it up before.  Whether this would constitute 
 
              being work related or not I think must be strictly based on 
 
              Joseph's believability.  I have no reason not to believe 
 
              him, but certainly the record does not show any problem with 
 
              his foot that I can see prior to my talking to him on 20 
 
              April 1987.  Whether this constitutes a work related injury 
 
              or not I think is between you and Mr. Gallner.
 
              
 
                 As far as Joe's spine is concerned, I think he does have 
 
              legitimate disease there.  As you know, he has had 
 
              compression fractures in the past, and I think Dr. Joe Gross 
 
              has given him 15 percent total body impairment on that 
 
              several years back.  The fall has constituted an aggravation 
 
              of a pre-existing condition, but I would not judge his 
 
              actual impairment rating to be any higher than it was before 
 
              as a result of this fall.
 
              
 
                 I feel badly about all the confusion and hard feelings 
 
              regarding this case.  I can assure you that I have tried to 
 
              be as honest and straightforward as I possibly could with 
 
              all parties involved..
 
         
 
         (Cl. Ex. 23)
 
         
 
              Michael Gross, M.D., wrote to claimant's counsel on August 
 
         18, 1987 that:
 
         
 
                 Joseph Van Severen was seen by me on 12 August 1987.  He 
 
              had nothing but negative remarks to report with respect to 
 
              his right knee.  He stated that it constantly hurt him and 
 
              he could not stand on it for any length of time and just by 
 
              in large did not function adequately for activities of daily 
 
              living.
 
              
 
                 I had followed up on his therapy and his response to the 
 
              therapy was poor in all likelihood due to discomfort.  For 
 
              whatever reason, he was just not able to cooperate to his 
 
              fullest with the therapy.
 
              
 
                 My feelings with this patient are really quite simple.  I 
 
              would certainly agree that he does have an going [sic] 
 
              problem but I think he has proven to be a poor candidate for 
 
              surgery and rehabilitation.  I am not too keen on suggesting 
 
              any type of surgery as he has proven at least in my 
 
              experience that he does not respond too well to surgery.
 
         
 
         
 
         
 
         VANSEVEREN V. A. C. DELLOVADE
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         Page 9
 
         
 
         
 
                 In view of the fact that he has problems with his back 
 
              and problems with his knee, I feel it would be much more 
 
              reasonable to re-direct his life and get him involved in 
 
              Vocational Rehabilitation in a type of employment that would 
 
              not include bending, stooping, lifting, working on his feet 
 
              all day long or lifting heavy objects.
 
         
 
         (Cl. Ex. 20)
 
         
 
              On April 5, 1988, Dr. Gross opined that claimant's 
 
         "disability rating is 15 percent of the lower extremity.  His 
 
         problem is indeed related to the November 1986 injury." (Cl.  Ex. 
 
         7)
 
         
 
              On April 11, 1988, Dr. Bowman wrote to defendants' counsel 
 
         "to clarify" his position regarding claimant's impairment.  Dr. 
 
         Bowman stated:
 
         
 
                 As I understand it, Dr. Klein has given Mr. Van Severen a 
 
              15% total body impairment because of his lumbar spine 
 
              condition in 1978 or so.
 
              
 
                 Subsequent to that, in 1984, Dr. Friermood of Englewood, 
 
              Colorado, gave him an additional 5% because of an 
 
              aggravation of his spinal condition which occurred on the 
 
              job.  This 5%, as I understand it, was an impairment for 
 
              combination of back injury and tendonitis of the shoulder.
 
              
 
                 It is my opinion that Mr. Joseph VanSeveren did suffer an 
 
              aggravation of a pre-existing lumbar spine condition when he 
 
              came under my care in 1987 in January.
 
              
 
                 It would be my judgment at this time that the total 
 
              impairment that he currently suffers from his spinal 
 
              condition would not exceed 20%.  In view of the fact that 
 
              Dr. Klein gave him 15% and Dr. Friermood gave him 2 or 3% 
 
              (depending on how one wants to divide up the 5% he gave for 
 
              the shoulder and back), that the increased impairment to his 
 
              lumbar spine that he has sustained as a result of his 
 
              accident in November of 1986 would be approximately 2 or 3% 
 
              of the total body.
 
              
 
                 I would essentially agree with Dr. Friermood's 
 
              restrictions of no lifting greater than 30 pounds on an 
 
              infrequent basis, no lifting greater than 20 pounds on a 
 
              frequent basis, no repetitive bending or squatting.  I think 
 
              these limitations will be permanent.  I also feel these 
 
              limitations will absolutely preclude him
 
         
 
         
 
         
 
         VANSEVEREN V. A. C. DELLOVADE 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         Page 10
 
         
 
         
 
              from returning to work as an ironworker in the future.  If 
 
              more definition is needed regarding his permanent functional 
 
              capacities, then a functional capacity assessment should be 
 
              obtained.
 
         
 
         (Cl. Ex. 6)
 
         
 
              On April 19, 1984, Maggie Rose, R.N., a rehabilitation 
 
         consultant with Fisher and Associates of Englewood, Colorado, 
 
         reported:
 
         
 
                 Joe and I met with Dr. Friermood on 4/16 as planned.  Dr. 
 
              Friermood reviewed the results of the CAT Scan, which Joe 
 
              had undergone the Friday before.  He stated that there was 
 
              no evidence of any disc herniation or nerve impingement in 
 
              his spinal column.  Dr. Friermood stated that he had 
 
              exhausted all types of treatment he knew of for Joe's 
 
              condition and indicated he could find no objective findings 
 
              on examination to warrant any further investigative studies.  
 
              He did indicate that since Joe was still complaining of 
 
              discomfort in his shoulder and his back he could not release 
 
              him to return to work as an iron worker.  Dr. Friermood 
 
              stated that he felt Joe was capable of returning to a job as 
 
              long as he observed the following restrictions:
 
              
 
              - no lifting greater than 30 lbs. on an infrequent basis
 
              
 
              - no lifting greater than 20 lbs. on a frequent basis
 
              
 
              - No repetitive bending or squatting
 
              
 
              - No overhead work with his right arm
 
              
 
                 Dr. Friermood indicated that he felt Joe had reached 
 
              maximum medical improvement as far as he was concerned and 
 
              would provide the Carrier with a disability rating.
 
         
 
         (Cl. Ex. 44)
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
         employment.  Section 85.3(l).
 
         
 
              As the parties have stipulated and agreed that on November 
 
         13, 1986 claimant sustained an injury arising out of and in the 
 
         course of his employment which is the cause of both a temporary
 
         
 
         
 
         
 
         VANSEVEREN V. A. C. DELLOVADE 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         Page 11
 
         
 
         
 
         and permanent disability, the essential question for resolution 
 
         is the nature (be it a scheduled injury or an injury to the body 
 
         as a whole) and the extent of that disability.
 
         
 
              If a claimant contends he has industrial disability he has 
 
         the burden of proving his injury results in an ailment extending 
 
         beyond the scheduled loss.  Kellogg v. Shute and Lewis Coal Co., 
 
         256 Iowa 1257, 130 N.W.2d 667 (1964).
 
         
 
              It is clear claimant has sustained prior injuries from which 
 
         he suffered permanent disability.  Claimant was injured in 1977 
 
         after which he was found to have sustained a 25 percent 
 
         industrial disability.  Claimant was again injured in 1983 after 
 
         which he was found permanently impaired and had restrictions 
 
         imposed on his employability.  Dr. Bowman, who, unlike other 
 
         physicians who saw claimant after his injury of November 13, 
 
         1986, was aware of both of claimant's injuries, opined that, as a 
 
         result of the injury of November 13, 1986, claimant suffered, in 
 
         addition to the lower extremity problem, an aggravation of a 
 
         preexisting lumbar.spine condition.  Although claimant has 
 
         serious questions with regard to his credibility (which issue 
 
         will later be addressed) the undersigned concludes that claimant 
 
         has shown his injury extends beyond the schedule and that he is 
 
         therefore entitled to an evaluation of industrial disability.
 
         
 
              Dr. Bowman has opined:
 
         
 
                 It would be my judgment at this time that the total 
 
              impairment that he currently suffers from his spinal 
 
              condition would not exceed 20%.  In view of the fact that 
 
              Dr. Klein gave him 15% and Dr. Friermood gave him 2 or 3% 
 
              (depending on how one wants to divide up the 5% he gave for 
 
              the shoulder and back), that the increased impairment to his 
 
              lumbar spine that he has sustained as a result of his 
 
              accident in November of 1986 would be approximately 2 or 3% 
 
              of the total body.
 
         
 
         (Cl. Ex. 6)
 
         
 
         
 
              Dr. Gross imposed a "disability rating" of 15 percent of the 
 
         lower extremity.
 
         
 
              Functional impairment is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963).  
 
         Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961).
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         VANSEVEREN V. A. C. DELLOVADE
 
         Page 12
 
         
 
         
 
              A finding of impairment to the body as a whole found by a 
 
         medical evaluator does not equate to industrial disability.  This 
 
         is so as impairment and disability are not synonymous.  Degree of 
 
         industrial disability can in fact be much different than the 
 
         degree of impairment because in the first instance reference is 
 
         to loss of earning capacity and in the latter to anatomical or 
 
         functional abnormality or loss.  Although loss of function is to 
 
         be considered and disability can rarely be found without it, it 
 
         is not so that a degree of industrial disability is 
 
         proportionally related to a degree of impairment of bodily 
 
         function.
 
         
 
              Factors to be considered in determining industrial 
 
         disability include the employee's medical condition prior to the 
 
         injury, immediately after the injury, and presently; the situs of 
 
         the injury, its severity and the length of healing period; the 
 
         work experience of the employee prior to the injury, after the 
 
         injury and potential for rehabilitation; the employee's 
 
         qualifications intellectually, emotionally and physically; 
 
         earnings prior and subsequent to the injury; age; education; 
 
         motivation; functional impairment as a result of the injury; and 
 
         inability because of the injury to engage in employment for which 
 
         the employee is fitted.  Loss of earnings caused by a job 
 
         transfer for reasons related to the injury is also relevant.  
 
         These are matters which the finder of fact considers collectively 
 
         in arriving at the determination of the degree of industrial 
 
         disability.
 
         
 
              There are no weighting guidelines that indicate how each of 
 
         the factors are to be considered.  There are no guidelines which 
 
         give, for example, age a weighted value of ten percent of the 
 
         total value, education a value of fifteen percent of total, 
 
         motivation - five percent; work experience - thirty percent, etc.  
 
         Neither does a rating of functional impairment directly correlate 
 
         to a degree of industrial disability to the body as a whole.  In 
 
         other words, there are no formulae which can be applied and then 
 
         added up to determine the degree of industrial disability.  It 
 
         therefore becomes necessary for the deputy to draw upon prior 
 
         experience, general and specialized knowledge to make the finding 
 
         with regard to degree of industrial disability.  See Peterson v. 
 
         Truck Haven Cafe, Inc., (Appeal Decision, February 28, 1985); 
 
         Christensen v. Hagen, Inc., (Appeal Decision, March 26, 1985).
 
         
 
              While a claimant is not entitled to compensation for the 
 
         results of a preexisting injury or disease, the mere existence at 
 
         the time of a subsequent injury is not a defense.  Rose v. John 
 
         Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2d 756, 760-61 
 
         (1956).  If the claimant had a preexisting condition or 
 
         disability that is aggravated, accelerated, worsened or lighted 
 
         up so that it results in disability, claimant is entitled to
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         VANSEVEREN V. A. C. DELLOVADE
 
         Page 13
 
         
 
         
 
         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.
 
         
 
              As the evidence establishes both that claimant suffers from 
 
         a preexisting condition (from which he sustained a permanent 
 
         partial disability) and that the injury of November 13, 1986 
 
         aggravated that condition, claimant is entitled to recover 
 
         benefits to the extent of the impairment.
 
         
 
              Subsequent to the 1983 injury, claimant was advised not to 
 
         return to ironwork and that he had restrictions on his 
 
         employability.  This deputy finds it impossible to believe either 
 
         that claimant forgot about Dr. Friermood's recommendations and 
 
         opinions or that he did not know about them at all.  It is clear 
 
         from the evidence presented that claimant made a deliberate 
 
         attempt to try to hide this injury.  Indeed, medical histories 
 
         which are replete with references to the 1977 injury are silent 
 
         with regard to the 1983 injury.  Interrogatory answers, answered 
 
         under oath, are clearly and indisputably false and misleading.  
 
         Seventeen weeks of healing period can hardly be termed "a few 
 
         days."  Claimant was also not completely candid with the 
 
         insurance investigator who took his recorded statement 
 
         immediately after the 1986 injury.  Such conduct does not instill 
 
         confidence in claimant's assertions concerning his abilities or 
 
         lack thereof.
 
         
 
              Dr. Bowman, in 1988, does not impose any restrictions on 
 
         claimant that Dr. Friermood did not impose in 1984.  Essentially, 
 
         Dr. Bowman's restrictions include "no lifting greater than 30 
 
         pounds on an infrequent basis, no lifting greater than 20 pounds 
 
         on a frequent basis, no repetitive bending or squatting." (Cl. 
 
         Ex. 6) Yet, after Dr. Friermood imposed such restrictions, 
 
         claimant did return to ironwork.  One has to wonder if claimant 
 
         will do the same in light of the lack of initiative in developing 
 
         an alternative vocational plan, his desire not to have to work 
 
         the entire year and his love of ironwork.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              Claimant, age 36 at the time of hearing, is a high school 
 
         graduate who was found to be of average to above average in 
 
         aptitude.  Claimant struck the undersigned as also being above
 
         
 
         
 
         
 
         VANSEVEREN V. A. C. DELLOVADE 
 
         Page 14
 
         
 
         
 
         average in his intellectual capabilities.  Claimant was clearly 
 
         provided with ample opportunity to develop an alternate 
 
         vocational plan, yet, he has essentially chosen not to do so.  
 
         Claimant appears to be "going through the motions" by meeting 
 
         regularly with a vocational consultant.  Claimant's lack of 
 
         progress in this area is somewhat suspect.  While claimant argues 
 
         a loss of earnings based on "earning potential" it is clear 
 
         claimant has never availed himself of this "earning potential."  
 
         For the years of 1982, 1983, 1984, 1985 and 1986, claimant earned 
 
         an average of $15,422.20 per year.  Patricia Conway testified 
 
         that given claimant's current employment restrictions and his 
 
         current capabilities, claimant could expect to earn $14,000 to 
 
         $15,000 per year now.  The employment available to claimant would 
 
         admittedly not be competitive with his previous hourly salary but 
 
         it is competitive with his average annual earnings.
 
         
 
              The undersigned is not moved by the report of James T. 
 
         Rogers found at claimant's exhibit 2 which asserts:
 
         
 
                 Joe is not presently a candidate for job retraining or 
 
              other vocational rehabilitation assistance such as 
 
              on-the-job training, counseling, direct job placement, etc. 
 
              and will probably be viewed by rehabilitation personnel, 
 
              private or public, as uncooperative or barely cooperative.  
 
              Joe is not presently in a frame of mind to be accepting of 
 
              such services due to severe family financial and other 
 
              problems.
 
              
 
         (Cl. Ex. 2, p. 6)
 
         
 
              Given claimant's credibility problems, his "frame of mind" 
 
         appears to be more self inflicted than not.
 
         
 
              In spite of the above, claimant has sustained a permanent 
 
         disability as a result of the injury under review.  However, this 
 
         deputy cannot ignore claimant's prior restrictions (whether he 
 
         chose to live within their bounds or not), his prior impairment, 
 
         or his prior earnings (whether he chose to rise to his potential 
 
         or not).  Considering then all the elements of industrial 
 
         disability, it is found that claimant has a permanent partial 
 
         disability for industrial purposes of 50 percent, 35 percent of 
 
         which was preexisting and 15 percent of which is as a result of 
 
         the injury of November 13, 1986.  Claimant is thus entitled to 75 
 
         weeks of permanent partial disability benefits.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              The final issue for resolution is the length of claimant's 
 
         healing period.  Claimant argues that it should end on March 31, 
 
         1988 while defendants assert it ends on February 9, 1988.
 
         
 
              Iowa Code section 85.34(l) provides that if an employee has 
 
         suffered a personal injury causing permanent partial disability,
 
         
 
         
 
         
 
         VANSEVEREN V. A. C. DELLOVADE 
 
         Page 15
 
         
 
         
 
         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.
 
         
 
              The office notes of Drs. Bowman and Gross dated February 9, 
 
         1988 state:
 
         
 
                 He is doing very well.  He is not asymptomatic but the 
 
              second surgery really made a big difference.  He is happy.  
 
              His motion is quite good. The knee is not swollen and not 
 
              hot.  The patient was released.  Followup p.r.n.
 
         
 
         (Cl. Ex. 9)
 
         
 
              As nothing in the record would indicate claimant's condition 
 
         improved subsequent to February 9, 1988 and claimant was released 
 
         at this time to return to only on an as-needed basis, it is 
 
         determined that claimant's healing period ended on February 9, 
 
         1988 and permanent partial disability benefits, pursuant to Iowa 
 
         Code section 85.34, are to commence February 10, 1988.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              Wherefore, based on all of the evidence presented, the 
 
         following findings of fact are made:
 
         
 
              1. Claimant sustained an injury which arose out of and in 
 
         the course of his employment on November 13, 1986 when he fell 
 
         approximately eight to ten feet off of a ladder.
 
         
 
              2. Claimant's injury affected his back and leg and is an 
 
         injury extending beyond the schedule.
 
         
 
              3. Claimant sustained an injury in 1977 after which he was 
 
         found to have sustained an industrial disability of 25 percent.
 
         
 
              4. Claimant sustained an injury in 1983 after which he was 
 
         advised not to return to ironwork and had restrictions placed on 
 
         his employability.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              5. Claimant has not been candid about his prior injuries, 
 
         impairments and work restrictions.
 
         
 
              6. Claimant's testimony lacks credibility.
 
         
 
              7. Medical experts have reported that as a result of the 
 
         injury of November 13, 1986, claimant aggravated a preexisting 
 
         condition of the lumbar spine.
 
         
 
         
 
         
 
         VANSEVEREN V. A. C. DELLOVADE
 
         Page 16
 
         
 
         
 
              8. Claimant's current work restrictions are essentially 
 
         unchanged since those imposed after the 1983 work injury.
 
         
 
              9. Claimant returned to ironwork after the 1983 injury.
 
         
 
              10. Claimant has been rated as having a 15,percent 
 
         impairment of the lower-extremity.
 
         
 
              11. Claimant's future intentions are suspect in light of his 
 
         lack of initiative in developing a future vocational plan, his 
 
         desire not to have to work the entire year, and his love of 
 
         ironwork.
 
         
 
              12. Claimant's capacity to earn an actual earnings has been 
 
         hampered as a result of the injury of November 13, 1986.
 
         
 
              13. Claimant, age 36 at the time of heating, is a high 
 
         school graduate who is considered to be of above average in his 
 
         intellectual ability.
 
         
 
              14. Claimant has sustained a permanent partial disability of 
 
         50 percent for industrial purposes, 35 percent of which is 
 
         preexisting and 15 percent of which is as a result of the injury 
 
         of November 13, 1986.
 
         
 
              15. Claimant's healing period ended February 9, 1988.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Therefore, based on the principles of law previously stated, 
 
         the following conclusions of law are made:
 
         
 
              1. Claimant has sustained an injury to the body as a whole.
 
         
 
              2. Claimant has permanent partial disability for industrial 
 
         purposes of 50 percent, 35 percent of which is preexisting and 15 
 
         percent of which is a result of the injury on November 13, 1986.
 
         
 
              3. Claimant's healing period ended February 9, 1988.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              4. Permanent partial disability benefits commence February 
 
         10, 1988.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              Defendants shall pay unto claimant sixty-four point eight 
 
         five seven (64.857) weeks of healing period benefits for the 
 
         period from November 13, 1986 up to and including February 9, 
 
         1988 at the stipulated rate of two hundred eighty-four and 06/100 
 
         dollars ($284.06) per week.
 
         
 
         
 
         
 
         VANSEVEREN V. A. C. DELLOVADE
 
         Page 17
 
         
 
         
 
              Defendants shall pay unto claimant seventy-five (75) weeks 
 
         of permanent partial disability benefits commencing February 10, 
 
         1988 at the stipulated rate of two hundred eight-four and 06/100 
 
         dollars ($284.06) 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.
 
         
 
         
 
              Signed and filed this 29th day of December, 1989.
 
         
 
         
 
         
 
         
 
                                         DEBORAH A.DUBIK
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         Copies To:
 
         
 
         Mr Sheldon M Gallner
 
         Attorney at Law
 
         803 3rd Ave
 
         P 0 Box 1588
 
         Council Bluffs IA 51502
 
         
 
         Mr. Thomns M Plaza
 
         Attorney at Law
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         701 Pierce St Ste 300
 
         P 0 Box 3086
 
         Sioux City IA 51102
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                         51803
 
                                         Filed December 29, 1989
 
                                         Deborah A. Dubik
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JOSEPH VANSEVEREN,
 
         
 
              Claimant,
 
         
 
         VS.
 
         
 
                                         File No. 838679
 
         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 GROUP,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         51803
 
         
 
         
 
              Claimant, age 36, an ironworker, was injured in November 
 
         1986 and asserted that as a result thereof could not return to 
 
         ironwork.  Claimant was previously injured in 1977 and again in 
 
         1983 after which he returned to work in spite of medical advice 
 
         to the contrary.  After the 1986 injury, claimant's impairment 
 
         increased by 2 or 3% and his restrictions remained unchanged 
 
         since the 1983 injury.  Claimant found to have an industrial 
 
         disability of 50%, 35% of which was preexisting and 15% 
 
         attributable to this injury.