Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            PAT LOSEE,                    :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 848317
 
            STALEY CONTINENTAL, INC.,     :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            AMERICAN MOTORISTS INSURANCE, :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Pat 
 
            Losee, claimant, against Staley Continental, Inc., employer, 
 
            and American Motorists Insurance, insurance carrier, to 
 
            recover benefits under the Iowa Workers' Compensation Act as 
 
            a result of an injury sustained on March 12, 1987.  This 
 
            matter came on for hearing before the undersigned deputy 
 
            industrial commissioner in Des Moines, Iowa on December 5, 
 
            1990.  The matter was considered fully submitted on December 
 
            21, 1990.
 
            
 
                 The record in this proceeding consists of joint 
 
            exhibits A(1-7); the testimony of claimant, Pat Losee; Barb 
 
            Farrell; and Jack Simpson.
 
            
 
                                      issue
 
            
 
                 The only issue submitted by the parties for resolution 
 
            in this proceeding is whether claimant has suffered any 
 
            industrial disability as a result of his work injury of 
 
            March 12, 1987.
 
            
 
                                 findings of fact
 
            The undersigned has carefully considered all the testimony 
 
            given at the hearing, the arguments made, all the evidence 
 
            contained in the exhibits and makes the following findings:
 
            
 
                 The claimant was born on June 7, 1951 and is married 
 
            with two children.  He attended high school in Des Moines, 
 
            Iowa and completed half of the twelfth grade in 1970.  In 
 
            1972, while serving in the United States Marine Corps, he 
 
            obtained his G.E.D. certificate.  Prior to May 1977, he 
 
            worked at various times as a train brakeman, assembler and 
 
            beef boxer.  These jobs involved physical manual labor.  
 
            From approximately May 1977 to the present, he has been 
 
            employed by Continental Foods f/k/a Sysco, n/k/a Staley 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            Continental, Inc., as a truck loader, order picker, and fork 
 
            lift operator.  At the time of his injury on March 12, 1987, 
 
            he was employed as a local truck driver earning approxi
 
            mately $10.67 per hour plus overtime hours.  He had worked 
 
            in this capacity for eight years.  Since June 13, 1988, he 
 
            has worked for Continental Foods as a night checker earning 
 
            approximately the same hourly wage as he earned as a truck 
 
            driver with some overtime.
 
            
 
                 The pertinent medical evidence reveals that the 
 
            claimant presented to Sinesio Misol, M.D., on March 20, 
 
            1987, with acute  back pain and some radiation into the 
 
            posterior aspect and anterior aspect of both thighs.  He 
 
            related an onset of March 12, 1987, while unloading a truck 
 
            on the job.  Fourteen years prior, he had a similar episode 
 
            and was told that there was some abnormality in his back.  
 
            X-rays taken at Mercy Hospital on March 17, 1987, revealed a 
 
            spondylolysis L5 with a spondylolisthesis type II (Exhibit 
 
            1, page 1).  He was treated conservatively with bed rest and 
 
            Dolobid.  On April 8, 1987, he had a myelogram which 
 
            revealed bilateral L5 spondylolysis with Grade II 
 
            spondylolisthesis of the L5/S1 (Ex. 1, p. 3).  Dr. Misol 
 
            felt that his problem aggravated a preexisting condition.
 
            
 
                 After being off work from March 16 through May 10, 
 
            1987, claimant returned to work as a truck driver until 
 
            September 27, 1987, when he could no longer tolerate the 
 
            pain.  On October 6, 1987, he was admitted to Mercy Hospital 
 
            where he underwent removal of the lamina of L5 with no 
 
            fusion.  The procedure was performed on October 8, 1987 and 
 
            he had an uncomplicated postoperative course.  On October 
 
            13, 1987, he was afebrile, independently ambulatory and 
 
            comfortable on oral medications and was therefore 
 
            discharged.  (Ex. 2, p. 2).
 
            
 
                 Postoperatively, he continued under the care of Dr. 
 
            Misol who prescribed abdominal muscle exercises, bicycling, 
 
            walking and swimming.  On January 22, 1988, Dr. Misol 
 
            opined, "I don't think that this man at this time is able to 
 
            go back to work and lift 75 lbs. and over."  (Ex. 1, p. 6).  
 
            On June 6, 1988, he was released to return to work and did 
 
            so on June 12, 1988.
 
            
 
                 Initially, he went back to work picking groceries, 
 
            however, because this type of work required lifting up to 
 
            100 pounds, he was transferred to a checker job on the night 
 
            shift.  This job required no heavy lifting or handling of 
 
            grocery items.  He was fitted with a corset which helped him 
 
            on the job.
 
            
 
                 On February 2, 1988, Dr. Misol stated that Mr. Losee 
 
            has about 20 percent permanent partial physical impairment 
 
            of the use of his back or body (Ex. 1, p. 10).  In response 
 
            to the claimant's inquiry as to how much of this 20 percent 
 
            physical impairment is secondary to his underlying condition 
 
            and how much is secondary to the work aggravation and 
 
            subsequent surgery, Dr. Misol responded as follows:  "I 
 
            volunteer the information that I do not know necessarily, 
 
            but maybe trying to state or stating that half of the 20% 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            would be pre-existing and the other half secondary to the 
 
            subsequent problem and treatment may be fair."  (Ex. 1, p. 
 
            27).
 
            
 
                 As to his ability to physically function, the claimant 
 
            testified that prior to March 12, 1987, his ability to 
 
            physically function was unrestricted.  Prior to surgery and 
 
            at the onset of his injury on March 12, 1987, he had 
 
            significant back and leg pain.  Subsequent to surgery and at 
 
            the present time, he is limited in his ability to bend, 
 
            stoop, stand, climb, walk and lift due to back pain.  These 
 
            symptoms preclude him from performing his past work activity 
 
            as a truck driver and picker.  He testified that the only 
 
            job he can perform with Continental is as a checker.  This 
 
            job offers significant less overtime than what was available 
 
            to him as a truck driver where he had significant seniority.  
 
            He stated that if he could continue to work as a driver he 
 
            would be able to select longer routes and earn more money.  
 
            He testified that he made $10,000 more per year as a truck 
 
            driver due to the availability of overtime.  Nevertheless, 
 
            he admitted that his overtime hours as a checker have 
 
            increased during the past year and he has been able to work 
 
            48 hours per week since June of 1988.
 
            
 
                 Barb Farrell, personnel manager with Continental Iowa, 
 
            testified that overtime availability fluctuates and 
 
            increases during the fall and spring.  However, she stated 
 
            that driver routes have been redone and the senior drivers 
 
            average between 55-60 hours per week.  The nighttime checker 
 
            jobs average 8 l/2 hours more per week with overtime.  
 
            However, both positions pay $10.59 per hour.  During the 13 
 
            weeks prior to his injury, Mr. Losee averaged 57 hours per 
 
            week as a truck driver and he now averages 49 hours per week 
 
            as a checker.
 
            
 
                 Mr. Jack Simpson, the claimant's supervisor, also 
 
            testified at the hearing.  He stated that the claimant's 
 
            present job requires occasional minimal lifting of cases.  
 
            He described this work as light in exertional level.  He 
 
            stated that Mr. Losee has never related to him any 
 
            difficulty with his present job.
 
            
 
                    
 
            
 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            conclusions of law
 
            
 
                 An employee is entitled to compensation for any and all 
 
            personal injuries which arise out of and in the course of 
 
            the employment.  Section 85.3(1).
 
            
 
                 As the parties do not dispute claimant sustained an 
 
            injury which arose out of and in the course of his 
 
            employment or that the injury is the cause of both temporary 
 
            and permanent disability, it is necessary to consider only 
 
            the issue of the extent of that permanent disability.  Dr. 
 
            Misol, the claimant's treating physician, opined that 
 
            claimant has 20 percent physical impairment, 10 percent 
 
            attributed to his pre-existing congenital spondylolysis.  As 
 
            to his exertional limitations, Dr. Misol opined that 
 
            claimant would have difficulty lifting 75 pounds or more.
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, 
 
            experience and inability to engage in employment for which 
 
            he is fitted.  Olson v. Goodyear Service Stores, 255 Iowa 
 
            1112, 125 N.W.2d 251 (1963).  Barton v. Nevada Poultry, 253 
 
            Iowa 285, 110 N.W.2d 660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial 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 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            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).
 
            
 
                 As previously noted, claimant is a younger individual 
 
            and has a G.E.D. certificate with no other formal 
 
            educational experience.  His work history has been primarily 
 
            as a manual laborer and truck driver.  At the time of his 
 
            injury on March 12, 1987, he was employed by Continental 
 
            Foods as a local truck driver earning approximately $10.67 
 
            per hour plus overtime hours.  In addition to driving, his 
 
            duties included loading and unloading items weighing up to 
 
            100 pounds and placing them on a two wheeler for delivery.  
 
            In the course of performing his duties, he fell down the 
 
            basement stairway and injured his back.  After a few months 
 
            of rest and conservative therapy, he returned to his prior 
 
            job for four months.  However, the pain became so 
 
            intolerable that he left work in September 1987 and opted to 
 
            undergo surgery in October.  After a period of recuperation, 
 
            he returned to work on June 13, 1988, picking groceries at 
 
            Continental Foods.  He had difficulty performing this job on 
 
            a sustained basis because it required heavy lifting and 
 
            transferred to a checker job on the night shift.  This job 
 
            requires no heavy lifting although he testified that he 
 
            sometimes voluntarily helps out with physical labor.
 
            
 
                 While all of the jobs at Continental Foods that the 
 
            claimant is eligible to perform namely picker, checker and 
 
            truck driver, pay the same hourly rate, they do not offer 
 
            the same amount of overtime possibilities.  The evidence 
 
            clearly establishes that the claimant has suffered both a 
 
            loss of earnings as a result of his injury as well as a loss 
 
            of earning capacity.  He is restricted as to the type of 
 
            work he can perform.  Obviously, he cannot perform his prior 
 
            work as a truck driver.  As previously noted, Dr. Misol 
 
            indicated that claimant has a physical impairment of about 
 
            20 percent of the use of his spine.  In 1988, he gave him a 
 
            physical lifting restriction of 75 pounds.  There have been 
 
            no functional capacity assessments made pertaining to the 
 
            claimant's ability to perform work activities since January 
 
            1988.  Therefore, the undersigned must examine the 
 
            claimant's present occupational requirements in order to 
 
            determine the type of work he is able to perform.  The 
 
            claimant appears to have no difficulty performing his 
 
            current job as a checker.  This job was described by his 
 
            supervisor as light work.  Although there are light lifting 
 
            requirements, the job requires prolonged and sustained 
 
            standing.  During the past year, the claimant has been able 
 
            to work overtime nine hours a week without difficulty.  At 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            the hearing, he admitted that he has bid on truck driver and 
 
            checking jobs.  Therefore, he must feel capable of 
 
            performing these occupations.
 
            
 
                 While the claimant's position with the company appears 
 
            to be secure, like most other forms of employment, its 
 
            continued existence is not guaranteed.  He does have a 
 
            substantial physical disability which limits his access to 
 
            positions for which he would otherwise be suited.  He has, 
 
            in fact, suffered a reduction in his capacity to earn.  When 
 
            measured industrially, however, the employer's action in 
 
            maintaining claimant's employment has minimized the effect 
 
            of claimant's injury.
 
            
 
                 Based on all factors of industrial disability including 
 
            claimant's functional impairment rating; his young age and 
 
            the fact that he is on the peak of his earning capacity; an 
 
            uncomplicated surgical course; minimal lifting restrictions; 
 
            and no loss of earnings; claimant is found to be fifteen 
 
            (15) percent industrially disabled.
 
            
 
                 Accordingly, claimant is entitled to seventy-five (75) 
 
            weeks of permanent partial disability benefits pursuant to 
 
            section 85.34(2)(u) commencing on June 13, 1988, at the 
 
            stipulated weekly rate of $349.10.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Defendants are to pay to claimant seventy-five (75) 
 
            weeks of permanent partial disability benefits at a rate of 
 
            three hundred forty-nine and 10/l00 dollars ($349.10) per 
 
            week commencing June 13, 1988.
 
            
 
                 Defendants shall receive full credit for all disability 
 
            benefits previously paid.
 
            
 
                 Benefits that have accrued shall be paid in a lump sum 
 
            together with statutory interest thereon pursuant to Iowa 
 
            Code section 85.30.
 
            
 
                 A claim activity report shall be filed upon payment of 
 
            the award.
 
            
 
                 Costs of this action are assessed against defendants 
 
            pursuant to Division of Industrial Services rule 343 IAC 
 
            4.33.
 
            
 
            
 
            
 
                 Signed and filed this ____ day of February, 1991.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________               
 
            JEAN M. INGRASSIA
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr. James R. Lawyer
 
            Attorney at Law
 
            West Towers Office
 
            1200 35th St  STE 500
 
            West Des Moines  IA  50265
 
            
 
            Mr. Paul C. Thune
 
            Attorney at Law
 
            218 6th Ave  STE 300
 
            P O Box 9130
 
            Des Moines  IA  50306
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           1803; 2206
 
                           Filed February 6, 1990
 
                           JEAN M. INGRASSIA
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            PAT LOSEE,                    :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 848317
 
            STALEY CONTINENTAL, INC.,     :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            AMERICAN MOTORISTS INSURANCE, :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            
 
            1803; 2206
 
            Only issue to be determined is extent of permanent 
 
            disability.  Claimant found to suffer a loss of earnings and 
 
            loss of earning capacity due to aggravation of a preexisting 
 
            back condition.
 
            He was awarded fifteen (15%) percent industrial disability.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            LISA SHELFORD,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No.  848403
 
            THREE M COMPANY,              :
 
                                          :  R E V I E W - R E O P E N I 
 
            N G
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            OLD REPUBLIC INSURANCE CO.,   :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a review-reopening proceeding brought by Lisa 
 
            Shelford as a result of injuries to her right shoulder which 
 
            occurred on January 14, 1986 or March 13, 1986.  Defendants 
 
            and claimant settled this matter by agreement for settlement 
 
            which established May 3, 1988, as the effective date of the 
 
            settlement.
 
            
 
                 Defendants have denied that a change of condition has 
 
            occurred subsequent to May 3, 1988, and denied that a causal 
 
            connection exists with respect to claimant's current 
 
            complaints.  Defendants have paid weekly benefits and some 
 
            medical benefits.
 
            
 
                 The case was heard and fully submitted at Des Moines, 
 
            Iowa, on March 26, 1991.  The record in the proceeding 
 
            consists of joint exhibit 1, claimant's exhibit 8, 
 
            defendants' exhibits 2 through 7, testimony of claimant, 
 
            Connie Husted, Patricia McCollom and Todd Titus.
 
            
 
                                      issues
 
            
 
                 The issues presented by the parties are whether 
 
            claimant is entitled to additional compensation for 
 
            permanent partial disability, temporary disability and Iowa 
 
            Code section 85.27 benefits.  Such carries with it the 
 
            issues of whether a causal connection exits between the 
 
            injuries which have been established and the alleged 
 
            temporary, permanent disability and section 85.27 benefits 
 
            and whether an unanticipated change of condition has 
 
            occurred in order to permit review-reopening of the 
 
            agreement for settlement.
 
            
 
                                        
 
            
 
                                 findings of fact
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                 Having considered all the evidence received the 
 
            following findings of fact are made:
 
            
 
                 Claimant, Lisa Shelford, began working for employer on 
 
            January 26, 1981, as a full-time laborer.  She worked at 
 
            various labor positions which required lifting of up to 30 
 
            pounds.
 
            
 
                 On October 4, 1982, while on a lay off from work from 
 
            employer, claimant injured her right shoulder in an 
 
            automobile accident (exhibit 1, page 1).  Claimant underwent 
 
            surgery for the nonoccupational right shoulder injury on 
 
            September 21, 1983, and again on April 30, 1986.
 
            
 
                 After the surgeries claimant returned to work for 
 
            employer and again performed various manual labor work at 
 
            the 3M plant.
 
            
 
                 On January 14, 1986, while at work for 3M, claimant 
 
            reinjured her right shoulder when she was pushing tape into 
 
            a machine.  The right shoulder pain gradually became 
 
            intolerable and claimant left her work for 3M on March 13, 
 
            1986.  Claimant has not worked for 3M subsequent to March 
 
            13, 1986.  At the time of injury claimant was earning $9.65 
 
            per hour including a premium for night work.
 
            
 
                 Reconstructive right shoulder surgery was performed in 
 
            April 1986 as a result of the work accident.  A second 
 
            procedure was performed in September 1986 to remove a 
 
            Bosworth screw that had been implanted in April.
 
            
 
                 Jerome G. Bashara, M.D., the treating physician, 
 
            released claimant to return to work on January 26, 1987, 
 
            with a five-pound lifting restriction and no repetitive use 
 
            of the right shoulder above shoulder or eye level (ex. 1, p. 
 
            7).  Claimant was assigned an impairment rating of 6 percent 
 
            to the body as a whole as a result of the work injury.
 
            
 
                 Claimant's work restrictions were revised on March 9, 
 
            1988, to 10 pounds lifting by Robert H. Cofield, M.D. (ex. 
 
            1, p. 47).  
 
            
 
                 Claimant requested work from employer subsequent to her 
 
            release in January 1987, but none was offered.  Instead, a 
 
            vocational rehabilitation counselor was retained to perform 
 
            a transferable skills analysis.  Claimant was aware of 
 
            employer's refusal to offer work on May 3, 1988.
 
            
 
                 Claimant settled her claim against employer on May 3, 
 
            1988, on the basis of 20 percent permanent partial 
 
            disability to the body as a whole.  The agreement for 
 
            settlement specified that review-reopening would be 
 
            available after May 3, 1988 (ex. 4).  
 
            
 
                 Claimant testified at hearing that she has suffered a 
 
            change in condition subsequent to May 3, 1988.  Claimant 
 
            stated that after May 3, 1988, the more she used her 
 
            shoulder the more it hurt.  Claimant also testified that 
 
            while employed at Casey's in May and June 1988 that her 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            right shoulder condition gradually worsened (ex. 5, pp. 67 & 
 
            68).
 
            
 
                 On August 9, 1988, Dr. Bashara rated claimant's right 
 
            shoulder impairment at 12 percent to the whole person (ex. 
 
            1, p. 50).  However, Dr. Bashara did not causally connect 
 
            the increased impairment to the January 14, 1986, work 
 
            injury.
 
            
 
                 On May 29, 1990, Thomas W. Bower, L.P.T., rated 
 
            claimant's impairment at 11 percent , but did not causally 
 
            connect the impairment to the injury of January 14, 1986.
 
            
 
                 Claimant testified that she had another surgery in 
 
            February 1991 for the right shoulder injury.  Medical 
 
            reports for this most recent surgery were not available due 
 
            to a discovery deadline set by order dated January 3, 1990, 
 
            which ended claimant's discovery on or about March 1, 1990.
 
            
 
                 Claimant testified that she wrote a letter to employer 
 
            in October 1988 which stated that she was available for 
 
            employment.  Employer did not offer work (ex. 8).  Claimant 
 
            testified at hearing that she is still willing to return to 
 
            work for employer if suitable work was offered.
 
            
 
                 Claimant stated that subsequent to May 3, 1988, she has 
 
            applied for work numerous times, but has been unable to 
 
            locate work which pays better than $5 per hour due to her 
 
            work restrictions.  Claimant is currently employed by 
 
            Foodliner at the rate of $5 per hour.  Her duties are best 
 
            described as general billing and secretarial work.
 
            
 
                 Connie Husted testified that she works for employer at 
 
            its Knoxville location as a human resources coordinator.  
 
            She testified that in January 1987 claimant was informed 
 
            that no work was available which met the five-pound work 
 
            restriction.  Husted stated that when the lifting 
 
            restriction was raised to 10 pounds in April 1987, claimant 
 
            was again informed that no work was available.
 
            
 
                 Patricia McCollom testified that she is a vocational 
 
            rehabilitation specialist retained by defendants to perform 
 
            a transferable skills analysis and provide vocational 
 
            assistance.  She had reviewed claimant's medical records 
 
            marked as exhibit 1 and concluded that her opinions on 
 
            transferable skills remain the same as stated in the report 
 
            dated December 21, 1987 (ex. 1, p. 27).  McCollom described 
 
            claimant as cooperative, intelligent and motivated.
 
            
 
                 Todd Titus testified that he is a private investigator 
 
            employer by defendants to perform surveillance on claimant.  
 
            Titus videotaped claimant while she was demonstrating 
 
            cheerleading techniques.  Claimant, on August 21, 1990, was 
 
            videotaped performing an exercise which required her to 
 
            clasp her hands behind her back, which allowed a young 
 
            female student to step into the claimant's hands and climb 
 
            onto claimant's shoulders.  The young female then stood on 
 
            top of claimant's shoulders.  Claimant then raised her arms 
 
            to about head level and grabbed the legs of the person 
 
            standing on her shoulders (exs. 2 and 3).  Claimant 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            performed this maneuver several times during the instruction 
 
            period.  On one occasion she held a student on her shoulders 
 
            for over 20 seconds (ex. 3).  Claimant did not appear to be 
 
            in distress or pain after performing the cheerleading 
 
            maneuvers.
 
            
 
                 For claimant to prevail in a review-reopening she must 
 
            demonstrate a change in her condition not contemplated at 
 
            the time of the initial settlement.  The change in condition 
 
            must be linked to the injury of January 14, 1986, as opposed 
 
            to other causes. 
 
            
 
                 In this case, it is found that claimant has failed to 
 
            prove by a preponderance of the evidence that her alleged 
 
            change in the right shoulder condition is causally connected 
 
            to the work injury of January 14, 1986.  The reasoning 
 
            follows:
 
            
 
                 First, claimant presented opinions concerning her right 
 
            shoulder impairment which demonstrated higher ratings than 
 
            her pre May 3, 1988 ratings.  Dr. Bashara opined on February 
 
            6, 1987, that her impairment was 6 percent and later opined 
 
            on August 9, 1988, that her impairment had increased to 12 
 
            percent.  However, Dr. Bashara did not state that the 
 
            increase of impairment was causally connected to the January 
 
            14, 1986, work injury.  Nor did he state that the increase 
 
            in impairment was due to factors not contemplated at the 
 
            time of the May 3, 1988 settlement.  Without such a medical 
 
            opinion linking the alleged change in condition to the 
 
            January 14, 1986, injury, the claim for review-reopening 
 
            must fail.
 
            
 
                 Second, claimant has alleged increased shoulder pain 
 
            after working several months at the Casey's store (ex. 5, 
 
            pp. 62-69).  The testimony that her shoulder pain gradually 
 
            increased during that period and never resolved points to 
 
            intervening factors as the cause of her alleged change in 
 
            condition.
 
            
 
                 The videotape of claimant performing cheerleading 
 
            exercises also casts doubt on claimant's allegation of 
 
            change in condition (ex. 3).  The exhibit clearly 
 
            demonstrates claimant's ability to use her right upper 
 
            extremity in a manner that is not consistent with her prior 
 
            testimony (ex. 5, pp. 68-73).  While this is not a major 
 
            factor in the decision it does point to other possible 
 
            causes for the alleged change in condition.  It also 
 
            detracts from the argument that a change of condition has 
 
            actually occurred.
 
            
 
                 Finally, the medical history clearly reveals that prior 
 
            to the injury of January 14, 1986, claimant had two 
 
            surgeries on her right shoulder as the result of an 
 
            automobile accident.  It is reasonable to believe that 
 
            claimant's alleged change in condition could be linked to 
 
            the automobile accident.  Absent medical evidence linking an 
 
            unanticipated change in condition to the January 14, 1986, 
 
            injury, the claim for industrial disability must fail.
 
            
 
                 Claimant has also made claim for medical benefits under 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            Iowa Code section 85.27.  The causal connection of medical 
 
            expenses to the injury of January 14, 1986, was disputed.  
 
            Dr. Donald Miller established a causal connection of the 
 
            majority of her shoulder pain to the work injury on July 22, 
 
            1988 (ex. 1, p. 49).  It is found that from May 4, 1988 
 
            through July 22, 1988, a causal connection to the January 
 
            14, 1986, injury did exist.  All medical expenses incurred 
 
            during that time for treatment of the right shoulder injury 
 
            are compensable.
 
            
 
                 The record is devoid of evidence concerning causal 
 
            connection of the medical treatment to the January 14, 1986, 
 
            injury with respect to treatment after July 22, 1988.  
 
            Therefore, claim for medical expenses incurred subsequent to 
 
            July 22, 1988, fails in that claimant has failed to 
 
            establish a causal connection to the January 14, 1986 
 
            injury.
 
            
 
                 Claimant has also alleged entitlement to further 
 
            temporary disability subsequent to May 3, 1988.  However, no 
 
            medical evidence was offered which indicated that claimant 
 
            was not capable of gainful employment.  Claimant did testify 
 
            that she had another surgery on her right shoulder and as a 
 
            result she left her work on February 11, 1991, and has not 
 
            yet been discharged from medical care.  No medical evidence 
 
            was presented to substantiate that the February 1991 surgery 
 
            was related to the January 14, 1986, injury.  Claimant has 
 
            failed to prove that the most recent period of lost time is 
 
            related to the work injury.  Claimant has failed to prove by 
 
            a preponderance of the evidence that she sustained temporary 
 
            disability subsequent to May 3, 1988, which was causally 
 
            connected to the January 14, 1986 injury. 
 
            
 
                                conclusions of law
 
            
 
                 A party seeking a review-reopening of an award or 
 
            agreement for settlement must demonstrate by a preponderance 
 
            of the evidence, a change of condition subsequent to an 
 
            initial award or agreement.  Stice v. Consolidated Ind. Coal 
 
            Co., 228 Iowa 1031, 1038, 291 N.W. 452 (1940).  In Stice, 
 
            the Iowa Supreme Court stated that the Act's 
 
            review-reopening provisions provide no basis for concluding 
 
            that "the commissioner is to re-determine the condition of 
 
            the employee which was adjudicated by the former award."  
 
            Id. at 1038.
 
            
 
                 In Bousfield v. Sisters of Mercy, 249 Iowa 64, 86 
 
            N.W.2d 109 (1957), the Iowa Supreme Court stated that "a 
 
            mere difference of opinion of experts or competent observers 
 
            as to the percentage of disability arising from the original 
 
            injury would not be sufficient to justify a different 
 
            determination by another commissioner on a petition for 
 
            review-reopening." Id. at 69.  However, the court recognized 
 
            that a worsening of a claimant's condition, not contemplated 
 
            at the time of an initial award, will justify a subsequent 
 
            review-reopening award.
 
            
 
                 In Gosek v. Garmer and Stiles Co., 158 N.W.2d 731, 735 
 
            (Iowa 1068), the Iowa Supreme Court held that "cause of 
 
            allowance of additional compensation exists on proper 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            showing that facts relative to an employment connected 
 
            injury existed but were unknown and could not have been 
 
            discovered by the exercise of reasonable diligence, 
 
            sometimes referred to as a substantive omission due to 
 
            mistake, at time of any prior settlement or award."
 
            
 
                 In a somewhat analogous vein, the Iowa court of Appeals 
 
            held in Meyers v. Holiday Inn of Cedar Falls, Iowa, Iowa 
 
            App. 272 N.W.2d 24, 25 (1978), that a review-reopening 
 
            petition may allow a change in compensation when a claimant 
 
            has failed to improve to the extent initially anticipated.
 
            
 
                 Each of the above cases rests upon some disparity 
 
            between a claimant's actual or anticipated condition at the 
 
            time of settlement and the physical condition which exists 
 
            at the time of the review-reopening action.  In the case at 
 
            hand there is no medical evidence within the record which 
 
            demonstrates any physical change in condition causally 
 
            related to the January 14, 1986, injury which was not 
 
            contemplated at the time of the agreement for settlement to 
 
            warrant an increase in the claimant's permanent partial 
 
            disability.  A possibility is insufficient; a probability is 
 
            necessary.  Burt v. John Deere Waterloo Tractor Works, 247 
 
            Iowa 691, 73 N.W.2d 732 (1955).  The question of causal 
 
            connection is essentially within the domain of expert 
 
            testimony.  Bradshaw v. Iowa Methodist Hospital, 251 Iowa 
 
            375, 101 N.W.2d 167 (1960).
 
            
 
                 The employer, for all injuries compensable under 
 
            chapter 85 or chapter 85A, shall furnish reasonable 
 
            surgical, medical, dental, osteopathic, chiropractic, 
 
            podiatric, physical rehabilitation, nursing, ambulance and 
 
            hospital services and supplies; therefore, and shall allow 
 
            reasonable necessary transportation expenses incurred for 
 
            such services.  The employer has the right to choose the 
 
            provider of care.  Iowa Code section 85.27.
 
            
 
                 Claimant has proven entitlement to medical benefits 
 
            incurred as a result of treatment for her right shoulder 
 
            beginning May 4, 1988 through July 22, 1988 (ex. 1, p. 49).
 
            
 
                 Section 85.34(1), Code of Iowa, provides that healing 
 
            period benefits are payable to an injured worker who has 
 
            suffered permanent partial disability until (1) he has 
 
            returned to work; (2) is medically capable of returning to 
 
            substantially similar employment; or (3) has achieved 
 
            maximum medical recovery.  The industrial commissioner has 
 
            recognized that healing period benefits can be interrupted 
 
            or intermittent.  Willis v. Lehigh Portland Cement Company, 
 
            Vol. 2-1, State of Iowa Industrial Commissioner Decisions, 
 
            485 (1984).
 
            
 
                 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 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            an opinion is for the finder of fact, and that may be 
 
            affected by the completeness of the premise given the expert 
 
            and other surrounding circumstances.  Bodish v. Fischer, 
 
            Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  See also 
 
            Musselman v. Central Telephone Co., 261 Iowa 352, 154 
 
            N.W.2d 128 (1967).
 
            
 
                  "Claimant is not entitled to reimbursement for medical 
 
            bills unless he shows that he paid them from his own funds."  
 
            See Caylor v. Employers Mut. Cas. Co., 337 N.W.2d 890 
 
            (Iowa App. 1983).
 
            
 
                 Claimant has failed to establish the causal connection 
 
            of her alleged temporary disability to the January 14, 1986, 
 
            work injury.  Claimant has failed to prove entitlement to 
 
            temporary disability incurred subsequent to May 3, 1988.
 
            
 
                                      order
 
            
 
                 IT IS THEREFORE ORDERED:
 
            
 
                 That defendants pay claimant's medical expenses which 
 
            were incurred for treatment of the right shoulder beginning 
 
            May 4, 1988 through July 22, 1988.
 
            
 
                 It is further ordered that defendants shall receive 
 
            credit for benefits previously paid.
 
            
 
                 It is further ordered that costs of this action are 
 
            assessed against defendants pursuant to rule 343 IAC 4.33.
 
            
 
                 Signed and filed this ____ day of May, 1991.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          MARLON D. MORMANN
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            
 
            
 
            Copies to:
 
            
 
            Mr. Harold B. Heslinga
 
            Attorney at Law
 
            118 N. Market St.
 
            Oskaloosa, Iowa  52577
 
            
 
            Mr. Roger L. Ferris
 
            Attorney at Law
 
            1900 Hub Tower 
 
            699 Walnut St
 
            Des Moines, Iowa  50309
 
            
 
            
 
                 
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      52500; 51803; 52905
 
                      Filed May 1, 1991
 
                      MARLON D. MORMANN
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            LISA SHELFORD, :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :           File No. 848403
 
            THREE M COMPANY,    :
 
                      :   R E V I E W - R E O P E N I N G
 
                 Employer, :
 
                      :           D E C I S I O N
 
            and       :
 
                      :
 
            OLD REPUBLIC INSURANCE CO.,   :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            52500; 51803; 52905
 
            Claimant filed for review-reopening after an agreement for 
 
            settlement.  Claimant solicited higher impairment ratings 
 
            but offered no evidence showing causal connection or change 
 
            in condition not contemplated at the time of settlement.  
 
            Claimant had preexisting non-work related shoulder injuries 
 
            to the same shoulder for which she was making claim.
 
            Medical benefits awarded during short period that doctor 
 
            treated for work related symptoms.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                     1803
 
                                                     Filed July 7, 1992
 
                                                     BYRON K. ORTON
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER            
 
            ____________________________________________________________
 
                                          :
 
            CHRISTINE VAN WEY,            :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File Nos. 848411/758597
 
            H. J. HEINZ,                  :
 
                                          :            A P P E A L
 
                 Employer,                :
 
                                          :          D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INSURANCE      :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            1803
 
            Claimant with 10 percent impairment of the back and 
 
            approximately 28 percent increase in impairment of the right 
 
            leg over a prior injury, 41 years of age, high school 
 
            education and one year of college, was awarded 60 percent 
 
            industrial disability.  Claimant could not return to factory 
 
            work.  Claimant was offered vocational rehabilitation by the 
 
            employer, but subjectively quit the program without good 
 
            cause.  However, claimant did enroll in an accounting 
 
            course.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      1108; 1804; 2905
 
                      Filed February 27, 1991
 
                      Bernard J. O'Malley
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            CHRISTIEN VAN WEY,            :      File No. 758597
 
                                          :               848411
 
                 Claimant,                :
 
                                          :    A R B I T R A T I O N
 
            vs.                           :
 
                                          :           A N D
 
            H. J. HEINZ,                  :
 
                                          :        R E V I E W -
 
                 Employer,                :
 
                                          :      R E O P E N I N G
 
            and                           :
 
                                          :       D E C I S I O N
 
            LIBERTY MUTUAL INSURANCE      :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            1108; 1804
 
            Forty-one year old claimant incurred a work-related knee 
 
            injury resulting in a reflex sympathy dystrophy.  No cure 
 
            has been found nor is one anticipated.  In same injury, 
 
            claimant incurred a back injury.  Claimant is unable to be 
 
            employed.  Claimant found to be permanently totally 
 
            disabled.
 
            
 
            2905
 
            Claimant took nothing in the review-reopening case.  It was 
 
            found that claimant's current disability was the result of 
 
            her recent injury referred to above which involved her right 
 
            lower extremity and back.  The review-reopening involved 
 
            only her right lower extremity.
 
            
 
            
 
 
         
 
         
 
         
 
         
 
         
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         ____________________________________________________________
 
		                   :
 
         DALE RAY FRELAND,	   :
 
		                   :
 
              Claimant,		   :
 
		                   :
 
		         vs.       :
 
                		   :      File No. 848427
 
         IOWA STATE PENITENTIARY,  :
 
		                   :        A P P E A L
 
              Employer,		   :
 
		                   :      D E C I S I O N
 
		         and       :
 
		                   :
 
         STATE OF IOWA,		   :
 
		                   :
 
              Insurance Carrier,   :
 
              Defendants.          :
 
         ___________________________________________________________
 
         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 
 
         July 22, 1991 is affirmed and is adopted as the final agency 
 
         action in this case, with the following additional analysis:
 
         Claimant has clearly not met his burden of proving that his work 
 
         injury of January 27, 1986 was the cause of a permanent 
 
         disability.  Numerous medical reports chronologically proximate 
 
         to the injury date indicate no permanent condition resulting from 
 
         the injury.  Dr. Courtney's opinion is so inconsistent with 
 
         overwhelming contrary medical evidence that the opinion can be 
 
         given no weight.  Also, Dr. Found's opinion can be given little 
 
         weight.  Dr. Found examined claimant more than four years after 
 
         the injury.  The x-ray taken in that examination showed no 
 
         abnormalities.  He recites in his notes that tests conducted 
 
         shortly after the injury showed no permanency.  It is impossible 
 
         to tell what Dr. Found relied upon to make an assessment of 
 
         permanent partial disability.  The reliable medical evidence in 
 
         this case clearly shows that claimant's injury did not cause a 
 
         permanent disability
 
         Claimant shall pay the costs of the appeal, including the 
 
         preparation of the hearing transcript.
 
         Signed and filed this ____ day of November, 1991.
 
         
 
         
 
         
 
         
 
                                       ________________________________
 
                                                BYRON K. ORTON
 
                                           INDUSTRIAL COMMISSIONER
 
         
 

 
         
 
         Page   2
 
         
 
         
 
         
 
         
 
         Copies To:
 
         
 
         Mr. James P. Hoffman
 
         Attorneya t Law
 
         Middle Road
 
         P.O. Box 1087
 
         Keokuk, Iowa 52632
 
         
 
         Mr. Greg Knoploh
 
         Assistant Attorney General
 
         Tort Claims Division
 
         Hoover State Office Bldg.
 
         Des Moines, Iowa 50319
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            5-1402.40
 
            Filed November 18, 1991
 
            BYRON K. ORTON
 
            DRR
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
		                      :
 
            DALE RAY FRELAND,	      :
 
                      		      :
 
                 Claimant, 	      :
 
                      		      :
 
		            vs.       :
 
                		      :      File No. 848427
 
            IOWA STATE PENITENTIARY,  :
 
		                      :        A P P E A L
 
                 Employer, 	      :
 
		                      :      D E C I S I O N
 
            		and 	      :
 
                      		      :
 
            STATE OF IOWA, 	      :
 
                      		      :
 
                 Insurance Carrier,   :
 
                 Defendants.          :
 
            ___________________________________________________________
 
            
 
            
 
            
 
            5-1402.40
 
            The overwhelming reliable medical testimony showed that 
 
            claimant suffered no permanency from a stipulated work 
 
            injury.  Claimant failed to meet his burden of proof.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DALE RAY FRELAND,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 848427
 
            IOWA STATE PENITENTIARY,      :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            STATE OF IOWA,                :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 Claimant Dale Freland filed a petition in arbitration 
 
            on July 20, 1987, seeking benefits under the Iowa Workers' 
 
            Compensation Act as an inmate under Iowa Code section 85.59.  
 
            Benefits are sought from defendants Iowa State Penitentiary 
 
            and the State of Iowa.  Claimant suffered an injury in a 
 
            fall from collapsing scaffolding on January 27, 1986 and 
 
            asserts that he has sustained permanent disability as a 
 
            result.
 
            
 
                 This cause came on for hearing in the Iowa Men's 
 
            Reformatory at Anamosa, Iowa, on July 12, 1991.  The record 
 
            consists of claimant's testimony and joint exhibits 9 
 
            through 29, inclusive.
 
            
 
                                      issues
 
            
 
                 The parties have stipulated that claimant sustained an 
 
            injury as an inmate in the performance of his work in 
 
            connection with the maintenance of the Iowa State 
 
            Penitentiary at Fort Madison, Iowa on January 22, 1986, that 
 
            under section 85.59 there is no entitlement to temporary 
 
            disability benefits and to the correct rate of weekly 
 
            compensation.
 
            
 
                 Issues presented for resolution include:
 
            
 
                 1.  Whether there exists a causal relationship between 
 
            the injury and any subsequent permanent disability; and,
 
            
 
                 2.  The extent of permanent disability, if any.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy industrial commissioner, having 
 
            heard the testimony and considered all of the evidence, 
 
            finds:
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                 Dale Freland, 31 years of age at hearing, has an eighth 
 
            grade education and has been awarded a General Equivalency 
 
            Diploma.  He received an auto body certificate at the Eldora 
 
            Training School and has taken college courses in economics 
 
            and political science during one of his many periods of 
 
            incarceration.
 
            
 
                 Claimant has held several legitimate jobs, but only for 
 
            perhaps a month or two at a time.  He has experience in 
 
            restaurant work, over-the-road driving, truck body work and 
 
            painting, construction, tree trimming and ditch digging.  He 
 
            currently works as a clerk at a computer terminal for the 
 
            reformatory at Anamosa, and was previously a laundry worker.
 
            
 
                 Claimant's juvenile record does not appear in evidence, 
 
            but he apparently had one, since he did serve time at the 
 
            Eldora Training School.  Mr. Freland left the eighth grade 
 
            in 1974 or 1975, and was soon thereafter incarcerated from 
 
            1976 until August 1981 for a robbery conviction.  Later, he 
 
            lived with his father and helped remodel homes in Iowa and 
 
            Arkansas until approximately July 1982.  He was then 
 
            incarcerated by the Arkansas Department of Corrections 
 
            following conviction of possession of firearms by a 
 
            convicted felon and failure to appear on bond.  Upon his 
 
            release, he worked for a few weeks as a truck driver and 
 
            doing body work.  He was arrested on charges now 
 
            unremembered in April 1984 in Minnesota and jailed until 
 
            those charges were dismissed.  He returned to the state of 
 
            Iowa and was arrested (and later convicted) three days later 
 
            for burglary, attempted burglary and possession of burglary 
 
            tools.  While out on bond and awaiting trial, he committed 
 
            an escape and assault, both felonious, and was also 
 
            convicted of those charges.  As a result, he has been 
 
            incarcerated since March 1985.
 
            
 
                 This record shows beyond question that claimant is a 
 
            career criminal.  He has been repeatedly convicted of crimes 
 
            reflecting a lack of personal honesty and has demonstrated 
 
            his contempt for the judicial system by repeatedly jumping 
 
            bond and escaping.  His testimony has been proven 
 
            unreliable.
 
            
 
                 The subject injury occurred while claimant was cleaning 
 
            a grease filter from scaffolding in the Fort Madison 
 
            Penitentiary kitchen.  The scaffolding collapsed and he fell 
 
            perhaps 8-10 feet, landing on a curb, being then 
 
            subsequently treated both at the penitentiary and the 
 
            University of Iowa Hospitals and Clinics.
 
            
 
                 Claimant was seen in the University of Iowa Hospitals 
 
            Neurology Outpatient Clinic on March 19, 1986.  Impression 
 
            and diagnosis of Jose Biller, M.D., and the staff was of low 
 
            back pain with essentially normal neurological examination.  
 
            X-rays were normal.  On March 31, 1986, electromyography and 
 
            nerve conduction velocities were read as normal by G. 
 
            Gruener, M.D.  A bone imaging study of the spine was 
 
            performed by G. Conrad, M.D., and K. Harkens, M.D., on 
 
            December 11, 1986.  The examination was negative.  X-rays of 
 
            the spine read by radiologist W. Montgomery, M.D., on May 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            28, 1987 showed the lumbar spine demonstrating no focal bony 
 
            or apparent soft tissue abnormalities.  Sacroiliac joints 
 
            were normal and the sacrum was normal.  Computerized 
 
            tomography was done by radiologist T. Ryals, M.D., on July 
 
            14, 1987.  Bony and disc protrusion posteriorly and 
 
            posterolaterally at C3-4 (the neck) was seen, but vertebral 
 
            bodies, intervertebral discs, neural canals and subarachnoid 
 
            spaces in the thoracolumbar region all appeared appropriate 
 
            and no extradural or intrinsic abnormalities were 
 
            identified.  Radiologist W. Ludwig, M.D., performed a 
 
            magnetic resonance imaging examination on May 28, 1987.  
 
            There was decreased disc signal from L5-S1 consistent with 
 
            degenerated disc at that level, but otherwise no significant 
 
            compression upon the thecal sac and the thoracolumbar spine.  
 
            Dr. Ludwig found an anterior extradural defect at C3-4 and 
 
            otherwise mild spondylolytic changes throughout the 
 
            remainder of the cervical spine without significant 
 
            compression upon the thecal sac.  Dr. Ryals also performed a 
 
            lumbar myelogram on July 14, 1987.  Films showed no 
 
            diagnostic radiographic abnormalities.  Small nerve root 
 
            sheaths in the mid and lower lumbar region were well 
 
            visualized and appeared normal and symmetric.  No extradural 
 
            or intrinsic defects were demonstrated.
 
            
 
                 Claimant was also seen for chiropractic evaluation by 
 
            Rick C. Courtney, D.C., on September 6, 1989.  Dr. 
 
            Courtney's review of x-rays on that date resulted in the 
 
            following interpretation:
 
            
 
                    *Pelvic unleveling high on left 7mm
 
                    *Pelvic rotation internally on Left 6mm
 
                    *38 [degrees] sacral base angle
 
                    *Posterior weight bearing
 
                    *Posterior facet jamming
 
                    *Hypolordosis of lumbar spine
 
                    *Decreased ROM in flexion/extension lumbar spine
 
                    *Scoliosis T-spine apex to left
 
                    *Towering of C-spine to right
 
                    *Compression fracture of T-2
 
                    *Kyphotic curve C-spine
 
                    *Decreased ROM in extension
 
                    *IUF encroachment C-spine
 
                    *Posterior facet joint sclerosing
 
                    *Posterior spondylophyte changes
 
                    *Compression fracture L5 vertebral body
 
            
 
            (Exhibit 28, page 435)
 
            
 
                 Claimant was generally treated with medications, a 
 
            suggested course of exercise and a TENS unit.  He currently 
 
            complains that the bottom 10-12 inches of his spine feels 
 
            "on fire" at all times, of total numbness in both feet and 
 
            of his legs locking or "giving out" resulting in frequent 
 
            tumbles.  He claims to be severely limited in his physical 
 
            activity.
 
            
 
                 James J. Corbett, M.D., is a staff neurologist at the 
 
            University of Iowa Hospitals and Clinics.  Dr. Corbett 
 
            testified by deposition on December 22, 1988.  He testified 
 
            that claimant probably has lumbosacral pain which is 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            probably related to the subject incident.  He testified to 
 
            an inability to express an opinion as to whether claimant 
 
            had a permanent partial impairment of the body as a whole 
 
            resulting from the injury.  He pointed out that claimant had 
 
            been seen for purposes of treatment rather than evaluation.
 
            
 
                 Following further examination and evaluation, Dr. 
 
            Corbett wrote on May 2, 1989 that it was "virtually 
 
            impossible" to rate claimant's permanent partial impairment.  
 
            Dr. Corbett had several reasons for having reached this 
 
            conclusion:  he was unable to identify a cause for 
 
            claimant's 29 sudden falls, as sudden falls are not a 
 
            feature of back pain; claimant's reported symptom that his 
 
            back was "locked" is a symptom of musculoskeletal 
 
            discomfort, but has no objective correlates (weakness, 
 
            atrophy or loss of reflexes) to substantiate allegations of 
 
            discomfort; Dr. Corbett was unable to identify a dermatomal 
 
            pattern affected by claimant's alleged back pain; while 
 
            claimant had tenderness at L2, he had no leg symptoms 
 
            consistent with an L2 distribution pattern; strength was 
 
            normal proximally and distally in the upper and lower 
 
            extremities and all reflexes were intact.
 
            
 
                 On the other hand, Ernest M. Found, M.D., Assistant 
 
            Medical Director of the Spine Diagnostic and Treatment 
 
            Center of the University of Iowa Department of Orthopaedic 
 
            Surgery, wrote on June 8, 1990 that claimant's back 
 
            complaints were "by history" related to the subject injury.  
 
            He estimated permanent partial disability at three percent 
 
            of the body as a whole.
 
            
 
                 Claimant underwent a functional capacity evaluation in 
 
            the University of Iowa Department of Orthopaedic Surgery on 
 
            May 17, 1990, being seen then by numerous members of the 
 
            spine team.  Medical director James N. Weinstein, reported 
 
            on May 31 as follows:
 
            
 
                 In our medical testing, we are able to confirm the 
 
                 earlier evaluations performed through the 
 
                 Neurology clinic.  In 1986 a bone scan was read as 
 
                 negative, a 1987 MRI was read as unremarkable, and 
 
                 a 1987 myelogram demonstrated no diagnostic 
 
                 abnormalities.  We are also able to relate good 
 
                 news in our physical examination of May of 1990.  
 
                 Assessments were consistent with previous 
 
                 examinations.  X-rays taken on that day, 
 
                 specifically an AP and lateral of the lumbar 
 
                 spine, show no abnormalities.  The diagnosis dated 
 
                 5/17/90 reads, "patient with chronic low back pain 
 
                 of probable musculoskeletal origin".  Based on our 
 
                 interviews and physical assessments and 
 
                 evaluations, we feel that your back is solid, 
 
                 stable and healed.  We do, however, realize that 
 
                 you are experiencing a great deal of low back 
 
                 discomfort and that the pain is very real.  
 
                 However, we feel that it is time for a very 
 
                 positive, aggressive approach to active physical 
 
                 rehabilitation, and with strict adherence to the 
 
     
 
            
 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                 proposed recommendations and a personal commitment 
 
                 by you, we feel that you will be able to make some 
 
                 significant changes and improve your overall 
 
                 activity.
 
            
 
            (Exhibit 18, page 201)
 
            
 
                 Certain limitations were suggested by physical 
 
            therapist Mary Lou Fairchild as a result of the functional 
 
            capacity evaluation.  However, Ms. Fairchild pointed out 
 
            that while the results were based on objective measurements, 
 
            effort on the patient's part can affect those "objective" 
 
            results.  Claimant, although described as cooperative, was 
 
            also seen as "severely self-limiting with a great deal of 
 
            pain behavior."  Claimant gave the impression of being very 
 
            limited with regard to his functional abilities.  Ms. 
 
            Fairchild considered it "difficult to determine exactly what 
 
            he is able to do, but he could be more active than his daily 
 
            routine is, currently."
 
            
 
                 Dr. Courtney not only found numerous defects upon x-ray 
 
            interpretation, but gave the following extensive diagnosis 
 
            following his evaluation:
 
            
 
                 On the basis of the above findings and 
 
                 impressions, it is evident that the patient has 
 
                 suffered the following injuries:
 
            
 
                 1.  Acute exacerbation of a chronic traumatic 
 
                 sprain/strain injury of the cervical spine 
 
                 accompanied by IVF encroachment, posterior facet 
 
                 joint sclerosing, kyphotic curve, decreased ROM in 
 
                 extension; resulting in nerve root compression 
 
                 syndrome, neuritis/radiculitis of the 
 
                 cervical/cranial and cervical/brachial nerve 
 
                 plexuses, spondylophyte formation posterior, 
 
                 posterior facet syndrome, myositis, myofascitis, 
 
                 headaches and subluxations.
 
            
 
                 2.  Acute exacerbation of a chronic traumatic 
 
                 sprain/strain injury of the thoracic spine 
 
                 resulting in compression fracture of T2 vertebral 
 
                 body, scoliosis with apex to the right at T2/T3, 
 
                 subscapular neuritis, intercostal neuritis, 
 
                 myositis of the paravertebral muscles and 
 
                 subluxations.
 
            
 
                 3.  Acute exacerbation of a chronic traumatic 
 
                 sprain/strain injury of the lumbo/sacral and 
 
                 pelvic spines accompanied by pelvic unleveling/ 
 
                 rotation, posterior weight bearing, hypolordosis, 
 
                 posterior facet jamming, decreased ROM in flexion/ 
 
                 extension, compression fracture of L5 vertebral 
 
                 body, posterior spondylophyte changes resulting in 
 
                 nerve root compression syndrome, paresthesia/ 
 
                 neuritis/radiculitis of the lumbar, lumbo/sacral 
 
                 and sciatic nerve plexuses, posterior facet 
 
                 syndrome, myositis, myofascitis, weakness and 
 
                 subluxations.
 
            
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            (Exhibit 28, page 435)
 
            
 
                 Dr. Courtney is of the view that claimant has sustained 
 
            a 55 percent impairment to the body as a whole.
 
            
 
                 Dr. Courtney's x-ray interpretation and resultant 
 
            diagnosis are at a very far remove from the interpretation 
 
            of sophisticated testing by highly-qualified physicians at 
 
            the University of Iowa Hospitals and Clinics.  Tests 
 
            included electromyography, nerve velocity studies, bone 
 
            scan, magnetic resonance imaging, computerized tomography 
 
            and lumbar myelogram.  All these tests were essentially 
 
            negative.  It is found that Dr. Courtney's extensive 
 
            findings are less persuasive than the findings of numerous 
 
            staff of the University of Iowa Hospitals and Clinics.  
 
            Objective signs to explain claimant's reported symptoms are 
 
            not to be found.
 
            
 
                                conclusions of law
 
            
 
                 Pursuant to Iowa Code section 85.59, benefits 
 
            equivalent to 66 2/3 percent of the state average weekly 
 
            wage, along with medical benefits, may be paid under section 
 
            85.34(2) and (3), subsections dealing with permanent partial 
 
            and total disability, respectively, if an inmate is 
 
            "permanently incapacitated by injury" in the performance of 
 
            the inmate's work in connection with the maintenance of a 
 
            penal institution in this state.  It is stipulated that 
 
            claimant sustained an injury in a fall, but causal 
 
            connection to permanent incapacity remains at issue.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of January 22, 
 
            1986 is causally related to the disability on which he now 
 
            bases his claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
            N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 296, 18 
 
            N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hosp., 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903 (Iowa 1974).  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. Cent. Tel. Co., 261 
 
            Iowa 352, 154 N.W.2d 128 (1967).
 
            
 
                 Claimant alleges that his injury has resulted in 
 
            numerous disabling symptoms and pain, but his reported 
 
            symptomatology is not borne out by corresponding objective 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            signs.  Subjective complaints absent objective confirmation 
 
            have frequently been held insufficient to support an award 
 
            of industrial disability.  See, e.g., Shaffer v. Kast Keokuk 
 
            Steel Castings Co., file number 865882 (Arb. Decn., July 24, 
 
            1989).  That is particularly so here, given the complete 
 
            unreliability of claimant's testimony.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Claimant shall take nothing from these proceedings.
 
            
 
                 The costs of this action are assessed to claimant 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 Signed and filed this ______ day of ____________, 1991.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          DAVID RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. James P. Hoffman
 
            Attorney at Law
 
            Middle Road
 
            P.O. Box 1087
 
            Keokuk, Iowa  52632
 
            
 
            Mr. Greg Knoploh
 
            Assistant Attorney General
 
            Tort Claims Division
 
            Hoover State Office Building
 
            Des Moines, Iowa  50309
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           1402.40
 
                           Filed July 22, 1991
 
                           DAVID RASEY
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            DALE RAY FRELAND,   :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :         File No. 848427
 
            IOWA STATE PENITENTIARY, :
 
                      :      A R B I T R A T I O N
 
                 Employer, :
 
                      :         D E C I S I O N
 
            and       :
 
                      :
 
            STATE OF IOWA, :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ____________________________________________________________
 
            
 
            1402.40
 
            Inmate suffered injury in performance of his work, but 
 
            failed to prove he was "permanently incapacitated" as a 
 
            result.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            STEVEN TREBIL,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 848579
 
            MINNESOTA STORE EQUIPMENT,    :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            IOWA INSURANCE GUARANTY       :
 
            ASSOCIATION Acting on Behalf  :
 
            of INTERCONTINENTAL INSURANCE :
 
            COMPANY, in Insolvency,       :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Steven 
 
            Trebil, claimant, against Minnesota Store Equipment Company, 
 
            employer (hereinafter referred to as Store Equipment), and 
 
            the Iowa Insurance Guaranty Association (as a result of the 
 
            insolvency of Intercontinental Insurance Company) insurance 
 
            carrier, defendants, for workers' compensation benefits as a 
 
            result of an alleged injury on December 8, 1986.  On 
 
            September 18, 1991, a hearing was held on claimant's peti
 
            tion and the matter was considered fully submitted at the 
 
            close of this hearing.
 
            
 
                 The parties have submitted a prehearing report of con
 
            tested issues and stipulations which was approved and 
 
            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 to the following matters:
 
            
 
                 1.  On December 8, 1986, claimant received an injury 
 
            which arose out of and in the course of employment with 
 
            Store Equipment.
 
            
 
                 2.  Claimant is entitled to temporary total disability 
 
            or healing period benefits from December 9, 1986 through 
 
            December 28, 1986.
 
            
 
                 3.  If the injury is found to have caused permanent 
 
            disability, the type of disability is an industrial disabil
 
            ity to the body as a whole.
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                 4.  If permanent partial disability benefits are 
 
            awarded, they shall begin as of December 29, 1986.
 
            
 
                 5.  Claimant's rate of weekly compensation is $236.86.
 
            
 
                                      issue
 
            
 
                 The only issue assigned for hearing was the extent, if 
 
            any, of claimant's entitlement to permanent disability 
 
            benefits.
 
            
 
                                 findings of fact
 
            
 
                 Having heard the testimony and considered all the 
 
            evidence, the deputy industrial commissioner finds as 
 
            follows:
 
            
 
                 A credibility finding is necessary to this decision as 
 
            defendants place claimant's credibility at issue during 
 
            cross-examination and by the introduction of a tape recorded 
 
            conversation claimant had with the claims adjuster prior to 
 
            hearing.  The credibility issues involve the extent of 
 
            claimant's injury and disability.  From his demeanor while 
 
            testifying, claimant is found credible.
 
            
 
                 Claimant worked for Store Equipment from January 11, 
 
            1984 until June 1988.  Claimant during all of this time was 
 
            employed in the shipping department.  Store Equipment is a 
 
            manufacturer of walk-in coolers.  Claimant's duties con
 
            sisted of assembly and inspection of cooler parts and their 
 
            preparation for shipment.  This job required claimant to 
 
            lift from 20 to 200 pounds according to claimant's testimony 
 
            at hearing.  At the time of the injury and subsequent 
 
            thereto, claimant was in a supervisory capacity in the ship
 
            ping department but still was required to perform manual 
 
            labor in the department along with his employees.
 
            
 
                 There was no dispute that claimant suffered a work 
 
            injury to his low back on December 8, 1986 and was off work 
 
            as a result of the injury for 19 days pursuant to the advice 
 
            of a treating orthopedic surgeon, Michael W. Crane, M.D.  
 
            The injury was diagnosed by Dr. Crane as an acute lumbar 
 
            back strain resulting in low back pain radiating into the 
 
            right buttocks and leg.  Claimant was treated with medica
 
            tion and physical therapy by Dr. Crane.  This treatment 
 
            improved his condition according to Dr. Crane and claimant 
 
            was released in an improved state to return to work on 
 
            December 29, 1986, without restrictions.  On January 2, 
 
            1987, Dr. Crane released claimant from his care to return to 
 
            him only on an as needed basis.  At that time, the doctor 
 
            noted that claimant was handling the work satisfactory but 
 
            still was having buttocks pain.  He stated, however, that 
 
            such pain was resolving.
 
            
 
                 Claimant did not seek further care or evaluation from 
 
            Dr. Crane or any other physician until almost three years 
 
            later in October 1989.  At that time, Dr. Crane stated that 
 
            claimant reported continued back stiffness and pain radiat
 
            ing into the right leg.  Dr. Crane stated that claimant's 
 
            condition was much the same as he found it when he last saw 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            claimant in January of 1987.  Dr. Crane causally related 
 
            that these back problems were the result of the December 8, 
 
            1986 injury and opined that claimant suffered a four percent 
 
            permanent partial impairment to the body as a whole from the 
 
            injury.  He stated that claimant has chronic radicular symp
 
            toms that are not bad enough to warrant surgery.
 
            
 
                 Claimant stated that despite his return to work in 
 
            December 1986 without restrictions, he continued to have 
 
            difficulties performing his work over the next several 
 
            months due to back problems.  Claimant stated that his abil
 
            ity to perform the work was greatly enhanced by the fact 
 
            that he was a supervisor and was not as extensively involved 
 
            in the heavy manual labor as his employees.  He stated that 
 
            he lost some work between January 1987 and June 1988 due to 
 
            his back problems but was allowed to take this time off by 
 
            his supervisors who were aware of his problems.  Such testi
 
            mony is inconsistent with a telephone conversation claimant 
 
            had with an insurance claims adjuster in April of 1987 
 
            wherein he stated that after he returned to work he had only 
 
            aches and pains once in a while but no real sharp pain or 
 
            radiating pain into the legs.
 
            
 
                 It is found that claimant suffered a three or four per
 
            cent permanent partial impairment to the body as a whole 
 
            from the work injury of December 8, 1986.  This finding is 
 
            based upon the views of the treating physician, Dr. Crane 
 
            and the credible testimony of claimant.  Admittedly, the 
 
            tape recording conversation with the claims adjuster 
 
            referred to above is inconsistent with claimant's testimony 
 
            but claimant appeared credible at hearing.  Also, it is 
 
            quite possible that claimant's condition was good at the 
 
            time of the conversation and later deteriorated.  Dr. Crane, 
 
            in his letter to the insurance carrier of January 1987, 
 
            exhibit A, stated that he would not be surprised if 
 
            claimant's condition worsened in the future and became more 
 
            painful with radiation into the leg.  Dr. Crane, in January 
 
            1987, actually offered to rate claimant's disability in a 
 
            letter to the insurance carrier but was never asked to do so 
 
            by the insurance carrier.  Claimant was not aware at that 
 
            time that this offer by Dr. Crane had been made.  The find
 
            ing of permanent partial impairment in this case is contrary 
 
            to the views of two evaluating physicians rendering opinions 
 
            in this case.  However, these were only one time evaluators 
 
            not familiar with claimant's clinical presentations.  There 
 
            was no showing that either of these two physicians were more 
 
            qualified or knowledgeable than Dr. Crane.  Only one was 
 
            shown to be a specialist in orthopedic surgery.
 
            
 
                 Subsequent to the work injury herein, claimant injured 
 
            his right arm, shoulder and cervical spine in June 1988.  
 
            Claimant was treated for this injury primarily by another 
 
            orthopedic surgeon, A. J. Wolbrink, M.D.  Dr. Wolbrink diag
 
            nosed overuse syndrome of the right elbow with nerve entrap
 
            ment of the cervical spine.  This treatment involved exten
 
            sive physical therapy and eventually surgery.  However, 
 
            claimant has not responded well to this treatment and could 
 
            not return to work to full duty after the surgery.  Dr. 
 
            Wolbrink imposed permanent work restrictions against fre
 
            quent lifting over 20 pounds and only occasional lifting up 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            to 100 pounds.  He stated that claimant should not push or 
 
            reach above shoulder level or handle or grip more than 
 
            two-thirds of the time.  When Store Equipment learned of 
 
            these restrictions, they had claimant evaluated by another 
 
            physician, Darrell Fisch, M.D., speciality unknown, who 
 
            opined that claimant should not lift repetitively more than 
 
            25 pounds and in no event over 50 pounds.  As a result of 
 
            Dr. Fisch's restrictions, claimant was not allowed to return 
 
            work by Store Equipment.
 
            
 
                 Since leaving Store Equipment, claimant has worked in 
 
            construction and now is working full time as a laborer with 
 
            North Iowa Coop in unloading grain trucks, driving grain 
 
            trucks and performing other general cleanup duties.  
 
            Claimant earned $7.00 an hour in construction and is now 
 
            earning $5.00 an hour over a normal 40 hour week.
 
            
 
                 It is found that claimant has suffered a mild or a five 
 
            percent loss of earning capacity as a result of the work 
 
            injury of December 8, 1986.  Although claimant continues to 
 
            have significant problems with his back, he is not working 
 
            at Store Equipment today primarily because of the 1988 work 
 
            injury to his arm and upper back, not his lower back.  
 
            Although he may have had trouble performing all of his phys
 
            ical duties after his return to work in December 1986, he 
 
            was able to do so and lost no actual earnings from his 
 
            injury until the subsequent work injury of June 1988.  
 
            Although claimant cannot return to work at Store Equipment, 
 
            he has diverse transferable skills which can be utilized in 
 
            the labor market.  Claimant is a journeyman carpen
 
            ter/millwright who worked successfully in such employment 
 
            for over eight years.  He only left that employment to avoid 
 
            travel.  Claimant has significant welding skills.  He was 
 
            worked in sales as a routeman for a soft drink distributor.  
 
            He also has had supervisory experience.  Claimant is 39 
 
            years of age and relatively young.  Claimant is a high 
 
            school graduate and had in the past completed one semester 
 
            at a community college.  Claimant is currently employed in a 
 
            laborer position.
 
            
 
                 On the other hand, claimant's medical condition before 
 
            the work injury was excellent and he had no ascertainable 
 
            disabilities.  Although he had a fused right ankle from an 
 
            auto accident in 1979, this injury did not appear to affect 
 
            his ability to work or to lift heavy objects.  Claimant was 
 
            able to fully perform physical tasks involving heavy and 
 
            repetitive lifting in the shipping department at Store 
 
            Equipment.  Claimant now has a permanent back problem in 
 
            addition to his arm and shoulder problems.  His employabil
 
            ity is adversely affected by these additional back problems.  
 
            Although he remained employed after the injury in this case, 
 
            claimant's ability to work in his job in the shipping 
 
            department was adversely affected by lost time from work and 
 
            continuing symptoms, according to claimant's credible testi
 
            mony.  As a supervisor, claimant was able to seek assistance 
 
            from fellow employees in the heavy work and this was appar
 
            ently allowed by his superiors.  However, as discovered by 
 
            claimant after the 1988 injury, such assistance and accommo
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            dation for disability is not always tolerated by employers 
 
            in the job market.
 
            
 
                                conclusions of law
 
            
 
                   I.  Claimant must establish by a preponderance of the 
 
            evidence the extent of weekly benefits for permanent dis
 
            ability to which claimant is entitled.  As the claimant has 
 
            shown that the work injury was a cause of a permanent physi
 
            cal impairment or limitation upon activity involving the 
 
            body as a whole, the degree of permanent disability must be 
 
            measured pursuant to Iowa Code section 85.34(2)(u).  How
 
            ever, unlike scheduled member disabilities, the degree of 
 
            disability under this provision is not measured solely by 
 
            the extent of a functional impairment or loss of use of a 
 
            body member.  A disability to the body as a whole or an 
 
            "industrial disability" is a loss of earning capacity 
 
            resulting from the work injury.  Diederich v. Tri-City 
 
            Railway Co., 219 Iowa 587, 593, 258 N.W. 899 (1935).  A 
 
            physical impairment or restriction on work activity may or 
 
            may not result in such a loss of earning capacity.  The 
 
            extent to which a work injury and a resulting medical condi
 
            tion has resulted in an industrial disability is determined 
 
            from examination of several factors.  These factors include 
 
            the employee's medical condition prior to the injury, imme
 
            diately after the injury and presently; the situs of the 
 
            injury, its severity and the length of healing period; the 
 
            work experience of the employee prior to the injury, after 
 
            the injury and potential for rehabilitation; the employee's 
 
            qualifications intellectually, emotionally and physically; 
 
            earnings prior and subsequent to the injury; age; education; 
 
            motivation; functional impairment as a result of the injury; 
 
            and inability because of the injury to engage in employment 
 
            for which the employee is fitted.  Loss of earnings caused 
 
            by a job transfer for reasons related to the injury is also 
 
            relevant.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 
            1121, 125 N.W.2d 251, 257 (1963).  See Peterson v. Truck 
 
            Haven Cafe, Inc., (Appeal Decision, February 28, l985).
 
            
 
                 In this decision, it was found that claimant suffered a 
 
            loss of earning capacity despite a lack of showing of a loss 
 
            of actual earnings due to his return to full duty after the 
 
            injury.  A showing that claimant had no loss of actual earn
 
            ings does not preclude a finding of industrial disability.  
 
            See Michael v. Harrison County, Thirty-fourth Biennial 
 
            Reports, Iowa Industrial Commissioner 218, 220 (Appeal 
 
            Decision 1979).
 
            
 
                 In the case sub judice, it was found that claimant has 
 
            suffered a five percent loss of his earning capacity as a 
 
            result of the work injury.  Based upon such a finding, 
 
            claimant is entitled as a matter of law to 25 weeks of per
 
            manent partial disability benefits under Iowa Code section 
 
            85.34(2)(u) which is five percent of 500 weeks, the maximum 
 
            allowable for an injury to the body as a whole in that sub
 
            section.
 
            
 
                                      order
 
            
 
                 1.  Defendants shall pay to claimant twenty-five (25) 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            weeks of permanent partial disability benefits at the rate 
 
            of two hundred thirty-six and 86/l00 dollars ($236.86) per 
 
            week from December 29, 1986.
 
            
 
                 2.  Defendants shall pay to claimant healing period 
 
            benefits for the period of time stipulated in the prehearing 
 
            report.
 
            
 
                 3.  Defendants shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against this award for all 
 
            weekly benefits previously paid as a result of the December 
 
            8, 1986 injury.
 
            
 
                 4.  Defendants shall pay interest on weekly benefits 
 
            awarded herein as set forth in Iowa Code section 85.30.
 
            
 
                 5.  Defendants shall pay the costs of this action pur
 
            suant to rule 343 IAC 4.33, including reimbursement to 
 
            claimant for any filing fee paid in this matter.
 
            
 
                 6.  Defendants shall file activity reports on the pay
 
            ment of this award as requested by this agency pursuant to 
 
            rule 343 IAC 3.1.
 
            
 
            
 
            
 
            
 
            
 
            
 
                 Signed and filed this ____ day of September, 1991.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Robert W. Pratt
 
            Attorney at Law
 
            6959 University Ave
 
            Des Moines  IA  50311
 
            
 
            Mr. D. Brian Scieszinski
 
            Attorney at Law
 
            801 Grand Ave
 
            Suite 3700
 
            Des Moines  IA  50309
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           5-1803
 
                           Filed September 25, 1991
 
                           LARRY P. WALSHIRE
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            STEVEN TREBIL,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 848579
 
            MINNESOTA STORE EQUIPMENT,    :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            IOWA INSURANCE GUARANTY       :
 
            ASSOCIATION Acting on Behalf  :
 
            of INTERCONTINENTAL INSURANCE :
 
            COMPANY, in Insolvency,       :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            
 
            5-1803
 
            Extent of permanent disability benefits.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
            _____
 
                                          :
 
            WAYNE W. SCHANTZ,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 848614
 
            FRUEHAUF CORPORATION,         :
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            CNA INSURANCE COMPANIES,      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            _____
 
            
 
                 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.
 
            
 
                                      issue
 
            
 
                 The sole issue on appeal is the extent of claimant's 
 
            industrial disability as a result of his May 5, 1987 
 
            work-related injury.
 
            
 
                                 findings of fact
 
            
 
                 The findings of fact of the deputy's proposed decision 
 
            filed January 16, 1991 are affirmed and adopted.
 
            
 
                                conclusions of law
 
            
 
                 The conclusions of law in the deputy's proposed 
 
            decision are affirmed and adopted with the following 
 
            additions.
 
            
 
                 Defendants appeal an award of permanent total 
 
            disability.  The conclusions of law in this case are limited 
 
            to the facts herein.  Claimant first underwent a laminectomy 
 
            and discectomy on June 12, 1987 at L4-5 as a result of his 
 
            May 5, 1987 work injury.  Claimant failed to improve 
 
            following surgery.  Conservative treatment was prescribed, 
 
            however, treatment did not relieve claimant's symptoms.  
 
            Claimant underwent a second laminectomy and discectomy at 
 
            L4-5 on November 16, 1987.  Claimant returned to work 
 
            following the second surgery.  Again claimant's back 
 
            condition deteriorated resulting in claimant missing 
 
            numerous work days.  Claimant enrolled in a pain clinic on 
 
            May 4, 1989 and has not returned to work.  
 
            
 
                 Claimant's treating physician, William A. Roberts, 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            M.D., opined that claimant had a nine percent impairment.  
 
            After reviewing medical evidence and the Guides to the 
 
            Evaluation of Permanent Impairment published by the AMA, Dr. 
 
            Roberts' impairment rating does not appear to be consistent 
 
            with claimant's two failed back surgeries and his work 
 
            restrictions; therefore, it is given little weight.  
 
            Claimant has undergone biofeedback and occupational and 
 
            physical therapy which failed to relieve his low back pain.  
 
            Claimant used a TENS unit, however, his skin became 
 
            irritated by the electrodes.  Even epidural blocks which 
 
            initially provided relief have failed to provide claimant 
 
            with lasting relief from his debilitating back pain.  A 
 
            greater permanent impairment rating would be expected in 
 
            light of claimant's two failed back surgeries and his work 
 
            restrictions.  
 
            
 
                 Claimant's physical restrictions consist of no 
 
            repetitive bending, stooping or reaching, no sitting for 
 
            greater than 30 minutes at any one time, and no prolonged 
 
            driving.  The majority of claimant's work experience is in 
 
            the area of heavy labor.  Claimant can no longer perform 
 
            heavy labor.  Claimant's work restrictions appear to 
 
            preclude employment even in sedentary markets as claimant is 
 
            not allowed to sit more than 30 minutes at any one time.  In 
 
            light of the evidence in this case, it is determined that 
 
            claimant has proven by a preponderance of the evidence that 
 
            he is permanently totally disabled.  
 
            
 
                 WHEREFORE, the decision of the deputy is affirmed.
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendants shall pay unto claimant healing period 
 
            benefits commencing on May 14, 1987 through March 20, 1988 
 
            at the stipulated rate of two hundred fifty-four and 30/100 
 
            dollars ($254.30) per week.
 
            
 
                 That defendants shall pay unto claimant permanent total 
 
            disability benefits at the stipulated rate of two hundred 
 
            fifty-four and 30/100 dollars ($254.30) per week commencing 
 
            May 4, 1989 and continuing during such time as claimant 
 
            shall remain totally disabled.
 
            
 
                 That defendants shall receive credit for all payments 
 
            voluntarily.
 
            
 
                 That any accrued weekly benefits shall be paid in a 
 
            lump sum together with statutory interest pursuant to Iowa 
 
            Code section 85.30.
 
            
 
                 That defendants shall pay the cost of the appeal, 
 
            including the preparation of the hearing transcript.
 
            
 
                 That defendants shall file a claim activity report 
 
            pursuant to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of November, 1991.
 
            
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                                          
 
            ________________________________
 
                                                   BYRON K. ORTON
 
                                              INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. James P. Hoffman
 
            Attorney at Law
 
            P.O. Box 1066
 
            Keokuk, Iowa 52632
 
            
 
            Mr. Elliott R. McDonald, Jr.
 
            Attorney at Law
 
            P.O. Box 2746
 
            Davenport, Iowa 52809
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            5-1804
 
            Filed November 26, 1991
 
            Byron K. Orton
 
            DRR
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            WAYNE W. SCHANTZ,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 848614
 
            FRUEHAUF CORPORATION,         :
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            CNA INSURANCE COMPANIES,      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
          
 
            5-1804
 
            Held: Affirmed the deputy industrial commissioner's decision 
 
            finding claimant to be permanently totally disabled as a 
 
            result of his May 5, 1987 work-related injury.  
 
            In this case, claimant underwent two back surgeries which 
 
            failed to relieve claimant's symptoms.  Claimant's treating 
 
            physician opined that claimant had a nine percent 
 
            impairment; however, the impairment rating does not appear 
 
            consistent with claimant's two failed back surgeries and his 
 
            work restrictions.  The impairment rating is given little 
 
            weight.  A greater permanent impairment rating would be 
 
            expected in light of claimant's two failed back surgeries 
 
            and his work restrictions.
 
            The majority of claimant's work experience is in the area of 
 
            heavy labor.  Claimant can no longer perform heavy labor.  
 
            Claimant's work restrictions appear to preclude employment 
 
            even in sedentary markets as claimant is not allowed to sit 
 
            more than 30 minutes at any one time.  In light of the 
 
            evidence in this case, it is determined that claimant proved 
 
            by a preponderance of the evidence that he is permanently 
 
            totally disabled.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            WAYNE W. SCHANTZ,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 848614
 
            FRUEHAUF CORPORATION,         :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            CNA INSURANCE COMPANIES,      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration upon claimant's 
 
            petition filed July 13, 1987.  Claimant sustained a work 
 
            injury to the lumbar spine while moving a heavy freight 
 
            dolly on May 5, 1987, and now seeks benefits under the Iowa 
 
            Workers' Compensation Act from his employer, Fruehauf 
 
            Corporation, and its insurance carrier, CNA Insurance 
 
            Companies.
 
            
 
                 Hearing on the arbitration petition was had in 
 
            Burlington, Iowa, on May 21, 1990.  The record consists of 
 
            joint exhibits 1 through 32 and the testimony of claimant 
 
            and Paula Schantz.
 
            
 
                 In addition, the undersigned discovered upon preparing 
 
            a decision in this case that the January 18, 1990 report of 
 
            treating surgeon William A. Roberts, M.D., was omitted from 
 
            the record.  As both attorneys had referred to this document 
 
            in briefs and contentions, a telephone conference hearing 
 
            was thereupon held on January 3, 1991, and both attorneys 
 
            agreed that the document should have been submitted.  A 
 
            joint motion to submit that exhibit was subsequently filed 
 
            on January 10, 1991, and approved by this writer.  For 
 
            convenience, it has been marked as joint exhibit 33.
 
            
 
                          
 
            
 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            issues
 
            
 
                 Pursuant to the prehearing report, the parties have 
 
            stipulated:  that claimant sustained an injury arising out 
 
            of and in the course of his employment with Fruehauf 
 
            Corporation on May 5, 1987; that if the injury caused 
 
            permanent disability, it is an industrial disability to the 
 
            body as a whole; that the proper rate of weekly benefits is 
 
            $254.30; that all requested medical benefits have been or 
 
            will be paid by defendants; that defendants made payments 
 
            prior to hearing at the stipulated rate and continue to do 
 
            so.
 
            
 
                 Issues presented for resolution include:  whether the 
 
            work injury caused temporary or permanent disability, the 
 
            extent of each and the commencement date of the latter; 
 
            taxation of costs.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy, having heard the testimony and 
 
            considered all of the evidence, finds:
 
            
 
                 Claimant, age 48 at hearing, is a high school graduate 
 
            and took certain jet mechanic courses during a stint in the 
 
            United States Air Force.  However, claimant considers 
 
            himself to be of less than average intelligence.
 
            
 
                 Claimant has essentially worked for defendant beginning 
 
            in 1977.  He also has worked as a grain farmer and in the 
 
            construction of steel grain bins.  All of this has been 
 
            heavy work, involving lifting over 100 pounds.
 
            
 
                 The subject injury occurred while claimant was 
 
            manipulating a heavy dolly and his right foot slipped.  His 
 
            back, and soon his right leg, began to tingle and burn, 
 
            following which he was referred to Keith W. Riggins, M.D.
 
            
 
                 On May 18, 1987, Dr. Riggins diagnosed herniated 
 
            nucleus pulposus with sciatica based upon x-ray examinations 
 
            and computerized tomography demonstrating narrowing and a 
 
            prominent herniated nucleus pulposus at L4-5 on the right.  
 
            Even that early, Dr. Riggins opined that claimant would be 
 
            permanently unable to return to work activities and repeated 
 
            forward bending or significant lifting activities.
 
            
 
                 Dr. Riggins performed a laminectomy and discectomy on 
 
            June 12, 1987.  On July 6, he reported that claimant had 
 
            failed to improve from his pre-operative condition.  Dr. 
 
            Riggins last saw claimant on July 20, following which 
 
            claimant's attorney referred him to Jerry Jochims, M.D.  
 
            Post-operative CT scan performed on July 13, 1987 indicated 
 
            a disc herniation essentially placed to the right.  In a 
 
            letter of September 30, Dr. Riggins recommended a second 
 
            operative procedure for excision of herniated nucleus 
 
            pulposus if claimant continued to have significant back and 
 
            lower extremity pain.
 
            
 
                 Chart notes of Dr. Jochims dated September 15, 1987 
 
            reflect his view to a reasonable degree of medical certainty 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            that claimant's history and clinical problems were causally 
 
            related to the work injury described to be of May 8, 1987.
 
            
 
                 Continued conservative therapy with Dr. Jochims failed 
 
            to improve claimant's symptomatology.  Dr. Jochims thereupon 
 
            referred claimant to William Roberts, M.D., an orthopaedic 
 
            surgeon.  Claimant saw Dr. Roberts for the first time on 
 
            November 9, 1987.  Thereafter, Dr. Roberts performed 
 
            additional surgery on November 16 based on a principal 
 
            diagnosis of radiculopathy involving the right L5 nerve root 
 
            secondary to post-operative epidural scarring and a 
 
            secondary diagnosis of small recurrent disc fragmentation 
 
            and protrusion.  This surgery again involved a laminectomy 
 
            and discectomy.
 
            
 
                 Claimant was thereafter released to return to work 
 
            March 21, 1988 and continued in employment through May 3, 
 
            1989 (except that he was off work from August 8 through 
 
            October 16, 1988 by reason of an unrelated hernia repair).
 
            
 
                 Unfortunately, claimant's condition continued to 
 
            deteriorate while he worked.  He suffered increased pain and 
 
            missed numerous days of work.
 
            
 
                 Claimant was evaluated for a pain clinic program under 
 
            the aegis of St. Mary Hospital in Quincy, Illinois.  
 
            Psychologist Jim Corcoran, Ph.D., reported following a 
 
            psychological evaluation of February 9, 1989, that claimant 
 
            showed no clinically significant psychological disturbance 
 
            and that there was little to indicate the presence of 
 
            "secondary gain issues" with respect to complaints of pain.
 
            
 
                 Claimant entered the pain clinic on May 4, 1989.  He 
 
            has not worked since.  A progress report prepared by Wade 
 
            Taylor, M.D., on June 15 showed that claimant had been 
 
            treated with a series of combination injections of local 
 
            anesthetic and steroid epidural blocks based on an 
 
            assessment of low back pain due to lumbar disc disease with 
 
            probable nerve root irritation associated with several 
 
            trigger point areas of the lumbosacral spine and a reflex 
 
            sympathetic dystrophy pain in the lower extremities, 
 
            possibly as a result of trauma from the previous 
 
            laminectomies.  Dr. Taylor's shorthand assessment was of 
 
            apparently failed back surgery syndrome.
 
            
 
                 The epidural block injections initially helped, but 
 
            notes prepared by Walid Hafez, M.D., on July 17, 1989 
 
            reflect that they have "lost their power."  Dr. Hafez 
 
            indicated that the pain clinic had little more to offer 
 
            claimant and that there was certainly a substantial amount 
 
            of problem with the patient that would lead to a 
 
            "disability" determination.
 
            
 
                 Claimant was seen again for evaluation by Dr. Roberts 
 
            on January 18, 1990.  Dr. Roberts' letter of that date 
 
            showed his opinion that claimant had a nine percent 
 
            permanent functional impairment of the body as a whole, that 
 
            he had reached maximum medical improvement, and that 
 
            physical restrictions should consist of no repetitive 
 
            lifting of greater than 20 pounds, no repetitive bending, 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            stooping or reaching, no sitting for greater than 30 minutes 
 
            at any one time and no prolonged driving.  Dr. Roberts had 
 
            previously rated claimant as having sustained a 10 percent 
 
            impairment (his deposition of August 8, 1988), and much less 
 
            onerous medical restrictions (30 pounds lifting, to increase 
 
            to 50), but apparently found claimant significantly more 
 
            disabled in 1990.  Dr. Roberts testified in his deposition 
 
            that the work injury was causally related to claimant's 
 
            disability.
 
            
 
                 Claimant now suffers pain down both legs, especially 
 
            the right, both in the front and back.  He can sleep for 
 
            only two hours at a time (in a special bed in the living 
 
            room) and must climb down stairs backwards on his hands and 
 
            knees.  He is able to lift a one-gallon milk jug, but cannot 
 
            carry it while walking.  When company calls, claimant must 
 
            recline in his bed.  He wears a TENS unit, but commonly 
 
            increases the power during the course of each day to the 
 
            maximum level, which causes burning or a rash so that he 
 
            cannot use the device until he heals.  Although claimant has 
 
            always been a hard worker and had no back symptoms 
 
            whatsoever prior to the subject work injury, he now feels 
 
            that even driving to work would be too hard (31 miles) 
 
            because he would have to stop and lie down intermittently.  
 
            He has not sought work since leaving the pain clinic due to 
 
            his deteriorating pain condition.
 
            
 
                 Claimant is utterly incapable of performing any of the 
 
            work in which he has career experience.
 
            
 
                    
 
            
 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            conclusions of law
 
            
 
                 The parties stipulate that claimant sustained an injury 
 
            arising out of and in the course of employment as he 
 
            alleges, but dispute whether the injury caused either 
 
            temporary or permanent disability.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of May 5, 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 
 
            Hosp., 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903 (Iowa 1974).  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. Cent. Tel. Co., 261 
 
            Iowa 352, 154 N.W.2d 128 (1967).
 
            
 
                 Both Dr. Jochims and Dr. Roberts have opined that 
 
            claimant's work injury is causally related to his 
 
            disability.  No contrary medical evidence appears of record.  
 
            Claimant has met his burden of proof on the issue.
 
            
 
                 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
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            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, 1985).
 
            
 
                 Claimant's work history consists of heavy work 
 
            exclusively.  He is no longer capable of working for 
 
            defendant (changing tires, axles, modifying trailers and the 
 
            like), being a grain farmer or constructing steel grain 
 
            bins.  Although he is a high school graduate, he has never 
 
            been employed in clerical, sales or office work.  While 
 
            claimant did not impress this observer as being of low 
 
            intelligence, claimant is himself concerned about the level 
 
            of his mental functioning.
 
            
 
                 This is a case involving two failed back surgeries.  
 
            Claimant's pain is such that he must descend stairs 
 
            backwards on his hands and knees and entertain visitors from 
 
            his bed.  Obviously, this is a factor in Dr. Roberts' having 
 
            elected to impose a restriction against sitting for greater 
 
            than 30 minutes at a time and against prolonged driving.  
 
            Given further restrictions against repetitive lifting of 
 
            greater than 20 pounds and against repetitive bending, 
 
            stooping or reaching, it is difficult to visualize 
 
            remunerative work which claimant might perform in a 
 
            competitive environment.  Defendants have been unable to 
 
            offer him a position.
 
            
 
                 Given these factors in specific and the balance of the 
 
            record generally, it is held that claimant is now and for 
 
            the foreseeable future will be totally disabled from 
 
            remunerative employment, and therefore entitled to permanent 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            total disability benefits.  Diederich v. Tri-City Ry. Co., 
 
            219 Iowa 587, 258 N.W. 899 (1935).
 
            
 
                 Of course, claimant was off work during his two 
 
            surgeries and then courageously returned to work (except for 
 
            his hernia repair) for a period from August until the next 
 
            May.  In a more typical case, healing period benefits are 
 
            allowed until a return to work or maximum medical recovery 
 
            is reached.  However, claimant in this case had a period of 
 
            temporary disability, returned to work for a substantial 
 
            period, and only thereafter was permanently disabled due to 
 
            the increasing severity of his symptomatology.  Healing 
 
            period is appropriate under section 85.34(1) in cases of 
 
            permanent partial disability.  Therefore, it is held that 
 
            claimant shall be allowed temporary total disability 
 
            benefits under Iowa Code sections 85.32 and 85.33 from May 
 
            14, 1987 (following which claimant was off work) through 
 
            March 20, 1988, a total of 44 weeks, 4 days.  Permanent 
 
            total disability benefits shall be awarded commencing May 4, 
 
            1989.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Defendants shall pay unto claimant forty-four point 
 
            four two nine (44.571) weeks of temporary total disability 
 
            benefits commencing May 14, 1987 at the stipulated rate of 
 
            two hundred fifty-four and 30/100 dollars ($254.30) per week 
 
            and totalling eleven thousand three hundred thirty-four and 
 
            41/100 dollars ($11,334.41).
 
            
 
                 Defendants shall pay unto claimant permanent total 
 
            disability benefits at the stipulated rate of two hundred 
 
            fifty-four and 30/100 dollars ($254.30) per week commencing 
 
            May 4, 1989 and continuing during such time as claimant 
 
            shall remain totally disabled.
 
            
 
                 Defendants shall have credit for all payments 
 
            voluntarily made prior to the filing date hereof.
 
            
 
                 Any accrued weekly benefits shall be paid in a lump sum 
 
            together with statutory interest thereon pursuant to Iowa 
 
            Code section 85.30.
 
            
 
                 The costs of this action shall be assessed to 
 
            defendants pursuant to rule 343 IAC 4.33.
 
            
 
                 Defendants shall file claim activity reports as 
 
            requested by this agency pursuant to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ______ day of ____________, 1991.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          DAVID RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr. James P. Hoffman
 
            Attorney at Law
 
            Middle Road
 
            P.O. Box 1066
 
            Keokuk, Iowa  52632
 
            
 
            Mr. Elliott R. McDonald, Jr.
 
            Attorney at Law
 
            P.O. Box 2746
 
            Davenport, Iowa  52809
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           1801; 1804
 
                           Filed January 16, 1991
 
                           DAVID RASEY
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            WAYNE W. SCHANTZ,   :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :         File No. 848614
 
            FRUEHAUF CORPORATION,    :
 
                      :      A R B I T R A T I O N
 
                 Employer, :
 
                      :         D E C I S I O N
 
            and       :
 
                      :
 
            CNA INSURANCE COMPANIES, :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ____________________________________________________________
 
            
 
            1801; 1804
 
            Forty-eight-year-old claimant, high school graduate, had 
 
            work history involving only heavy work.  Back injury 
 
            resulted in two failed surgeries.  Based on nine percent 
 
            impairment, restrictions (no repetitive lifting over 20 
 
            pounds, repetitive bending, stooping and reaching, sitting 
 
            greater than 30 minutes at a time and no prolonged driving), 
 
            and claimant's account of severe pain, permanent total 
 
            benefits were awarded.
 
            Where claimant was off work for two surgeries, returned to 
 
            work for several months, then suffered worsening of 
 
            condition, he was awarded temporary total benefits followed 
 
            by permanent total when he finally left work.
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DAVID SOPPE,             :
 
                                  :
 
               Claimant,          :
 
                                  :
 
          VS.                                    File No. 848618:
 
                                  :
 
          FRUEHAUF CORPORATION,   :              A R B I T R A T I O N
 
                                  :
 
               Employer,          :                D E C I S I O N
 
                                  :
 
          and                     :
 
                                  :
 
          CNA INSURANCE COMPANIES,   :
 
                                  :
 
               Insurance Carrier, :
 
               Defendants.        :
 
         
 
         
 
         
 
                                   INTRODUCTION
 
                                        
 
              This is a proceeding in arbitration brought by David Soppe 
 
         against Fruehauf Corporation and its insurance carrier, CNA 
 
         Insurance Companies.  The case was heard and fully submitted at 
 
         Burlington, Iowa on September 29, 1988.  The record in the 
 
         proceeding consists of testimony from Dale Soppe, Kenneth Huey, 
 
         Jr., Theresa Soppe, Ginger Soppe and the claimant, David Soppe.  
 
         The record also contains claimant's exhibits 1 through 16.
 
         
 
                                      ISSUES
 
                                        
 
              It was stipulated that claimant sustained an injury on May 
 
         26, 1987 which arose out of and in the course of his employment 
 
         and that his entitlement to healing period compensation ran from 
 
         May 26, 1987 to July 29, 1987.  The only issue in the case is 
 
         determination of claimant's entitlement to compensation for 
 
         permanent partial disability.
 
         
 
                               SUMMARY OF EVIDENCE
 
                                        
 
              The following is a summary of evidence presented in this 
 
         case. of all the evidence received at the hearing, only that 
 
         considered most pertinent to this decision is discussed.  
 
         Conclusions about what the evidence showed are inevitable with 
 
         any summarization.  The conclusions in the following summary 
 
         should be considered to be preliminary findings of fact.
 
         
 
              The evidentiary facts in this case are essentially 
 
         undisputed.  David Soppe injured his back when he fell over 
 
         backwards from a seated position.  The injury has been diagnosed 
 
         as a ruptured or herniated lumbar disc in his lumbosacral spine.  
 
         Claimant's
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         SOPPE V. FRUEHAUF CORPORATION
 
         Page 2
 
         
 
         
 
         treating physician has been Keith W. Riggins, M.O., an 
 
         orthopaedic surgeon.
 
         
 
              Claimant was treated conservatively until his recuperation 
 
         plateaued.  At that point, Dr. Riggins offered further treatment 
 
         options consisting of epidural steroid injection or a 
 
         laminectomy.  Claimant has declined further medical treatment.  
 
         Claimant testified that he has discussed the possibility of 
 
         surgery. with acquaintances who have had surgery and who have 
 
         been dissatisfied with the results.  Dr. Riggins has indicated 
 
         that even if claimant were to have the surgery, his actual 
 
         functional impairment would not be changed appreciably (exhibit 
 
         1; exhibit 11, pages 10 and 11).  Claimant is currently 
 
         restricted against a number of activities including bending, 
 
         lifting and other motions or movements which place strain upon 
 
         his back (exhibits 4, 6 and 11, pages 7 and 8).  Dr. Riggins has 
 
         assigned a 30 percent permanent partial impairment rating due to 
 
         the condition (exhibits 4, 5 and 11, page 7).  Dr. Riggins 
 
         relates claimant's injury to the incident which occurred at work 
 
         of which claimant testified at hearing (exhibit 11, page 7).
 
         
 
              All the witnesses who testified at hearing corroborated that 
 
         claimant's activities have changed markedly since his injury and 
 
         that he is quite restricted in his current physical capabilities.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
                                        
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of May 26, 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).
 
         
 
              Dr. Riggins clearly establishes that the injury produced the 
 
         disability that exists in claimant's low back.  While claimant 
 
         did have some preexisting conditions in his back, there is no 
 
         indication in the record that the condition was sufficiently 
 
         severe to warrant even a minimal impairment rating or any 
 
         restrictions upon claimant's.activities.  To the contrary, he was 
 
         quite active and symptom free prior to this injury.
 
         
 
              As claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
         593, 258 N.W. 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
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         SOPPE V. FRUEHAUF CORPORATION 
 
         Page 3
 
         
 
         
 
         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, 
 
         34th Biennial Report, 218 (1979): 2 Larson Workmen's Compensation 
 
         Law, sections 57.21 and 57.31.
 
         
 
              An employer's refusal to reemploy an injured worker is 
 
         strong evidence of a high degree of disability. 2 Larson 
 
         Workmen's Compensation Law, section 57.61; Sunbeam Corp. v. Bates
 
         , 271 Arkansas 385, 609 S.W.2d 102 (Ark. App. 1980).
 
         
 
              This case is somewhat complicated by claimant's refusal of 
 
         the offered surgery.  An injured employee cannot be forced to 
 
         undergo invasive medical treatment.  Johnson v. Tri-City 
 
         Fabricating & Welding Co., 33rd Biennial Report Iowa Industrial 
 
         Commissioner, 179 (App. Decn. 1977).  There is a duty to mitigate 
 
         damages or disability in a workers' compensation case and a 
 
         failure to do so by refusing to follow a physician's 
 
         recommendations regarding noninvasive treatments or procedures 
 
         can adversely affect entitlement to disability benefits.  Where 
 
         the offered treatment is noninvasive and offers few reasonable 
 
         risks, the refusal of treatment is seldom reasonable.  On the 
 
         other hand, a surgical invasive treatment carries with it 
 
         substantial risks.  Likewise, there is no guarantee that the 
 
         treatment will be successful.  Where the employee reasonably 
 
         refuses medical treatment, there is no basis for imposing any 
 
         sanction or penalty against the employee.  The correct measure of 
 
         the recovery in such cases is to award the claimant an amount 
 
         which is equivalent to what the employer would pay if the 
 
         employee were to have undergone the recommended treatment and 
 
         obtained the result from the treatment expected by the physician.  
 
         Stufflebeam v. City of Fort Dodge, 233 Iowa 438, 9 N.W.2d 281 
 
         (1943); 1
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         SOPPE V. FRUEHAUF CORPORATION 
 
         Page 4
 
         
 
         
 
         Larson Workmen's Compensation Law, section 13.22(f) and (g); 
 
         Steelman v. Justice, 227 P.2d 647 (Oklahoma 1951).  Even where 
 
         the refusal is unreasonable, the employer still has the burden of 
 
         establishing the degree of disability which is caused by the 
 
         claimant's failure to mitigate his damages by refusing the 
 
         recommended medical treatment.  Republic Steel Corporation v. 
 
         Workmen's Comp.  Appl.  Bd., 82 Pa.Cmmwlth. 596, 476 A.2d 989 
 
         (1984).
 
         
 
              The type of treatment which an injured individual is willing 
 
         to undergo in order to receive relief from a physical problem is 
 
         often a manifestation of the extent to which the physical problem 
 
         actually bothers the individual.  Most individuals who are 
 
         essentially totally disabled and unable to be self-supporting due 
 
         to an injury will go to great lengths in order to escape from 
 
         that disability.  It is an indication of what portion of the 
 
         person's activity restrictions which are self-imposed by virtue 
 
         of choice rather than by actual need due to the physical 
 
         condition.  In this case, it should be noted that Dr. Riggins has 
 
         indicated that even if claimant were to undergo surgery, his 
 
         functional impairment would not be appreciably changed.
 
         
 
              Claimant's limited education is such that his entire work 
 
         history has been involved with physical labor.  He has no 
 
         demonstrated aptitude for employment which utilizes his 
 
         intellectual abilities.  It is recognized, however, that the 
 
         restrictions and impairment rating which have been recommended by 
 
         Dr. Riggins are substantially more limiting than those which are 
 
         normally seen in cases of this nature following a reasonably 
 
         successful surgery.  Further, the physicians at the University of 
 
         Iowa Hospitals and Clinics (exhibits 7 and 16) indicate that 
 
         claimant is not necessarily unemployable.
 
         
 
              When all the material factors of industrial disability are 
 
         considered, it is determined that David Soppe has a 40 percent 
 
         permanent partial disability of the body as a whole which 
 
         entitles him to receive 200 weeks of compensation for permanent 
 
         partial disability.
 
         
 
              In reaching this award, it should be noted that the 
 
         employer's obligation to provide section 85.27 benefits remains 
 
         unaffected by this decision should claimant ever ultimately 
 
         desire to undergo further treatment.  The award,which is made 
 
         herein represents a 40 percent permanent partial disability 
 
         award, an amount which is what the undersigned would anticipate 
 
         would have been payable to claimant in the event that claimant 
 
         were to have elected surgery and obtained a reasonably good 
 
         result from the surgery as expected by the physician.  Should 
 
         claimant ultimately elect to undergo surgery, defendants are 
 
         entitled to credit for the benefits paid in the amounts 
 
         previously stated against the ultimate entitlement to healing 
 
         period and permanent partial disability compensation.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         SOPPE V. FRUEHAUF CORPORATION
 
         Page  5
 
         
 
         
 
              Claimant is also entitled to recover costs under the 
 
         provisions of Division of Industrial Services Rule 343-4.33. 
 
         These include the fees from the court reporter, Janet J. Den Adel 
 
         in the amount of $60.00 (exhibit 10) and an expert witness fee 
 
         for testimony from Dr. Riggins in the amount of $100.00 (exhibit
 
         9).
 
                                 FINDINGS OF FACT
 
                                        
 
              1.The event of which David Soppe testified involving falling 
 
         onto his back upon a protruding rock on May 26, 1987 is 
 
         determined to have been a substantial factor in producing the 
 
         herniated and bulging discs which exist in his low back as 
 
         diagnosed by Keith W. Riggins, M.D.
 
         
 
              2. The assessment of claimant's current physical impairment 
 
         and physical capabilities as determined by Dr. Riggins is 
 
         accepted as being correct.
 
         
 
              3. In the event that claimant were to undergo the 
 
         recommended surgeries, his physical restrictions would likely be 
 
         somewhat reduced, although he would most likely retain a 
 
         significant degree of functional physical impairment.
 
         
 
              4. If claimant were to undergo the recommended surgical 
 
         treatment, he would probably have a permanent loss of his earning 
 
         capacity of approximately 40 percent.
 
         
 
              5. Claimant's refusal to undergo surgery or other invasive 
 
         medical treatment is not unreasonable.
 
         
 
                                CONCLUSIONS OF LAW
 
                                        
 
              1. This agency has jurisdiction of the subject matter of 
 
         this proceeding and its parties.
 
         
 
              2. The condition of claimant's low back is an injury which 
 
         arose out of and in the course of his employment with Fruehauf 
 
         Corporation.
 
         
 
              3. Claimant has a 40 percent permanent partial disability in 
 
         industrial terms which entitles him to receive 200 weeks of 
 
         compensation.
 
         
 
                                      ORDER
 
                                        
 
              IT IS THEREFORE ORDERED that defendants pay claimant two 
 
         hundred (200) weeks of compensation for permanent partial 
 
         disability at the stipulated rate of one hundred ninety-six and 
 
         54/100 dollars ($196.54) per week payable commencing July 30, 
 
         1987.  Defendants are entitled to receive credit for all amounts 
 
         previously paid and shall pay any unpaid past due amounts in a 
 
         lump sum together with interest pursuant to Iowa Code section 
 
         85.30.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         SOPPE V. FRUEHAUF CORPORATION  
 
         Page 6
 
         
 
         
 
              IT IS FURTHER ORDERED that defendants remain liable to 
 
         provide claimant with benefits under the provisions of Code 
 
         section 85.27; however, in the event that claimant seeks 
 
         additional medical treatment which would involve' an entitlement 
 
         to additional healing period compensation, the amounts awarded 
 
         herein shall constitute a credit towards that healing period 
 
         compensation and the amount of permanent partial disability 
 
         compensation to which claimant may ultimately be entitled.
 
         
 
              IT IS FURTHER ORDERED that defendants pay the costs of this 
 
         action pursuant to Division of Industrial Services Rule 343-4.33 
 
         including a court reporter fee and expert witness fee in the 
 
         total sum of one hundred sixty and 00/100 dollars ($160.00).
 
         
 
              IT IS FURTHER ORDERED that defendants file claim activity 
 
         reports as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1
 
         
 
              Signed and filed this 30th day of May, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                         MICHAEL G. TRIER
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. James P. Hoffman
 
         Attorney at Law
 
         Middle Road
 
         P.O. Box 1066
 
         Keokuk, Iowa 52632
 
         
 
         Mr. Elliott R. McDonald, Jr.
 
         Attorney at Law
 
         P.O. Box 2746
 
         Davenport, Iowa 52809
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
                                                 
 
 
 
 
 
 
 
 
 
 
 
                                                 1402.40, 1403.30, 1704
 
                                                 1803, 2700
 
                                                 Filed May 30, 1989
 
                                                 MICHAEL G. TRIER
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DAVID SOPPE,
 
          
 
               Claimant,
 
          
 
          VS.                                    File  No. 848618
 
          
 
          FRUEHAUF CORPORATION,               A R B I T R A T I 0 N
 
          
 
               Employer,                         D E C I S I 0 N
 
          
 
          and
 
          
 
          CNA INSURANCE COMPANIES,
 
          
 
               Insurance Carrier,
 
               Defendants.
 
          
 
          
 
         1402.40, 1403.30, 1704, 1803, 2700
 
         
 
              Claimant sustained an injury which produced a herniated disc 
 
         in his low back.  He refused surgery due to less than optimum 
 
         results which had been received by some of his acquaintances.  It 
 
         was held that in such a case, an award of permanent partial 
 
         disability is to be made which is equivalent to what the 
 
         employer's liability for healing period and permanent partial 
 
         disability would be if the claimant were to undergo the 
 
         recommended treatment and obtain the result anticipated by the 
 
         medical practitioners.  It was further held that the burden of 
 
         showing the reduction in disability which would result from 
 
         medical. treatment is placed upon the defendants and that 
 
         claimant's only burden is to establish the current degree of 
 
         disability.
 
         
 
              Employer was held to remain responsible for section 85.27 
 
         benefits; however, in the event that claimant elects surgery, the 
 
         amount of permanent partial disability compensation awarded may 
 
         be applied as a credit toward additional healing period and any 
 
         ultimate permanent partial disability to which the claimant is 
 
         entitled.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
        
 
 
 
 
 
        
 
        
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
                                                               
 
                                                               
 
        VELDA ADAMS,
 
                                                  File No. 848629
 
            Claimant,
 
                                               A R B I T R A T I O N
 
        vs.
 
                                                  D E C I S I O N
 
        GRANT L. HAYES and DEVA HAYES,
 
                                                     F I L E D
 
            Employers,
 
             Defendants.                   IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
                                 STATEMENT OF THE CASE
 
        
 
             This is a proceeding in arbitration brought by Velda Adams, 
 
             claimant, against Grant L. and Deva Hayes, employers, whose 
 
             insurance carrier, if any, is unknown, defendants, for workers' 
 
             compensation benefits as the result of an alleged injury on 
 
             October 9, 1986. On September 6, 1988, a hearing was held on 
 
             claimant's petition and the matter was considered fully submitted 
 
             at the close of this hearing.
 
        
 
            The parties have submitted a prehearing report of contested 
 
        issues and stipulations which was approved and accepted as a part 
 
        of the record of this case at the time of hearing. The exhibits 
 
        received into the evidence at the hearing are listed in the 
 
        prehearing report.
 
        
 
            According to the prehearing report, the parties have 
 
        stipulated to the following matters:
 
        
 
            1. On October 9, 1986, claimant received an injury which 
 
        arose out of and in the course of employment with Grant and Deva 
 
        Hayes.
 
        
 
            2. The injury of October 9, 1986, is not a cause of 
 
        permanent disability at this time but the injury is a cause of a 
 
        period of temporary total disability entitling claimant to weekly 
 
        benefits from October 9, 1986 through December 15, 1986, at the 
 
        rate of $127.63 per week.
 
        
 
            3. The medical expenses listed by claimant in the 
 
        prehearing report are reasonable, causally connected to the work 
 
        injury, and were authorized by defendants.
 
        
 
            4. Claimant has been paid salary in lieu of compensation 
 
        for 9.857 weeks during the period of temporary total disability 
 
        at the rate of $200 per week.
 
        
 
                                      ISSUE
 
        
 
             The only issue submitted by the parties is whether 
 
             defendants are entitled to take a credit against their liability 
 
             for payment of medical expenses for excess payments of temporary 
 
             total disability.
 
        
 
                                 STATEMENT OF THE FACTS
 
        
 

 
        
 
 
 
 
 
             According to the evidence, claimant was injured from a fall 
 
             onto concrete steps on October 9, 1986, and was off work for 
 
             treatment of right rib and shoulder pain from the date of injury 
 
             until December 16, 1986.
 
        
 
                            APPLICABLE LAW AND ANALYSIS
 
        
 
             Pursuant to Iowa Code section 85.27, claimant is entitled to 
 
             payment of reasonable medical expenses incurred for treatment of 
 
             a work injury. However, claimant is entitled to an order of 
 
             reimbursement only if claimant has paid those expenses. 
 
             Otherwise, claimant is entitled to an order directing the 
 
             responsible defendants to make such payments directly to 
 
             providers. See Krohn v. State, 420 N.W.2d 463 (Iowa 1988).
 
        
 
            The workers' compensation act is in derogation of the common 
 
        law and is to be construed according to its terms and as it 
 
        reads. Comingore v. Shenandoah Art. Ice, Etc., Co., 208 Iowa 430, 
 
        226 N.W. 124 (Iowa 1929). The primary purpose of the workers' 
 
        compensation statute is to benefit workers and workers' 
 
        dependents insofar as the statute permits and is to be 
 
        interpreted liberally with view toward that objective. 
 
        Caterpillar Tractor Co. v. Shook, 313 N.W.2d 503 (Iowa 1981). 
 
        Workers' compensation statutes are to be liberally construed in 
 
        favor of the injured worker. Beier Glass Co. v. Brundige, 329 
 
        N.W.2d 280, 283 (Iowa 1983).
 
        
 
            In the case sub judice, the sole issue is whether defendants 
 
        are entitled to take a credit against medical benefits for salary 
 
        paid in lieu of compensation which is in excess of claimant's 
 
        entitlement to temporary total disability. This question has 
 
        been previously dealt with by this agency. Such a credit is not 
 
        allowed. Anderson v. Woodward State Hospital-School and the 
 
        State of Iowa, 2-1 Iowa Industrial Commissioner Decisions 24 
 
        (Appeal Decision 1985) . This is a binding precedent upon the 
 
        undersigned administrative law judge.
 
        
 
                                 FINDINGS OF FACT
 
        
 
             1. Claimant was paid the sum of $200 per week during her 
 
             period of temporary total disability resulting from the work 
 
             injury of October 9, 1986.
 
        
 
             2. As a result of the injury of October 9, 1986, claimant 
 
             incurred medical expenses listed in the prehearing report which 
 
             totaled $910.64.
 
        
 
                                 CONCLUSION OF LAW
 
        
 
             Defendants are not entitled to take a credit against the 
 
             medical expenses for excess payments of salary in lieu of 
 
             compensation.
 
        
 
                                      ORDER
 
        
 
             1. Defendants shall pay to claimant the medical expenses 
 
             listed in the prehearing report. If claimant has paid these 
 
             expenses, defendants shall reimburse claimant. Otherwise, 
 
             defendants shall pay the providers directly.
 
        
 
            2. Defendants shall pay the costs of this action pursuant 
 
        to Division of Industrial Services Rule 343-4.33.
 
        
 
            3. Defendants shall file activity reports on the payment of 
 
        this award as requested by this agency pursuant to Division of 
 
        Industrial Services Rule 343-3.1.
 

 
        
 
 
 
 
 
        
 
        
 
            Signed and filed this 24th day of April, 1989.
 
        
 
        
 
        
 
        
 
        
 
        
 
                                     LARRY WALSHIRE
 
                                     DEPUTY INDUSTRIAL COMMISSIONER
 
        
 
        Copies To:
 
        
 
        Mr. Dennis L. Hanssen
 
        Attorney at Law
 
        Terrace Center, STE 111
 
        2700 Grand Ave.
 
        Des Moines, Iowa 50312
 
        
 
        Mr. Jeffrey G. Flagg
 
        Attorney at Law
 
        415 Midland Financial Bldg.
 
        Des Moines, Iowa 50309
 
        
 
        
 
 
        
 
 
 
 
 
        
 
        
 
                                               2503
 
                                               Filed April 24, 1989
 
                                               LARRY P. WALSHIRE
 
        
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        VELDA ADAMS,
 
        
 
             Claimant,
 
                                              File No. 848629
 
        vs.
 
                                           A R B I T R A T I O N
 
        GRANT L. HAYES and DEVA HAYES,
 
                                              D E C I S I O N
 
             Employers,
 
             Defendants.
 
             
 
             
 
             
 
        2503
 
        
 
             Defendants are not entitled to take a credit against the 
 
             payment of medical expenses for salary paid in lieu of 
 
             compensation which exceeds the entitlement to temporary total 
 
             disability benefits.
 
             
 
        
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            JAMES PAPPAS,                 :
 
                                          :       File No. 848638
 
                 Claimant,                :
 
                                          :        R E V I E W -
 
            vs.                           :
 
                                          :      R E O P E N I N G
 
            DU PONT DENEMOURS E.I. & CO.,:
 
                                          :       D E C I S I O N
 
                 Employer,                :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a review-reopening proceeding upon the petition 
 
            of claimant, James Pappas, against his self-insured 
 
            employer.  The agreement for settlement was approved by then 
 
            Deputy Industrial Commissioner, Deborah Dubik.  In the Order 
 
            of September 27, 1988, Deputy Dubik approved a settlement of 
 
            4 percent of the right leg for a total of 8.8 weeks of 
 
            permanent partial disability benefits.
 
            
 
                 On December 11, 1989, claimant filed a review-reopening 
 
            proceeding on the basis there has been a change of 
 
            condition.  A motion for partial summary judgment was filed 
 
            by defendant on February 1, 1991.  A ruling on the motion 
 
            for summary judgment was filed by Deputy Industrial 
 
            Commissioner Jean Ingrassia on March 7, 1991.  In her 
 
            ruling, Deputy Ingrassia wrote:
 
            
 
                    Pursuant to an arbitration proceeding brought 
 
                 in 1987, claimant sought benefits for injuries to 
 
                 the right leg and back allegedly caused by a work 
 
                 injury of January 6, 1986.
 
            
 
                    The arbitration proceeding was resolved by an 
 
                 agreement for settlement which was approved by a 
 
                 deputy industrial commissioner on September 27, 
 
                 1988.
 
            
 
                    Although claimant was aware of his back 
 
                 problems and had alleged their causal connection 
 
                 to his January 6, 1986 work injury at the time of 
 
                 entering into the compensation agreement, that 
 
                 agreement limited claimant's entitlement then and 
 
                 in the future to benefits allowed for an injury to 
 
                 the leg.
 
            
 
                    The effect of the compensation agreement was to 
 
                 foreclose claimant on a final, non-reviewable 
 
                 basis from receiving compensation for his back 
 
                 condition.
 
            
 
                    Claimant, nonetheless, currently seeks 
 
                 industrial disability benefits for his back 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                 condition in these currently pending 
 
                 review/reopening proceedings of the compensation 
 
                 agreement approved on September 27, 1988.
 
            
 
                    The movants have met their burden of 
 
                 establishing no genuine issue of material fact as 
 
                 to claimant's claim for benefits on account of his 
 
                 back condition because pursuant to agency 
 
                 precedent, such claim is precluded by the 
 
                 compensation agreement approved on September 27, 
 
                 1988.  Spence v. Griffin Wheel Company, Ruling on 
 
                 Rehearing, June 19, 1990, File No. 667226.
 
            
 
                    THEREFORE, it is ordered:
 
            
 
                    The motion for summary judgment is granted.
 
            
 
                 Claimant appealed.  An appeal ruling was filed on April 
 
            25, 1991, whereby the appeal was dismissed on the grounds 
 
            that the appeal was interlocutory.
 
            
 
                 On February 26, 1992, defendant filed a motion for 
 
            exclusion of evidence or continuance.  A response was filed 
 
            by claimant on April 2, 1992.  On April 7, 1992, Deputy 
 
            Industrial Commissioner, HelenJean M. Walleser, filed her 
 
            ruling which provided in relevant portion that:
 
            
 
                    In the motion to exclude, defendant seeks 
 
                 exclusion of evidence relative to any industrial 
 
                 disability in that by Ruling on Motion for Summary 
 
                 Judgment filed March 7, 1991, it was held that 
 
                 claimant's claim for benefits on account of his 
 
                 back is precluded by a compensation agreement 
 
                 regarding his injury, which agreement was approved 
 
                 on September 27, 1988.
 
            
 
                    In his response, claimant argues that 
 
                 presenting evidence relative to the industrial 
 
                 disability question is appropriate in that, should 
 
                 the summary judgment be overridden at a later 
 
                 date, it would be necessary to retry this case at 
 
                 that time.
 
            
 
                    In the reply to the response, at paragraph 2, 
 
                 defendant states, "If the Ruling on Motion for 
 
                 Summary Judgment were reversed after issuance of 
 
                 the decision disposing of the entire contested 
 
                 case and an appeal by claimant, the appropriate 
 
                 time for trying the issue of extent of industrial 
 
                 disability would be during remand proceedings 
 
                 before a deputy industrial commissioner."
 
            
 
                    Defendant's argument is well-founded.  
 
                 Admission of that evidence related to any 
 
                 industrial disability question at this time would 
 
                 amount to overruling the decision of another 
 
                 deputy, which decision has not been reversed by 
 
                 the industrial commissioner.  Neither the 
 
                 undersigned nor any other deputy has the authority 
 
                 to do such.  For that reason, defendant's Motion 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                 for Exclusion of Evidence relative to any 
 
                 industrial disability related to claimant's 
 
                 alleged back condition as a result of a work 
 
                 injury of January 6, 1986, is granted.  As 
 
                 defendant's motion to exclude is granted, 
 
                 continuance of this matter is not necessary and 
 
                 defendant's Motion for Continuance is denied.
 
            
 
                    THEREFORE, IT IS ORDERED that defendant's 
 
                 Motion for Exclusion of Evidence is granted.
 
            
 
                 IT IS FURTHER ORDERED that defendant's Motion for 
 
                 Continuance is denied.
 
            
 
                 At the hearing, the parties made a record relative to 
 
            the case proceedings up to that time.  The record before 
 
            this deputy consists of the testimony of claimant, the 
 
            testimony of Bruce Renfro, as well as joint exhibit 1-11.
 
            
 
                                      issues
 
            
 
                 The issues before this deputy are:  1) whether there 
 
            has been a change of condition since the date the agreement 
 
            for settlement was approved; and 2) if so, the benefits to 
 
            which claimant is entitled.
 
            
 
                                 findings of fact
 
            
 
                 The deputy, having heard the testimony and considered 
 
            all the evidence, finds:
 
            
 
                 Claimant injured his knee while working for defendant.  
 
            As aforestated, an agreement for settlement was approved by 
 
            this office, whereby claimant sustained a 4 percent 
 
            permanent partial disability to the right lower extremity.
 
            
 
                 Claimant testified that his knee had worsened since 
 
            September 27, 1988, the date the settlement agreement had 
 
            been approved.  He stated that "his knee gives out", about 
 
            the same number of times that it gave out on September 27, 
 
            1988.  Claimant testified that his right knee pain was "a 
 
            little bit worse" than the pain he experienced as of 
 
            September 27, 1988.
 
            
 
                 Upon cross-examination, claimant stated that he had not 
 
            seen a physician for his right knee since 1990 when he 
 
            sought treatment from his family physician, Timothy H. Cook, 
 
            M.D.  Claimant also indicated that he only took various 
 
            over-the-counter medications for his right knee pain.
 
            
 
                                conclusions of law
 
            
 
                 An injury to a scheduled member may, because of after 
 
            effects or compensatory change, result in permanent 
 
            impairment of the body as a whole.  Such impairment may in 
 
            turn be the basis for a rating of industrial disability.  It 
 
            is the anatomical situs of the permanent injury or 
 
            impairment which determines whether the schedules in section 
 
            85.34(2)(a) - (t) are applied.  Lauhoff Grain v. McIntosh, 
 
            395 N.W.2d 834 (Iowa 1986); Blacksmith v. All-American, 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            Inc., 290 N.W.2d 348 (Iowa 1980); Dailey v. Pooley Lumber 
 
            Co., 233 Iowa 758, 10 N.W.2d 569 (1943).  Soukup v. Shores 
 
            Co., 222 Iowa 272, 268 N.W. 598 (1936).
 
            
 
                 Upon review-reopening, claimant has the burden to show 
 
            a change in condition related to the original injury since 
 
            the original award was made.  The change may be either 
 
            economic or physical.  Blacksmith v. All-American, Inc., 290 
 
            N.W.2d 348, 354 (Iowa 1980); Henderson v. Iles, 250 Iowa 
 
            787, 96 N.W.2d 321 (1959).  A mere difference of opinion of 
 
            experts as to the percentage of disability arising from an 
 
            original injury is not sufficient to justify a different 
 
            determination on a petition for review-reopening.  Rather, 
 
            claimant's condition must have worsened or deteriorated in a 
 
            manner not contemplated at the time of the initial award 
 
            before an award on review-reopening is appropriate.  
 
            Bousfield v. Sisters of Mercy, 249 Iowa 64, 86 N.W.2d 109 
 
            (1957).  A failure of a condition to improve to the extent 
 
            anticipated originally may also constitute a change of 
 
            condition. Meyers v. Holiday Inn of Cedar Falls, Iowa, 272 
 
            N.W.2d 24 (Iowa App. 1978).
 
            
 
                 Interest accrues on awards of permanent disability in 
 
            review-reopening proceedings from a prior award or 
 
            settlement from the date of the second disability award.  
 
            Bousfield v. Sisters of Mercy, 249 Iowa 64, 86 N.W.2d 109 
 
            (1957).
 
            
 
                 With respect to this case, the medical notes of Dr. 
 
            Cook as of September 27, 1988, reveal that:
 
            
 
                 ... osteo arthritis - Review
 
                 lab results -
 
                     Feels fine
 
                 ...
 
            
 
     
 
            
 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            Notes for February 15, 1990, reveal that:
 
            
 
                 ... denies complaints,
 
            except back pain & knee
 
            pain ...
 
            
 
                 Records for claimant at Rick C. Courtney, D.C., reveal 
 
            that:
 
            
 
                      R knee decreased jt space w/increased tibial 
 
                 spines -
 
            
 
            (Exhibit 6, page 7)
 
            
 
                 The evidence before this deputy does not indicate a 
 
            change of condition to the right lower extremity since 
 
            September 27, 1988.  Medical evidence does not indicate a 
 
            change of condition since the date the settlement was 
 
            approved.  Even claimant testified that his "knee gave out 
 
            about the same," and that he recovered about one year after 
 
            Koert Smith, M.D., performed knee surgery on February 19, 
 
            1986.
 
            
 
                 The party who would suffer loss if an issue were not 
 
            established has the burden of proving that issue by a 
 
            preponderance of the evidence.  Iowa R. of App. P. 14(f).
 
            
 
                 Claimant has not met his burden of proof.  He has not 
 
            established there is any change of condition since the order 
 
            approving the settlement agreement was filed.  No medical 
 
            expert opined there had been a change of condition since 
 
            September 27, 1988.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Claimant takes nothing from these proceedings.
 
            
 
                 Costs are taxed to defendant pursuant to rule 343 IAC 
 
            4.33.
 
            
 
            
 
            
 
                 Signed and filed this ____ day of May, 1992.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________               
 
            MICHELLE A. McGOVERN
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr. James P. Hoffman
 
            Attorney at Law
 
            Middle Road
 
            Box 1087
 
            Keokuk, Iowa  52632
 
            
 
            Mr. Roger L. Ferris
 
            Ms. Sara J. Sersland
 
            Attorneys at Law
 
            1900 Hub Tower
 
            699 Walnut
 
            Des Moines, Iowa  50309
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          2600; 2601; 2602; 2900;
 
                                          2902; 2905; 2906
 
                                          Filed May 7, 1992
 
                                          MICHELLE A. McGOVERN
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            JAMES PAPPAS,                 :
 
                                          :       File No. 848638
 
                 Claimant,                :
 
                                          :        R E V I E W -
 
            vs.                           :
 
                                          :      R E O P E N I N G
 
            DU PONT DENEMOURS E.I. & CO.,:
 
                                          :       D E C I S I O N
 
                 Employer,                :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
            
 
            2900; 2902; 2905; 2906
 
            Claimant was unable to prove a change of condition.  
 
            Claimant had a settlement agreement approved on September 
 
            27, 1988, which provided for a 4 percent permanent partial 
 
            disability to the right lower extremity.  There was 
 
            absolutely no evidence to show a change of condition since 
 
            that date.
 
            
 
            
 
            2600; 2601; 2602
 
            Prior to the date of the hearing, a deputy industrial 
 
            commissioner filed a ruling excluding certain evidence which 
 
            claimant desired to admit.  At the hearing, claimant's 
 
            attorney was allowed to make an argument on the record so as 
 
            to preserve any possible error.  However, all evidence, 
 
            excluded by the ruling deputy was not admitted as part of 
 
            the case in chief.