Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            GARY R. BRITTAIN,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 846945
 
            HEYING FOODS,                 :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            AETNA CASUALTY & SURETY       :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by claimant 
 
            Gary R. Brittain against defendant employer Heying Foods and 
 
            defendant insurance carrier Aetna Casualty & Surety Company 
 
            to recover benefits under the Iowa Workers' Compensation Act 
 
            as the result of an injury sustained on March 21, 1987.  
 
            This matter came on for hearing before the undersigned in 
 
            Des Moines, Iowa, on February 17, 1989 and was considered 
 
            fully submitted at the close of evidence.  The record in 
 
            this proceeding consists of claimant's exhibits 1 through 
 
            28, defendants' exhibits A through M, both inclusive, and 
 
            the testimony of claimant.
 
            
 
                 After the matter was fully submitted claimant filed a 
 
            motion to admit a previously unoffered medical report into 
 
            evidence.  The undersigned overruled that motion on April 
 
            18, 1989.
 
            
 
                                      issues
 
            
 
                 Pursuant to the prehearing report submitted by the 
 
            parties and approved at hearing, the following issues have 
 
            been stipulated:  that an employment relationship existed 
 
            between claimant and employer at the time of the injury; 
 
            that claimant sustained an injury arising out of and in the 
 
            course of that employment on March 21, 1987; that the injury 
 
            caused temporary disability; that if permanent disability be 
 
            awarded, claimant has sustained an industrial disability to 
 
            the body as a whole; that the appropriate rate of weekly 
 
            compensation is $107.55; that all requested medical benefits 
 
            have been or will be paid by defendants except claimant's 
 
            exhibits 21 (Dr. Walker:  $742.00), 22 (Dr. Humphrey:  
 
            $45.00), 23 (Dallas County Hospital:  $157.39), and 26 
 
            (Dallas County Ambulance Service:  $194.50); that defendants 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            paid claimant 42 6/7 weeks of compensation at the stipulated 
 
            rate voluntarily prior to hearing.
 
            
 
                 Issues presented for resolution include:  whether the 
 
            work injury caused permanent disability; the extent of 
 
            claimant's entitlement to compensation for healing period or 
 
            temporary total disability; the extent of claimant's 
 
            entitlement to compensation for permanent disability and the 
 
            commencement date thereof; claimant's entitlement to medical 
 
            benefits with respect to exhibits 21, 22, 23 and 26 and 
 
            whether the same were authorized by defendants.
 
            
 
                 Claimant filed an application for reimbursement of 
 
            examination fee and transportation expenses under Iowa Code 
 
            section 85.39 on the date of hearing.  This issue was not 
 
            listed on the hearing assignment order filed herein on 
 
            November 21, 1988.  Only the issues listed on the hearing 
 
            assignment order are to be considered at hearing.  
 
            Therefore, the application is denied.
 
            
 
                              review of the evidence
 
            
 
                 Claimant testified that he was 33 years of age at the 
 
            time of hearing and that his educational background consists 
 
            of completing eighth grade and perhaps two or three months 
 
            of ninth grade.  He left school to work at age 15.
 
            
 
                 Claimant indicated that his work history included 
 
            stacking pop bottles in a grocery and helping on soda pop 
 
            and bread truck routes while in school, working for various 
 
            farmers while in school, obtaining training as a certified 
 
            painter through Job Corps in Nebraska at age 17, painting 
 
            and farm work for some three to four years for his 
 
            step-mother, working as a farmhand for some eight and 
 
            one-half years on a seasonal and intermittent basis, doing 
 
            local jobs in the town of Guthrie, working as a car lot 
 
            jockey in the state of Arizona in 1977, working in a lumber 
 
            yard for approximately one and one-half years, working as an 
 
            exterior door maker for Ray Door Company for approximately 
 
            two months, working as a door maker for R & K Door Shop for 
 
            two to three months, operating his own business applying 
 
            stucco to buildings for some four and one-half to five 
 
            years, intermittent small farm jobs while unemployed between 
 
            August 1986 and February 1987 and working for defendant 
 
            Heying Foods beginning in February 1987.
 
            
 
                 Claimant testified that prior to the work injury, he 
 
            had suffered a broken finger, sprained ankle and various 
 
            pulled muscles, but had never injured his back, neck or 
 
            coccyx or suffered headaches.
 
            
 
                 Claimant testified that his injury occurred when he was 
 
            cleaning equipment.  While climbing down from a rack 
 
            carrying a power hose, he slipped and fell backwards 
 
            approximately four feet.  Claimant landed on his tailbone on 
 
            the corner of a mechanic's creeper and heard the tailbone 
 
            snap.  The other end of the creeper flew up and struck him 
 
            in the back.
 
            
 
                 After this injury, claimant worked for approximately 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            four hours and then went to the hospital, first seeing his 
 
            family physician, David R. Ahrens, M.D.  Claimant treated 
 
            with Dr. Ahrens for approximately two weeks and attempted to 
 
            return to work for about six hours before Dr. Ahrens 
 
            referred him to Ronald K. Bunten, M.D.  Dr. Bunten saw 
 
            claimant once only.
 
            
 
                 Claimant was next referred to William R. Boulden, M.D., 
 
            who first treated him with a cortisone injection, then 
 
            surgically on May 18, 1987.  The surgery consisted of 
 
            excision of the coccyx.
 
            
 
                 Claimant indicated that prior to surgery, he was in 
 
            constant pain from the back and tailbone and suffered some 
 
            headaches, but did not suffer radicular pain into the legs.  
 
            Surgery helped for only about one day, but pain thereafter 
 
            returned.
 
            
 
                 Claimant indicated that Dr. Boulden released him to 
 
            return to light duty in December, 1987 with restrictions 
 
            against lifting more than 10-20 pounds, bending, lifting or 
 
            stooping.  However, defendant employer refused to accept him 
 
            back to work with medical restrictions.
 
            
 
                 At 4:00 a.m. on June 7, 1987, claimant sought emergency 
 
            admission at the Dallas County Hospital because he had 
 
            developed numbness in the legs and arms.  Medical expenses 
 
            set forth in exhibits 22 and 23 relate to that admission.  
 
            Claimant was transferred by ambulance to Mercy Hospital in 
 
            Des Moines, Iowa (as per exhibit 26), but was not treated 
 
            there because Dr. Boulden could not be reached.
 
            
 
                 Claimant testified that his current problems include:  
 
            numbness in the legs bilaterally; sharp pain in the 
 
            tailbone; sharp pain in the lower back; sharp headaches 
 
            daily.  Claimant wears a TENS unit regularly and has for 
 
            over one year.  He complains of numbness developing if he 
 
            stands or sits in excess of 15-20 minutes or drives more 
 
            than perhaps 20 or 30 miles.  Pain sometimes extends up to 
 
            the shoulder blades so that claimant is unable to lift above 
 
            his eye level.  He is unable to lift or carry heavy items 
 
            such as grocery sacks.
 
            
 
                 Claimant testified that he is unable to return to his 
 
            prior employment with defendant by reason of restrictions 
 
            against lifting, bending or stooping.  However, claimant has 
 
            engaged in some employment since his injury.  He attempted 
 
            to shovel corn at one time, but was unable to continue 
 
            beyond approximately three hours.  For some four to five 
 
            months he occasionally drove a truck hauling seed beans on 
 
            100-mile trips, perhaps eight or nine times altogether.  
 
            Claimant stopped this work because of pain.  He was unable 
 
            to load or unload the beans and had to stop to rest after 
 
            driving approximately 50 miles.  In addition, claimant 
 
            farmed for two or three days and helped a roofer for a short 
 
            while, but quit that employment because of inability to 
 
            climb.  In late 1987, claimant drove a grain truck for 
 
            approximately eight days, but quit due to pain.  He also 
 
            painted for approximately two days before quitting due to 
 
            pain.
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
                 Claimant described what steps he has taken to return to 
 
            work:  he has undergone physical therapy; he exercises at 
 
            home on a daily basis per instructions of Dr. Boulden; he 
 
            has applied for work at grain elevators, farms, construction 
 
            sites, car lots, a restaurant, in a landscaping business, 
 
            and has placed four or five newspaper advertisements 
 
            (general laborer looking for work) in the Farm Bureau 
 
            newspaper and approximately three such advertisements in a 
 
            newspaper published in Carroll, Iowa.
 
            
 
                 Asked on direct examination what work he might possibly 
 
            be able to do given his physical condition, claimant 
 
            indicated that he is able to professionally cook.  Claimant 
 
            conceded that he had missed various appointments with 
 
            vocational rehabilitation specialists and that he elected 
 
            not to take a GED course, but indicated that in both cases 
 
            this was due to his lack of money and transportation.
 
            
 
                 On cross-examination, claimant testified that his 
 
            skills include painting, disking, plowing, mechanical work, 
 
            animal husbandry, contracting work, heating and plumbing and 
 
            wiring.  Claimant had testified as to his skills as a 
 
            mechanic and electrician in his deposition taken January 27, 
 
            1988.  That deposition is also in evidence.  Claimant also 
 
            agreed that he had looked for wiring work since his injury.  
 
            He also testified that he now has an operator's and 
 
            chauffeur's license, although these had been suspended at 
 
            the time of his deposition.  Claimant also agreed that he 
 
            had shaved his long beard approximately one and one-half 
 
            months prior to trial.
 
            
 
                 Although claimant was pleased with Dr. Boulden's care 
 
            in general, he testified that he had reported his headaches 
 
            to that physician, although medical records did not reflect 
 
            the complaint.  Further, claimant insisted that he did not 
 
            tell Dr. Boulden in approximately September 1987 that all 
 
            his lumbar pain had abated.
 
            
 
                 Claimant also conceded that he had failed to register 
 
            for work at Job Service of Iowa after he discontinued 
 
            receiving workers' compensation benefits until the day prior 
 
            to his deposition.  He further conceded that he had failed 
 
            to make application at a lengthy list of enterprises 
 
            suggested to him by vocational rehabilitation personnel.  
 
            However, he insisted on redirect examination that his 
 
            failure to make these applications was for lack of money for 
 
            transportation.
 
            
 
                 Claimant further conceded that he had missed various 
 
            appointments with Dr. Boulden and physical therapist Thomas 
 
            Bower and that he had not called Dr. Boulden before going to 
 
            the Dallas County Hospital Emergency Room (at 4:00 a.m.).  
 
            He stated that he had earned less than $15,000-$20,000 in 
 
            his self-employment as a stucco applier, but conceded that 
 
            he had failed to file income tax returns reporting that 
 
            income.
 
            
 
                 Dr. Bunten's notes of April 15, 1987 show a diagnosis 
 
            of post-traumatic low back pain.  Claimant complained of 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            persistent discomfort in the sacral and coccygeal area and 
 
            more recent discomfort over the lower lumbar segments, but 
 
            no radiation of pain in the lower extremities.  Claimant had 
 
            normal neurologic findings in the lower extremities with 
 
            localized tenderness over the sacrum, coccyx and fourth or 
 
            fifth lumbar process.
 
            
 
                 Dr. Bunten's x-rays showed a spina bifida of the fifth 
 
            lumbar (Dr. Bunten writes "first," but this is apparently a 
 
            scrivener's error) and first and second sacral segments and 
 
            suggestions of a degenerative disc disorder at the fourth 
 
            and fifth lumbar spaces.
 
            
 
                 Dr. Boulden's records indicate that claimant was first 
 
            seen on April 23, 1987.  Claimant was complaining of pain in 
 
            the coccyx.  Intending to treat the problem as 
 
            conservatively as possible, Dr. Boulden gave claimant a 
 
            steroid injection on the following day.  However, follow-up 
 
            notes of notes of May 4, 1987 reflect that claimant's 
 
            symptoms returned after about a day or so.  Subsequently, 
 
            excision of the coccyx was performed on May 18, 1987.
 
            
 
                 Dr. Boulden's notes of June 11, 1987 show that claimant 
 
            stated then that approximately a week before he had begun 
 
            developing severe numbness in the buttocks going down the 
 
            legs bilaterally.  The right leg still continued to be 
 
            symptomatic.  Claimant did not complain of pain, but only 
 
            numbness.
 
            
 
                 Mercy Hospital Medical Center chart notes of June 7, 
 
            1987 reflect claimant's complaint of pain beginning 
 
            approximately one week after surgery and a history of 
 
            numbness to both legs beginning June 3, 1987 and becoming 
 
            worse progressively.  Further notes reflect that numbness 
 
            had spread to the arms and particularly fingers.
 
            
 
                 Dr. Boulden's notes of August 11, 1987 reflect that 
 
            claimant complained of persistent symptoms that have 
 
            changed, going up higher with pain going down the buttocks 
 
            and legs.  A CT scan showed claimant to have spondylolysis 
 
            at L5, although minimal and not showing evidence of any 
 
            foraminal type of stenosis.  There was also evidence for a 
 
            midline bulging disc at L3-4 and L4-5.  Dr. Boulden 
 
            recommended a conservative program of exercise, physical 
 
            therapy and a TENS unit.
 
            
 
                 On September 8, 1987, Dr. Boulden's chart notes reflect 
 
            that claimant's back pain was feeling better and the only 
 
            pain left was over the surgical site of the coccygectomy.
 
            
 
                 Further chart notes of September 22, 1987 reflect that 
 
            claimant was still sore over the incisional site, but better 
 
            than prior to surgery.  Low back pain "continues to be 
 
            quiescent and not really causing him any symptoms at the 
 
            present time."
 
            
 
                 Chart notes of December 7, 1987 reflect that claimant 
 
            had aggravated his preexisting underlying spondylolysis that 
 
            as of the last visit had become asymptomatic.  He wrote:
 
            
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
                 Therefore I do not feel he has a functional 
 
                 impairment based on the injury other than the fact 
 
                 that he aggravated it which was temporary in 
 
                 nature.  Therefore I would feel that he has 
 
                 reached his maximum medical healing concerning the 
 
                 coccygectomy.  In reference to the other I feel 
 
                 this has basically been a temporary aggravation of 
 
                 a pre-existing condition.  Therefore, I do not 
 
                 feel the accident has caused this to be 
 
                 permanently symptomatic.
 
            
 
                 The foregoing remarks were based upon claimant's visit 
 
            of September 22, 1987.
 
            
 
                 Dr. Boulden prepared a return to work release on 
 
            December 14, 1987.  This limited claimant as follows:  no 
 
            bending, stooping, lifting or twisting of back.  Notes of 
 
            Andrea Ferm, assistant rehabilitation analyst for the 
 
            Principal Financial Group dated December 16, 1987 indicate 
 
            that clarification with Dr. Boulden's office was that 
 
            claimant was not to lift objects with his back but was 
 
            permitted to lift using the upper extremities and/or proper 
 
            body mechanics to tolerance (approximately 10-20 pounds).
 
            
 
                 Claimant was seen again on March 14, 1988.  He 
 
            complained of more pain over the incisional site and said 
 
            that "his low back pain that he had had problems with in the 
 
            past is not bothering him much.  He says he is not having 
 
            the numbness in his legs that he used to have."
 
            
 
                 Chart notes of April 7, 1988 reflect that claimant had 
 
            undergone a bone scan which was found completely normal.  
 
            Dr. Boulden did not feel there was any residual pathology 
 
            that had been overlooked, although claimant had underlying 
 
            degenerative problems in the lumbar spine.
 
            
 
                 A CT scan of the lumbar spine was performed and 
 
            interpreted by G. B. Purnell, M.D., on July 20, 1987.  
 
            Claimant demonstrated a minimal grade I spondylolisthesis at 
 
            L5 upon S1 with evidence for an associated spondylolysis of 
 
            the pars interarticularis of L5.  Spina bifida occulta was 
 
            seen at L5.  At L3-4 there was evidence for a central 
 
            herniated disc.  At L4-5 there was a posterior bulging of 
 
            the disc material which could represent a small central 
 
            herniated disc.  Some encroachment on neural foramina 
 
            bilaterally was suggested at L5-S1.
 
            
 
                 At the request of Dr. Boulden, claimant was seen by 
 
            physical therapist Thomas Bower.  Bower's letter of May 3, 
 
            1988 reflects that claimant was seen on that date for a 
 
            functional capacity evaluation.  Claimant continued to 
 
            manifest complaints of pain in the tailbone and lower back.  
 
            Bower felt there was a high probability that there was a 
 
            psychological component to claimant's pain complaints.  
 
            Bower further found there was a poor correlation between 
 
            claimant's pain reporting and observed behavior and noted 
 
            that claimant used poor body mechanics when attempting to 
 
            lift.  Claimant was placed overall into a physical demand 
 
            level of light to medium.  Recommendations were of a 
 
            complete body mechanics instructional program and a symptom 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            magnification profile.  Mr. Bower had earlier prepared an 
 
            EMG study on claimant and commented that the study was 
 
            essentially within normal limits, but that there were 
 
            "questionable findings" with H waves because there was a 
 
            greater than one millisecond difference between sides, 
 
            although he was unsure of the significance of this finding.
 
            
 
                 Claimant was seen by S. J. Humphrey, M.D., at the 
 
            Dallas County Hospital Emergency Room on June 7, 1987.  Dr. 
 
            Humphrey's notes reflect that claimant complained of getting 
 
            progressive numbness in the leg and spine now spreading 
 
            upwards to the hands.  Claimant said that if he did not keep 
 
            moving or if he stood on one leg for any length of time he 
 
            began to lose the feeling in the leg and felt it would go 
 
            completely numb.  Dr. Humphrey transferred claimant by 
 
            ambulance to Mercy Hospital in Des Moines for orthopaedic 
 
            consultation.
 
            
 
                 Claimant's exhibit 22 is Dr. Humphrey's bill for 
 
            emergency room care in the total of $45.00.
 
            
 
                 Claimant's exhibit 23 is Dallas County Hospital billing 
 
            including radiological expenses of $89.14 and other charges 
 
            totalling $68.25.
 
            
 
                 Claimant's exhibit 26 is a billing from Dallas County 
 
            Ambulance Service for the transfer to Mercy Hospital.  The 
 
            bill totals $194.50.
 
            
 
                 Claimant was seen for evaluation by John L. Beattie, 
 
            M.D., on December 23, 1987.  Dr. Beattie's physical 
 
            examination noted severe pain and tenderness in the 
 
            operative site over the coccyx, some diminution of ankle and 
 
            knee jerk on the right, a positive LaSegue's sign at 45 
 
            degrees on the right and at 50 degrees on the left with 
 
            positive straight leg raising.  Dr. Beattie further found 
 
            obvious diminution of motion in the lumbar spine.  There was 
 
            no loss of sensation in the legs.
 
            
 
                 Dr. Beattie also obtained x-ray views, finding 
 
            straightening of the normal lumbar lordosis (suggestive of 
 
            underlying muscle spasm), intervertebral spacing and 
 
            alignment otherwise within normal limits, questionable 
 
            deformities in the regions of the pars interarticularis of 
 
            L5 suggestive of spondylolysis with questionable first 
 
            degree spondylolisthesis of L5 on S1, and incomplete fusion 
 
            of the spinous process of L5, congenital.  Based on 
 
            post-operative pain, evidence of lumbar disc disease with 
 
            herniated nucleus pulposis, spondylolysis and 
 
            spondylolisthesis, Dr. Beattie opined that claimant had a 
 
            partial impairment of the body as a whole in the range of 
 
            35-40 percent.  Dr. Beattie did not address the issue of 
 
            whether claimant's lumbar and sacral problems were causally 
 
            related to the work injury.
 
            
 
                 Claimant was seen for evaluation by John R. Walker, 
 
            M.D., on or about November 14, 1988.  Dr. Walker's 
 
            professional statement in the sum of $742.00 is in evidence 
 
            as claimant's exhibit 21.  The charges appear to be for 
 
            evaluation, preparation of a medical report, views of the 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            cervical, thoracic and lumbar spine, and a $39.00 charge 
 
            that is unclear to this writer.
 
            
 
                 Dr. Walker testified by deposition taken January 31, 
 
            1989.  Dr. Walker is an orthopaedic surgeon certified by the 
 
            American Board of Orthopaedic Surgery.
 
            
 
                 Dr. Walker reviewed claimant's medical records, took a 
 
            history and performed a physical examination, including 
 
            x-rays.  Claimant's history was of suffering a fall and, 
 
            during the month thereafter, developing headaches, a painful 
 
            neck, lumbar pain, increase in tailbone pain and some 
 
            numbness and tingling in the arms, legs, feet and hands.  
 
            Claimant indicated he had never had problems concerning his 
 
            neck, upper back or lower back, tailbone or pain or numbness 
 
            in the extremities prior to the work injury.  "He said they 
 
            came on subsequently and immediately after the fall at 
 
            Heying Foods."  Claimant complained of headaches, dizziness, 
 
            stiffness and aching in the cervical spine with crepitation, 
 
            numbness and tingling in the arms, hands and fingers, aching 
 
            in the dorsal spine, constant lumbar pain, pain in the 
 
            coccyx, numbness and tingling in both legs, feet and toes, 
 
            inability to lift as little as 22 pounds, pain radiating 
 
            down into the groin, particularly on the right, and a 
 
            worsening of symptoms in cold weather.
 
            
 
                 Dr. Walker's examination showed no loss of sensation in 
 
            the upper or lower extremities, normal upper extremity 
 
            reflexes, no true limitation of motion, but reported pain in 
 
            the cervical spine, reported tenderness at T4 and T5, 
 
            reported pain and tenderness at L5-S1 and L4-L5, positive 
 
            leg raising and pelvic torsion tests, a one-inch atrophy of 
 
            the right calf, normal lower extremity reflexes, a negative 
 
            LaSegue's sign and extreme tenderness to rectal examination.
 
            
 
                 Dr. Walker discovered that claimant still retained the 
 
            first coccygeal segment and indicated that x-rays confirmed 
 
            this finding.  The coccygectomy performed by Dr. Boulden was 
 
            not a complete excision.
 
            
 
                 A view of the cervical spine was normal as were views 
 
            of the dorsal spine.  In the lumbar spine, Dr. Walker found 
 
            a failure of fusion at the midline of the posterior element 
 
            of L5, a spina bifida occulta of S1 with a floating first 
 
            sacral posterior spine, spondylolysis with bilateral failure 
 
            of fusion or defects of the pars interarticularis of L5 and 
 
            the remaining coccygeal segment.
 
            
 
                 Dr. Walker's diagnoses were:  sprain of the cervical 
 
            spine, soft tissue, with referred headache; moderately 
 
            severe and painful sprain of T4 and T5; severe sprain at 
 
            L5-S1 superimposed on preexisting anomalies; moderate sprain 
 
            of L4-L5; instability; incomplete coccygectomy; moderate 
 
            sprain of the right sacroiliac joint.
 
            
 
                 Dr. Walker was of the view that these diagnoses 
 
            "totally disabled" claimant at the present time and gave 
 
            rise to permanent partial impairment running as high as 40 
 
            percent of the body as a whole.
 
            
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
                 Dr. Walker further testified that all of these 
 
            diagnoses were related to the work injury except the 
 
            congenital anomaly.  The doctor based this opinion on 
 
            claimant's having reported never having suffered discomfort 
 
            in the neck, upper back, coccyx or numbness or tingling 
 
            prior to the work injury.
 
            
 
                 Asked as to claimant's healing period, Dr. Walker 
 
            opined that claimant was still healing since he required 
 
            additional surgery.  He suggested first attempting 
 
            conservative therapy including physical therapy and work 
 
            hardening, and if this proved unsuccessful after two weeks:  
 
            surgical removal of the rest of the coccyx; removal of a 
 
            disc and a bilateral fusion at L4-L5 and L5-S1; cortisone 
 
            injection to the sacroiliac; physical therapy to the dorsal 
 
            spine and cervical spine.
 
            
 
                 Asked as to what restrictions should be placed on 
 
            claimant's activities, Dr. Walker answered that claimant 
 
            could work hardly any job at all, perhaps being able to sit, 
 
            taking theater tickets or something for a few hours, but no 
 
            physical work.
 
            
 
                 Cross-examined as to his method for assigning an 
 
            impairment rating, Dr. Walker indicated that he in part used 
 
            the American Medical Association Guides to the Evaluation of 
 
            Permanent Impairment, but also took into account claimant's 
 
            reported pain.
 
            
 
                 Neither party asked Dr. Walker to comment on the 
 
            underlying reason for Dr. Boulden's opinion as to causation:  
 
            that claimant was asymptomatic in the lumbar spine between 
 
            September 1987 and March 1988.
 
            
 
                 Rehabilitation consultants Andrea J. Ferm and Doug 
 
            Hanselman of the Principal Financial Group provided services 
 
            for claimant.  Their reports of January 8 and January 26, 
 
            1988 reflect numerous problems with broken appointments, 
 
            communications with claimant and claimant's willingness to 
 
            seek work.  They note that claimant agreed to obtain his 
 
            General Equivalency Diploma; defendant Aetna agreed to 
 
            reimburse the Des Moines Area Community College for tuition 
 
            and pay testing and diploma fees.  Services appear to have 
 
            been discontinued after claimant "abruptly ended (a) 
 
            telephone contact."
 
            
 
                           applicable law and analysis
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of March 21, 
 
            1987 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). 
 
            
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903 (Iowa 1974).  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).
 
            
 
                 Our supreme court has stated many times that a claimant 
 
            may recover for a work connected aggravation of a 
 
            preexisting condition.  Almquist v. Shenandoah Nurseries, 
 
            218 Iowa 724, 254 N.W. 35 (1934).  See also Auxier v. 
 
            Woodward State Hosp. Sch., 266 N.W.2d 139 (Iowa 1978); Gosek 
 
            v. Garmer and Stiles Co., 158 N.W.2d 731 (Iowa 1968); Barz 
 
            v. Oler, 257 Iowa 508, 133 N.W.2d 704 (1965); Olson v. 
 
            Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 
 
            (1963); Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 
 
            112 N.W.2d 299 (1961); Ziegler v. United States Gypsum Co., 
 
            252 Iowa 613, 106 N.W.2d 591 (1960).
 
            
 
                 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 recover.  Nicks v. 
 
            Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, 815 
 
            (1962).
 
            
 
                 The parties have stipulated that claimant sustained an 
 
            injury arising out of and in the course of his employment 
 
            with Heying Foods on March 21, 1987 and that the injury 
 
            caused temporary disability.  The extent of temporary 
 
            disability is in dispute, as is whether the injury caused 
 
            permanent disability.
 
            
 
                 Claimant clearly has a number of problems afflicting 
 
            his back, some of which are congenital in nature.  In 
 
            opining that claimant had a partial impairment of the body 
 
            as a whole in the range of 35-40 percent, Dr. Beattie noted 
 
            severe pain and tenderness over the coccyx, diminution of 
 
            ankle and knee jerk on the right, obvious diminution of 
 
            motion in the lumbar spine, straightening of the normal 
 
            lumbar lordosis, questionable deformities in the regions of 
 
            the pars interarticularis of L5 suggestive of spondylolysis 
 
            with questionable spondylolisthesis and incomplete fusion of 
 
            the spinous process of L5.  Dr. Beattie's impairment rating 
 
            was based on post-operative pain, evidence of lumbar disc 
 
            disease with herniated nuclear pulposis, spondylolysis and 
 
            spondylolisthesis.
 
            
 
                 Dr. Walker found that claimant reported pain in the 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            cervical, thoracic and lumbar spine, was extremely tender 
 
            over the coccyx (with an incomplete coccygectomy), and 
 
            diagnosed sprain of the cervical spine, moderately severe 
 
            and painful sprain of T4 and T5, severe sprain at L5-S1 
 
            imposed on preexisting anomalies, moderate sprain of L4-L5, 
 
            instability, incomplete coccygectomy, and moderate sprain of 
 
            the right sacroiliac joint.  Dr. Walker believed that 
 
            claimant's impairment was very severe and that claimant was 
 
            hardly able to work any job at all, perhaps taking theater 
 
            tickets for a few hours.
 
            
 
                 The crucial question to be determined is whether 
 
            claimant's range of ailments afflicting the spine other than 
 
            his fractured and partially excised coccyx are causally 
 
            related to the work injury.  Two physicians have rendered 
 
            opinions on that question, but the opinions are in conflict.
 
            
 
                 Dr. Boulden was the treating physician.  His notes 
 
            reflect that after excision of the coccyx on May 18, 1987, 
 
            claimant was seen complaining of severe numbness in the 
 
            buttocks going down the legs bilaterally as of June 11, 
 
            1987.  Claimant complained then that these symptoms had 
 
            developed approximately a week before, which is consistent 
 
            with Mercy Hospital Medical Center chart notes of June 7, 
 
            1987, reflecting claimant's complaint of pain beginning 
 
            approximately one week after surgery and a history of 
 
            numbness to both legs beginning June 3 and becoming 
 
            progressively worse (and spreading to the arms and fingers).  
 
            However, Dr. Boulden reported on September 8 that claimant's 
 
            back pain was feeling better and that the only pain left was 
 
            over the surgical site of the coccygectomy.  Low back pain 
 
            continued to be quiescent and not causing symptoms on 
 
            September 22.  Six months later, on March 14, 1988, claimant 
 
            continued to complain of pain over the incisional site, but 
 
            claimant's low back pain was not bothering him much and he 
 
            was not having numbness in the legs.  Based on this history, 
 
            Dr. Boulden opined that claimant had no functional 
 
            impairment based on the injury other than a temporary 
 
            aggravation of the preexisting condition.
 
            
 
                 Dr. Walker, an evaluating physician, was very much of 
 
            the opposite view.  Dr. Walker felt that all of claimant's 
 
            diagnoses were related to the work injury except the 
 
            congenital anomaly, and based his opinion on claimant's 
 
            having reported never suffering discomfort in the neck, 
 
            upper back, coccyx or numbness or tingling prior to the work 
 
            injury.
 
            
 
                 However, it is clear that Dr. Walker's opinion is based 
 
            on a faulty history.  He understood that claimant suffered a 
 
            fall and, during the month thereafter, developed headaches, 
 
            a painful neck, lumbar pain, increase in tailbone pain and 
 
            some numbness and tingling in the arms, legs, feet and 
 
            hands.  These symptoms "came on subsequently and immediately 
 
            after the fall at Heying Foods."  This is clearly not the 
 
            case.  Dr. Bunten's notes of April 15, 1987 (just under one 
 
            month post-injury) showed claimant complaining of persistent 
 
            discomfort in the sacral and coccygeal area and more recent 
 
            discomfort over the lower lumbar segments, but no radiation 
 
            of pain in the lower extremities.  There was no mention of 
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            cervical, thoracic or upper extremity symptoms.  Claimant 
 
            testified that he was in pain from the back and tailbone 
 
            prior to surgery, but had not suffered radicular pain into 
 
            the legs.  As has been seen, surgery was on May 18, 1987, 
 
            two months post-injury.  Numbness apparently did not develop 
 
            until June 3, 1987 and eventually caused claimant's 
 
            emergency admission to the Dallas County Hospital on June 7, 
 
            1987.  Thus, the medical records make clear that claimant's 
 
            radicular and cervical symptoms did not develop until 
 
            approximately two and one-half months following his injury.
 
            
 
                 Three months later, as of September 8, 1987, claimant's 
 
            symptoms had abated except for pain over the surgical site 
 
            of the coccygectomy.  The same was true on September 22, 
 
            1987 and six months later on March 14, 1988.  The record 
 
            does not reflect when claimant redeveloped radicular and 
 
            cervical symptomatology.  In any event, Dr. Walker's opinion 
 
            does not address this (at least) six-month span when 
 
            claimant was free of symptoms other than pain over the 
 
            incomplete coccygectomy site, even though it was the 
 
            abatement of these symptoms that formed the basis of Dr. 
 
            Boulden's opinion.
 
            
 
                 Claimant testified that he did not tell Dr. Boulden 
 
            that his pain had been relieved.  However, claimant has not 
 
            been an accurate historian.  Note that he reported to Dr. 
 
            Walker that all of his symptoms, including numbness to the 
 
            upper and lower extremities, developed in the month after 
 
            surgery.  It is also noted that claimant conceded earning 
 
            substantial income in Arizona through self-employment that 
 
            he did not elect to report to the Internal Revenue Service.  
 
            Although Mr. Bowers' suspicions as to whether claimant was a 
 
            symptom magnifier are consistent with this adverse holding 
 
            as to claimant's credibility, those suspicions have not been 
 
            relied upon or given weight by this writer, but merely noted 
 
            in passing.
 
            
 
                 Dr. Walker is clearly a qualified physician, and his 
 
            board-certification carries substantial weight.  However, 
 
            his opinion as to the causal relationship between the injury 
 
            and claimant's present symptomatology is flawed by the 
 
            incorrect history upon which he based that opinion.  
 
            Symptoms of numbness did not come on immediately after the 
 
            injury as he believed.  Furthermore, those symptoms existed 
 
            only from June 3, 1987 until some time prior to September 8, 
 
            1987 before abating, a period of perhaps three months.  
 
            Thereafter, the symptoms remained abated for at least six 
 
            months before reappearing at some unknown time.  Perhaps Dr. 
 
            Walker's opinion would be the same if he considered this 
 
            history, but that, of course, is purely speculative.
 
            
 
                 Given Dr. Boulden's opinion based upon his actual 
 
            experience treating claimant, it must be held that 
 
            claimant's symptoms other than pain over the coccygeal 
 
            excision have been shown only to constitute a temporary 
 
            aggravation or lighting up of claimant's preexisting 
 
            congenital abnormalities.  Dr. Boulden might have a 
 
            different view if he considered the reappearance of 
 
            symptoms, but that also is purely speculative.
 
            
 

 
            
 
            Page  13
 
            
 
            
 
            
 
            
 
                 Therefore, any permanent partial disability to which 
 
            claimant may be entitled must be based only upon residual 
 
            effects of the coccygectomy and not his other symptoms.  
 
            Claimant has failed to meet his burden of proof in 
 
            establishing a causal relationship between the work injury 
 
            and his assorted permanent non-coccygeal symptoms.
 
            
 
                 This writer has no doubt but that claimant continues to 
 
            suffer pain from his incomplete coccygectomy.  However, pain 
 
            itself is not compensable unless it creates an impairment 
 
            that diminishes one's earning capacity.  That is to say, has 
 
            claimant established that residual pain from the incomplete 
 
            coccygectomy has caused industrial disability?  Dr. Walker 
 
            finds that claimant has serious limitations, but does not 
 
            separate out what, if any, restrictions are caused by 
 
            residual effects of the incomplete coccygectomy as opposed 
 
            to claimant's other symptomatology.  Dr. Beattie found that 
 
            claimant had suffered a serious impairment of the body as a 
 
            whole, but based this opinion on evidence of lumbar disc 
 
            disease with herniated nucleus pulposis, spondylolysis and 
 
            spondylolisthesis in addition to "post-operative pain."  Dr. 
 
            Beattie does not address the issue of what restrictions or 
 
            impairments are attributable to that post-operative pain.
 
            
 
                 Dr. Boulden imposed restrictions against lifting more 
 
            than 10-20 pounds, bending, lifting or stooping.  Based on 
 
            these limitations, defendant Heying Foods refused to accept 
 
            claimant back to work.  However, at about the same time, Dr. 
 
            Boulden's chart notes reflect his view that claimant had not 
 
            suffered a functional impairment based on the work injury 
 
            and that other symptomatology was basically a temporary 
 
            aggravation of a preexisting condition.  Therefore, it 
 
            appears that the physical restrictions imposed by Dr. 
 
            Boulden were based on avoiding further reoccurrence of the 
 
            preexisting condition and not on the coccygectomy.
 
            
 
                 Because there is no credible evidence in this record 
 
            (that is, based on an accurate history) indicating that 
 
            claimant has sustained any impairment or medically imposed 
 
            restrictions related to his fractured coccyx or residuals of 
 
            his coccygectomy, it is held that claimant has failed to 
 
            meet his burden of proof in establishing that he has 
 
            suffered industrial disability causally related to the 
 
            stipulated work injury.
 
            
 
                 The parties have stipulated that the work injury caused 
 
            temporary disability.  Pursuant to Iowa Code sections 85.32 
 
            and 85.33, temporary total disability is payable from the 
 
            fourth day of disability after the injury (but adding three 
 
            additional days following fourteen days of disability) until 
 
            the employee has returned to work or is medically capable of 
 
            returning to substantially similar employment, whichever 
 
            first occurs.  Treating physician Boulden wrote on December 
 
            7, 1987 that claimant had reached his maximum medical 
 
            healing concerning the coccygectomy, but those chart notes 
 
            related back to when claimant had last been seen:  September 
 
            22, 1987.  While it is true that claimant was not released 
 
            to return to work without restrictions, the restrictions 
 
            relate to claimant's congenital abnormalities and not to 
 
            residuals of the coccygectomy.  Even though Dr. Walker 
 

 
            
 
            Page  14
 
            
 
            
 
            
 
            
 
            persuasively argues that the coccyx needs additional surgery 
 
            to excise the remaining segment, this therapy has been shown 
 
            to be for relief of pain and has not been shown necessary to 
 
            enable claimant to return to substantially similar 
 
            employment (which he cannot do anyway because of his 
 
            congenital abnormalities).  Therefore, it is held that 
 
            claimant is entitled to temporary total disability benefits 
 
            from March 21, 1987 through September 22, 1987 (26 weeks, 4 
 
            days).
 
            
 
                 Also at issue is claimant's entitlement to medical 
 
            benefits under Iowa Code section 85.27.  The items in 
 
            dispute include costs associated with claimant's 
 
            hospitalization of June 7, 1987 and Dr. Walker's statement.
 
            
 
                 Dr. Walker's fees were incurred for purposes of 
 
            evaluation and not treatment.  They are not compensable 
 
            under section 85.27, but if at all, under section 85.39.  
 
            Claimant's application for reimbursement of examination fee 
 
            and transportation expenses under Iowa Code section 85.39 
 
            has already been denied because it was not an issue listed 
 
            on the hearing assignment order filed November 21, 1988.  
 
            Therefore, no award shall be made as to Dr. Walker's 
 
            statement.
 
            
 
                 Exhibits 22, 23 and 26 are charges submitted by Dr. 
 
            Humphrey, Dallas County Hospital and Dallas County Ambulance 
 
            Service in the wake of claimant's hospitalization on June 7, 
 
            1987.  Claimant went to the Dallas County Hospital at 4:00 
 
            a.m. because he was developing progressively worsening 
 
            numbness to both the lower and upper extremities.  Dr. 
 
            Boulden has opined that claimant aggravated his preexisting 
 
            condition by reason of the work injury and there is no 
 
            contradictory evidence in the record.  Therefore, it is held 
 
            that the conditions that caused claimant to seek emergency 
 
            hospitalization on June 7 are causally related to the work 
 
            injury, at least in terms of a temporary aggravation of the 
 
            congenital abnormalities.  Defendants did not authorize 
 
            these expenses.  However, in emergency situations when the 
 
            employer or its agent cannot be contacted immediately, the 
 
            employee is entitled to choose care at the employer's 
 
            expense without authorization.  Jeffrey v. Jack A. 
 
            Schroeder, Inc., 32nd Biennial Report of the Industrial 
 
            Commissioner 121 (1974).  This is a close question, since 
 
            claimant's symptoms of numbness had begun developing on June 
 
            3, at least three days before hospitalization.  Nonetheless, 
 
            those symptoms were progressively worsening, and the fact 
 
            that claimant sought hospitalization at 4:00 a.m. is 
 
            certainly indicative that he then felt this progressive 
 
            condition constituted an emergency.  It is held that the 
 
            medical expenses shown on exhibits 22, 23 and 26 were 
 
            incurred in good faith for emergency medical treatment and 
 
            are compensable under Iowa Code section 85.27.
 
            
 
                 It is also appropriate to address the question of 
 
            future medical benefits.  Dr. Walker noted that the excision 
 
            of claimant's coccyx left one segment intact.  This segment 
 
            continues to cause pain.  Dr. Walker suggested a short 
 
            course of conservative therapy, but clearly felt that 
 
            surgical excision of the remaining segment was warranted.  
 

 
            
 
            Page  15
 
            
 
            
 
            
 
            
 
            If claimant elects further treatment to the coccyx, 
 
            including surgical excision of the remaining segment, 
 
            defendants are ordered to provide that treatment.
 
            
 
                 The parties have stipulated that defendants paid 
 
            claimant 42 6/7 weeks of compensation at the stipulated rate 
 
            prior to hearing.  This exceeds the extent of claimant's 
 
            entitlement to temporary total disability.  Defendants are 
 
            not entitled to a credit based on this overpayment of weekly 
 
            benefits against medical benefits under Iowa Code section 
 
            85.27.  Anderson v. Woodward State Hospital School, 2-1 
 
            State of Iowa Industrial Commissioner Decisions 24 (App. 
 
            Decn. 1985).
 
            
 
                                 findings of fact
 
            
 
                 THEREFORE, based on the evidence presented, the 
 
            following ultimate facts are found:
 
            
 
                 1.  On March 21, 1987, claimant sustained an injury 
 
            arising out of and in the course of his employment:  a 
 
            fractured coccyx and symptoms relating to the lumbar spine; 
 
            subsequently, claimant developed pain and numbness symptoms 
 
            relating to his thoracic spine, cervical spine, arms and 
 
            legs.
 
            
 
                 2.  Claimant at the time of his injury was afflicted 
 
            with asymptomatic spinal abnormalities including a spina 
 
            bifida of the fifth lumbar and first and second sacral 
 
            segments and degenerative disc disease.
 
            
 
                 3.  Claimant underwent a coccygectomy on May 18, 1987.  
 
            However, the first segment of the coccyx was not removed and 
 
            remains painful.
 
            
 
                 4.  There is no indication in the record that claimant 
 
            has had medically imposed restrictions placed upon him by 
 
            reason of his fractured coccyx and partial coccygectomy.
 
            
 
                 5.  Claimant's non-coccygeal symptoms had abated by 
 
            September 8, 1987, and continued to be quiescent through at 
 
            least March 14, 1988.
 
            
 
                 6.  Although Dr. Walker opined that claimant's 
 
            permanent non-coccygeal symptoms were causally related to 
 
            the stipulated work injury, he based that opinion on a 
 
            faulty history.  The only other physician to have rendered 
 
            an opinion on that issue, Dr. Boulden, opined that 
 
            claimant's non-coccygeal symptoms were only a temporary 
 
            aggravation of claimant's preexisting condition.
 
            
 
                 7.  All of claimant's medically imposed limitations 
 
            relate to his non-coccygeal symptoms, although those 
 
            limitations are serious and would give rise to substantial 
 
            industrial disability if they were causally related to the 
 
            work injury.
 
            
 
                 8.  Dr. Walker has opined that claimant is in need of 
 
            further therapy with respect to his incomplete coccygectomy, 
 
            probably including further surgical removal of the remaining 
 

 
            
 
            Page  16
 
            
 
            
 
            
 
            
 
            segment.
 
            
 
                 9.  Expenses of Dr. Humphrey ($45.00), Dallas County 
 
            Hospital ($157.39), and Dallas County Ambulance Service 
 
            ($194.50) were unauthorized, but relate to a good faith 
 
            emergency hospitalization at 4:00 a.m.
 
            
 
                10.  Claimant was disabled from work by reason of the 
 
            stipulated work injury from March 21, 1987 through September 
 
            22, 1987 (26 weeks, 4 days).
 
            
 
                11.  Dr. Walker's fees in the sum of $742.00 were 
 
            incurred for purposes of evaluation rather than treatment; 
 
            Iowa Code section 85.39 was not an issue listed on the 
 
            hearing assignment order and was not subject to 
 
            consideration at hearing.
 
            
 
                12.  Defendants voluntarily paid claimant 42 weeks, 6 
 
            days of compensation at the stipulated rate prior to 
 
            hearing.
 
            
 
                                conclusions of law
 
            
 
                 WHEREFORE, based on the principles of law previously 
 
            cited, the following conclusions of law are made:
 
            
 
                 1.  By reason of his stipulated work injury of March 
 
            21, 1987, claimant is entitled to healing period benefits 
 
            from that date through September 22, 1987 (26 weeks, 4 
 
            days).
 
            
 
                 2.  Claimant has failed to establish by his burden of 
 
            proof that he sustained permanent industrial disability by 
 
            reason of the work injury.
 
            
 
                 3.  Claimant is entitled to medical benefits under Iowa 
 
            Code section 85.27 for payment of Dr. Humphrey, Dallas 
 
            County Hospital and Dallas County Ambulance Service.
 
            
 
                 4.  Although defendants have paid claimant weekly 
 
            benefits in excess of his entitlement to temporary total 
 
            disability, the excess credit is not subject to set-off 
 
            against medical benefits, including future medical benefits.
 
            
 
                                      order
 
            
 
                 IT IS THEREFORE ORDERED:
 
            
 
                 Although claimant is entitled to temporary total 
 
            disability benefits to the extent of twenty-six (26) weeks, 
 
            four (4) days, he has already been paid compensation in 
 
            excess of that entitlement prior to hearing.
 
            
 
                 Defendants shall pay the medical bills of Dr. Humphrey 
 
            totalling forty-five and 00/100 dollars ($45.00), Dallas 
 
            County Hospital totalling one hundred fifty-seven and 39/100 
 
            dollars ($157.39), and Dallas County Ambulance Service 
 
            totalling one hundred ninety-four and 50/100 dollars 
 
            ($194.50).
 
            
 

 
            
 
            Page  17
 
            
 
            
 
            
 
            
 
                 Defendants shall supply appropriate medical services 
 
            and supplies reasonably necessary for further therapy to 
 
            claimant's coccyx, including further surgical treatment if 
 
            claimant desires excision of the remaining segment.
 
            
 
                 Costs of this action shall be assessed to defendants 
 
            pursuant to Division of Industrial Services Rule 343-4.33.
 
            
 
                 Defendants shall file claim activity reports as 
 
            requested by this agency pursuant to Division of Industrial 
 
            Services Rule 343-3.1.
 
            
 
                 Signed and filed this ______ day of ____________, 1990.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          DAVID RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Thomas L. Spellman
 
            Attorney at Law
 
            1024 Second Street
 
            P.O. Box 550
 
            Perry, Iowa  50220
 
            
 
            Mr. Hugh J. Cain
 
            Attorney at Law
 
            4th Floor, Equitable Building
 
            Des Moines, Iowa  50309
 
            
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               1402.40, 1402.60, 2501
 
                                               Filed March 20, 1990
 
                                               DAVID RASEY
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            GARY R. BRITTAIN,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 846945
 
            HEYING FOODS,                 :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            AETNA CASUALTY & SURETY       :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
            1402.40
 
            Claimant suffered fractured coccyx and aggravated 
 
            preexisting spinal abnormalities, but failed to show 
 
            aggravation was permanent (symptoms came on gradually and 
 
            abated for at least six months) or that coccyx fracture 
 
            resulted in permanent medical restrictions or impairment.
 
            
 
            1402.60, 2501
 
            Medical expenses related to 4:00 a.m. hospitalization for 
 
            treatment of progressive numbness were allowed as emergency 
 
            expenses even though not authorized by defendants.
 
            Although claimant underwent coccygectomy, examining 
 
            physician discovered that one segment of fractured coccyx 
 
            was not excised, remained symptomatic, and should probably 
 
            be removed.  Defendants were ordered to provide further 
 
            therapy, including further surgery.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
		                      :
 
            RAY WORDEN,		      :
 
		                      :
 
                 Claimant,	      :   File Nos. 846991/846992
 
                     		      :
 
		            vs.       :          A P P E A L
 
                		      :
 
            FRENCH & HECHT,           :        D E C I S I O N
 
                      		      :
 
                 Employer, 	      :
 
                 Self-Insured,        :
 
                 Defendant.           :
 
            ___________________________________________________________
 
            The record, including the transcript of the hearing before 
 
            the deputy and all exhibits admitted into the record, has 
 
            been reviewed de novo on appeal.  The decision of the deputy 
 
            filed March 11, 1991, is affirmed and is adopted as the 
 
            final agency action in this case, with the following 
 
            additional analysis:
 
            Claimant's enrollment in a community college program 
 
            designed to lead to a position in drafting is indicative of 
 
            claimant's motivation and intellectual capacity, but it 
 
            would be speculative to predict claimant's future earnings 
 
            upon graduation in the future.  See, Meier v. John Kirby, 
 
            Inc., Appeal Decision, file no. 826937, March 31, 1989.  
 
            Claimant's present industrial disability is based upon 
 
            various factors utilized in determining industrial 
 
            disability as it presently exists.
 
            Based on these, and all other appropriate factors for 
 
            determining industrial disability, claimant is determined to 
 
            have an industrial disability of 30 percent as a result of 
 
            the February 4, 1987 work-related injury.
 
            Claimant shall pay the cost of the appeal, including the 
 
            preparation of the hearing transcript.
 
            Signed and filed this ____ day of October, 1991.
 
            
 
            
 
            
 
            
 
                      ________________________________
 
                               BYRON K. ORTON
 
                          INDUSTRIAL COMMISSIONER
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr. James M. Hood
 
            Attorney at Law
 
            302 Union Arcade Bldg.
 
            Davenport, Iowa 52801
 
            
 
            Ms. Vicki L. Seeck
 
            Attorney at Law
 
            600 Union Arcade Bldg.
 
            111 E. Third Street
 
            Davenport, Iowa 52801
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            9999
 
            Filed October 21, 1991
 
            Byron K. Orton
 
            MGT
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
		                      :
 
            RAY WORDEN,		      :
 
                      		      :
 
                 Claimant,            :   File Nos. 846991/846992
 
                      		      :	
 
		            vs.       :          A P P E A L
 
                		      :
 
            FRENCH & HECHT,    	      :        D E C I S I O N
 
                      		      :
 
                 Employer, 	      :
 
                 Self-Insured,        :
 
                 Defendant.           :
 
            ___________________________________________________________
 
            
 
            9999
 
            Summary affirmance of deputy's decision filed March 11, 
 
            1991, with short additional analysis.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           1803
 
                           Filed March 11, 1991
 
                           MICHAEL G. TRIER
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            RAY WORDEN,    :
 
                      :         File Nos. 846991
 
                 Claimant, :                   846992
 
                      :
 
            vs.       :      A R B I T R A T I O N
 
                      :
 
            FRENCH & HECHT,     :         D E C I S I O N
 
                      :
 
                 Employer, :
 
                 Self-Insured,  :
 
                 Defendant.     :
 
            ____________________________________________________________
 
            
 
            1803
 
            Claimant, who with two and one-half years of post-injury 
 
            training, was expected to be able to increase his actual 
 
            earnings, was awarded 30 percent permanent partial 
 
            disability.  It was held that permanent partial disability 
 
            is determined at the end of the healing period based on the 
 
            circumstances which exist at that time with consideration 
 
            being given to the person's aptitude for further training.  
 
            The time and expense involved in obtaining retraining is a 
 
            factor to be considered.  As the person progresses through a 
 
            particular course of training, his/her academic achievement 
 
            level can be used to predict the likelihood of completing 
 
            the course.  It is not speculative to find that a person who 
 
            has nearly completed a course, with high grades, has the 
 
            ability to complete it and to obtain employment generally 
 
            consistent with that training.
 
            
 
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            
 
            RAYMOND WORDEN,       
 
                        
 
                 Claimant,                 File No. 846992
 
                        
 
            vs.                             A P P E A L
 
                        
 
            FRENCH & HECHT,               D E C I S I O N
 
                        
 
                 Employer,   
 
                 Self-Insured,    
 
                 Defendant.       
 
            ____________________________________________________________
 
            
 
            The record, including the transcript of the hearing before 
 
            the deputy and all exhibits admitted into the record, has 
 
            been reviewed de novo on appeal.
 
            
 
                                    ISSUES
 
            
 
            The issue on appeal is: Whether the deputy erred in awarding 
 
            the claimant section 86.13 benefits for the failure to pay 
 
            healing period benefits from June 17, 1987 through June 14, 
 
            1989.
 
            
 
                                FINDINGS OF FACT
 
            
 
            The findings of fact contained in the proposed agency 
 
            decision filed October 21, 1992 are adopted as set forth 
 
            below.  Segments designated by asterisks (*****) indicate 
 
            portions of the language from the proposed agency decision 
 
            that have been intentionally deleted and do not form a part 
 
            of this final agency decision.
 
            The Findings of Fact contained in the arbitration decision 
 
            of Deputy Trier filed March 11, 1991 are final and cannot be 
 
            changed. *****  
 
            *****
 
            Claimant is a 38-year-old former janitor at French & Hecht 
 
            who injured his low back after lifting at work on or about 
 
            February 4, 1987.  Claimant had a history of low back pain 
 
            before that time and a prior work injury at French & Hecht 
 
            on May 1, 1986.  Claimant was off work for a week under the 
 
            care of treating physicians but after an examination by 
 
            Richard L. Kreiter, M.D., (specialty unknown) claimant was 
 
            returned to work in a limited duty status with restrictions 
 
            on bending and lifting.  Claimant returned to Dr. Kreiter in 
 
            March, April and May 1987 with continued complaints of low 
 
            back pain but Dr. Kreiter kept him on limited duty.  
 
            Claimant testified at hearing that he was always given his 
 
            same janitorial job in this "limited duty" which still 
 
            required lifting and bending.  It is unclear from the record 
 
            how much Dr. Kreiter knew about claimant's janitorial job.
 
            In May 1987, Dr. Kreiter referred claimant for examination 
 

 
            
 
            Page   2
 
            
 
            
 
            by a Dr. Hoffman.  On June 9, 1987, Dr. Hoffman evaluated 
 
            claimant stating that claimant was frustrated with his 
 
            medical care.  Dr. Hoffman did not find evidence of 
 
            radicular symptoms and noted no radiation of pain beyond the 
 
            low back.  He stated as follows: "I feel that in an effort 
 
            to be complete we might obtain a bone scan to rule out any 
 
            occult lesion."  There is no further explanation in the 
 
            record as to what is an "occult lesion."  He also agreed 
 
            with claimant that there should be a referral to the 
 
            University of Iowa for another treatment opinion.
 
            On June 17, 1987, claimant experienced a lot of pain and 
 
            requested the plant nurse, Monica Walters, if there was 
 
            anything she could do.  According to claimant's unrebutted 
 
            testimony, Walters stated that she couldn't do anything.  
 
            Claimant stated that he could hardly walk and asked to see a 
 
            doctor.  Claimant stated that Walters refused.  Apparently, 
 
            claimant also told Walters at this time that he was refusing 
 
            to undergo the bone scan recommended by Dr. Hoffman.  
 
            According to correspondence to French & Hecht by claimant's 
 
            attorney, claimant's refusal was due to his fear of 
 
            radiation from the test.  
 
            
 
            The evidence contains a memorandum by Monica Walters 
 
            describing the events of June 15, 1987.  According to 
 
            Walters, she asked claimant whether he had his bone scan and 
 
            claimant said no and that he was not going to submit to the 
 
            scan.  He told her that he had gone to his personal 
 
            physician, John Collins, M.D., and that the doctor did not 
 
            recommend the scan and referred claimant to University 
 
            Hospitals in Iowa City.  Walters stated that she told 
 
            claimant that was "non-compliance, unauthorized medical and 
 
            not recognized" by French & Hecht.  She told claimant that 
 
            "the scan was necessary to R/O [rule out] other problems."  
 
            Emphasis on the word necessary was added.  Walters then sent 
 
            a letter  to claimant stating that the refusal to submit to 
 
            the bone scan was viewed as a refusal to submit to 
 
            examination under Iowa Code section 85.39 which suspends the 
 
            employee's right to any compensation for the period of the 
 
            refusal.
 
            
 
            The Department of Orthopedics at the University Hospitals 
 
            first examined claimant on August 26, 1987, and he was seen 
 
            by James N. Weinstein, M.D., Associate Professor and 
 
            Director of the Spine Diagnostic and Treatment Center.  
 
            Claimant was given a back brace at that time and told to 
 
            remain off work until further notice.  The Center treated 
 
            claimant over the next two years.  This treatment was 
 
            conservative at first and in February 1988, claimant 
 
            underwent surgery and an extensive rehabilitation program 
 
            thereafter.  Claimant was eventually given a permanent 
 
            impairment rating and activity restrictions.  An opinion 
 
            causally relating this condition to the work injury in 
 
            February 1987 was first issued by Dr. Weinstein on December 
 
            29, 1987.
 
            
 
            Claimant was denied weekly and medical benefits when he left 
 
            work in June 1987 by French & Hecht.  There were repeated 
 

 
            
 
            Page   3
 
            
 
            
 
            letters by claimant's attorney to French & Hecht objecting 
 
            to their conduct.  The record fails to show any response to 
 
            these letters.  Claimant said he was even denied access to 
 
            forms by French & Hecht to claim weekly benefits either 
 
            under workers' compensation or French & Hecht's group 
 
            disability plan.  On September 1, 1987, claimant was called 
 
            to a meeting with the plant manager at French & Hecht and 
 
            was asked if he was returning to work.  The only job offered 
 
            was his old janitorial job, not light or sedentary duty.  
 
            Claimant has never returned to French & Hecht and his 
 
            permanent restrictions prevent such a return to labor jobs 
 
            at French & Hecht.
 
            
 
            It is found that claimant was entitled to the healing period 
 
            benefits paid for the period from June 17, 1987 through June 
 
            14, 1989.  Claimant was totally disabled during this period 
 
            of time.  Claimant's testimony was credible that he was in 
 
            too much pain at the time to work in limited duty authorized 
 
            by Dr. Kreiter.  Admittedly, claimant returned to Dr. 
 
            Kreiter on July 27, 1987, and Dr. Kreiter stated that 
 
            claimant could continue with light duty work at that time.  
 
            However, the record is not clear how much Dr. Kreiter knew 
 
            about the type of work that was being assigned to claimant.  
 
            Certainly claimant's description of his janitorial job with 
 
            extensive lifting and bending is inconsistent with the 
 
            restrictions imposed by Dr. Kreiter.  Furthermore, 
 
            claimant's personal physician and later the University staff 
 
            agreed with claimant's decision to remain off work during 
 
            treatment.  Also, not much weight in any event was given to 
 
            Dr. Kreiter or Dr. Hoffman's views as clearly they 
 
            mis-diagnosed claimant's problems and did not offer proper 
 
            treatment which had to be eventually provided by University 
 
            Hospitals.
 
            
 
            It is further found that French & Hecht's delay or denial of 
 
            healing period benefits from June 17, 1987 through June 14, 
 
            1989 was unreasonable.  The conduct of French & Hecht's 
 
            industrial nurse, who apparently controlled benefits, was 
 
            negligent, if not oppressive.  First, defendant argues in 
 
            this case that there was a dispute as to causal connection 
 
            of the injury to claimant's back condition after he returned 
 
            to work following a week off immediately after the injury.  
 
            They point to a past history of back problems, although much 
 
            of that history involved an earlier work injury which was 
 
            also in litigation at the time.  They also point to an 
 
            examination by a Dr. Colah (first name unknown) who in 
 
            September 1987 was unable to explain "his [claimant's] 
 
            pattern on an anatomical basis."  However, nowhere in any of 
 
            the records of Dr. Kreiter, Dr. Hoffman or even Dr. Colah is 
 
            there any statement questioning the work relatedness of 
 
            claimant's back condition.  It was known to French & Hecht 
 
            that claimant clearly was injured at work and he was 
 
            probably never going return to regular duty after that time.  
 
            Dr. Kreiter, both in April and again in May 1987, suggested 
 
            claimant seek "vocational rehabilitation."  There was a 
 
            continuous and clear pattern of back complaints and a change 
 

 
            
 
            Page   4
 
            
 
            
 
            of work status from the date of injury.   
 
            However, in this case, claimant was not denied weekly 
 
            benefits because of a dispute over causal connection.  The 
 
            only reasons provided for the withholding of benefits were 
 
            contained in the memo and letter of Walters after her 
 
            confrontation with claimant on the 15th of June.  Walters 
 
            identified only two reasons, namely: 1) refusal to submit to 
 
            the bone scan and, 2) participation in unauthorized care.  
 
            Both of these reasons cannot be invoked if they were 
 
            contesting liability or causal connection of the condition 
 
            being treated.  Even the involvement of defendant's attorney 
 
            in 1989 did not change the reasons asserted for denial 
 
            according to his correspondence to claimant's attorney.
 
            More importantly, neither of the reasons given for denial 
 
            are valid.  With reference to the bone scan, Dr. Hoffman 
 
            only suggested that this test "might" be done to rule out 
 
            whatever he meant by "occult lesion."  It clearly was an 
 
            afterthought rendered because the doctor had nothing else to 
 
            offer as treatment to claimant.  Suddenly, Walters, a plant 
 
            nurse, decided to render a professional medical opinion that 
 
            the test was "necessary."  In any event, the need for such a 
 
            test was clearly rejected by claimant's personal physician 
 
            and the physicians at the University but claimant's benefits 
 
            continued to be denied by French & Hecht.  
 
            
 
            Also, Walters indicated in the memorandum of June 15, 1987 
 
            that she was not recognizing the care recommended by 
 
            claimant's personal physician.  This included claimant's 
 
            referral to University Hospitals.  This refusal was made in 
 
            spite of the fact that Dr. Hoffman agreed that a referral to 
 
            the University of Iowa "would be entirely appropriate."  
 
            This was stated by Dr. Hoffman at the same time he suggested 
 
            the bone scan on June 9, 1987.
 
            Clearly, French & Hecht personnel who handled this claim 
 
            were misinformed or intentionally chose to ignore the law 
 
            concerning an employer's role in offering medical care to 
 
            injured workers.  As will be explained in the Conclusions of 
 
            Law section of this decision, French & Hecht had no right to 
 
            chose the care if French & Hecht was contesting the causal 
 
            connection of the condition treated to a work injury.  It 
 
            will also be explained in that section that French & Hecht 
 
            cannot terminate weekly benefits solely because claimant 
 
            refuses the offered care or lack thereof and chooses his own 
 
            care.  French & Hecht only has the right to withhold payment 
 
            for unauthorized care but, again, only if it admits 
 
            liability.  French & Hecht cannot use the fear of losing of 
 
            weekly benefits to prevent their injured workers from 
 
            choosing their own care which in part appears to be the 
 
            motivation of French & Hecht in this matter.
 
            
 
            It is finally found that due to the gravity of the conduct 
 
            of French & Hecht in this matter, a reasonable penalty 
 
            should be the maximum authorized by law or 52 weeks at the 
 
            rate of $206.32 from June 17, 1987 with interest.
 
            conclusions of law
 
            The conclusions of law contained in the proposed agency 
 

 
            
 
            Page   5
 
            
 
            
 
            decision filed October 21, 1992 are adopted as set forth 
 
            below.  Segments designated by asterisks (*****) indicate 
 
            portions of the language from the proposed agency decision 
 
            that have been intentionally deleted and do not form a part 
 
            of this final agency decision.
 
            
 
            Claimant's entitlement to permanent partial disability also 
 
            entitles him to weekly benefits for healing period under 
 
            Iowa Code section 85.34 from the date of injury until 
 
            claimant returns to work; until claimant is medically 
 
            capable of returning  to substantially similar work to the 
 
            work he/she  was performing at the time of injury; or, until 
 
            it is indicated that significant improvement from the injury 
 
            is not anticipated, whichever occurs first.  Healing period 
 
            may terminate and then begin again.  Lawyer & Higgs, Iowa 
 
            Workers' Compensation--Law and Practice, Section 13-3.  
 
            Willis v. Lehigh Portland Cement Company, I-2 Iowa Indus. 
 
            Comm'r Dec. 485 (1984); Riesselman v. Carroll Health Center, 
 
            3 Iowa Indus. Comm'r Rep 209 (Appeal Dec. 1982); Clemens v. 
 
            Iowa Veterans Home, I-1 Iowa Indus. Comm'r Dec. 35 (1984);  
 
            Junge v. Century Engineering Corp., II Iowa Indus. Comm'r 
 
            Rpt 219 (App Dec. 1981).  In this case, claimant clearly 
 
            established by the evidence entitlement to healing period 
 
            benefits in question.
 
            
 
            Claimant seeks additional weekly benefits under Iowa Code 
 
            section 86.13, unnumbered last paragraph.  That provision 
 
            states that if a delay in commencement or termination of 
 
            benefits occurs without reasonable or probable cause or 
 
            excuse, the industrial commissioner shall award extra weekly 
 
            benefits in an amount not to exceed fifty percent of the 
 
            amount of benefits that were unreasonably delayed or denied.  
 
            Defendants may deny or delay the payment of benefits only 
 
            when the claim is fairly debatable.  Seydel v. U of I 
 
            Physical Plant, Appeal Decision, November 1, 1989.  When the 
 
            claim is "fairly debatable," the insurer is entitled to 
 
            debate it,  whether the debate concerns a matter of fact or 
 
            law."  The Supreme Court recently has clarified the grounds 
 
            necessary to impose a section 86.13 penalty.  In Boylan v. 
 
            American Motorists Ins. Co., 489 N.W.2d 742 (Iowa 1992), the 
 
            court stated as follows:
 
            
 
            We conclude that it is unlikely that the legislature 
 
            intended the penalty provision in section 86.13 to be the 
 
            sole remedy for all types of wrongful conduct by carriers 
 
            with respect to administration of workers compensation 
 
            benefits.  By its terms, it applies only to delay in 
 
            commencement or termination of benefits. It contemplates 
 
            negligent conduct rather than the willful or reckless acts 
 
            that are required to establish a cause of action under 
 
            Dolan." (emphasis added)
 
            *****
 
            Therefore, Iowa Code section 86.13 as now interpreted by 
 
            Boylan, creates an affirmative duty for workers' 
 
            compensation insurance carriers and self-insureds to act 
 
            reasonably once a claim is filed.  Acting reasonably means 
 
            to fully and fairly investigate a claim, to be aware of the 
 

 
            
 
            Page   6
 
            
 
            
 
            law and not to ignore the law.  
 
            French & Hecht in this case voluntarily chose to be 
 
            self-insured.  Therefore it must operate by the same rules 
 
            applicable to insurance carriers and their professional 
 
            claims representatives.  The reasons given by French & Hecht 
 
            for denying benefits were not appropriate and indicated that 
 
            they were not denying benefits because a dispute over causal 
 
            connection to the work injury.  French & Hecht cannot assert 
 
            the provisions of Iowa Code section 85.39 or claim 
 
            unauthorized care without admitting liability for the 
 
            condition being treated.  McSpadden v. Big Ben Coal Co., 288 
 
            N.W.2d 181 (Iowa 1980).  Likewise, French cannot deny 
 
            liability for the condition being treated and at the same 
 
            time assert a right to chose the care.  Kindhart v. Fort Des 
 
            Moines Hotel, I Iowa Industrial Comm'r Dec No. 3, 611 (App. 
 
            Dec 1985); Barnhart v. Maq Incorporated, I Iowa Indus. 
 
            Comm'r Rpts 16 (App Dec. 1981).  These rules are not new 
 
            concepts.  They have been in place for over 10 years.
 
            In any event, a simple reading of Iowa Code section 85.27 
 
            does not give the right to end weekly benefits simply 
 
            because the injured worker rejects the offered care.  
 
            Employers may only withhold payment for unauthorized care.  
 
            Employers cannot use the fear of losing weekly benefits to 
 
            prevent injured workers from choosing their own care.  
 
            French & Hecht in this case clearly failed to show that the 
 
            "bone scan" was necessary or was even viewed necessary by 
 
            their company physicians.
 
            
 
                 The maximum penalty shall be imposed. 
 
            WHEREFORE, the decision of the deputy is affirmed.
 
            
 
                                      ORDER
 
            
 
            THEREFORE, it is ordered:
 
            
 
            That defendant shall pay to claimant an additional fifty-two 
 
            (52) weeks of 86.13 penalty benefits at a rate of two 
 
            hundred six and 23/100 dollars ($206.23) per week from June 
 
            17, 1987.
 
            
 
            That defendant shall pay interest on weekly benefits awarded 
 
            herein as set forth in Iowa Code section 85.30.  Interest on 
 
            the penalty benefits shall accrue from October 21, 1992.
 
            
 
            That defendant shall pay the costs of this action pursuant 
 
            to rule 343 IAC 4.33, including reimbursement to claimant 
 
            for any filing fee paid in this matter.
 
            
 
            Signed and filed this ____ day of November, 1993.
 
            
 
            
 
                                   ________________________________
 
                                           BYRON K. ORTON
 
                                       INDUSTRIAL COMMISSIONER
 
            
 

 
            
 
            Page   7
 
            
 
            Copies To:
 
 
 
            Mr. James M. Hood
 
            Attorney at Law
 
            302 Union Arcade Bldg.
 
            Davenport, Iowa 52801
 
            
 
            Ms. Vicki L. Seeck
 
            Attorney at Law
 
            600 Union Arcade Bldg.
 
            111 E. Third St.
 
            Davenport, Iowa 52801
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            4000.2
 
                                            Filed November 30, 1993
 
                                            Byron K. Orton
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
           
 
            RAYMOND WORDEN,       
 
                        
 
                 Claimant,                 File No. 846992
 
                        
 
            vs.                             A P P E A L
 
                        
 
            FRENCH & HECHT,                D E C I S I O N
 
                        
 
                 Employer,   
 
                 Self-Insured,    
 
                 Defendant.       
 
            ____________________________________________________________
 
           
 
            4000.2
 
            Maximum penalty of approximately $10,000 assessed against a 
 
            self-insured employer for unreasonable conduct in denying 
 
            healing period benefits.
 
            Held it is the reasons provided at the time of denial not 
 
            possible defenses available to defendant in retrospect that 
 
            is examined in reviewing the propriety of the denial.
 
            Held that the conduct of self-insured employers should be 
 
            the same as the conduct expected of insurance companies and 
 
            their professional claims representatives.  This includes 
 
            knowledge of the law and rules governing benefits.  
 
            It was held that withholding benefits for failure to submit 
 
            to a test that was not shown to be necessary was not refusal 
 
            to submit to examination justifying denial of benefits uner 
 
            Iowa Code section 85.39.  Assertion of this claim by 
 
            employer was held unreasonable.
 
            It was further held that withholding weekly benefits because 
 
            claimant rejected offered care and chose his own care is  
 
            unreasonable conduct.  If the employer has the right to 
 
            chose the care, it may only withhold payment for the 
 
            unauthorized care.  Employers cannot use the fear of losing 
 
            of weekly benefits to prevent injured workers from chosing 
 
            their own care.
 
            
 
            
 
 
            
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            RAYMOND WORDEN,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 846992
 
            FRENCH & HECHT,               :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                 Self-Insured,            :       D E C I S I O N
 
                 Defendant.               :
 
                                          :
 
            ___________________________________________________________
 
            
 
                          STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Ray 
 
            Worden, claimant, against French & Hecht, employer, 
 
            hereinafter referred to as French & Hecht, a self-insured 
 
            defendant, for workers' compensation benefits as a result of 
 
            injuries on May 1, 1986 and February 4, 1987.  On November 
 
            15, 1990, a hearing was held before Deputy Industrial 
 
            Commissioner Michael Trier and permanent disability benefits 
 
            was awarded in an arbitration decision filed March 11, 1991.  
 
            This decision was affirmed on appeal.  On September 15, 
 
            1992, a hearing was held before the undersigned on the sole 
 
            issue of claimant's entitlement, if any, to additional 
 
            weekly benefits for an alleged delay or denial of benefits 
 
            under Iowa Code section 86.13.  This issue had been 
 
            bifurcated from the prior proceeding and the hearing delayed 
 
            until the time a final agency decision on entitlement to 
 
            benefits. 
 
            
 
                 The parties have submitted a prehearing report of 
 
            contested issues and stipulations which was approved and 
 
            accepted as a part of the record of this case at the time of 
 
            hearing.  The oral testimony and written exhibits received 
 
            during the hearing are set forth in the hearing transcript.      
 
            
 
                 According to the prehearing report, the parties have 
 
            stipulated that the claim of unreasonable denial only 
 
            involves the payment of healing period benefits from June 
 
            17, 1987 through June 14, 1980.
 
            
 
                 Taken under advisement was the admissibility of exhibit 
 
            8, which was an offer of settlement.  Defendant objects on 
 
            the basis that offers of settlement are not admissible 
 
            generally.  The undersigned knows of no such rule when 
 
            dealing with 86.13 penalty issues.  In such cases, the 
 
            reasonableness of the conduct of insurers or self-insureds 
 
            in delaying or denying a claim is at issue.  Certainly, 
 
            settlement offers can be quite relevant to such a 
 
            determination.  Therefore, the objection is overruled and 
 
            the exhibit is received.
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                                      ISSUES
 
            
 
                 The only issue submitted by the parties is claimant's 
 
            entitlement to penalty benefits, if any.  However, it is 
 
            noted that there is no stipulation or final agency decision 
 
            that claimant was entitled to any amount of healing period 
 
            benefits.  These benefits were paid voluntarily by defendant 
 
            subsequent to a proceeding held before the undersigned on 
 
            June 14, 1989, the time set for a hearing on healing period 
 
            benefits.  At this proceeding (see exhibit 7) defendant 
 
            agreed to begin payment of healing period benefits at that 
 
            time and pay back benefits from June 17, 1987.  However, on 
 
            the record, defendant's counsel stated that this voluntary 
 
            payment was not to be interpreted as an admission that the 
 
            work injury was causally connected to the condition causing 
 
            claimant's absence from work during this claimed healing 
 
            period.  The subsequent hearing in 1991 only dealt with 
 
            permanent disability benefits.
 
            
 
                 Therefore, to determine the penalty issue,  it must 
 
            first be decided whether or not claimant was entitled to 
 
            such benefits as a result of the injury of February 4, 1987 
 
            during the stipulated time frame in question.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 Having heard the testimony and considered all of the 
 
            evidence, the deputy industrial commissioner finds as 
 
            follows:
 
            
 
                 The Findings of Fact contained in the arbitration 
 
            decision of Deputy Trier filed March 11, 1991 are final and 
 
            cannot be changed by this deputy.  
 
            
 
                 A credibility finding is necessary as claimant's 
 
            credibility was called into question as to his ability and 
 
            motivation to work during the healing period in question and 
 
            as to his account of discussions he had with French & Hecht 
 
            representatives.  From his demeanor while testifying, 
 
            claimant is found credible.   
 
            
 
                 Claimant is a 38-year-old former janitor at French & 
 
            Hecht who injured his low back after lifting at work on or 
 
            about February 4, 1987.  Claimant had a history of low back 
 
            pain before that time and a prior work injury at French & 
 
            Hecht on May 1, 1986.  Claimant was off work for a week 
 
            under the care of treating physicians but after an 
 
            examination by Richard L. Kreiter, M.D., (specialty unknown) 
 
            claimant was returned to work in a limited duty status with 
 
            restrictions on bending and lifting. Claimant returned to 
 
            Dr. Kreiter in March, April and May 1987 with continued 
 
            complaints of low back pain but Dr. Kreiter kept him on 
 
            limited duty.  Claimant testified at hearing that he was 
 
            always given his same janitorial job in this "limited duty" 
 
            which still required lifting and bending.  It is unclear 
 
            from the record how much Dr. Kreiter knew about claimant's 
 
            janitorial job.
 
            
 
                 In May 1987, Dr. Kreiter referred claimant for 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            examination by a Dr. Hoffman.  On June 9, 1987, Dr. Hoffman 
 
            evaluated claimant stating that claimant was frustrated with 
 
            his medical care.  Dr. Hoffman did not find evidence of 
 
            radicular symptoms and noted no radiation of pain beyond the 
 
            low back.  He stated as follows: "I feel that in an effort 
 
            to be complete we might obtain a bone scan to rule out any 
 
            occult lesion."   There is no further explanation in the 
 
            record as to what is an "occult lesion."  He also agreed 
 
            with claimant that there should be a referral to the 
 
            University of Iowa for another treatment opinion.
 
            
 
                 On June 17, 1987, claimant experienced a lot of pain 
 
            and requested the plant nurse, Monica Walters, if there was 
 
            anything she could do.  According to claimant's unrebutted 
 
            testimony, Walters stated that she couldn't do anything.  
 
            Claimant stated that he could hardly walk and asked to see a 
 
            doctor.  Claimant stated that Walters refused.  Apparently, 
 
            claimant also told Walters at this time that he was refusing 
 
            to undergo the bone scan recommended by Dr. Hoffman.  
 
            According to correspondence to French & Hecht by claimant's 
 
            attorney, claimant's refusal was due to his fear of 
 
            radiation from the test.  
 
            
 
                 The evidence contains a memorandum by Monica Walters 
 
            describing the events of June 15, 1987.  According to 
 
            Walters, she asked claimant whether he had his bone scan and 
 
            claimant said no and that he was not going to submit to the 
 
            scan.  He told her that he had gone to his personal 
 
            physician,  John Collins, M.D., and that the doctor did not 
 
            recommend the scan and referred claimant to University 
 
            Hospitals in Iowa City.  Walters stated that she told 
 
            claimant that was "non-compliance, unauthorized medical and 
 
            not recognized" by French & Hecht. She told claimant that 
 
            "the scan was necessary to R/O [rule out] other problems."  
 
            Emphasis on the word necessary was added.  Walters then sent 
 
            a letter  to claimant stating that the refusal to submit to 
 
            the bone scan was viewed as a refusal to submit to 
 
            examination under Iowa Code section 85.39 which suspends the 
 
            employee's right to any compensation for the period of the 
 
            refusal.
 
            
 
                 The Department of Orthopedics at the University 
 
            Hospitals first examined claimant on August 26, 1987, and he 
 
            was seen by James N. Weinstein, M.D., Associate Professor 
 
            and Director of the Spine Diagnostic and Treatment Center.  
 
            Claimant was given a back brace at that time and told to 
 
            remain off work until further notice.  The Center treated 
 
            claimant over the next two years.  This treatment was 
 
            conservative at first and in February 1988, claimant 
 
            underwent surgery and an extensive rehabilitation program 
 
            thereafter.  Claimant was eventually given a permanent 
 
            impairment rating and activity restrictions.  An opinion 
 
            causally relating this condition to the work injury in 
 
            February 1987 was first issued by Dr. Weinstein on December 
 
            29, 1987.
 
            
 
                 Claimant was denied weekly and medical benefits when he 
 
            left work in June 1987 by French & Hecht.  There were 
 
            repeated letters by claimant's attorney to French & Hecht 
 
            objecting to their conduct.  The record fails to show any 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            response to these letters.  Claimant said he was even denied 
 
            access to forms by French & Hecht to claim weekly benefits 
 
            either under workers' compensation or French & Hecht's group 
 
            disability plan.  On September 1, 1987, claimant was called 
 
            to a meeting with the plant manager at French & Hecht and 
 
            was asked if he was returning to work.  The only job offered 
 
            was his old janitorial job, not light or sedentary duty.  
 
            Claimant has never returned to French & Hecht and his 
 
            permanent restrictions prevent such a return to labor jobs 
 
            at French & Hecht.
 
            
 
                 It is found that claimant was entitled to the healing 
 
            period benefits paid for the period from June 17, 1987 
 
            through June 14, 1989.  Claimant was totally disabled  
 
            during this period of time.  Claimant's testimony was 
 
            credible that he was in too much pain at the time to work in 
 
            limited duty authorized by Dr. Kreiter.  Admittedly, 
 
            claimant returned to Dr. Kreiter on July 27, 1987, and Dr. 
 
            Kreiter stated that claimant could continue with light duty 
 
            work at that time.  However, the record is not clear how 
 
            much Dr. Kreiter knew about the type of work that was being 
 
            assigned to claimant.  Certainly claimant's description of 
 
            his janitorial job with extensive lifting and bending is 
 
            inconsistent with the restrictions imposed by Dr. Kreiter.  
 
            Furthermore, claimant's personal physician and later the 
 
            University staff agreed with claimant's decision to remain 
 
            off work during treatment.  Also, not much weight in any 
 
            event was given to Dr. Kreiter or Dr. Hoffman's views as 
 
            clearly they mis-diagnosed claimant's problems and did not 
 
            offer proper treatment which had to be eventually provided 
 
            by University Hospitals.
 
            
 
                 It is further found that French & Hecht's delay or 
 
            denial of healing period benefits from June 17, 1987 through 
 
            June 14, 1989 was unreasonable.  The conduct of French & 
 
            Hecht's industrial nurse, who apparently controlled 
 
            benefits, was negligent, if not oppressive.  First, 
 
            defendant argues in this case that there was a dispute as to 
 
            causal connection of the injury to claimant's back condition 
 
            after he returned to work following a week off immediately 
 
            after the injury.  They point to a past history of back 
 
            problems, although much of that history involved an earlier 
 
            work injury which was also in litigation at the time.  They 
 
            also point to an examination by a Dr. Colah (first name 
 
            unknown) who in September 1987 was unable to explain "his 
 
            [claimant's] pattern on an anatomical basis."  However, 
 
            nowhere in any of the records of Dr. Kreiter, Dr. Hoffman or 
 
            even Dr. Colah is there any statement questioning the work 
 
            relatedness of claimant's back condition.  It was known to 
 
            French & Hecht that claimant clearly was injured at work and 
 
            he was probably never going return to regular duty after 
 
            that time.  Dr. Kreiter, both in April and again in May 
 
            1987, suggested claimant seek "vocational rehabilitation."   
 
            There was a continuous and clear pattern of back complaints 
 
            and a change of work status from the date of injury.   
 
            
 
                 However, in this case,  claimant was not denied weekly 
 
            benefits because of a dispute over causal connection.   The 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            only reasons provided for the withholding of benefits were 
 
            contained in the memo and letter of Walters after her 
 
            confrontation with claimant on the 15th of June.  Walters 
 
            identified only two reasons, namely: 1) refusal to submit to 
 
            the bone scan and, 2) participation in unauthorized care.  
 
            Both of these reasons cannot be invoked if they were 
 
            contesting liability or causal connection of the condition 
 
            being treated.  Even the involvement of defendant's attorney 
 
            in 1989 did not change the reasons asserted for denial 
 
            according to his correspondence to claimant's attorney.
 
            
 
                 More importantly, neither of the reasons given for 
 
            denial are valid.  With reference to the bone scan,  Dr. 
 
            Hoffman only suggested that this test "might" be done to 
 
            rule out whatever he meant by "occult lesion."  It clearly 
 
            was an afterthought rendered because the doctor had nothing 
 
            else to offer as treatment to claimant.  Suddenly, Walters, 
 
            a plant nurse, decided to render a professional medical 
 
            opinion that the test was "necessary."  In any event, the 
 
            need for such a test was clearly rejected by claimant's 
 
            personal physician and the physicians at the University but 
 
            claimant's benefits continued to be denied by French & 
 
            Hecht.  
 
            
 
                 Also, Walters indicated in the memorandum of June 15, 
 
            1987 that she was not recognizing the care recommended by 
 
            claimant's personal physician.  This included claimant's 
 
            referral to University Hospitals.   This refusal was made in 
 
            spite of the fact that Dr. Hoffman  agreed that a referral 
 
            to the University of Iowa "would be entirely appropriate." 
 
            This was stated by Dr. Hoffman at the same time he suggested 
 
            the bone scan on June 9, 1987.
 
            
 
                 Clearly, French & Hecht personnel who handled this 
 
            claim were misinformed or intentionally chose to ignore the 
 
            law concerning an employer's role in offering medical care 
 
            to injured workers.  As will be explained in the Conclusions 
 
            of Law section of this decision, French & Hecht had no right 
 
            to chose the care if French & Hecht was contesting the 
 
            causal connection of the condition treated to a work injury. 
 
            It will also be explained in that section that French & 
 
            Hecht cannot terminate weekly benefits solely because 
 
            claimant refuses the offered care or lack thereof and 
 
            chooses his own care.  French & Hecht only has the right to 
 
            withhold payment for unauthorized care but, again, only if 
 
            it admits liability.  French & Hecht cannot use the fear of 
 
            losing of weekly benefits to prevent their injured workers 
 
            from choosing their own care which in part appears to be the 
 
            motivation of French & Hecht in this matter.
 
            
 
                 It is finally found that due to the gravity of the 
 
            conduct of French & Hecht in this matter, a reasonable 
 
            penalty should be the maximum authorized by law  or 52 weeks 
 
            at the rate of $206.32 from June 17, 1987 with interest.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 Claimant's entitlement to permanent partial disability 
 
            also entitles him to weekly benefits for healing period 
 
            under Iowa Code section 85.34 from the date of injury until 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            claimant returns to work; until claimant is medically 
 
            capable of returning  to substantially similar work to the 
 
            work he/she  was performing at the time of injury; or, until 
 
            it is indicated that significant improvement from the injury 
 
            is not anticipated, whichever occurs first.  Healing period 
 
            may terminate and then begin again.  Lawyer & Higgs, Iowa 
 
            Workers' Compensation--Law and Practice, Section 13-3.  
 
            Willis v. Lehigh Portland Cement Company, I-2 Iowa Indus. 
 
            Comm'r Dec 485 (1984);  Riesselman v Carroll Health Center, 
 
            3 Iowa Indus. Comm'r Rep 209 (Appeal Dec. 1982); Clemens v 
 
            Iowa Veterans Home, I-1 Iowa Indus. Comm'r Dec 35 (1984);  
 
            Junge v Century Engineering Corp, II Iowa Indus. Comm'r Rpt 
 
            219 (App Dec 1981).  In this case, claimant clearly 
 
            established by the evidence entitlement to healing period 
 
            benefits in question.
 
            
 
                 Claimant seeks additional weekly benefits under Iowa 
 
            Code section 86.13, unnumbered last paragraph.  That 
 
            provision states that if a delay in commencement or 
 
            termination of benefits occurs without reasonable or 
 
            probable cause or excuse, the industrial commissioner shall 
 
            award extra weekly  benefits in an amount not to exceed 
 
            fifty percent of the amount of benefits that were 
 
            unreasonably delayed or denied.  Defendants may deny or 
 
            delay the payment  of benefits only when the claim is fairly 
 
            debatable.  Seydel v U of I Physical Plant, Appeal Decision, 
 
            November 1, 1989.  When the claim is "fairly debatable," the 
 
            insurer is entitled to debate it,  whether the debate 
 
            concerns a matter of fact or law."  The Supreme Court 
 
            recently has clarified the grounds necessary to impose a 
 
            section 86.13 penalty.  In  Boylan v American Motorists Ins. 
 
            Co., No 250/91-1520, Iowa Supreme Court filed September 23, 
 
            1992, the court stated as follows:
 
            
 
                 We conclude that it is unlikely that the 
 
                 legislature intended the penalty provision in 
 
                 section 86.13 to be the sole remedy for all types 
 
                 of wrongful conduct by carriers with respect to 
 
                 administration of workers compensation benefits.  
 
                 By its terms, it applies only to delay in 
 
                 commencement or termination of benefits. It 
 
                 contemplates negligent conduct rather than the 
 
                 willful or reckless acts that are required to 
 
                 establish a cause of action under Dolan." 
 
                 (emphasis added)
 
            
 
                 Consequently, not only bad faith but also negligent 
 
            conduct can invoke the penalty provisions of section 86.13.  
 
            In reviewing the propriety of defendant's actions,  Iowa 
 
            Code section 507B.4(9) lists uniform unfair settlement 
 
            claims practices for insurance companies.  This listing is 
 
            useful as a statement of public policy to identify the types 
 
            of claim settlement practices that should be viewed 
 
            unreasonable.  Failing to promptly and fully investigate a 
 
            claim and to make claimant institute litigation to secure 
 
            benefits are two types of unfair claims practices in this 
 
            listing.  
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
                 Therefore, Iowa Code section 86.13 as now interpreted 
 
            by Boylan, creates an affirmative duty for workers' 
 
            compensation insurance carriers and self-insureds to act 
 
            reasonably once a claim is filed.  Acting reasonably means 
 
            to fully and fairly investigate a claim, to be aware of the 
 
            law and not to ignore the law.  
 
            
 
                 French & Hecht in this case voluntarily chose to be 
 
            self-insured.  Therefore it must operate by the same rules 
 
            applicable to insurance carriers and their professional 
 
            claims representatives.  The reasons given by French & Hecht 
 
            for denying benefits were not appropriate and indicated that 
 
            they were not denying benefits because a dispute over causal 
 
            connection to the work injury.  French & Hecht cannot assert 
 
            the provisions of Iowa Code section 85.39 or claim 
 
            unauthorized care without admitting liability for the 
 
            condition being treated.  McSpadden v. Big Ben Coal Co., 288 
 
            N.W.2d 181 (Iowa 1980).  Likewise, French  cannot deny 
 
            liability for the condition being treated and at the same 
 
            time assert a right to chose the care. Kindhart v Fort Des 
 
            Moines Hotel I Iowa Industrial Comm'r Dec No. 3, 611 (App. 
 
            Dec 1985);  Barnhart v Maq Incorporated, I Iowa Indus. 
 
            Comm'r Rpts 16 (App Dec 1981).  These rules are not new 
 
            concepts.  They have been in place for over 10 years.
 
            
 
                 In any event, a simple reading of Iowa Code section 
 
            85.27 does not give the right to end weekly benefits simply 
 
            because the injured worker rejects the offered care.  
 
            Employers may only withhold payment for unauthorized care.  
 
            Employers cannot use the fear of losing weekly benefits to 
 
            prevent injured workers from choosing their own care.  
 
            French & Hecht in this case clearly failed to show that the 
 
            "bone scan" was necessary or was even viewed necessary by 
 
            their company physicians.
 
            
 
                 The maximum penalty shall be imposed. 
 
            
 
                                      ORDER
 
            
 
                 1.  Defendant  shall pay to claimant an additional 
 
            fifty-two (52) weeks of 86.13 penalty benefits at a rate of 
 
            two hundred six and 23/100 dollars ($206.23) per week from 
 
            June 17, 1987.
 
            
 
                 2.  Defendant shall pay interest on weekly benefits 
 
            awarded herein as set forth in Iowa Code section 85.30. 
 
            
 
                 3.  Defendant shall pay the costs of this action 
 
            pursuant to  rule 343 IAC 4.33, including reimbursement to 
 
            claimant for any filing fee paid in this matter.
 
            
 
                 Signed and filed this _____ day of October, 1992
 
            
 
            
 
            
 
                                          ______________________________
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            Copies to:
 
            
 
            Mr James M Hood
 
            Attorney at Law
 
            302 Union Arcade Bldg
 
            Davenport IA 52801
 
            
 
            Ms Vicki L Seeck
 
            Attorney at Law
 
            600 Union Arcade Bldg
 
            111 E Third St
 
            Davenport IA 52801
 
            
 
            
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                              4000.2
 
                                              Filed October 21, 1992
 
                                              Larry P. Walshire
 
 
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            RAYMOND WORDEN,     
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                               File No. 846992
 
            FRENCH & HECHT,     
 
                                           A R B I T R A T I O N
 
                 Employer, 
 
                 Self-Insured,                D E C I S I O N
 
                 Defendant.     
 
            ___________________________________________________________
 
            
 
            4000.2
 
            
 
                 Maximum penalty of approximately $10,000 assessed 
 
            against a self-insured employer for unreasonable conduct in 
 
            denying healing period benefits.
 
            Held it is the reasons provided at the time of denial not 
 
            possible defenses available to defendant in retrospect that 
 
            is examined in reviewing the propriety of the denial.
 
            Held that the conduct of self-insured employers should be 
 
            the same as the conduct expected of insurance companies and 
 
            their professional claims representatives.  This includes 
 
            knowledge of the law and rules governing benefits.  
 
            It was held that withholding benefits for failure to submit 
 
            to a test that was not shown to be necessary was not refusal 
 
            to submit to examination justifying denial of benefits uner 
 
            Iowa Code section 85.39.  Assertion of this claim by 
 
            employer was held unreasonable.
 
            It was further held that withholding weekly benefits because 
 
            claimant rejected offered care and chose his own care is  
 
            unreasonable conduct.  If the employer has the right to 
 
            chose the care, it may only withhold payment for the 
 
            unauthorized care.  Employers cannot use the fear of losing 
 
            of weekly benefits to prevent injured workers from chosing 
 
            their own care.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            JON R. MCCARTY,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 847012
 
            SUPERIOR COAL COMPANY,        :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            THE HARTFORD,                 :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                 
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration upon the petition 
 
            of claimant, Jon R. McCarty, against his employer, Superior 
 
            Coal Company, and its insurance carrier, The Hartford 
 
            Insurance Company, defendants.  The case was heard on June 
 
            14, 1990, in Des Moines, Iowa at the office of the 
 
            industrial commissioner.  The record consists of the 
 
            testimony of claimant, the record also consists of the 
 
            testimony of rehabilitation experts, Clark Borland, and 
 
            Kathryn Bennett.  Additionally, the record consists of joint 
 
            exhibits 1 through 11.
 
            
 
                                      issue
 
            
 
                 The sole issue to be determined is:  1) the nature and 
 
            extent of claimant's permanent partial disability.
 
            
 
                                 findings of fact
 
            
 
                 The deputy, having heard the testimony and considered 
 
            all the evidence finds:
 
            
 
                 Claimant was 25 at the time of the hearing.  He is 
 
            married and has one child.  
 
            
 
                 Claimant sustained a work related injury on February 
 
            12, 1987 when a 300 pound beam fell on him.  Claimant fell 
 
            to the ground and the beam landed on his back.
 
            
 
                 Claimant worked for several days.  Then he sought 
 
            medical treatment from his personal physician, Carl Carlson, 
 
            D.O.  Then claimant was treated by David B. McClain, D.O.  
 
            Dr. McClain treated claimant conservatively for lumbo-sacral 
 
            strain.  In October of 1987, Dr. McClain opined claimant had 
 
            a five percent permanent partial disability.
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                 Claimant became dissatisfied with the treatment which 
 
            he had received from Dr. McClain.  As a consequence, 
 
            claimant, on his own, traveled to Franklin, Tennessee.  He 
 
            was examined by M. Craig Ferrell, M.D., an orthopedic 
 
            surgeon.  Dr. Ferrell was retained to provide a second 
 
            opinion.  He opined, in his report of January 18, 1988:
 
            
 
                 I saw Jon McCarty in the office because of his 
 
                 complaints of back pain.  I had a long discussion 
 
                 with Jon and basically Jon is concerned about his 
 
                 5% permanent impairment, since this is preventing 
 
                 him from being employed at a laboring type 
 
                 occupation.
 
            
 
                 I advised Jon that, in my opinion, he needed to 
 
                 continue on a straight forward rehabilitation 
 
                 program primarily Williams flexion exercises and 
 
                 walking, and that I think with time his complaints 
 
                 will resolve and that he can expect to return to 
 
                 regular working activity in the mine.  I don't 
 
                 think he is interested in trying to get secondary 
 
                 gain from his injury at this point, and I think 
 
                 all he wants is a chance to return to work.
 
            
 
                 I advised Jon to have a frank discussion with you 
 
                 regarding this and that perhaps you would consider 
 
                 releasing him back to full activity after his 
 
                 rehab program.  Please don't hesitate to write or 
 
                 call if you have any suggestions or questions 
 
                 regarding Jon.
 
            
 
            (Joint Exhibit 10)
 
            
 
                 Claimant's authorized treating physician was later 
 
            changed from Dr. McClain to William R. Boulden, M.D.  He 
 
            performed a transverse process facet fusion with a bone 
 
            graft of L5-S1 and internal bone stimulator for 
 
            spondylolisthesis Grade I L5-S1.  Subsequent to the surgery, 
 
            claimant participated in physical therapy and a work 
 
            hardening program with Tom Bower, L.P.T.  As of February 17, 
 
            1989, Dr. Boulden determined claimant could work with the 
 
            above restrictions in a medium category position.  However, 
 
            claimant was restricted from engaging in repetitive lifting, 
 
            bending and twisting.
 
            
 
                 Also, as of January 25, 1990, Dr. Boulden opined 
 
            claimant had a 25 percent permanent partial impairment 
 
            rating.  Ten percent of the rating was attributed to 
 
            preexisting conditions and fifteen percent was attributed to 
 
            claimant's work injury of February 12, 1987.
 
            
 
                 Claimant held a variety of positions subsequent to his 
 
            work release.  He worked as a small engine repair person, he 
 
            mowed hay with a tractor, and he worked at assembly line 
 
            work at Vermeer's Manufacturing.  By the time of the 
 
            hearing, claimant had held the position at Vermeer's for 
 
            seven months.  He was earning $8.07 per hour, with benefits.
 
            
 
                                conclusions of law
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, expe
 
            rience and inability to engage in employment for which he is 
 
            fitted.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 
            125 N.W.2d 251 (1963).  Barton v. Nevada Poultry, 253 Iowa 
 
            285, 110 N.W.2d 660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial disabil
 
            ity.  This is so as impairment and disability are not syn
 
            onymous.  Degree of industrial disability can in fact be 
 
            much different than the degree of impairment because in the 
 
            first instance reference is to loss of earning capacity and 
 
            in the latter to anatomical or functional abnormality or 
 
            loss.  Although loss of function is to be considered and 
 
            disability can rarely be found without it, it is not so that 
 
            a degree of industrial disability is proportionally related 
 
            to a degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  These are matters which the 
 
            finder of fact considers collectively in arriving at the 
 
            determination of the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  There are no 
 
            guidelines which give, for example, age a weighted value of 
 
            ten percent of the total value, education a value of fifteen 
 
            percent of total, motivation - five percent; work experience 
 
            - thirty percent, etc.  Neither does a rating of functional 
 
            impairment directly correlate to a degree of industrial 
 
            disability to the body as a whole.  In other words, there 
 
            are no formulae which can be applied and then added up to 
 
            determine the degree of industrial disability.  It therefore 
 
            becomes necessary for the deputy or commissioner to draw 
 
            upon prior experience, general and specialized knowledge to 
 
            make the finding with regard to degree of industrial dis
 
            ability.  See Peterson v. Truck Haven Cafe, Inc., (Appeal 
 
            Decision, February 28, 1985); Christensen v. Hagen, Inc., 
 
            (Appeal Decision, March 26, l985).
 
            
 
                 For example, a defendant employer's refusal to give any 
 
            sort of work to a claimant after he suffers his affliction 
 
            may justify an award of disability.  McSpadden v. Big Ben 
 
            Coal Co., 288 N.W.2d 181 (Iowa 1980).
 
            
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                 Industrial disability or loss of earning capacity is a 
 
            concept that is quite similar to impairment of earning 
 
            capacity, an element of damage in a tort case.  Impairment 
 
            of physical capacity creates an inference of lessened 
 
            earning capacity.  The basic element to be determined, 
 
            however, is the reduction in value of the general earning 
 
            capacity of the person, rather than the loss of wages or 
 
            earnings in a specific occupation.  Post-injury earnings 
 
            create a presumption of earning capacity.  The earnings are 
 
            not synonymous with earning capacity and the presumption may 
 
            be rebutted by evidence showing the earnings to be an 
 
            unreliable indicator.  Carradus v. Lange, 203 N.W.2d 565 
 
            (Iowa 1973); Holmquist v. Volkswagon of America, Inc., 261 
 
            N.W.2d 516 (Iowa App. 1977) A.L.R.3d 143; Michael v. 
 
            Harrison County, Thirty-fourth Biennial Report of the 
 
            Industrial Commissioner 218 (1979); 2 Larson Workmen's 
 
            Compensation Law, sections 57.21 and 57.31.
 
            
 
                 Claimant is industrially disabled in the case at hand.  
 
            He is functionally impaired from 5 percent to 15 percent 
 
            attributable to this injury.  Claimant has permanent 
 
            restrictions imposed upon him.  Repetitive lifting, bending 
 
            and twisting are prohibited.  Claimant is precluded from 
 
            performing jobs in the heavy category.  Claimant's age is a 
 
            positive factor; he is a very young man with many years in 
 
            the workforce ahead of him.  Claimant does not have his GED.  
 
            Nor is he especially motivated to obtain it.  Claimant's 
 
            motivation to find work has waxed and wand throughout his 
 
            healing period.  Claimant has been employed for some time at 
 
            much less than he has earned for defendant employer.  
 
            Claimant can no longer work in jobs of the heavy category.  
 
            He is restricted to light or medium jobs.  His earning 
 
            capacity and his actual earnings have been reduced.  All in 
 
            all, claimant has a permanent partial disability of 25 
 
            percent attributable to his work injury of February 12, 
 
            1987.
 
            
 
                           
 
            
 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            order
 
            
 
                 THEREFORE, IT IS ORDERED
 
            
 
                 Defendants are to pay one hundred twenty-five (125) 
 
            weeks of permanent partial disability benefits at the rate 
 
            of two hundred fifty dollars ($250.00) per week commencing 
 
            on November 25, 1988.
 
            
 
                 Defendants shall receive credit for all benefits 
 
            previously paid and not credited.
 
            
 
                 Interest shall be paid pursuant to Iowa Code section 
 
            85.30.
 
            
 
                 Costs of the action shall be assessed to defendants 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 Defendants shall file a claim activity report as 
 
            requested by this rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of February, 1991.
 
            
 
            
 
            
 
            
 
                                          
 
            ________________________________
 
                                          MICHELLE A. MCGOVERN
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr Donald G Beattie
 
            Attorney at Law
 
            204 8th St SE
 
            PO Box 367
 
            Altoona Iowa 50009
 
            
 
            Mr Jeff M Margolin 
 
            Mr Marvin E Duckworth
 
            Attorneys at Law
 
            Terrace Center Ste 111
 
            2700 Grand Avenue
 
            Des Moines Iowa 50312
 
            |
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      5-1803
 
                      Filed February 26, 1991
 
                      MICHELLE A. MCGOVERN
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            JON R. MCCARTY,     :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :         File No. 847012
 
            SUPERIOR COAL COMPANY,   :
 
                      :      A R B I T R A T I O N
 
                 Employer, :
 
                      :         D E C I S I O N
 
            and       :
 
                      :
 
            THE HARTFORD,  :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            5-1803
 
            Claimant sustained a 25 percent permanent partial disability 
 
            as a result of a work injury where a beam fell on claimant's 
 
            back.
 
            
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                      5-2905
 
                                      Filed March 7, 1995
 
                                      Patricia J. Lantz
 
 
 
         BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
________________________________________________________________
 
          
 
CARLA LANSER f/k/a CARLA     
 
LINDECKER,                            File No. 847162
 
          
 
     Claimant, 
 
                                        R E V I E W -
 
vs.       
 
                                      R E O P E N I N G
 
UNIVERSITY OF DUBUQUE,  
 
                                       D E C I S I O N
 
     Employer, 
 
          
 
and       
 
          
 
ITT HARTFORD, 
 
          
 
     Insurance Carrier,  
 
     Defendants.    
 
________________________________________________________________
 
 
 
5-2905
 
Claimant failed show that additional medical treatment/disability was 
 
related to a 1987 injury.
 
 
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            RICK BRADLEY,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 847287
 
            ALLEN MEMORIAL HOSPITAL,      :
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            FIREMAN'S FUND INSURANCE      :
 
            COMPANIES,                    :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                                        
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 Defendants appeal from an arbitration decision awarding 
 
            permanent partial disability benefits as the result of an 
 
            alleged injury on March 12, 1987.  The record on appeal 
 
            consists of the transcript of the arbitration proceeding and 
 
            joint exhibits 1 through 25.  Both parties filed briefs on 
 
            appeal.  Defendants filed a reply brief. 
 
            
 
                                      ISSUES
 
            
 
                 Defendants state the following issues on appeal:
 
            
 
                    1.  Whether the deputy erred in finding 
 
                 claimant sustained a 20% impairment to each upper 
 
                 extremity.
 
            
 
                    2.  Whether the deputy erred in finding that 
 
                 interest on claimant's benefits began to run on 
 
                 May 15, 1987.
 
            
 
                              review of the evidence
 
            The arbitration decision adequately and accurately reflects 
 
            the pertinent evidence and it will not be totally set forth 
 
            herein.
 
            
 
                 Claimant worked in defendants' hospital as a 
 
            maintenance worker, where he developed bilateral carpal 
 
            tunnel syndrome.  Claimant underwent surgery on both hands 
 
            by Jitu D. Kothari, M.D., an orthopaedic surgeon 
 
            specializing in arthroscopic surgery.  Dr. Kothari gave 
 
            claimant a rating of seven percent "disability" of each hand 
 
            after the surgeries.  If Dr. Kothari's rating of disability 
 
            is in fact a rating of impairment, it would convert, under 
 
            the AMA Guides to the Evaluation of Permanent Impairment, 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            3rd edition, to six percent impairment of each upper 
 
            extremity, which would in turn convert to four percent 
 
            impairment of the body as a whole for each upper extremity.  
 
            Using the combined values chart yields an eight percent 
 
            permanent partial impairment of the body as a whole.  
 
            
 
                  Claimant was also examined by John R. Walker, M.D., an 
 
            orthopaedic specialist with practice limited to 
 
            orthopaedics.  Dr. Walker assigned claimant a permanent 
 
            partial impairment rating of 20 percent of each upper 
 
            extremity.  This would convert into a 12 percent impairment 
 
            to the body as a whole for each upper extremity, and 23 
 
            percent permanent partial impairment of the body as a whole 
 
            under the combined values chart.  
 
            applicable law
 
            
 
                 Permanent partial disabilities are classified as either 
 
            scheduled or unscheduled.  A specific scheduled disability 
 
            is evaluated by the functional method; the industrial method 
 
            is used to evaluate an unscheduled disability.  Martin v. 
 
            Skelly Oil Co., 252 Iowa 128,133, 106 N.W.2d 95, 98 (1960); 
 
            Graves v. Eagle Iron Works, 331 N.W.2d 116 (Iowa 1983); 
 
            Simbro v. DeLong's Sportswear, 332 N.W.2d 886, 887 (Iowa 
 
            1983).  The scheduled loss system created by the legislature 
 
            is presumed to include compensation for reduced capacity to 
 
            labor and to earn.  Schell v. Central Engineering Co., 232 
 
            Iowa 421, 4 N.W.2d 339 (1942); Roberts v. Pizza Hut of 
 
            Washington, Inc., II Iowa Industrial Commissioner Report, 
 
            317, 320 (1982); Sheflett v. Clearfield Veterinary Clinic, 
 
            II Iowa Indus. Comm'r Rep., 334, 347 (1982); and Webster v. 
 
            John Deere Component Works, II Iowa Indus. Comm'r Rep., 435, 
 
            450 (1982).
 
            
 
                 A treating physician's testimony is not entitled to 
 
            greater weight as a matter of law than that of a physician 
 
            who later examines a claimant in anticipation of litigation.  
 
            The weight to be given testimony of a physician is a fact 
 
            issue to be decided by the industrial commissioner in light 
 
            of the record the parties develop.  Rockwell Graphic 
 
            Systems, Inc., v. Prince, 366 N.W.2d 187, 192 (Iowa 1985).
 
            
 
                 Iowa Code section 85.34(2)(s) states:
 
            
 
                    The loss of both arms, or both hands, or both 
 
                 feet, or both legs, or both eyes, or any two 
 
                 thereof, caused by a single accident, shall equal 
 
                 five hundred weeks and shall be compensated as 
 
                 such, however, if said employee is permanently and 
 
                 totally disabled the employee may be entitled to 
 
                 benefits under subsection 3.
 
            
 
                 Iowa Code section 85.30 states:
 
            
 
                    Compensation payments shall be made each week 
 
                 beginning on the eleventh day after the injury, 
 
                 and each week thereafter during the period for 
 
                 which compensation is payable, and if not paid 
 
                 when due, there shall be added to the weekly 
 
                 compensation payments, interest at the rate 
 
                 provided in section 535.3 for court judgments and 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                 decrees.
 
            analysis
 
            
 
                 Defendants argue that Dr. Walker's rating of impairment 
 
            was affected by his knowledge that claimant had been 
 
            terminated by defendant.  As this is a scheduled member 
 
            case, the fact that claimant was terminated from his 
 
            employment due to the effects of his injury is not relevant.  
 
            Factors of industrial disability are not utilized in a 
 
            scheduled member case.  Only claimant's impairment may be 
 
            considered.  Consideration is not given to what effect the 
 
            scheduled loss has on claimant's earning capacity.  However, 
 
            Dr. Walker's report clearly shows that the doctor is aware 
 
            of the distinction between physical impairment and 
 
            disability.  Dr. Walker's rating is a rating of physical 
 
            impairment alone.  (See Joint Exhibit 25, pages 3 and 4).  
 
            
 
                 Claimant has been given two ratings of impairment.  Dr. 
 
            Kothari was claimant's treating physician and saw claimant 
 
            19 times.  Dr. Walker saw claimant only once, apparently in 
 
            midyear 1988.  Dr. Kothari operated on claimant's hands, but 
 
            Dr. Walker did not.  
 
            
 
                 Dr. Kothari's rating was a rating of "disability."  Dr. 
 
            Kothari is not qualified to rate claimant's disability.  His 
 
            expertise is limited to a rating of claimant's physical 
 
            impairment.  However, there is no indication in the record 
 
            that Dr. Kothari improperly relied on disability factors in 
 
            establishing a rating of impairment for claimant.  Although 
 
            the improper terminology may have been used, it appears that 
 
            Dr. Kothari's rating is a rating of impairment.
 
            
 
                 In assessing the weight to be given to the testimony of 
 
            any witness, bias is a relevant factor.  In this case, Dr. 
 
            Kothari had hospital privileges at defendant employer's 
 
            hospital.  Dr. Kothari's offices were in the same medical 
 
            complex as the hospital.  Dr. Kothari delayed the issuance 
 
            of a rating of impairment for over a year after it was 
 
            requested.  The rating was reported in a letter dated June 
 
            20, 1989.  There is no explanation for this delay in the 
 
            record.  Dr. Kothari was not, however, an employee of the 
 
            hospital, nor was there any showing that Dr. Kothari had any 
 
            financial interest in the hospital.  In addition, it would 
 
            be speculative to treat the delay in the issuance of a 
 
            rating of impairment as somehow indicating the existence of 
 
            bias in defendants' favor.  Although these factors are noted 
 
            and given appropriate weight, it is concluded that Dr. 
 
            Kothari's relationship with defendant hospital is not so 
 
            close as to cast doubt on the validity of the rating of 
 
            impairment he gave to claimant.
 
            
 
                 Both doctors who gave claimant a rating are orthopaedic 
 
            specialists.  However, Dr. Kothari also specializes in 
 
            orthopaedic surgery, and in fact did operate on both of 
 
            claimant's hands.  Because of Dr. Kothari's greater contact 
 
            with claimant, and his opportunity to make an internal 
 
            examination of claimant's condition, the opinion of Dr. 
 
            Kothari will be given the greater weight.
 
            
 
                 Defendants raise the question of when interest on 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            unpaid benefits would begin to accrue.  As this is a case in 
 
            arbitration, interest on unpaid benefits awarded to claimant 
 
            shall begin to accrue from the end of the healing period.  
 
            Farmer's Elevator Co., Kingsley v. Manning, 286 N.W.2d 174 
 
            (Iowa 1979); Benson v. Good Samaritan Center,  Ruling on 
 
            Rehearing, October 18, 1989
 
            findings of fact
 
            1.  Claimant received a work-related bilateral carpal tunnel 
 
            syndrome on March 12, 1987.
 
            2.  Claimant had a left carpal tunnel release on March 12, 
 
            1987 and a right carpal tunnel release on April 9, 1987.
 
            3.  Claimant's work-related bilateral carpal tunnel injury 
 
            on March 12, 1987 resulted in a seven percent permanent 
 
            partial impairment to each of claimant's left and right 
 
            upper extremities.
 
            4.  Claimant incurred an eight percent impairment to his 
 
            body as a whole as a result of the combined effects of 
 
            claimant's bilateral carpal tunnel injury on March 12, 1987.
 
            5.  Claimant's permanent partial disability benefits and 
 
            interest on said benefits are to begin after the end of 
 
            claimant's healing period, which period ended on May 15, 
 
            1987.
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            conclusions of law
 
            
 
                 As a result of his work related injury on March 12, 
 
            1987, claimant has a seven percent impairment of each hand 
 
            which converts to an eight percent permanent partial 
 
            impairment of the body as a whole.  
 
            
 
                 Interest on unpaid benefits shall accrue from May 15, 
 
            1987.
 
            
 
                 WHEREFORE, the decision of the deputy is affirmed and 
 
            modified. 
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, it is ordered: 
 
            
 
                 That defendants shall pay to claimant forty (40) weeks 
 
            of permanent partial disability benefits at the rate of one 
 
            hundred sixty-three and 02/100 dollars ($163.02) per week 
 
            beginning May 15, 1987.
 
            
 
                 That defendants shall pay interest on unpaid weekly 
 
            benefits awarded herein as set forth in Iowa Code section 
 
            85.30.  The interest shall accrue from May 15, 1987.
 
            
 
                 That defendants shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against the award for 
 
            weekly benefits previously paid.
 
            
 
                 That defendants shall file claim activity reports as 
 
            required by this agency pursuant to rule 343 IAC 3.1(2).
 
            
 
                 That defendants shall pay the costs of this action 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 Signed and filed this ____ day of November, 1990.
 
            
 
            
 
            
 
            
 
                                          
 
            ________________________________
 
                                                   CLAIR R. CRAMER
 
                                           ACTING INDUSTRIAL 
 
            COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Gerald B. Carney
 
            Attorney at Law
 
            303 First Ave. NE
 
            P.O. Box 786
 
            Waverly, Iowa 50677
 
            
 
            Mr. Greg A. Egbers
 
            Attorney at Law
 
            600 Union Arcade Bldg.
 
            111 E. Third Street
 
            Davenport, Iowa 52801-1596
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      2602;2906;3700;5-3800
 
                      Filed November 30, 1990
 
                      CLAIR R. CRAMER
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            RICK BRADLEY,  :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :      File No.847287
 
            ALLEN MEMORIAL HOSPITAL, :
 
                      :        A P P E A L
 
                 Employer, :
 
                      :      D E C I S I O N
 
            and       :
 
                      :
 
            FIREMAN'S FUND INSURANCE :
 
            COMPANIES,     :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            2602, 2906, 3700
 
            Greater weight was given to treating doctor's rating over 
 
            examining doctor's rating due to more contact with claimant, 
 
            opportunity to make internal observation during surgery, 
 
            etc.  Treating doctor's staff privileges at defendant 
 
            hospital and lengthy delay in giving a rating did not cast 
 
            doubt on his credibility or validity of his rating of 
 
            impairment absent a showing of financial interest in the 
 
            hospital.
 
            
 
            5-3800
 
            Held that interest began to accrue from end of healing 
 
            period per Farmer's Elevator and Benson cases.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         RICK BRADLEY,
 
         
 
              Claimant,                             File No. 847287
 
         
 
         vs.                                     A R B I T R A T I O N
 
         
 
         ALLEN MEMORIAL HOSPITAL,                   D E C I S I O N
 
         
 
              Employer,
 
                                                      F I L E D
 
         and
 
                                                      JAN 10 1990
 
         FIREMAN'S FUND INSURANCE,
 
         COMPANIES,                           IOWA INDUSTRIAL COMMISSIONER
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by the claimant, 
 
         Rick G. Bradley, against Allen Memorial Hospital, employer, and 
 
         Fireman's Fund Insurance Company, insurance carrier, defendants, 
 
         to recover benefits as a result of an injury sustained on March 
 
         12, 1987.  This matter came on for hearing before the deputy 
 
         industrial commissioner in Waterloo, Iowa, on December 29, 1989. 
 
         The record consists of the testimony of the claimant and joint 
 
         exhibits 1 through 25.
 
         
 
                                       ISSUES
 
         
 
              The issues the parties set out in the prehearing report for 
 
         resolution are:
 
         
 
              1.  The extent of claimant's permanent disability; and
 
         
 
              2.  The beginning date of interest on any permanent partial 
 
         disability benefits.
 
         
 
                           REVIEW OF THE EVIDENCE
 
         
 
              Claimant testified he is a high school graduate and began 
 
         working for defendant employer on April 22, 1980.  Claimant said 
 
         his duties mainly involved maintenance work like housekeeping, 
 
         buffing and waxing floors.  Claimant said he was required to 
 
         strip and wax floors using machines like a buffer.  He testified 
 
         that the buffer required the use of both hands and certain hand 
 
         twisting motions in its operation.  Claimant indicated his 
 
         machine was an old machine without the ability to lock it in 
 
         position.  He also said it vibrates during its operation.  
 
                                                
 
                                                         
 
         Claimant stated his jobs prior to April 22, 1980 involved working 
 
         part-time as a maintenance worker for a hospital and helping 
 
         farmers.
 
         
 
              Claimant stated his hands started getting numb, began 
 
         tingling and became painful during the summer of 1986.  Claimant 
 
         said the pain and numbness became so severe that it would wake 
 
         him up at night.  Claimant testified he told the employer's 
 
         doctor of his complaints at his next regular company-required 
 
         physical. Claimant said the doctor diagnosed carpal tunnel and 
 
         referred claimant to Jitu D. Kothari, M.D.  Claimant was given 
 
         nerve conduction tests and claimant said Dr. Kothari told him he 
 
         needed carpal tunnel surgery on both hands.  Claimant related he 
 
         had carpal tunnel surgery on his left hand on March 12, 1987 and 
 
         on his right hand April 9, 1987.  Claimant indicated he returned 
 
         to his same job and work on May 5, 1987 without any 
 
         restrictions.
 
         
 
              Claimant emphasized his same problems occurred again in the 
 
         fall of 1987.  Claimant said the doctor prescribed medication, 
 
         braces and splints and he continued to work with light duty 
 
         restrictions.  Claimant asserted that he was fired from his job 
 
         on March 25, 1988.  Claimant indicated that the union steward 
 
         tried to find him a job within the hospital, but because 
 
         claimant's hands were not getting better and he was wearing 
 
         splints, defendant employer determined there were no jobs he 
 
         could do. Claimant then was sent to Dr. Kothari on May 5, 1988 
 
         for an impairment rating.  Claimant elaborated on his repeated 
 
         efforts to get Dr. Kothari to send a rating report.  Claimant 
 
         said he understood a report was to have been sent soon after the 
 
         May 5, 1988 exam.  The claimant revealed it was not until June 
 
         20, 1989 that Dr. Kothari finally issued a rating.
 
         
 
              Claimant indicated he still has pain, numbness and grip loss 
 
         as if no surgery had occurred.  Claimant emphasized his hands are 
 
         swelling the same as when his carpal tunnel problems first began. 
 
         Claimant said he can no longer bowl, carry a gun or ride a 
 
         motorcycle.  Claimant also emphasized he cannot do his share of 
 
         the household duties, including vacuuming and washing the 
 
         dishes.
 
         
 
              Claimant contends Dr. Kothari discussed with the claimant on 
 
         his June 1989 visit claimant's ulnar nerve problem and possible 
 
         surgery.
 
         
 
              Claimant said he saw John R. Walker, M.D., because he could 
 
         not get a rating by Dr. Kothari and because he was having loss of 
 
         strength, hand and finger stiffness, writing trouble and cramps, 
 
         and was dropping objects.  He said he was afraid to hold his 
 
         child.
 
         
 
              Claimant emphasized he was having no prior problems nor had 
 
         he had any other injuries or accidents prior to his March 12, 
 
         1987 injury.  Claimant said he has not worked since he was fired 
 
         on March 25, 1988 except as a part-time bartender and a part-time 
 
                                                
 
                                                         
 
         bus driver.  Claimant said he drives the bus one hour each 
 
         morning and afternoon, when needed, and as a substitute.  He 
 
         stated he is on no regular schedule as a bartender, but works 
 
         when needed, usually Saturday night.  Claimant acknowledged he 
 
         has not seen any doctor since June 20, 1989.
 
         
 
              Claimant's medical records of Dr. Kothari show that he 
 
         performed a left wrist carpal tunnel release on March 12, 1987 
 
         and a right wrist carpal tunnel release on April 9, 1987.  A 
 
         functional capacity evaluation was performed at defendant 
 
         employer, Allen Memorial Hospital.  The physician listed is Dr. 
 
         Jitu D. Kothari, M.D.  The evaluation report was released to Dr. 
 
         Kothari on January 8, 1988.
 
         
 
              Jitu D. Kothari, M.D., opined on June 20, 1989:  "In my 
 
         opinion, Mr. Bradley has 7% disability of the right hand and 7% 
 
         disability of the left hand on account of bilateral carpal tunnel 
 
         syndrome, and subsequent surgical correction"  (Jt. Ex. 23)
 
         
 
              John R. Walker, M.D., opined on August 1, 1988:
 
         
 
                   As a result of this man's job and occupation at Allen 
 
              Memorial Hospital, it is my opinion that he has a permanent 
 
              partial impairment of the right hand amounting to 20% of the 
 
              right upper extremity.  As far as the left hand is 
 
              concerned, I believe it is exactly the same - in other 
 
              words, 20% of the left upper extremity.  This, of course is 
 
              impairment.
 
         
 
                   Finally, to repeat, perhaps further surgery and perhaps 
 
              further diagnostic tests bilateral, should be done and 
 
              carried out.  It may be that further treatment should be 
 
              carried out by one who has specialized particularly in 
 
              carpal tunnel syndrome, a so-called hand surgeon.  This 
 
              probably can be done in Waterloo but it certainly also can 
 
              be done in Iowa City or the Mayo Clinic.
 
         
 
         (Jt. Ex. 25)
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              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.
 
         
 
              Iowa Code section 85.34(2) provides that compensation for 
 
         permanent partial disability shall begin at the termination of 
 
         the healing period.
 
         
 
              The Iowa Supreme Court in Simbro v. DeLong's Sportswear, 332 
 
         N.W.2d 886 (Iowa 1983) explained the two methods for evaluating a 
 
                                                
 
                                                         
 
         disability--functional and industrial:
 
         
 
              Functional disability is assessed solely by determining the 
 
              impairment of the body function of the employee; industrial 
 
              disability is gauged by determining the loss to the 
 
              employee's earning capacity.  Functional disability is 
 
              limited to the loss of physiological capacity of the body or 
 
              body part.  Industrial disability is not bound to the organ 
 
              or body incapacity, but measures the extent to which the 
 
              injury impairs the employee in the ability to earn 
 
              wages....
 
         
 
                   ...A specific scheduled disability is evaluated by the 
 
              functional method; the industrial method is used to evaluate 
 
              an unscheduled disability.
 
         
 
              A treating physician's testimony is not entitled to greater 
 
         weight as a matter of law than that of a physician who later 
 
         examines claimant in anticipation of litigation.  Weight to be 
 
         given testimony of physician is a fact issue to be decided by the 
 
         industrial commissioner in light of the record the parties 
 
         develop.  In this regard, both parties may develop facts as to 
 
         the physician's employment in connection with litigation, if so; 
 
         the physician's examination at a later date and not when the 
 
         injuries were fresh; the arrangements as to compensation; the 
 
 
 
                    
 
                                                         
 
         extent and nature of the physician's examination; the physician's 
 
         education, experience, training, and practice; and all other 
 
         factors which bear upon the weight and value of the physician's 
 
         testimony may be considered.  Both parties may bring all this 
 
         information to the attention of the factfinder as either 
 
         supporting or weakening the physician's testimony and opinion.  
 
         All factors go to the value of the physician's testimony as a 
 
         matter of fact not as a matter of law.  Rockwell Graphic Systems, 
 
         Inc. v. Prince, 366 N.W.2d 187, 192 (Iowa 1985).
 
         
 
              Iowa Code section 85.34(2)(s) provides, in part:  "The loss 
 
         of both arms, or both hands, or both feet, or both legs, or both 
 
         eyes, or any two thereof, caused by a single accident, shall 
 
         equal five hundred weeks and shall be compensated as such."
 
         
 
              Workers' compensation benefits for permanent partial 
 
         disability of two members caused by a single accident is a 
 
         scheduled benefit under Iowa Code section 85.34(2)(s) and that the 
 
         degree of impairment caused by a partial loss must be computed on 
 
         the basis of functional, rather than industrial disability.  
 
         Simbro v. DeLong's Sportswear, 332 N.W.2d 886 (1983).
 
         
 
              Iowa Code section 85.30 provides:
 
         
 
              Compensation payments shall be made each week beginning on 
 
              the eleventh day after the injury, and each week thereafter 
 
              during the period for which compensation is payable, and if 
 
              not paid when due, there shall be added to the weekly 
 
              compensation payments, interest at the rate provided in 
 
              section 535.3 for court judgments and decrees.
 
         
 
              This 33 year old claimant incurred a work-related bilateral 
 
         carpal tunnel syndrome injury on March 12, 1987.  The parties 
 
         also agreed to claimant's healing period which ended up to and 
 
         including May 15, 1987, at which time claimant returned to work. 
 
         Claimant worked until March 25, 1988, inclusive, when he was 
 
         fired from his job because he was unable to perform the job and 
 
         the work he was performing at the time of his March 12, 1987 
 
         injury. Defendant employer also determined that there was no 
 
         other job at defendant employer's place of business which 
 
         claimant could perform.  This conduct of defendant employer is 
 
         deplorable. Claimant's injuries are covered by Iowa Code section 
 
         85.34(2)(s) (two injuries in a single accident).  The McSpadden 
 
         case does not apply.  Claimant must seek recourse, if any, for 
 
         the actions of defendant employer in firing the claimant, through 
 
         other civil litigation in which there is a time limit soon to 
 
         expire.
 
         
 
              The parties are basically arguing over the extent of 
 
         claimant's impairment and when those payments and interest thereon 
 
         begin.  Dr. Kothari performed the bilateral carpal releases on 
 
         claimant.  He is on the medical staff at defendant employer, but 
 
         is not an employee of defendant employer.  It appears his office 
 
         is within the medical-hospital complex.  Claimant is not satisfied 
 
         with either of his surgeries.  Claimant contends he is worse now 
 
                                                
 
                                                         
 
         than before the surgeries.  Dr. Kothari defends his surgeries. 
 
         Obviously, there is an impairment so claimant should not feel 100 
 
         percent cured.  Dr. Kothari did not guarantee that claimant would 
 
         be cured of his problems or that his surgeries would be 100 
 
         percent successful.  Dr. Kothari opined a 7 percent disability to 
 
         each of claimant's hands.  It is obvious the doctor meant 
 
         impairment as this deputy has the authority to decide disability. 
 
         By using the AMA Guides and Combined Charts, a 7 percent 
 
         impairment to the hand converts to 6 percent impairment to the 
 
         upper extremity.  A 6 percent impairment of the upper extremity 
 
         converts to a 4 percent impairment to the body as a whole.  
 
         Placing these two values on the Combined Values Chart produces a 
 
         combined value of 8 percent of the body as a whole.  Dr. Kothari 
 
         waited for a considerable time before he issued his rating.  It is 
 
         unknown why he could not have issued such a rating one year 
 
         earlier.  There is no valid explanation. Claimant and/or his 
 
         attorney requested a rating several times.
 
         
 
              Claimant went to Dr. Walker around August 1989 for an. 
 
         evaluation rating and suggested treatment.  Dr. Walker had no 
 
         apparent tie to defendant employer, Allen Memorial Hospital.  Dr. 
 
         Walker opined a 20 percent impairment to each of claimant's upper 
 
         extremities.  It appears the doctor has already converted the 
 
         hand impairment to a specific upper extremity impairment.  Taking 
 
         the medical and nonmedical testimony as a whole, the undersigned 
 
         believes this 20 percent impairment is not to each specific hand 
 
         but is, in fact, intentionally referred to claimant's upper 
 
         extremity.  This 20 percent to each upper extremity results in a 
 
         23 percent impairment to the claimant's body as a whole.  There 
 
         is a rather large difference in the two doctors' ratings; namely, 
 
         8 percent versus 23 percent.
 
         
 
              Defendant employer obviously concluded that claimant is so 
 
         impaired that he cannot do any job that would be available at the 
 
         hospital.  The undersigned believes it is best to have a rating 
 
         by a medical outsider so there is no chance of bias or conflict 
 
         of interest.  Dr. Kothari is in a difficult position.  His office 
 
         is in defendant employer's complex and he has received his staff 
 
         rights from defendant employer.  Why Dr. Kothari waited so long 
 
         before issuing a rating is questionable.  There is no dispute as 
 
         to claimant's injury arising out of and in the course of his 
 
         employment or the causal connection of claimant's disability to 
 
         his injury.  The undersigned believes the greater weight of all 
 
         the evidence shows claimant has an impairment to both hands and 
 
         upper extremities substantially greater than what Dr. Kothari 
 
         opined.  The defendant employer's actions tend to support a 
 
         severe impairment.  The undersigned finds Dr. Walker's opinion of 
 
         a 20 percent impairment to each of claimant's upper extremities 
 
         is the most accurate and plausible rating.  The undersigned finds 
 
         that claimant has a 20 percent impairment of each of his upper 
 
         extremities as a result of an injury to each of his hands which 
 
         resulted from a bilateral carpal tunnel syndrome resulting in a 
 
         bilateral carpal release.  This resulted in a combined body as a 
 
         whole impairment of 23 percent or 115 weeks of permanent partial 
 
         disability benefits.  Permanent partial disability benefits begin 
 
                                                
 
                                                         
 
         upon the ending of claimant's healing period.  The parties agreed 
 
         claimant returned to work on May 15, 1987.  This date marks the 
 
         end of claimant's healing period.  Claimant contends permanent 
 
         partial disability benefits should begin on May 16, 1987. 
 
         Defendants contend August 2, 1989 should be the beginning of any 
 
         permanent partial disability benefits and that the defendants 
 
         have been paying permanent partial disability benefits beginning 
 
         August 2, 1989, which is approximately one and one-half months 
 
         after Dr. Kothari ultimately opined a rating.
 
         
 
              Under Teel v. McCord, 394 N.W.2d 405 (Iowa 1986) the court 
 
         held that interest on an award for permanent partial disability 
 
         accrued at the time of the employee's return to work rather than 
 
         at the time of the subsequent award where it was clear that, had 
 
         medical community been able to determine the extent of disability 
 
         without further treatment, the employee would have been entitled 
 
         to compensation when he first returned to work instead of having 
 
         it held until the extent of disability was known.  The 
 
         undersigned finds that claimant's permanent partial disability 
 
         benefits shall begin May 16, 1987 and interest as provided in 
 
         85.30 in the Teel case shall commence on payments as they accrue 
 
         beginning May 16, 1987.
 
         
 
                               FINDINGS OF FACT
 
         
 
              1.  Claimant received a work-related bilateral carpal tunnel 
 
         syndrome on March 12, 1987.
 
         
 
              2.  Claimant's work-related bilateral carpal tunnel injury 
 
         was the result of claimant's March 12, 1987 injury.
 
         
 
              3.  Claimant had a left carpal tunnel release on March 12, 
 
         1987 and a right carpal tunnel release on April 9, 1987.
 
         
 
              4.  Claimant's work-related bilateral carpal tunnel injury 
 
         on March 12, 1987 resulted in a 20 percent permanent partial 
 
         impairment to each of claimant's left and right upper 
 
         extremities.
 
         
 
              5.  Claimant incurred a 23 percent impairment to his body as 
 
         a whole as a result of the combined effects of claimant's 
 
         bilateral carpal tunnel injury on March 12, 1987.
 
         
 
              6.  Claimant was fired by defendant employer on March 25, 
 
         1988 pursuant to his bilateral carpal tunnel injury on March 12, 
 
         1987 because of defendant employer's conclusion that claimant was 
 
         not able to do his former job nor any other job available with 
 
         defendant employer.
 
         
 
              7.  Claimant's permanent partial disability benefits and 
 
         interest on said benefits are to begin after the end of 
 
         claimant's healing period, which period ended on and including 
 
         May 15, 1987.
 
         
 
                               CONCLUSIONS OF LAW
 
                                                
 
                                                         
 
         
 
              Claimant's 23 percent impairment to his body as a whole was 
 
         caused by the combined effects of claimant's work-related 
 
         bilateral carpal tunnel syndrome injuries on March 12, 1987.
 
         
 
              Claimant's bilateral carpal tunnel injuries arose out of and 
 
         in the course of claimant's employment.
 
         
 
              The combined effects of claimant's bilateral carpal tunnel 
 
         syndrome injury on March 12, 1987 caused a 23 percent impairment 
 
         to claimant's body as a whole.
 
         
 
              Claimant was fired by defendant employer on March 25, 1988 
 
         pursuant to his bilateral carpal tunnel syndrome injury on March 
 
         12, 1987 because of defendant employer's contention that claimant 
 
         was not able to do his former job or any other job available with 
 
         defendant employer.
 
         
 
              Claimant's permanent partial disability benefits and 
 
         interest on said benefits are to begin on May 16, 1987.
 
         
 
                                      ORDER
 
         
 
              That defendants shall pay to claimant one hundred fifteen 
 
         (115) weeks of permanent partial disability benefits at the rate 
 
         of one hundred sixty-three and 02/100 dollars ($163.02) per week 
 
         beginning May 16, 1987, plus interest on the weekly benefits as 
 
         they accrue beginning May 16, 1987.
 
         
 
              That defendants shall pay accrued weekly benefits in a lump 
 
         sum and shall receive credit against the award for weekly 
 
         benefits previously paid.
 
         
 
                                      
 
                                                         
 
              That defendants shall pay interest on benefits awarded 
 
         herein as set forth in Iowa Code section 85.30.
 
         
 
              That defendants shall pay the costs of this action pursuant 
 
         to Division of Industrial Services Rule 343-4.33.
 
         
 
         
 
              Signed and filed this 10th day of January, 1990.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            BERNARD J. O'MALLEY
 
                                            DEPUTY INDUSTRIAL 
 
                                            COMMISSIONER
 
         
 
         Copies to:
 
         
 
         Mr Gerald B Carney
 
         Attorney at Law
 
         303 First Ave NE
 
         P 0 Box 786
 
         Waverly, IA  50677
 
         
 
         Mr Greg A Egbers
 
         Attorney at Law
 
         600 Union Arcade Bldg
 
         111 E Third St
 
         Davenport, IA  52801-1596
 
 
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            1803; 3800
 
                                            Filed January 10, 1990
 
                                            Bernard J. O'Malley
 
         
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         RICK BRADLEY,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                   File No. 847287
 
         ALLEN MEMORIAL HOSPITAL,
 
                                                A R B I T R A T I 0 N
 
              Employer,
 
                                                   D E C I S I 0 N
 
         and
 
         
 
         FIREMAN'S FUND INSURANCE,
 
         COMPANIES,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1803
 
         
 
              Defendants' doctor opined 7% impairment to claimant's right 
 
         and left hands due a bilateral carpal tunnel syndrome injury.  
 
         The doctor delayed making a rating for one year.  Defendants' 
 
         doctor had staff rights and was a tenant in defendant employer's 
 
         hospital-medical complex.  Claimant's doctors opined a 20% 
 
         permanent partial impairment to each of claimant's left and right 
 
         upper extremities.
 
         
 
              The defendant employer fired claimant because of his injury 
 
         and inability to continue working.  Although McSpadden isn't 
 
         applicable in this case involving two injuries in a single 
 
         accident, the defendant employer's action gave additional support 
 
         to the seriousness of claimant's impairment.  Deputy found 20% 
 
         impairment to each of claimant's upper left and right extremities 
 
         resulting in a combined 23% impairment to claimant's body as a 
 
         whole.
 
         
 
         3800
 
         
 
              Found interest began with beginning due date of permanent 
 
         partial disability benefits which began after the end of 
 
         claimant's healing period.  Defendants contend interest should 
 
         begin when their doctor finally gave an impairment rating which 
 
         would have been two years plus after the healing period ended.
 
         
 
         
 
 
 
                                                
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DOUGLAS G. LANDTISER,         :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :
 
            GEORGE A. HORMEL & COMPANY,   :         File No. 847364
 
                                          :
 
                 Employer,                :      A R B I T R A T I O N
 
                                          :
 
            and                           :         D E C I S I O N
 
                                          :
 
            LIBERTY MUTUAL INS. COMPANY,  :
 
                                          :
 
                 Insurance Carrier,       :
 
                                          :
 
            and                           :
 
                                          :
 
            SECOND INJURY FUND OF IOWA,   :
 
                                          :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Douglas 
 
            G. Landtiser wherein he seeks benefits for permanent partial 
 
            disability from the Second Injury Fund of Iowa.  No claim 
 
            against the employer is addressed.  The primary issues to be 
 
            determined are whether the injury caused disability, the 
 
            extent of any disability and the commencement date for 
 
            payment of any disability benefits which are to be awarded.
 
            
 
                 The case was heard and fully submitted at Ottumwa, Iowa 
 
            on July 18, 1990.  The evidence consists of testimony from 
 
            Douglas G. Landtiser, claimant's exhibits 1 through 8 and 
 
            Second Injury Fund's exhibits A through M.
 
            
 
                                 findings of fact
 
            
 
                 Having considered all the evidence received, together 
 
            with the appearance and demeanor of the claimant, the 
 
            following findings of fact are made.
 
            
 
                 Douglas Landtiser is a 36-year-old married man who 
 
            lives at Eddyville, Iowa.  He is a high school graduate who 
 
            served as a clerk typist in the United States Army for 
 
            approximately two years.  While in the Army, he suffered a 
 
            torn medial meniscus in his leg.  At the present time, the 
 
            leg bothers and can swell when he engages in activities such 
 
            as walking on uneven ground.  It does not appear to have had 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            any substantial effect upon his ability to hold gainful 
 
            employment.
 
            
 
                 Douglas has also worked in a factory where he operated 
 
            a punch press, grinder and welder.  He has worked as a 
 
            carpenter.
 
            
 
                 Douglas commenced employment with George A. Hormel & 
 
            Company in November 1976 and remained so employed until the 
 
            plant closed in 1987.  At the time of the plant closing, he 
 
            was earning $10.43 per hour and also enjoyed a fringe 
 
            benefit package having a value of approximately $6.00 per 
 
            hour.
 
            
 
                 Since leaving Hormel, Douglas worked briefly truck 
 
            driving and performed carpenter work.  He stated that he 
 
            ceased those types of activities because they bothered his 
 
            hands.  Douglas obtained employment at Foodliner, Inc., 
 
            starting in February 1988.  He works in the wash bay washing 
 
            trucks.  He is a lead worker and earns $7.50 per hour 
 
            (exhibit A, pages 36-42).  Douglas stated that the work 
 
            bothers his hands.  On one occasion in February 1989, he 
 
            consulted Donald D. Berg, M.D., one of his treating 
 
            orthopaedic surgeons, about his hand complaints (exhibit 4, 
 
            page 6).  Claimant has no fringe benefits with his present 
 
            job.
 
            
 
                 While working for Hormel, Douglas developed problems 
 
            with his hands.  Initially, the problem was noted in his 
 
            right hand in 1984.  He was off work for eight weeks 
 
            commencing July 16, 1984 (exhibit 1, page 3).  Later, he 
 
            underwent carpal tunnel release and ulnar nerve transfer 
 
            surgery (exhibit 3, page 4).
 
            
 
                 After returning to work from that surgery, claimant 
 
            began having problems with his left hand and arm.  On August 
 
            1, 1985, he underwent carpal tunnel release surgery on his 
 
            left hand (exhibit 3, page 5).
 
            
 
                 Douglas had a recurrence of symptoms in his right hand 
 
            and underwent a repeat right carpal tunnel surgery on 
 
            February 27, 1986 (exhibit 4, page 3).
 
            
 
                 In early 1987, Dr. Berg diagnosed claimant as having 
 
            early left ulnar nerve impingement (exhibit 4, page 3).  
 
            When conservative treatment was not successful, surgery in 
 
            the nature of neurolysis of the ulnar nerve at the left 
 
            elbow was performed by Dr. Berg on August 28, 1987 (exhibit 
 
            4, page 9).
 
            
 
                 In Dr. Berg's notes of December 10, 1987, he relates 
 
            that claimant also has an arthritic problem in his hands 
 
            which is not work related, but that the ulnar nerve and 
 
            carpal tunnel problems which have afflicted claimant have 
 
            been work related (exhibit 4, page 5).  On November 2, 1987, 
 
            Dr. Berg had reported that claimant would be functionally 
 
            impaired from repetitive work, but would have little or 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            nothing in the way of a permanent impairment rating (exhibit 
 
            D, page 47).  Subsequently, on February 27, 1989, Dr. Berg 
 
            rated claimant as having a four percent permanent impairment 
 
            of his right hand and a three percent impairment of the left 
 
            hand.  He also recommended that claimant avoid work which 
 
            required repetitive hand motion (exhibit 4, page 1).
 
            
 
                 Claimant was treated and evaluated by Richard F. 
 
            Neiman, M.D.  Dr. Neiman recommended that claimant not 
 
            return to packinghouse or other work which required 
 
            repetitive use of the hands (exhibit 6, page 1).  He also 
 
            rated claimant as having a three percent permanent 
 
            impairment of each hand (exhibit 6, pages 3 and 4).  The 
 
            ratings were based upon pain in the distribution of the 
 
            median nerve, the nerve which is affected by carpal tunnel 
 
            syndrome.
 
            
 
                 Claimant's knee injury while in the military has been 
 
            rated at five percent impairment of the leg by Thomas H. 
 
            Stanzel, D.C. (exhibit 5, pages 1 and 2; exhibit M, pages 5, 
 
            6, 10, 11, 12 and 15).
 
            
 
                 In 1976, claimant was in a motorcycle accident which 
 
            produced a fracture of the styloid process of the distal 
 
            ulna of his arm.  It was reduced and splinted.  No 
 
            impairment rating appears in the record for that condition.  
 
            According to claimant, that injury has caused negligible 
 
            problems for him.
 
            
 
                 When the Hormel plant closed, claimant was offered work 
 
            at the Fremont, Nebraska plant, but rejected it (exhibit 8, 
 
            pages 5 and 7).  According to claimant, Dr. Berg had 
 
            recommended that he not resume packinghouse work.  A letter 
 
            from the Hormel personnel manager dated August 13, 1987 
 
            states that claimant should be performing no work (exhibit 
 
            8, page 8).
 
            
 
                 Following the 1987 surgery, claimant was released to 
 
            full duty on December 9, 1987 (exhibit D, pages 2 and 55).  
 
            It is noted that the impairment ratings have been for 
 
            claimant's hands, rather than for the ulnar nerve problems 
 
            at his elbows.  This fact is construed to indicate that the 
 
            ulnar nerve problems have not produced any permanent 
 
            impairment and that all permanent impairment is due to the 
 
            carpal tunnel problems.  It is found that the rating made by 
 
            Dr. Neiman is correct.  It is corroborated strongly, though 
 
            not precisely, by the rating from Dr. Berg.  It is 
 
            specifically found that claimant has a three percent 
 
            permanent partial impairment of each hand as a result of his 
 
            carpal tunnel conditions, conditions which resulted from the 
 
            work he performed at George A. Hormel & Company.  Claimant 
 
            also has a five percent impairment of his leg due to the 
 
            torn medial meniscus.
 
            
 
                 The job Douglas now holds pays $7.50 per hour, an 
 
            amount which is substantially less than his job with Hormel 
 
            had paid.  It is clear that a large portion of the reduction 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            in actual earnings has resulted from the Hormel plant 
 
            closing.  It is also clear, however, that both Drs. Berg and 
 
            Neiman recommended that Douglas not resume repetitive work 
 
            with his hands of the type which is commonly performed in 
 
            packinghouses.  When all of claimant's physical impairments 
 
            are considered, it is determined that Douglas Landtiser has 
 
            experienced a 20 percent reduction in his earning capacity 
 
            due to what it would otherwise be if the physical 
 
            impairments did not exist.
 
            
 
                                conclusions of law
 
            
 
                 This is a claim against the Second Injury Fund of Iowa 
 
            which requires the disability to be evaluated industrially.  
 
            Second Injury Fund v. Neelans, 436 N.W.2d 355 (Iowa 1989).  
 
            Industrial disability was defined in Diederich v. Tri-City 
 
            Railway Co., 219 Iowa 587, 593, 258 N.W.2d 899, 902 (1935) 
 
            as follows: "It is therefore plain that the legislature 
 
            intended the term `disability' to mean `industrial 
 
            disability' or loss of earning capacity and not a mere 
 
            `functional disability' to be computed in the terms of 
 
            percentages of the total physical and mental ability of a 
 
            normal man."
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, 
 
            experience and inability to engage in employment for which 
 
            he is fitted.  Olson v. Goodyear Service Stores, 255 Iowa 
 
            1112, 1121, 125 N.W.2d 251, 257 (1963).
 
            
 
                 Industrial disability or loss of earning capacity is a 
 
            concept that is quite similar to impairment of earning 
 
            capacity, an element of damage in a tort case.  Impairment 
 
            of physical capacity creates an inference of lessened 
 
            earning capacity.  The basic element to be determined, 
 
            however, is the reduction in value of the general earning 
 
            capacity of the person, rather than the loss of wages or 
 
            earnings in a specific occupation.  Post-injury earnings 
 
            create a presumption of earning capacity.  The earnings are 
 
            not synonymous with earning capacity and the presumption may 
 
            be rebutted by evidence showing the earnings to be an 
 
            unreliable indicator.  Carradus v. Lange, 203 N.W.2d 565 
 
            (Iowa 1973); Holmquist v. Volkswagon of America, Inc., 261 
 
            N.W.2d 516 (Iowa App. 1977) A.L.R.3d 143; Michael v. 
 
            Harrison County, Thirty-fourth Biennial Report of the 
 
            Industrial Commissioner 218 (1979); 2 Larson Workmen's 
 
            Compensation Law, sections 57.21 and 57.31.
 
            
 
                 The very substantial reduction in actual earnings which 
 
            Douglas Landtiser has experienced is due in part to his loss 
 
            of his job at the Hormel plant.  That occurred because the 
 
            plant closed.  For him to have resumed that type of work, 
 
            however, would have required him to violate activity 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            restrictions recommended by Drs. Berg and Neiman.  Perhaps a 
 
            job which would not have violated the medical 
 
            recommendations could have been obtained if the plant had 
 
            remained open.  The record is silent on that issue.  It is 
 
            concluded that when all the material factors of industrial 
 
            disability are considered, Douglas Landtiser has a 20 
 
            percent industrial disability or loss of earning capacity as 
 
            a result of the left carpal tunnel injury.
 
            
 
                 It is noted that the date of injury which would appear 
 
            to be pertinent to this case and the one upon which Second 
 
            Injury Fund benefits are to be based is the left carpal 
 
            tunnel syndrome for which surgery was performed on August 1, 
 
            1985.  Claimant's testimony clearly establishes that the 
 
            left hand was asymptomatic until claimant returned to work 
 
            and was given a one-handed job following the right hand 
 
            surgery which had been performed in 1984.  That fact makes 
 
            this case one which would not fall under Code section 
 
            85.34(2)(s).  The subsequent carpal tunnel surgery on the 
 
            right hand was merely a continuation of the original injury.
 
            
 
                 Under Code section 85.64, the Second Injury Fund is 
 
            liable for the disability which resulted from that 1985 
 
            injury after deducting the compensable value of the 
 
            previously lost member or organ.  The compensable value of a 
 
            three percent impairment of a hand is 5.7 weeks.  A five 
 
            percent impairment of a leg provides 11 weeks.  The total to 
 
            be deducted is therefore 22.4 weeks.
 
            
 
                 Following recovery from the left carpal tunnel surgery, 
 
            Douglas did return to work at Hormel.  He remained at work 
 
            until developing the elbow problem which resulted in the 
 
            most recent surgery.  That elbow problem has not been shown 
 
            to have been permanent.  Therefore, the disability as it 
 
            existed following claimant's return to work after the left 
 
            carpal tunnel surgery in 1985 is that which is most 
 
            appropriate for determining his loss of earning capacity, 
 
            rather than that at a subsequent time.  That loss of earning 
 
            capacity is found to be 20 percent.  It was clearly the 
 
            plant closing, not the carpal tunnel induced impairment, 
 
            which caused claimant to lose his employment with George A. 
 
            Hormel & Company.  The Second Injury Fund is therefore 
 
            responsible for payment of 77.6 weeks of compensation for 
 
            permanent partial disability.  That compensation is payable 
 
            commencing on the date of this decision.  Second Injury Fund 
 
            of Iowa v. Braden, 459 N.W.2d 467 (Iowa 1990).
 
            
 
                                      order
 
            
 
                 IT IS THEREFORE ORDERED that the Second Injury Fund of 
 
            Iowa pay Douglas G. Landtiser seventy-seven point six (77.6) 
 
            weeks of compensation for permanent partial disability at 
 
            the rate of two hundred sixty-four and 46/100 dollars 
 
            ($264.46) per week payable commencing on the date of this 
 
            decision.
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                 IT IS FURTHER ORDERED that the costs of this proceeding 
 
            are assessed against the Second Injury Fund of Iowa pursuant 
 
            to 343 IAC 4.33.
 
            
 
                 IT IS FURTHER ORDERED that the Second Injury Fund of 
 
            Iowa file claim activity reports as requested by this agency 
 
            pursuant to 343 IAC 3.1.
 
            
 
                 Signed and filed this ______ day of ____________, 1990.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Lance A. Grotewold
 
            Attorney at Law
 
            118 North Market Street
 
            Oskaloosa, Iowa  52577
 
            
 
            Mr. Stephen W. Spencer
 
            Attorney at Law
 
            Suite 300, Fleming Building
 
            P.O. Box 9130
 
            Des Moines, Iowa  50306-9130
 
            
 
            Ms. Joanne Moeller
 
            Assistant Attorney General
 
            Tort Claims Division
 
            Hoover State Office Building
 
            Des Moines, Iowa  50319
 
            
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           3203
 
                           Filed December 17, 1990
 
                           MICHAEL G. TRIER
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            DOUGLAS G. LANDTISER,    :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :
 
            GEORGE A. HORMEL & COMPANY,   :         File No. 847364
 
                      :
 
                 Employer, :      A R B I T R A T I O N
 
                      :
 
            and       :         D E C I S I O N
 
                      :
 
            LIBERTY MUTUAL INS. COMPANY,  :
 
                      :
 
                 Insurance Carrier,  :
 
                      :
 
            and       :
 
                      :
 
            SECOND INJURY FUND OF IOWA,   :
 
                      :
 
                 Defendants.    :
 
            ____________________________________________________________
 
            
 
            3203
 
            Claimant, who had carpal tunnel surgery on one hand, and 
 
            then subsequently developed carpal tunnel on the second, was 
 
            awarded benefits from the Second Injury Fund.  Where the 
 
            loss of his employment with the employer was due to a plant 
 
            closing, rather than impairment resulting from the carpal 
 
            tunnel syndrome, the industrial disability was placed at 
 
            twenty percent and the liability of the Fund was placed at 
 
            77.6 weeks after deducting the other impairments.