BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        ARR ANDERSON,
 
        
 
            Claimant,
 
        
 
        vs                                      File No. 850096
 
        
 
        HIGH RISE CONSTRUCTION               A R B I T R A T I O N
 
        SPECIALISTS, INC.,
 
                                                D E C I S I O N
 
            Employer,
 
        
 
        and                                        F I L E D
 
        
 
        THE HARTFORD,                             MAR 13 1989
 
        
 
            Insurance Carrier,          IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
                                      INTRODUCTION
 
        
 
             This is a proceeding in arbitration brought by Mark 
 
             Anderson, claimant, against High Rise Construction Specialists, 
 
             Inc., employer, and The Hartford Insurance Company, insurance 
 
             carrier, defendants. The case was heard by the undersigned in 
 
             Des Moines, Iowa at the Polk County Courthouse on February 21, 
 
             1989. The case was fully submitted at the close of the hearing.
 
        
 
            The record consists of the testimony of claimant and the 
 
        testimony of Lawrence Reichwaldt, Vice President of defendant, 
 
        employer. The record also consists of claimant's exhibits 1 to 
 
        7, and defendants' exhibits 1 to 8. After the record had been 
 
        closed, claimant attempted to offer an additional exhibit. 
 
        Claimant sought to offer a dental bill from Lance W. Crawford, 
 
        D.D.S. This, however, is not part of the record. See: Division 
 
        of Industrial Services Rule 343-4.31.
 
        
 
            The parties stipulated:
 
        
 
            1. The existence of an employer-employee relationship 
 
        between claimant and employer at the time of the alleged injury;
 
        
 
            2. That claimant sustained an injury on April 10, 1987, 
 
        which arose out of and in the course of employment with employer;
 
        
 
            3. That the alleged injury is a cause of temporary 
 
        disability during a period of recovery;
 
             4. The extent of entitlement to weekly compensation for 
 
             temporary total disability or healing period, if defendants are 
 
             liable for the injury, is stipulated to be from April 11, 1987 to 
 
             July 14, 1988;
 
        
 
            5. The extent of entitlement to weekly compensation for 
 
        permanent disability, if defendants are liable for injury, is 
 
        stipulated to be 88 weeks for a 10 percent loss of use of leg;
 
        
 
            6. The type of permanent disability, if the injury is found 
 
        to be a cause of permanent disability, is stipulated to be a 
 

 
        
 
 
 
 
 
        scheduled member disability to the leg; and,
 
        
 
            7. The commencement date for permanent partial disability, 
 
        in the event such benefits are awarded, is stipulated to be the 
 
        15th day of July, 1988.
 
        
 
                                      ISSUES
 
        
 
             Pursuant to the prehearing report and order approving the 
 
             same which was filed on February 21, 1989, the parties presented 
 
             the following issues:
 
        
 
            l) The appropriate weekly rate which claimant is to be paid 
 
        pursuant to section 85.36;
 
        
 
            2) Whether claimant is entitled to payment for certain 
 
        hospital expenses under section 85.27;
 
        
 
            3) Whether claimant is entitled to payment for certain 
 
        dental expenses under section 85.27; and,
 
        
 
            4) To whom the costs of the action should be assessed.
 
        
 
                                 FACTS PRESENTED
 
        
 
             Claimant testified he was hired through the local union hall 
 
             to work as a laborer on the Iowa State University Soiltilth Lab 
 
             in Ames, Iowa. He commenced his employment on March 25, 1987, 
 
             which was a Wednesday. Claimant stated that Richard Shoemocher 
 
             was also hired as a laborer during the same week. That week, 
 
             claimant was required to report his time worked on a Tuesday. 
 
             Claimant's time sheet reflected four days worked, at eight hours 
 
             per day for a total of 32 hours.
 
        
 
            Claimant related during week two of his employment, he 
 
        worked 35 1/2 hours, but that he requested four and one half 
 
        hours of unpaid leave so he could conduct personal business. 
 
        Other workers completed 40 hours of work during that period.
 
        
 
             Claimant reported on direct examination that he worked three 
 
             days during week three of his employment, but he was injured on 
 
             the third day (April 10, 1987). Claimant, however, was paid for 
 
             24 hours of work.
 
        
 
            Claimant's injury resulted in various injuries to his leg. 
 
        Claimant was hospitalized on two separate occasions. Certain 
 
        charges for care were not paid by defendants.
 
        
 
            Subsequent to his hospital stays, claimant testified he 
 
        sought various dental services because of a loose bridge. 
 
        Claimant related that his hand had struck his chin when he fell 
 
        on the tenth of April. According to claimant, the blow caused 
 
        the front upper bridge to loosen. As a result, claimant stated 
 
        he was forced to seek the services of several dental 
 
        practitioners.
 
        
 
            Lawrence Reichwaldt testified on behalf of defendants. Mr. 
 
        Reichwaldt related on direct examination that he recalled the 
 
        incidents leading up to the hiring of claimant. Mr. Reichwaldt 
 
        stated he called the local union hall in search of potential 
 
        laborers. Claimant walked onto the job site per that telephone 
 
        call and he filled out the appropriate forms. Mr. Reichwaldt 
 
        stated he never guaranteed 40 hours of work to claimant. Mr. 
 
        Reichwaldt also stated that other than a few foremen, defendant, 
 
        employer only hired employees when there were on-going projects 
 
        and work was available.
 

 
        
 
 
 
 
 
        
 
            On cross-examination, Mr. Reichwaldt revealed that claimant, 
 
        up to the time of the accident, worked the time available to him, 
 
        except for the hours claimant requested as unpaid leave. Mr. 
 
        Reichwaldt also stated that if work is available, then the 
 
        employees work 40 hours per week. However, Mr. Reichwaldt was 
 
        emphatic that he did not guarantee 40 hours to employees.
 
        
 
                            APPLICABLE LAW AND ANALYSIS
 
        
 
             An employee is entitled to compensation for any and all 
 
             personal injuries which arise out of and in the course of the 
 
             employment. Section 85.3(1).
 
        
 
            The opinions of experts need not be couched in definite, 
 
        positive or unequivocal language. Sondag v. Ferris Hardware, 220 
 
        N.W.2d 903 (Iowa 1974). An opinion of an expert based upon an 
 
        incomplete history is not binding upon the commissioner, but must 
 
        be weighed together with the other disclosed facts and 
 
        circumstances. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 
 
        867 (1965). The expert medical evidence must be considered with 
 
        all other evidence introduced bearing on the causal connection 
 
        between the injury and the disability. Burt v. John Deere 
 
        Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). In 
 
        regard to medical testimony, the commissioner is required to 
 
        state the reasons on which testimony is accepted or rejected. 
 
        Sondag, 220 N.W.2d 903 (1974).
 
        
 
             The claimant has the burden of proving by a preponderance of 
 
             the evidence that the injury of April 10, 1987 is causally 
 
             related to the disability on which he now bases his claim. 
 
             Bodish, 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, 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 first issue to address is the issue dealing with the 
 
        weekly benefit rate. In the case at hand, claimant was an hourly 
 
        employee. He, however, was only hired two weeks and two days 
 
        prior to the date of his work injury. To determine the 
 
        appropriate rate for which claimant should be paid, section 85.36 
 
        of the Iowa Code must be consulted.
 
        
 
            Section 85.35 provides in relevant portion:
 
        
 
                  The basis of compensation shall be the weekly earnings of 
 
                      the injured employee at the time of the injury. Weekly 
 
                      earnings means gross salary, wages, or earnings of an 
 
                      employee to which such employee would have been entitled had 
 
                      the employee worked the customary hours for the full pay 
 
                      period in which the employee was injured, as regularly 
 
                      required by the employee's employer for the work or 
 
                      employment for which the employee was employed, computed or 
 
                      determined as follows and then rounded to the nearest 
 
                      dollar:
 
             
 
             
 
                . . .
 
        
 
             6. In the case of an employee who is paid on a daily, or 
 
             hourly basis, or by the output of the employee, the weekly 
 
             earnings shall be computed by dividing by thirteen the 
 
             earnings, not including overtime or premium pay, of said 
 
             employee earned in the employ of the employer in the last 
 

 
        
 
 
 
 
 
             completed period of thirteen consecutive calendar weeks 
 
             immediately preceding the injury.
 
             
 
             7. In the case of an employee who has been in the employ of 
 
             the employer less than thirteen calendar weeks immediately 
 
             preceding the injury, the employee's weekly earnings shall 
 
             be computed under subsection 6, taking the earnings, not 
 
             including overtime or premium pay, for such purpose to be 
 
             the amount the employee would have earned had the employee 
 
             been so employed by the employer the full thirteen calendar 
 
             weeks immediately preceding the injury and had worked, when 
 
             work was available to other employees in a similar 
 
             occupation.
 
             
 
             The method for applying section 85.36(6), and section 
 
             85.36(7) is discussed in Lawyer and Higgs, Iowa Workers' 
 
             Compensation -- Law and Practice, section 12-4 (1984). This 
 
             section states at 97-98:
 
        
 
             ...It is not uncommon in determining the rate under section 
 
             85.36(6) for a non-salaried employee to find that there are 
 
             weeks within the thirteen consecutive weeks prior to the 
 
             injury that contain absences due to illness, vacation or 
 
             other causes. Since the worker often does not get paid 
 
             unless he works, these weeks are not representative of his 
 
             earnings. The agency has consistently ruled that these 
 
             weeks are not included in the thirteen weeks for determining 
 
             the rate under Iowa Code section 85.36(6). Instead, the 
 
             "short" weeks are skipped and additional weeks are included 
 
             until thirteen completed consecutive weeks are accumulated 
 
             for the calculation. The rationale for this method of 
 
             determining the weekly earnings is based on the mandate of 
 
             the first unnumbered paragraph of Iowa Code section 85.36 
 
             which requires a determination of earnings to which an 
 
             employee "would have been entitled had he worked the 
 
             customary hours for the full pay period in which he was 
 
             injured...."
 
             
 
                 . . .
 
        
 
                  When the employee has worked for the employer "less than 
 
                      thirteen calendar weeks immediately preceding the 
 
                      injury...," his rate is based on "the amount he would have 
 
                      earned had he been so employed by the employer the full 
 
                      thirteen calendar weeks immediately preceding the injury and 
 
                      had worked when work was available to other employees in a 
 
                      similar occupation."
 
             
 
              The fighting ground in this determination is: What is 
 
             considered a similar occupation and how much work was 
 
             available.
 
             
 
             In the case at hand, claimant was one of the first laborers 
 
             hired for the ISU project. There were no other similarly 
 
             situated employees hired prior to claimant's employment. While 
 
             defendants presented evidence as to the hours worked for a 13 
 
             week period in 1986 by a Dewayne Sellers, there was no evidence 
 
             how the weeks worked by Mr. Sellers were similar to the 13 weeks 
 
             prior to claimant's injury. Nor was there evidence that the 
 
             projects were similar or that the climatic conditions were 
 
             similar.
 
        
 
             In cases where there is no evidence presented on work 
 
             available to other employees in similar situations as is the case 
 
             here, the proper method for calculating gross wages is to divide 
 
             the total amount earned while working for a particular employer 
 

 
        
 
 
 
 
 
             by the number of weeks worked prior to the injury. Barker v. 
 
             City Wide Cartage, I Iowa Industrial Commissioner Report 12, 15 
 
             (Appeal Decision 1980).
 
        
 
            Also with regard to the case at hand, it is noted that 
 
        "short" weeks are skipped. During week two, claimant was hired 
 
        for a full 40 hour work week. However, claimant requested time 
 
        off for personal reasons. This week should not be used when 
 
        calculating claimant's gross wages.
 
        
 
            The undersigned finds the proper method for calculating 
 
        claimant's weekly rate is as follows:
 
        
 
            Add the hours worked for the two weeks when claimant worked 
 
        all hours available to him, by the actual number of weeks which 
 
        claimant did in fact work less the short week, 32 + 24 = 56 hours 
 
        - 1.429 (1 week, 3 days) = average 39.18 hours worked per week x 
 
        $6.50 rate per hour = $254.67 as average gross weekly wages. The 
 
        workers compensation benefits schedule for July 1, 1986, provides 
 
        a weekly compensation rate of $162.04 per week for a single 
 
        employee with two exemptions. Consequently, the proper rate of 
 
        weekly compensation is determined to be $162.04 per week.
 
        
 
            The next issue to address is whether claimant is entitled to 
 
        payment for certain hospital and dental expenses.
 
        
 
            Iowa Code section 85.27 (1987) governs the payment of 
 
        medical expenses. This section mandates in relevant part:
 
        
 
                  The employer, for all injuries compensable under this 
 
                      chapter or chapter 85A, shall furnish reasonable surgical, 
 
                      medical, dental, osteopathic, chiropractic, podiatric, 
 
                      physical rehabilitation, nursing, ambulance and hospital 
 
                      services and supplies therefor and shall allow reasonably 
 
                      necessary transportation expenses incurred for such 
 
                      services. The employer shall also furnish reasonable and 
 
                      necessary crutches, artificial members and appliances but 
 
                      shall not be required to furnish more than one set of 
 
                      permanent prosthetic devices.
 
        
 
              ...
 
        
 
                  Charges believed to be excessive or unnecessary may be 
 
                      referred to the industrial commissioner for determination, 
 
                      and the commissioner may, in connection therewith, utilize 
 
                      the procedures provided in sections 86.38 and 86.39 and 
 
                      conduct such inquiry as the commissioner shall deem 
 
                      necessary...
 
                  
 
                  For purposes of this section, the employer is obliged to 
 
                      furnish reasonable services and supplies to treat an injured 
 
                      employee, and has the right to choose the care.
 
             
 
               ...
 
             
 
             The treatment must be offered promptly and be reasonably 
 
             suited to treat the injury without undue inconvenience to 
 
             the employee....
 
             
 
               ...
 
             
 
             When an artificial member or orthopedic appliance, whether 
 
             or not previously furnished by the employer, is damaged or 
 
             made unusable by circumstances arising out of and in the 
 
             course of employment other than through ordinary wear and 
 
             tear, the employer shall repair or replace it. When any 
 

 
        
 
 
 
 
 
             crutch, artificial member or appliance, whether or not 
 
             previously furnished by the employer, either is damaged or 
 
             made unusable in conjunction with a personal injury 
 
             entitling the employee to disability benefits, or services 
 
             as provided by this section or is damaged in connection with 
 
             employee actions taken which avoid such personal injury, the 
 
             employer shall repair or replace it.
 
             
 
             The issue of medical benefits is analyzed in Lawyer and 
 
             Higgs, Iowa Workers' Compensation -- Law & Practice, section 15 
 
             (1984). The authors write at 133-134:
 
        
 
                  The employer has the right to choose the care which must 
 
                      be offered promptly and without undue inconvenience to the 
 
                      employee. The employee has the burden of showing the 
 
                      treatment is related to the injury. Proof of the necessity 
 
                      of treatment may be found in the claimant's own testimony. 
 
                      Should the treatment result in additional harm, the employee 
 
                      will be entitled to additional compensation.
 
             
 
                  When an employee is being treated for more than one 
 
                      condition and one or more conditions are not related to the 
 
                      employee's work, there may be an apportionment of expenses.
 
             
 
                  The employer must repair or replace an artificial member 
 
                      or orthopedic device which is damaged or rendered useless by 
 
                      circumstances arising out of and in the course of employment 
 
                      or by actions taken to avoid a personal injury.
 
                  
 
             Claimant is requesting the payment of certain hospital and 
 
             dental charges. Claimant maintains the charges other than the 
 
             haircuts, are related to his work injury and that the charges are 
 
             reasonable and necessary. Defendants maintain $1,867.99 in 
 
             hospital charges are charges not necessary to claimant's care. 
 
             Defendants also maintain that certain dental charges incurred 
 
             more than six months after the work injury are not related to any 
 
             work injury. Firstly, claimant testified that all treatment 
 
             which he received was related to the work injury. Claimant 
 
             reported he was hospitalized only for his work related injuries, 
 
             but that while in the hospital, claimant was vomiting blood.
 
             
 
             There is medical evidence to support payment by defendants 
 
             for the sum of $1,708.99 in unpaid hospital charges. Joseph 
 
             Michels, M.D., corroborates the claimant's possible 
 
             gastrointestinal problem as related to the work injury. Dr. 
 
             Michels writes:
 
             
 
              DR. MICHELS 4/12/87
 
             Last evening Mark had some nausea and vomiting.
 
             It seemed to be related to his Morphine....
 
             
 
             Louis Banitt, M.D., also writes:
 
             
 
             This patient had nausea during the evening hours and vomited 
 
             this morning, coffee-brown material after having vomited 
 
             some dark material earlier [sic] in the evening ....
 
             
 
             IMPRESSION: Probable gastritis from the stress of the 
 
             injury, aspirin and smoking.
 
             
 
             Kevin Cunningham, M.D., also corroborates the possible 
 
             gastrointestinal problem as stress related. He assesses the 
 
             condition as follows:
 
             
 
             ASSESSMENT:
 
                  1. Recent upper GI hemorrhage - suspect mild "stress" 
 

 
        
 
 
 
 
 
                       induced gastritis without signs of complications 
 
                       further. I feel that the majority of his blood loss, 
 
                       most likely is related to his closed tibial fracture, 
 
                       rather than scant amount of gastrointestinal bleeding 
 
                       that has been described. Nevertheless, will follow 
 
                       closely and continue current preventative treatment. 
 
                       Will pursue further and recommend upper GI endoscopy 
 
                       and alteration of medication if any recurrent problems 
 
                       occur.
 
                  
 
             In light of the foregoing, the undersigned finds that 
 
             claimant has proven by a preponderance of the evidence that 
 
             $1,708.99 of the hospital charges are related to claimant's work 
 
             injury. The balance of the charges are not related to claimant's 
 
             work injury. Those charges are charges the patient incurred 
 
             because of personal preference or convenience.
 
        
 
            With respect to the dental charges, claimant has not proven 
 
        by a preponderance of the evidence that the dental expenses are 
 
        related to claimant's work injury. More than six months had 
 
        transpired before claimant sought attention from a dentist. 
 
        Medical records during claimant's hospitalizations are devoid of 
 
        any complaints dealing with the mouth or the teeth. Rather, the 
 
        medical records indicate the exact opposite.
 
        
 
            Peter Wolfe, M.D., notes the following for April 10, 1987: 
 
        "He has denied areas of injury anywhere else and specifically 
 
        notes no head or neck pains,..."
 
        
 
            Joseph Michels, M.D., finds no mouth problems on April 11, 
 
        1987. He states in his progress notes: "Throat and mouth are 
 
        clear. No adenopathy."
 
        
 
            Stephen Taylor, M.D., writes in his progress notes for April 
 
        14, 1987: "HEENT (head, eyes, ears, nose, throat) is 
 
        unremarkable."
 
        
 
            Dr. Cunningham notes in his report of April 15, 1989: "Head 
 
        unremarkable, no signs or trauma."
 
        
 
            The only justification that certain dental expenses are 
 
        related to claimant's work injury is the statement from John J. 
 
        Kearney, D.D.S., claimant's dentist. However, Dr. Kearney does 
 
        not causally connect the dental problems to claimant's work 
 
        related injury. He writes in his report:
 
        
 
             Mark reported to us on 10-28-87, with bridge out and #6 
 
             abscessed. He told us that he hit his mouth in fall causing 
 
             this damage to bridge and damage to #6. Also he said he 
 
             broke #29 & #10 as result of fall which all appeared to be 
 
             consistent with blow to mouth....
 
             
 
             The undersigned finds the dental expenses are not related to 
 
             claimant's work injury. Consequently, defendants are not liable 
 
             for those dental expenses.
 
        
 
             Finally, there is the issue concerning the payment of costs. 
 
             During the hearing, the undersigned was handed a sealed envelope 
 
             containing an offer to confess judgment which had been presented 
 
             to claimant. The details of the offer to confess were not 
 
             revealed to the deputy industrial commissioner. The offer was 
 
             made pursuant to Chapter 677 Iowa Code (1987). After the 
 
             decision was written, it was learned that the offer to confess 
 
             judgment was less than the amount awarded in the decision. 
 
             Therefore, costs are assessed against defendants.
 
        
 

 
        
 
 
 
 
 
                       FINDINGS OF FACT AND CONCLUSIONS OF LAW
 
        
 
             WHEREFORE, based on the evidence presented and the 
 
             principles of law previously cited, the following findings of 
 
             fact and conclusions of law are made:
 
        
 
            FINDING 1. As a result of claimant's work related injury on 
 
        April 10, 1987, he sustained various injuries to his right leg.
 
        
 
            FINDING 2. As a result of his work injury on April 10, 
 
        1987, claimant has incurred various hospital expenses which have 
 
        not yet been paid by defendants in the sum of $1,708.99.
 
        
 
            CONCLUSION 1. Defendants are liable for medical expenses 
 
        incurred at Iowa Methodist Medical Center in the sum of 
 
        $1,708.99.
 
        
 
            FINDING 3. Claimant's weekly rate of compensation is 
 
        calculated to be $162.04 per week.
 
        
 
            CONCLUSION 2. Claimant is entitled to 65.857 weeks of 
 
        healing period benefits at the rate of $162.04 per week as a 
 
        result of his work injury on April 10, 1987.
 
        
 
            CONCLUSION 3. Claimant is entitled to 88 weeks of permanent 
 
        partial disability benefits for a 40 percent loss of use of the 
 
        leg at the rate of $162.04 per week.
 
        
 
            FINDING 4. Claimant did not sustain any injuries to his 
 
        mouth, teeth, or bridgework as a result of his work injury on 
 
        April 10, 1987.
 
        
 
                                      ORDER
 
        
 
             THEREFORE, defendants are to pay unto claimant sixty-five 
 
             point eight-five-seven (65.857) weeks of healing period benefits 
 
             at a rate of one hundred sixty-two and 04/100 dollars ($162.04) 
 
             per week.
 
        
 
            Defendants are to pay unto claimant eighty-eight (88) weeks 
 
        of permanent partial disability benefits to the right leg at the 
 
        rate of one hundred sixty-two and 04/100 dollars ($162.04) per 
 
        week with said benefits to commence on July 15, 1988.
 
        
 
             Defendants are liable for the payment of hospital expenses 
 
             to Iowa Methodist Medical Center in the sum of one thousand seven 
 
             hundred eight and 99/100 dollars ($1,708.99).
 
        
 
            Payment for accrued healing period and permanent partial 
 
        disability benefits shall be paid in a lump sum together with 
 
        statutory interest thereon pursuant to Iowa Code section 85.30.
 
        
 
            Defendants shall receive credit for all benefits paid.
 
        
 
            Costs of this action are assessed against defendants 
 
        pursuant to Division of Industrial Services Rule 343-4.33.
 
        
 
            A claim activity report shall be filed upon payment of this 
 
        award.
 
        
 
        
 
            Signed and filed this 13th day of March, 1989.
 
        
 
        
 
        
 
        
 

 
        
 
 
 
 
 
        
 
                                     MICHELLE A. McGOVERN
 
                                     DEPUTY INDUSTRIAL COMMISSIONER
 
        
 
        Copies To:
 
        
 
        Mr. James A. Brewer
 
        Attorney at Law
 
        612 Kellogg Ave.
 
        Ames Iowa 50010
 
        
 
        Mr. Robert C. Landess
 
        Attorney at Law
 
        Terrace Center, STE 111
 
        2700 Grand Ave.
 
        Des Moines, Iowa 50312
 
        
 
        
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            MARK ANDERSON,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 850096
 
            HIGH RISE CONSTRUCTION        :
 
            SPECIALISTS, INC.,            :
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            THE HARTFORD,                 :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 Defendants appeal from an arbitration decision awarding 
 
            permanent partial disability benefits as the result of an 
 
            alleged injury on April 10, 1987.  The record on appeal 
 
            consists of the transcript of the arbitration proceeding; 
 
            claimant's exhibits 1 through 7; and defendants' exhibits 1 
 
            through 8.  Both parties filed briefs on appeal.
 
            
 
                                      ISSUES
 
            
 
                 Defendants state the following issues on appeal:
 
            
 
                    1.  The manner in which the average weekly wage 
 
                 was determined.
 
            
 
                    2.  The sufficiency of the proof that items 
 
                 contained in the Iowa Methodist Medical Center 
 
                 statement are related to the injury claimant 
 
                 received.
 
            
 
                    3.  Prejudice to the defendants by the action 
 
                 of the Deputy in learning the contents of the 
 
                 Offer to Confess Judgment prior to the filing of 
 
                 the Arbitration Decision.
 
            
 
                    4.  Refusal to grant rehearing and admit newly 
 
                 discovered evidence.
 
            
 
                              REVIEW OF THE EVIDENCE
 
            
 
                 The arbitration decision adequately and accurately 
 
            reflects the pertinent evidence and it will not be set forth 
 
            herein. 
 
            
 
                                  APPLICABLE LAW
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                 The citations of law in the arbitration decision are 
 
            appropriate to the issues and the evidence.  
 
            
 
                                     ANALYSIS
 
            
 
                 The first issue to be addressed on appeal is claimant's 
 
            rate.  Claimant began work for defendant as a construction 
 
            laborer in the middle of a work week and was paid at his 
 
            hourly rate of $6.50 per hour for 32 hours.  The second week 
 
            claimant could have worked 40 hours, but claimant only 
 
            worked 35.5 hours, taking 4.5 hours off for personal 
 
            business.  The third week claimant worked for three days and 
 
            was injured on the third day.  Claimant was paid for the 
 
            entire day he was injured, for a total of 24 hours.  
 
            However, all other employees at claimant's job site also 
 
            worked only 24 hours that week.
 
            
 
                 Claimant had worked for defendant less than 13 weeks at 
 
            the time he was injured.  Under Iowa Code section 85.36(7), 
 
            his rate would be calculated based on the amount he would 
 
            have earned had he been employed by the employer the full 
 
            thirteen weeks preceding the injury and had worked when work 
 
            was available to other employees in a similar occupation.  
 
            
 
                 In this case, since claimant had not worked for 13 
 
            weeks preceding his injury, evidence was offered of the 
 
            hours worked by another employee of defendant.  (See 
 
            Respondent's exhibit 8.)  Because this defendant did not 
 
            have employees that performed similar work in the 13 weeks 
 
            immediately preceding claimant's injury, records of an 
 
            employee that worked approximately one year earlier were 
 
            used in respondent's exhibit 8.  Although the exhibit was 
 
            admitted over objection, the deputy declined to give this 
 
            evidence weight, reciting that there was no showing that the 
 
            project worked on by the prior employee was similar or that 
 
            climatic conditions were similar. 
 
            
 
                 More importantly, even assuming that respondent's 
 
            exhibit 8 reflects similar work to that which claimant was 
 
            engaged in, it clearly covers a period of time outside the 
 
            13 weeks immediately preceding the injury.  Section 85.36(7) 
 
            contemplates using this 13 week period of time to calculate 
 
            what claimant would have made if he had been employed by 
 
            this employer in a similar occupation when work was 
 
            available.  The record shows that 13 weeks of work would not 
 
            have been available to claimant from this employer in the 13 
 
            weeks leading up to his injury.  Rather, only the 2 and 1/2 
 
            weeks claimant actually did work would have been available.  
 
            Even the records of a similar employee doing similar work 
 
            more than a year earlier do not meet the requirements of 
 
            section 85.36(7), as that section clearly focuses on the 13 
 
            weeks immediately preceding the injury and not any other 
 
            time period.
 
            
 
                 Thus, no evidence of the amount the claimant would have 
 
            earned had he been employed by defendant in the 13 weeks 
 
            preceding his injury is in the record.  Because of this, 
 
            claimant's rate is to be calculated by dividing his total 
 
            wages by the number of weeks he did work.  See Barker v. 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            City Wide Cartage, 1 Iowa Industrial Commissioner Reports 
 
            12, 15,(appeal decision, 1980).  Under this fact situation, 
 
            the only rational method of determining a representative 
 
            rate for claimant is to divide the total hours worked over 
 
            the three weeks of his employment by three.  His total hours 
 
            for those three weeks was 91.5 hours, which divided by three 
 
            equals an average work week of 30.5 hours.  Multiplied by 
 
            claimant's hourly rate of $6.50, claimant's gross weekly 
 
            wages were $198.25.  This yields a rate of $129.30 for a 
 
            single employee with two exemptions injured on April 10, 
 
            1987.
 
            
 
                 Defendants also challenge their obligation to pay 
 
            claimant's medical expenses, and allege that claimant has 
 
            failed to put into the record evidence establishing that the 
 
            charges are reasonable and necessary.  Iowa Code section 
 
            85.27 requires employers to provide reasonable and necessary 
 
            medical services to an injured worker.  Defendants disputed 
 
            the reasonableness and necessity of claimant's medical bills 
 
            in the prehearing report.  Claimant put his medical bills 
 
            into the record at the hearing.  Claimant testified that all 
 
            of his medical bills, with the exception of a portion 
 
            relating to haircuts while in the hospital, were related to 
 
            his work injury.  (Transcript, page 35-40 line 1).  A 
 
            claimant's own testimony may establish the necessity of 
 
            treatment.  Sister Mary Benedict v. St. Mary's Corp., 255 
 
            Iowa 847, 124 N.W.2d 548 (1963).  Claimant's description of 
 
            the nature and purpose of his hospital stay establishes that 
 
            such charges are necessary.
 
            
 
                 Claimant is not qualified to testify that charges for 
 
            medical services are reasonable.  Claimant has not put into 
 
            the record any evidence on this issue.  Although defendants 
 
            have not put into the record any evidence that the charges 
 
            are unreasonable, claimant bears the burden of proof.  
 
            Claimant was clearly on notice that the reasonableness of 
 
            the charges was disputed by defendants.  See prehearing 
 
            report and order approving same, item 8-(a).  At the 
 
            hearing, claimant failed to introduce any evidence to 
 
            establish that the fees were reasonable.  Defendants will 
 
            not be ordered to pay claimant's medical bills.
 
            
 
                 Defendants' final issue on appeal concerns their 
 
            request to submit additional evidence and for a rehearing.  
 
            This agency's ruling on these motions, filed August 23, 
 
            1989, is incorporated herein by reference and reaffirmed.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 1.  As a result of claimant's work related injury on 
 
            April 10, 1987, he sustained various injuries to his right 
 
            leg.
 
            
 
                 2.  As a result of his work injury on April 10, 1987, 
 
            claimant has incurred various hospital expenses which have 
 
            not yet been paid by defendants in the sum of $1,708.99.
 
            
 
                 3.  Claimant's weekly rate of compensation is 
 
            calculated to be $129.30 per week.
 
            
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                 4.  Claimant did not sustain any injuries to his mouth, 
 
            teeth, or bridgework as a result of his work injury on April 
 
            10, 1987.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 Defendants are not liable for claimant's  medical 
 
            expenses.
 
            
 
                 Claimant is entitled to 65.857 weeks of healing period 
 
            benefits at the rate of $129.30 per week as a result of his 
 
            work injury on April 10, 1987.
 
            
 
                 Claimant is entitled to 88 weeks of permanent partial 
 
            disability benefits for a 40 percent loss of use of the leg 
 
            at the rate of $129.30 per week.
 
            
 
                 The motion to admit new evidence was properly denied.
 
            
 
                 WHEREFORE, the decision of the deputy is affirmed in 
 
            part and reversed in part.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, it is ordered: 
 
            
 
                 That defendants are to pay unto claimant sixty-five 
 
            point eight-five-seven (65.857) weeks of healing period 
 
            benefits at a rate of one hundred twenty-nine and 30/100 
 
            dollars ($129.30) per week.
 
            
 
                 That defendants are to pay unto claimant eighty-eight 
 
            (88) weeks of permanent partial disability benefits to the 
 
            right leg at the rate of one hundred twenty-nine and 30/100 
 
            dollars ($129.30) per week with said benefits to commence on 
 
            July 15, 1988.
 
            
 
                 That defendants are not liable for the payment of 
 
            claimant's hospital expenses to Iowa Methodist Medical 
 
            Center.
 
            
 
                 That payment for accrued healing period and permanent 
 
            partial disability benefits shall be paid in a lump sum 
 
            together with statutory interest thereon pursuant to Iowa 
 
            Code section 85.30.
 
            
 
                 That defendants shall receive credit for all benefits 
 
            paid.
 
            
 
                 That costs of this action are assessed against 
 
            defendants pursuant to Division of Industrial Services Rule 
 
            343-4.33.
 
            
 
                 That a claim activity report shall be filed upon 
 
            payment of this award.
 
            
 
                 Signed and filed this ____ day of July, 1990.
 
            
 
            
 
            
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
                                          
 
            ________________________________
 
                                                   CLAIR R. CRAMER
 
                                           ACTING INDUSTRIAL 
 
            COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. James A. Brewer
 
            Attorney at Law
 
            612 Kellogg Avenue
 
            Ames, Iowa 50010
 
            
 
            Mr. Robert C. Landess
 
            Attorney at Law
 
            Terrace Center, Ste. 111
 
            2700 Grand Avenue
 
            Des Moines, Iowa 50312
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          3001;2501;2700;5-2906
 
                                          Filed July 31, 1990
 
                                          CLAIR R. CRAMER
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            MARK ANDERSON,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 850096
 
            HIGH RISE CONSTRUCTION        :
 
            SPECIALISTS, INC.             :
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            THE HARTFORD,                 :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            3001
 
            Claimant began work in the middle of week #1.  Claimant had 
 
            the opportunity to work a full 40 hours in week #2, but took 
 
            4 hours personal leave.  Claimant was injured on the third 
 
            day of week #3 and did not return to work.  Defendants tried 
 
            to rely on evidence of wages earned by a similarly situated 
 
            employee for 13 weeks approximately one year earlier, as 
 
            this employer did not have any employees like claimant 
 
            working in the 13 weeks preceding the injury.  Held, that 
 
            85.36(7) contemplates similar wages in the 13 weeks 
 
            preceding the injury, not some other time period, and that 
 
            absent such evidence, claimant's rate would be determined by 
 
            adding up the gross wages earned over the 3 weeks and 
 
            dividing by 3, pursuant to Barker v. City Wide Cartage, 1 
 
            Iowa Industrial Commissioner Reports 12, 15 (appeal 
 
            decision, 1980).
 
            
 
            2501, 2700
 
            Defendants specifically challenged the reasonableness of 
 
            claimant's medical bills at the time of the prehearing 
 
            report.  Claimant put his medical bills into the record, and 
 
            described what the treatment was for.  Held that claimant's 
 
            testimony, although establishing the necessity of the 
 
            treatment, did not establish the reasonableness of the 
 
            charges.  Claimant, although on notice that this was a 
 
            contested issue, did not put any evidence into the record to 
 
            establish reasonableness.  Claimant bears the burden of 
 
            proof.  Defendants were not ordered to pay claimant's 
 
            medical bills.  
 

 
            
 
 
 
 
 
 
 
 
 
 
 
            
 
            5-2906
 
            Prior agency ruling denying admission of new evidence 
 
            incorporated into appeal decision on that issue.  
 
            
 
 
        
 
 
 
 
 
        
 
        
 
        
 
                                          3001; 3002; 3003
 
                                          Filed March 13, 1989
 
                                          MICHELLE A. McGOVERN
 
        
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        MARK ANDERSON,
 
        
 
             Claimant,
 
             
 
        vs.                                             File No. 850096
 
        
 
        HIGH RISE CONSTRUCTION                          A R B I T R A T 
 
        I O N
 
        SPECIALISTS, INC.,
 
                                                        D E C I S I O N
 
            Employer,
 
        
 
        and
 
        
 
        THE HARTFORD,
 
        
 
            Insurance Carrier,
 
            Defendants.
 
        
 
        
 
        
 
        3001; 3002; 3003
 
        
 
             Construction worker who had been working only three partial 
 
             weeks and one week was attributable to claimant's personal 
 
             request for leave had weekly benefit rate calculated as follows:
 
        
 
            Add the hours worked for the two weeks when claimant worked 
 
        all hours available to him, by the actual number of weeks which 
 
        claimant did in fact work less the short week, 32 + 24 = 56 hours 
 
        - 1.429 (1 week, 3 days) = average 39.18 hours worked per week x 
 
        $6.50 rate per hour = $254.67 as average gross weekly wages. The 
 
        workers compensation benefits schedule for July 1, 1986, provides 
 
        a weekly compensation rate of $162.04 per week for a single 
 
        employee with two exemptions. Consequently, the proper rate of 
 
        weekly compensation is determined to be $162.04 per week.
 
        
 
        
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            MARK ANDERSON,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 850096
 
            HIGH RISE CONSTRUCTION        :
 
            SPECIALISTS, INC.,            :         N U N C
 
                                          :
 
                 Employer,                :          P R O
 
                                          :
 
            and                           :         T U N C
 
                                          :
 
            THE HARTFORD,                 :        O R D E R
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            An appeal decision was filed in this case on July 31, 1990.  
 
            A portion of the decision is in error.
 
            WHEREFORE, IT IS ORDERED:
 
            Page three of the appeal decision is hereby struck, and 
 
            revised page three, attached to this order, is inserted in 
 
            lieu thereof.
 
            Claimant's rate as set forth in the findings of fact, 
 
            conclusions of law, and order on pages 4 and 5 of the appeal 
 
            decision are hereby amended to reflect a rate of $131.90.
 
            Signed and filed this ____ day of August, 1990.
 
            
 
            
 
            
 
            
 
                      ________________________________
 
                               CLAIR R. CRAMER
 
                       ACTING INDUSTRIAL COMMISSIONER
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr. James A. Brewer
 
            Attorney at Law
 
            612 Kellogg Avenue
 
            Ames, Iowa 50010
 
            
 
            Mr. Robert C. Landess
 
            Attorney at Law
 
            Terrace Center, Ste. 111
 
            2700 Grand Avenue
 
            Des Moines, Iowa 50312
 
            
 
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         ____________________________________________________________
 
                                         
 
         MIKE D. PAINOVICH,              :
 
                                         :
 
              Claimant,                  :
 
                                         :
 
         vs.                             :        File Nos. 850241
 
                                         :                 1051288
 
         PAINOVICH BROTHERS, INC.,       :
 
                                         :     A R B I T R A T I O N
 
              Employer,                  :
 
                                         :        D E C I S I O N
 
         and                             :
 
                                         :
 
         STATE FARM FIRE & CASUALTY CO., :
 
                                         :
 
              Insurance Carrier,         :
 
              Defendants.                :
 
         ___________________________________________________________
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a consolidated proceeding in arbitration brought by 
 
         Mike Painovich, claimant, against Painovich Brothers, Inc., 
 
         employer, hereinafter referred to as the Corporation, and State 
 
         Farm Fire & Casualty Company, insurance carrier, defendants, for 
 
         workers' compensation benefits as a result of alleged injuries on 
 
         September 29, 1986 and April 5, 1993.  On August 23, 1994, a 
 
         hearing was held on claimant's petition and the matter was 
 
         considered fully submitted at the close of this hearing.
 
         
 
              Upon agreement of the parties and approval of the 
 
         undersigned deputy, a claim for injury on April 5, 1993 was 
 
         consolidated with the claim for injury on September 29, 1986 
 
         despite the fact that claimant had not instituted formal 
 
         proceedings before this agency for the 1993 injury.  A first 
 
         report on injury No. 1051288 was filed by defendants on this 1993 
 
         claim of injury.  Defendants at hearing specifically waived the 
 
         filing of a petition and original notice and formal discovery 
 
         before hearing on this new claim.  Defendants joined with 
 
         claimant in requesting inclusion of this new claim into the 
 
         hearing on August 23, 1994 and into this decision.  In the 
 
         interest of administrative efficiency, this request was approved.  
 
         Therefore, a new claim file is opened for the alleged 1993 injury 
 
         and assigned a separate claim file number of 1051288.
 
         
 
     
 
         
 
         
 
         Page   2
 
         
 
         
 
         
 
         
 
         
 
         The parties have submitted a hearing report of contested issues 
 
         and stipulations which was approved and accepted as a part of the 
 
         record of this case at the time of hearing.  The oral testimony 
 
         and written exhibits received during the hearing are set forth in 
 
         the hearing transcript.
 
         
 
              According to the hearing report, the parties have stipulated 
 
         to the following matters:
 
         
 
              1.  An employee-employer relationship existed between 
 
         claimant and the Corporation at the time of the alleged injury.
 
         
 
              2.  Claimant is not seeking additional temporary total or 
 
         healing period benefits in this proceeding.
 
         
 
              3.  If the injury is found to have caused permanent 
 
         disability, the type of disability is an industrial disability to 
 
         the body as a whole.
 
         
 
              4.  At the time of the September 29, 1986 injury claimant's 
 
         gross rate of weekly compensation was $542.30; he was married; 
 
         and, he was entitled to four exemptions.  Therefore, claimant's 
 
         weekly rate of compensation is $331.31 according to the 
 
         Industrial Commissioner's published rate booklet for this injury. 
 
         
 
              5.  It was stipulated that the providers of the requested 
 
         medical expenses would testify as to the reasonableness of the 
 
         treatment and their fees and defendants are not offering contrary 
 
         evidence.  The medical bills submitted by claimant at the hearing 
 
         are fair and reasonable and causally connected to the medical 
 
         condition upon which the claim herein is based but that the issue 
 
         of its causal connection to any work injury remains an issue to 
 
         be decided herein.
 
         
 
                                                 ISSUES
 
         
 
              The parties submitted the following issues for determination 
 
         in this proceeding:
 
         
 
                I.  Whether claimant received an injury arising out of and 
 
         in the course of employment; 
 
         
 
               II.  Whether the claim of injury on April 5, 1993 is barred 
 
         by Iowa Code section 85.16 as a willful injury;
 
         
 
              III.  The extent of claimant's entitlement to disability 
 
         benefits; and,
 
         
 
               IV.  The extent of claimant's entitlement to medical 
 
         benefits.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              Having heard the testimony and considered all of the 
 
         evidence, the deputy industrial commissioner finds as follows:
 
         
 
              A credibility finding is necessary to this decision as 
 

 
         
 
         Page   3
 
         
 
         
 
         
 
         
 
         
 
         defendants placed claimant's credibility at issue during cross- 
 
         examination as to the nature and extent of the injury and 
 
         disability.  From his demeanor while testifying, claimant is 
 
         found credible.
 
         
 
              At the time of the two claimed injuries herein, claimant was 
 
         an employee and a part-owner of this Corporation with his 
 
         brother. Claimant apparently opted for coverage under Iowa's 
 
         Worker's Compensation Acts.  There was no dispute as to 
 
         claimant's coverage under these Acts.
 
         
 
              Claimant and his brother began the Corporation in 1968.  The 
 
         Corporation is a construction company primarily engaged in the 
 
         erection of concrete block walls, foundations and basements 
 
         although they do occasionally lay brick veneer walls.  Both 
 
         brothers were working managers and were primarily responsible for 
 
         actually laying the blocks and bricks.  Although claimant 
 
         testified that he at times would do simple lay out and estimating 
 
         jobs, his brother was the primary administrator and performed 
 
         most of the more complex layout and estimating work.  Claimant 
 
         and his brother were paid from the Corporation's income based 
 
         upon the amount of work they performed on each job.  Apparently, 
 
         if one did not work, he would not be paid regardless of their 
 
         ownership in the business.
 
         
 
              Both claimant and his brother worked very hard in their 
 
         jobs.  Both almost always laid the walls using 8 inch regular 
 
         blocks weighing 40-42 pounds each.  Claimant estimated that he 
 
         and his brother each would personally lay from 500-900 blocks a 
 
         day weighing a total of 15-20 tons.
 
         
 
              Beginning in the 1970's, claimant had several back problems.  
 
         Claimant sought help from chiropractors at these times and in 
 
         1978 he was diagnosed by physicians at the University of Iowa 
 
         Hospitals as suffering from spinal disc problems.  Claimant said 
 
         that he was told by treating physicians that if he could continue 
 
         working in his job, he should do so and that he could go for 
 
         another 10-15 years.  Despite this long history of back problems, 
 
         claimant asserts that he was always able to do his block laying 
 
         work prior to the claimed 1986 injury herein.  There is nothing 
 
         in the record to suggest otherwise.  Claimant usually recovered 
 
         from his past back problems and quickly returned to his work.  
 
         This pattern of return to work drastically changed following the 
 
         work injury of September 29, 1986.
 
         
 
              It should also be noted that claimant has always been a very 
 
         large person, weighing 200 pounds as early as sixth grade.  He 
 
         was over 300 pounds when he graduated from high school and 
 
         weighed 354 pounds at the time of injury.  Although claimant 
 
         reduced his weight to 275 for a period of time after the 1986 
 
         injury upon doctors' advice, he has now returned to a weight over 
 
         350 pounds.  A crucial issue in this case is the extent to which 
 
         claimant's weight over the years has contributed to his back 
 
         problems.  One physician has estimated his ideal weight to be 
 
         below 200 pounds but this is disputed by claimant's primary 
 
         treating physician, William Boulden, M.D., a board certified 
 
         orthopedic surgeon.  Due to his large build, Dr. Boulden 
 

 
         
 
         Page   4
 
         
 
         
 
         
 
         
 
         
 
         estimates claimant's ideal weight to be 275 pounds but admits 
 
         claimant's current weight to be troublesome. 
 
         
 
              On or about September 29, 1986, claimant suffered an injury 
 
         to his low back arising out of and in the course of his 
 
         employment with the Corporation while laying foundations for 
 
         several new apartment houses.  Claimant and his brother were 
 
         working particularly hard at this time putting in 10 hour days, 
 
         six days a week.  Then suddenly, on one occasion while bending 
 
         over to drag two blocks, claimant felt a sharp pain in his low 
 
         back.  Claimant this time did not soon recover as before and 
 
         remained off work due to back, hip and leg pain for a protracted 
 
         period of time.  However, despite an initial impression that 
 
         claimant had herniated discs, Dr. Boulden refused to further 
 
         diagnose or treat these problems until claimant lost weight.  
 
         Apparently, claimant could not fit into the CAT scanner.
 
         
 
              Claimant followed Dr. Boulden's advice and with weight loss 
 
         counseling, he reduced his weight to 275 pounds.  Dr. Boulden 
 
         then ordered a CAT scan and when that test confirmed his 
 
         preliminary diagnosis of herniated discs, he surgically performed 
 
         a decompression laminectomy on June 6, 1988 in the low back to 
 
         relieve pressure on the affected nerve roots.  Dr. Boulden ended 
 
         claimant's healing period after this surgery on July 11, 1989 and 
 
         rated claimant as suffering from a 20 percent "disability to the 
 
         back."  Subsequent to functional capacity testing, claimant was 
 
         released by Dr. Boulden to medium work involving no repetitive 
 
         bending, stooping or twisting with lifting occasionally up to 50 
 
         pounds, 20 pounds frequently and no more than 10 pounds 
 
         constantly.  These restrictions are permanent and continue today 
 
         except that Dr. Boulden now feels that any return to such medium 
 
         type work would require a period of conditioning due to 
 
         claimant's increased weight and lack of exercise since the 
 
         surgery. 
 
         
 
              Claimant rejected vocational rehabilitation due to his lack 
 
         of educational skills and felt he could return to his 
 
         construction job with the Corporation performing the lighter duty 
 
         work such as building brick veneer walls.  Over the next two 
 
         years, claimant reported back to Dr. Boulden several times with 
 
         increased back and leg complaints from his work activity.  
 
         Initially, Dr. Boulden appeared to approve of this return to 
 
         masonry work but by early 1993, it became clear to Dr. Boulden 
 
         that claimant's return to his work at the Corporation was no 
 
         longer advisable.  As explained in his deposition, he felt that 
 
         claimant himself failed to anticipate his inability to completely 
 
         refrain from heavy work.  At hearing, claimant stated that he was 
 
         able to handle the bricks weighing 5 pounds each but it was the 
 
         standing and bending that gave him the most trouble.
 
         
 
              In April 93, claimant received another injury arising out of 
 
         and in the course of his employment with the Corporation.  On 
 
         April 4, 1993, claimant lifted a plank on a scaffold causing 
 
         increased pain.  He returned the next day in pain and after being 
 
         told by his brother that the brick wall he had been working on 
 
         the day before was laid out improperly, claimant lost his temper, 
 
         jerked the wall down, and then apparently struck his brother.  
 

 
         
 
         Page   5
 
         
 
         
 
         
 
         
 
         
 
         Claimant then left the work site never again to return to his job 
 
         with the Corporation.  This incident was very upsetting to 
 
         claimant due to the way he treated his brother who had been very 
 
         cooperative in accommodating claimant's disability.  Claimant has 
 
         trouble even today relating this incident to others without 
 
         sobbing.
 
         
 
              After the incident with his brother, claimant sought out and 
 
         received psychotherapy from Sam Graham, Ph.D., a clinical 
 
         psychologist.  Dr. Graham diagnoses adjustment disorder with 
 
         depressed mood, developmental expressive writing disorder and 
 
         developmental reading disorder.  Dr. Graham has performed a 
 
         mental residual functional capacity assessment upon claimant and 
 
         found that claimant is markedly limited in the ability to 
 
         understand, remember or carry out very short simple or detailed 
 
         instructions; to maintain attention or concentration for extended 
 
         periods; to complete a normal work day or work week without 
 
         interruptions from psychologically based symptoms; and, to 
 
         perform a consistent pace without an unreasonable number and 
 
         length of rest periods.  He felt that these limitations and the 
 
         combination of claimant's developmental and expressive disorders 
 
         with his orthopedic condition renders claimant disabled.
 
         
 
              A vocational rehabilitation consultant retained by claimant 
 
         opines that with these psychological limitations found by Dr. 
 
         Graham, claimant is precluded at this time from competitive 
 
         employment.  He recommended psychotherapy before vocational 
 
         rehabilitation is attempted.  A vocational consultant retained by 
 
         defendants disagrees and states that claimant is able to find 
 
         employment if he is willing to work.  This consultant set forth 
 
         in this testimony several jobs available to claimant.  However, 
 
         during cross-examination of this consultant by claimant's 
 
         counsel, the consultant arrived at this conclusion by rejecting 
 
         many findings contained in the functional capacity evaluation 
 
         performed by Dr. Graham, especially the inability to understand 
 
         and carry out simple verbal instructions.  The views of the 
 
         defendant's consultant must be rejected as that consultant failed 
 
         to demonstrate sufficient education or experience qualifications 
 
         in the diagnosis and treatment of psychological problems to 
 
         credibly refute the findings of Dr. Graham, especially after only 
 
         a couple of interviews with claimant.  There is no expert opinion 
 
         in the record that refutes the conclusions of Dr. Graham.
 
         
 
              Based upon the views of Dr. Boulden, the work injury of 
 
         September 29, 1986 is found to have resulted from cumulative 
 
         trauma from his heavy work at the Corporation over the years and 
 
         culminating in the symptomatic episode on on September 29, 1986.  
 
         This injury was a cause of claimant's current physical activity 
 
         restrictions.  Contrary views by David Boarini, M.D., are 
 
         rejected as he was only a one time evaluator and never treated 
 
         claimant.  Dr. Boulden was clearly more clinically familiar with 
 
         claimant's condition and in a better position to render a 
 
         causation opinion.  In making this finding, it is found that 
 
         although claimant's weight certainly was also a contributing 
 
         factor, his weight combined with his work was the real culprit in 
 
         precipitating claimant's back problems.  Claimant's work at the 
 
         Corporation and the lifting and bending incident in 1986 remains 
 

 
         
 
         Page   6
 
         
 
         
 
         
 
         
 
         
 
         a substantial causative factor in making the back condition 
 
         symptomatic necessitating surgery and resulting work 
 
         restrictions.
 
         
 
              According to Dr. Boulden, the injury in 1993 resulted in 
 
         only a recurrence of the same symptoms with no change in the 
 
         underlying condition.  Claimant did not return to work after the 
 
         1993 injury but this was not due to any new problems.  He chose 
 
         not to return because claimant finally realized that work in that 
 
         capacity was not possible.  Whether or not claimant's attempt to 
 
         return to work in violation of his restrictions or the incident 
 
         with his brother was a willful injury, this injury did not cause 
 
         or increase any portion of claimant's disability.
 
         
 
              Although not caused by the 1993 injury, it was only after 
 
         this injury that claimant's psychological problems began.  At 
 
         this time, claimant finally appreciated the fact that he could 
 
         not return to the work for which he was best suited given his 
 
         lack of education and learning disabilities.  At that time, 
 
         claimant was faced with the prospect of not being able to 
 
         continue in a successful business enterprise and that he would 
 
         never return to good health.  This realization was overwhelming.  
 
         These problems are causally connected to the original injury of 
 
         1986 which precipitated the back condition making a full return 
 
         to construction work for the Corporation impossible.  As claimant 
 
         is not undergoing active treatment at present, it is unclear 
 
         whether additional treatment would improve the condition. Dr. 
 
         Graham apparently felt that his findings were permanent as this 
 
         assessment was the same as the one he submitted to the examiner 
 
         at claimant's social security disability hearing.  Certainly, if 
 
         there is future treatment and claimant's condition improves, this 
 
         matter can be reexamined.
 
         
 
              Therefore, it is found that the work injury of September 29, 
 
         1986 was a cause of significant permanent physical and 
 
         psychological impairment to the body as a whole based upon the 
 
         views of Dr. Boulden and Dr. Graham.  It is also found that the 
 
         April 5, 1993 injury or any work after returning to work 
 
         following surgery was not a cause of any of claimant's current 
 
         physical or mental impairment.
 
         
 
              Although claimant's medical condition before the work injury 
 
         was not excellent, he had no ascertainable disabilities from 
 
         prior back problems.  Claimant was able to fully perform physical 
 
         tasks involving heavy lifting; repetitive lifting, bending, 
 
         twisting and stooping; and, prolonged standing and sitting.  Due 
 
         to his physical and mental limitations, claimant's current 
 
         medical condition prevents him from returning to his former work 
 
         or any other gainful employment.  Claimant is 50 years of age.  
 
         Claimant's past employment consists of only heavy manual labor, 
 
         the kind of work for which he is no longer physically able to 
 
         perform.  Claimant has very limited potential for vocational 
 
         rehabilitation.  Claimant barely graduated from high school due 
 
         to extremely low grades.  Although claimant has average 
 
         intelligence, he has severe learning disabilities stemming from 
 
         an inability to understand and remember written or oral 
 
         instructions.  Claimant had considerable motivation to return to 
 

 
         
 
         Page   7
 
         
 
         
 
         
 
         
 
         
 
         the only work that he knew for better than two years despite his 
 
         pain but in the end he found that this was not possible.
 
         
 
              Claimant attempted a return to part-time work with a 
 
         different employer on referral by defendants' rehabilitation 
 
         counselor only to soon leave due to a variety of complaints.  
 
         Defendants suggest a lack of motivation and an unwillingness to 
 
         return to work.  A more plausible explanation is that the 
 
         unrefuted views of Dr. Graham are correct.
 
         
 
              Therefore, it is found that claimant has not returned to 
 
         work and has made a reasonable but unsuccessful effort to locate 
 
         suitable work within the geographical area of his residence.  
 
         Claimant is only able to perform services which are so limited in 
 
         quality, dependability or quantity that a reasonably stable 
 
         market for them does not exist.  Claimant is not employable in 
 
         the competitive labor market within the geographical area of this 
 
         residence.
 
         
 
              From examination of all of the factors of industrial 
 
         disability, it is found that the work injury of June 29, 1986 is 
 
         a cause of a 100 percent or total loss of earning capacity.
 
         
 
              As the 1993 injury was not found to have caused any of 
 
         claimant's disability, findings as to gross weekly rate of 
 
         compensation for such an injury are unnecessary.
 
         
 
              As no other evidence was offered as to the reasonableness of 
 
         the treatment and charges with reference to the requested medical 
 
         expenses, given the parties' stipulations, it is found that such 
 
         expenses are reasonable.
 
         
 
              In 1987, claimant received a $10,000 payment from the 
 
         Corporation for work he performed in 1986.  This represented 
 
         amounts previously withheld by the customer or owner of the 
 
         apartment houses he had worked on.  Apparently, it is common for 
 
         owners to withhold some portion of final payment to a contractor 
 
         when the work is completed until such time as the construction 
 
         project passes inspection and is found suitable.  Claimant did 
 
         not perform any additional labor or services to earn this 
 
         $10,000.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              I.  Claimant has the burden of proving by a preponderance of 
 
         the evidence that he received an injury arising out of and in the 
 
         course of employment.  The words "out of" refer to the cause or 
 
         source of the injury.  The words "in the course of" refer to the 
 
         time and place and circumstances of the injury.  See generally, 
 
         Cedar Rapids Community Sch. v. Cady, 278 N.W.2d 298 (Iowa 1979); 
 
         Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 
 
         (1955).  An employer takes an employee subject to any active or 
 
         dormant health impairments. A work connected injury which more 
 
         than slightly aggravates the condition is considered to be a 
 
         personal injury.  Ziegler v. U.S. Gypsum, 252 Iowa 613, 620, 106 
 
         N.W.2d 591 (1961), and cases cited therein.
 
         
 

 
         
 
         Page   8
 
         
 
         
 
         
 
         
 
              It is not necessary that claimant prove his disability 
 
         results from a sudden unexpected traumatic event.  It is 
 
         sufficient to show that the disability developed gradually or 
 
         progressively from work activity over a period of time.  McKeever 
 
         Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985).  The 
 
         McKeever Court also held that the date of injury in gradual 
 
         injury cases is the time when pain prevents the employee from 
 
         continuing to work.
 
         
 
              In the case sub judice, a preponderance of the medical 
 
         evidence demonstrated a work injury on both alleged dates 
 
         although only the original injury of 1986 was found to have 
 
         caused permanency.
 
         
 
              The question of causal connection is essentially within the 
 
         domain of expert medical opinion.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).  The opinion of 
 
         experts need not be couched in definite, positive or unequivocal 
 
         language and the expert opinion may be accepted or rejected, in 
 
         whole or in part, by the trier of fact. Sondag v. Ferris 
 
         Hardware, 220 N.W.2d 903 (Iowa 1974). The weight to be given to 
 
         such an opinion is for the finder of fact to determine from the 
 
         completeness of the premise given the expert or other surrounding 
 
         circumstances.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 
 
         867 (1965).
 
         
 
              Furthermore, if the available expert testimony is 
 
         insufficient alone to support a finding of causal connection, 
 
         such testimony may be coupled with non-expert testimony to show 
 
         causation and be sufficient to sustain an award.  Giere v. Aase 
 
         Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 911, 915 (1966).  
 
         Such evidence does not, however, compel an award as a matter of 
 
         law.  Anderson v. Oscar Mayer & Co. 217 N.W.2d 531, 536 (1974).  
 
         To establish compensability, the injury need only be a 
 
         significant factor, not be the only factor causing the claimed 
 
         disability.  Blacksmith v. All-American, Inc., 290 N.W.2d 348, 
 
         354 (1980).  In the case of a preexisting condition, an employee 
 
         is not entitled to recover for the results of a preexisting 
 
         injury or disease but can recover for an aggravation thereof 
 
         which resulted in the disability found to exist.  Olson v. 
 
         Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963).
 
         
 
               II.  As the claim of willful injury was only for the 1993 
 
         injury, that issue is moot as that injury was not found to have 
 
         contributed significantly to claimant's current disability.
 
         
 
              III.  As the claimant has shown that the work injury of 
 
         September 29, 1986 was a cause a permanent physical 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).  However, unlike scheduled member 
 
         disabilities, the degree of disability under this provision is 
 
         not measured solely by the extent of a functional impairment or 
 
         loss of use of a body member.  A disability to the body as a 
 
         whole or an "industrial disability" is a loss of earning capacity 
 
         resulting from the work injury.  Diederich v. Tri-City R. Co., 
 
         219 Iowa 587, 593, 258 N.W. 899 (1935).  A physical impairment or 
 

 
         
 
         Page   9
 
         
 
         
 
         
 
         
 
         
 
         restriction on work activity may or may not result in such a loss 
 
         of earning capacity.  Examination of several factors determines 
 
         the extent to which a work injury and a resulting medical 
 
         condition caused an industrial disability.  These factors include 
 
         the employee's medical condition prior to the injury, immediately 
 
         after the injury and presently; the situs of the injury, its
 
         
 
         
 
         Page  10
 
         
 
         
 
         
 
         
 
         
 
         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.  See Peterson v. Truck Haven Cafe, Inc., 
 
         (Appeal Decision, February 28, 1985).
 
         
 
              In the case sub judice, it was found that claimant suffered 
 
         a total loss of his earning capacity as a result of the 1986 work 
 
         injury.  Such a finding entitles claimant to permanent total 
 
         disability benefits as a matter of law under Iowa Code section 
 
         85.34(3) which is weekly benefits for an indefinite period into 
 
         the future. Absent a change of condition, these benefits will 
 
         last for claimant's lifetime.  In this case, if improvement in 
 
         claimant's psychological condition occurs in the future, this 
 
         matter can be reviewed again.
 
         
 
              Defendants seek credit against any award herein for the 
 
         $10,000 he was paid in 1987 during which time claimant was paid 
 
         healing period benefits.  Defendant is not entitled to such a 
 
         credit.  This payment does not represent earnings from current 
 
         employment.  At the time, claimant was clearly off work and 
 
         temporarily totally disabled and the payment of healing period 
 
         benefits or in this case temporarily total disability benefits 
 
         would have been appropriate.  This is no different than a 
 
         situation where an injured worker might receive a late check for 
 
         a previous year during a healing period due to error or financial 
 
         distress of an employer.  It merely represents payment for past 
 
         earnings and not earnings from current employment.  Therefore, no 
 
         credit against healing period benefits paid is appropriate.
 
         
 
               IV.  Pursuant to Iowa Code section 85.27, claimant is 
 
         entitled to payment of reasonable medical expenses incurred for 
 
         treatment of a work injury.  In the case at bar, given the 
 
         parties stipulations, such expenses were found reasonable and 
 
         causally connected to the injury of June 29, 1986.  They will be 
 
         awarded accordingly.
 
         
 
                                      ORDER
 
         
 
              1.  The claim for the April 5, 1993 injury is dismissed.
 
         
 
               With reference to the September 29, 1986 claim:
 
         
 
               a.  Defendants shall pay to claimant permanent total 
 
                   disability benefits at a rate of three hundred 
 
                   thirty-one and 31/l00 dollars ($331.31) per week 
 
                   from September 29, 1986 less any period of actual 
 
                   employment with defendant employer before April 5, 
 
                   1993.
 
         
 
               b.  Defendants shall pay the medical expenses listed 
 
                   in the prehearing report.
 

 
         
 
         Page  11
 
         
 
         
 
         
 
         
 
         
 
              2.  Defendants shall pay accrued weekly benefits in a lump 
 
         sum and shall receive credit against this award for weekly 
 
         benefits previously paid.
 
         
 
              3.  Defendants shall pay interest on weekly benefits awarded 
 
         herein as set forth in Iowa Code section 85.30. 
 
         
 
              4.  Defendants shall pay the costs of this action pursuant 
 
         to rule 343 IAC 4.33, including reimbursement to claimant for any 
 
         filing fee paid in this matter.
 
         
 
              5.  Defendants shall file activity reports on the payment of 
 
         this award as requested by this agency pursuant to rule 343 IAC 
 
         3.1.
 
         
 
         
 
         
 
              Signed and filed this ____ day of October, 1994.
 
         
 
         
 
         
 
                                       ______________________________
 
                                       LARRY P. WALSHIRE
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Dennis L. Hanssen
 
         Attorney at Law
 
         2700 Grand Ave
 
         Des Moines  IA  50312
 
         
 
         Ms. Iris J. Post
 
         Attorney at Law
 
         2222 Grand Ave
 
         PO Box 10434
 
         Des Moines  IA  50306
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            5-1803; 1704
 
                                            Filed October 12, 1994
 
                                            LARRY P. WALSHIRE
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                        
 
            MIKE D. PAINOVICH,    
 
                        
 
                 Claimant,   
 
                        
 
            vs.                                File Nos. 850241
 
                                                        1051288
 
            PAINOVICH BROTHERS, INC.,       
 
                                             A R B I T R A T I O N
 
                 Employer,   
 
                                                D E C I S I O N
 
            and         
 
                        
 
            STATE FARM FIRE & CASUALTY CO., 
 
                        
 
                 Insurance Carrier,    
 
                 Defendants.      
 
            ___________________________________________________________
 
            5-1803 
 
            Non-precedential, extent of disability case.
 
            
 
            1704
 
            Defendants denied a credit against an award of weekly 
 
            benefits for a delayed payment during healing period for 
 
            past employment.
 
                      
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            CHARLES T. ALBRIGHT,          :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 850292
 
            SPAHN & ROSE LUMBER COMPANY,  :
 
            d/b/a MOD COMP HOMES,         :      A R B I T R A T I O N
 
                                          :
 
                 Employer,                :         D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            WEST BEND MUTUAL INSURANCE    :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration wherein Charles T. 
 
            Albright seeks compensation for healing period, permanent 
 
            partial disability and payment of medical expenses based 
 
            upon an alleged back injury of May or June 1987.  The case 
 
            was heard at Waterloo, Iowa on October 17, 1989.  The record 
 
            in the proceeding consists of testimony from Charles T. 
 
            Albright, Gary Schneider and Jay Dee Shurts.  The record 
 
            also contains claimant's exhibit 5 and defendants' exhibits 
 
            A through U.
 
            
 
                                      issues
 
            
 
                 The issues to be determined are whether claimant 
 
            sustained an injury which arose out of and in the course of 
 
            employment; whether the alleged injury is a proximate cause 
 
            of any temporary or permanent disability and, if so, 
 
            determination of claimant's entitlement to recover 
 
            compensation for the disability; determination of claimant's 
 
            entitlement to recover expenses under Code section 85.27; 
 
            determination of the rate of compensation; and, 
 
            determination of whether the claim is barred by the 
 
            provisions of Code section 85.23.
 
            
 
                                 findings of fact
 
            
 
                 Charles T. Albright is a 41-year-old man whose work 
 
            history consists primarily of several aspects of the 
 
            building construction industry.  His medical history is 
 
            remarkable for a knee injury and surgery which occurred in 
 
            1982 (exhibits O and P).  In 1986, he was treated on two 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            occasions for low back pain which were diagnosed as 
 
            lumbosacral sprain or strain (exhibit L).  Claimant stated 
 
            that the first back problem in 1986 arose while driving.  He 
 
            stated that the second occurred when he slipped off a pogo 
 
            stick and fell to the ground landing on his buttocks.    
 
            Claimant stated that he completely recovered from those 
 
            incidents.  During 1986, Albright was employed by a company 
 
            known as Operation Threshold where he installed doors and 
 
            windows and performed general weatherization work on 
 
            individual homes in the Waterloo, Iowa area.  He was laid 
 
            off from that job in November 1986 and remained laid off 
 
            until commencing work for Mod Comp Homes, Inc., on May 9, 
 
            1987.  At Mod Comp Homes, Albright assembled trusses.  This 
 
            required that he lift weights ranging from only a few pounds 
 
            up to 50 pounds and work in a position that required 
 
            reaching forward over a large table where the employer's 
 
            product, floor and roof trusses, were assembled.  Following 
 
            assembly, it was sometimes necessary to pry the truss out of 
 
            the metal jig.
 
            
 
                 According to Albright, he had no difficulty when he 
 
            first entered the job, but after approximately two weeks, 
 
            near the end of May, he was experiencing pain in his right 
 
            buttock, but not in his back.  He related that the pain was 
 
            negligible at the beginning of the work day, but increased 
 
            by day's end.  Albright continued working and on June 18, 
 
            1987 sought treatment from his family practitioner.  When 
 
            treatment from the family practitioner was unsuccessful, 
 
            claimant was referred to orthopaedic surgeon Jitu D. 
 
            Kothari, M.D. (exhibit L).  The history contained in Dr. 
 
            Kothari's first consultation report dated July 28, 1987 
 
            places the onset of the problem in early May with no known 
 
            history of injury (exhibit C, page 5; exhibit F, page 1).  
 
            After further conservative treatment was unsuccessful, tests 
 
            were used to diagnose a bulging disc in claimant's spine 
 
            (exhibit Q, pages 5, 7, 20 and 21).  On September 2, 1987, 
 
            claimant underwent disc excision surgery (exhibit C, pages 
 
            38 and 39; exhibit I).  After a generally unremarkable 
 
            period of recuperation, Albright entered work hardening for 
 
            approximately two months where it was noted that he did 
 
            quite well (exhibit D).  Dr. Kothari released him to resume 
 
            work effective February 10, 1988.  The notes indicate that 
 
            claimant was doing well (exhibit C, page 10; exhibit F, page 
 
            6).  In October 1988, Dr. Kothari evaluated claimant, noted 
 
            that he continued to have back pain and discomfort, 
 
            particularly with any heavy lifting or bending, but that he 
 
            had no more symptoms in his leg.  A ten percent permanent 
 
            impairment rating was assigned due to the surgical disc 
 
            excision with a good result (exhibits G and J).
 
            
 
                 Albright is now employed as a custodian earning $6.38 
 
            per hour as compared to the $4.75 per hour rate he had 
 
            earned with Mod Comp Homes.  He related pain with bending, 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            but no other restrictions on his activities.  The record 
 
            contains no indication of any medically-imposed activity 
 
            restrictions.  The record of this case contains no medical 
 
            opinion evidence on the issue of causation.
 
            
 
                 Jay Dee Shurts, claimant's good friend of many years, 
 
            was also employed at Mod Comp Homes in 1987.  Shurts was 
 
            unsure of when he started, but he estimated it to have been 
 
            in July or August, 1987.  Shurts related that Albright was 
 
            healthy initially, but that the trouble came on six or seven 
 
            weeks after Shurts began his employment at Mod Comp Homes.
 
            
 
                 Albright and Shurts both denied that claimant had any 
 
            back problems prior to working at Mod Comp Homes.
 
            
 
                 Gary Schneider, claimant's supervisor at Mod Comp 
 
            Homes, observed claimant on a nearly daily basis and noticed 
 
            nothing unusual.  Schneider related that claimant asked to 
 
            have some time off work in order to obtain treatment for his 
 
            back and then one to one and one-half weeks later asked 
 
            about workers' compensation benefits.
 
            
 
                 In view of the discrepancy in dates provided by the 
 
            testimony of Albright as to when his symptoms commenced and 
 
            the testimony from Shurts, the evidence from Shurts is 
 
            considered unreliable.  Albright was clearly obtaining 
 
            medical treatment in June, a date which appears to have been 
 
            prior to the time Shurts began employment at Mod Comp Homes.
 
            
 
                 Albright was off work from November of 1986 until 
 
            starting in May of 1987.  He most likely was not using his 
 
            back extensively during that time and could have functioned 
 
            in a layoff status even though he had a substantial back 
 
            problem.  The back problem according to Albright's testimony 
 
            came on shortly after he commenced work without any evidence 
 
            of substantial trauma.  The work activities which were 
 
            described were not light, but likewise do not appear to have 
 
            been particularly heavy.  The nature of the activities could 
 
            intensify symptoms of any preexisting condition, but would 
 
            be unlikely to be independently injurious.
 
            
 
                                conclusions of law
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that he received an injury during May or 
 
            June of 1987 which arose out of and in the course of his 
 
            employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 
 
            (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 
 
            352, 154 N.W.2d 128 (1967). 
 
            
 
                 The words "arising out of" refer to the cause or source 
 
            of the injury.  McClure v. Union County, 188 N.W.2d 283, 287 
 
            (Iowa 1971); Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 
 
            402, 68 N.W.2d 63 (1955).  The "arising out of" requirement 
 
            is satisfied by showing a causal relationship between the 
 
            employment and the injury.  Sheerin v. Holin Co., 380 N.W.2d 
 
            415, 417 (Iowa 1986).
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                 The words "in the course of" refer to the time and 
 
            place and circumstances of the injury.  McClure v. Union 
 
            et al. Counties, 188 N.W.2d 283 (Iowa 1971); Crowe v. DeSoto 
 
            Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955).
 
            
 
                 Aggravation of a preexisting condition is one form of 
 
            compensable injury.  While a claimant is not entitled to 
 
            compensation for the results of a preexisting injury or 
 
            disease, the mere existence at the time of a subsequent 
 
            injury is not a defense.  Rose v. John Deere Ottumwa Works, 
 
            247 Iowa 900, 908, 76 N.W.2d 756, 760-61 (1956).  If the 
 
            claimant had a preexisting condition or disability that is 
 
            aggravated, accelerated, worsened or lighted up so that it 
 
            results in disability, claimant is entitled to recover.  
 
            Nicks v. Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 
 
            812, 815 (1962).
 
            
 
                 Injuries which result from cumulative trauma can 
 
            support an award of benefits.  McKeever Custom Cabinets v. 
 
            Smith, 379 N.W.2d 368 (Iowa 1985).
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury during May or 
 
            June of 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). 
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903 (Iowa 1974).  However, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Id. at 907.  Further, the weight to be given to such 
 
            an opinion is for the finder of fact, and that may be 
 
            affected by the completeness of the premise given the expert 
 
            and other surrounding circumstances.  Bodish, 257 Iowa 516, 
 
            133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
            Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
            
 
                 The record of this case contains no evidence of any 
 
            incident of acute trauma.  It shows activities which the 
 
            undersigned considers to be moderate in exertional level.  
 
            They are not the type of activities which the undersigned 
 
            would normally expect to result in the condition for which 
 
            Albright underwent surgery, although it is certainly not 
 
            impossible.  This case is one where the facts concerning 
 
            causation are not sufficiently strong to enable Albright to 
 
            establish the existence of a causal connection between the 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            work and the physical condition without expert medical 
 
            testimony.  It is therefore concluded that Charles T. 
 
            Albright has failed to prove, by a preponderance of the 
 
            evidence, that the back condition which was treated by Dr. 
 
            Kothari arose out of or was proximately caused by the 
 
            activities of his employment with Spahn & Rose Lumber 
 
            Company, d/b/a Mod Comp Homes, Inc.
 
            
 
                                      order
 
            
 
                 IT IS THEREFORE ORDERED that claimant take nothing from 
 
            this proceeding.
 
            
 
                 IT IS FURTHER ORDERED that the costs of this action are 
 
            assessed against the claimant pursuant to Division of 
 
            Industrial Services Rule 343-4.33.
 
            
 
                 Signed and filed this ______ day of ____________, 1990.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr. W. H. Gilliam
 
            Attorney at Law
 
            722 Water Street
 
            2nd Floor
 
            Waterloo, Iowa  50703
 
            
 
            Ms. Vicki L. Seeck
 
            Attorney at Law
 
            600 Union Arcade Building
 
            111 East Third Street
 
            Davenport, Iowa  52801
 
            
 
            Mr. Larry L. Shepler
 
            Attorney at Law
 
            Suite 102, Executive Square
 
            400 Main Street
 
            Davenport, Iowa  52801
 
            
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               5-1108.50, 5-1402.30
 
                                               Filed May 2, 1990
 
                                               MICHAEL G. TRIER
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            CHARLES T. ALBRIGHT,          :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 850292
 
            SPAHN & ROSE LUMBER COMPANY,  :
 
            d/b/a MOD COMP HOMES,         :      A R B I T R A T I O N
 
                                          :
 
                 Employer,                :         D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            WEST BEND MUTUAL INSURANCE    :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
            5-1108.50, 5-1402.30
 
            Claimant, who performed work of only a moderate exertional 
 
            level, failed to prove that the work caused the bulging disc 
 
            condition for which he received medical treatment.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            JERRY L. CLAIR,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 850320
 
            RINDERKNECHT ASSOCIATES, INC.,:
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            WAUSAU INSURANCE COMPANIES,   :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 Defendants appeal from an arbitration decision awarding 
 
            permanent total disability benefits as the result of an 
 
            alleged injury on April 6, 1987.  The record on appeal 
 
            consists of the transcript of the arbitration proceeding and 
 
            claimant's exhibits 1 through 18. 
 
            
 
                                      ISSUES
 
            
 
                 Defendants failed to file a brief on appeal.  
 
            Therefore, the appeal will be considered generally and 
 
            without regard to specific issues.
 
            
 
                              REVIEW OF THE EVIDENCE
 
            
 
                 The arbitration decision adequately and accurately 
 
            reflects the pertinent evidence and it will not be set forth 
 
            herein.
 
            
 
                                  APPLICABLE LAW
 
            
 
                 Rule 343 IAC 4.36 states:
 
            
 
                    If any party to a contested case or an attorney 
 
                 representing such party shall fail to comply with 
 
                 these rules or any order of a deputy commissioner 
 
                 or the industrial commissioner, the deputy 
 
                 commissioner or industrial commissioner may 
 
                 dismiss the action.  Such dismissal shall be 
 
                 without prejudice.  The deputy commissioner or 
 
                 industrial commissioner may enter an order closing 
 
                 the record to further activity or evidence by any 
 
                 party for failure to comply with these rules or an 
 
                 order of a deputy commissioner or the industrial 
 
                 commissioner.
 
            
 
                 Iowa Rules of Civil Procedure 134"b"(2)(B) states: 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
               If a party or an officer, director or managing agent of a 
 
            party or a person designated under R.C.P. 147"e" to testify 
 
            on behalf of a party fails to obey an order to provide or 
 
            permit discovery, including an order made under subdivision 
 
            "a" of this rule or R.C.P. 132, the court in which the 
 
            action is pending may make such orders in regard to the 
 
            failure as are just, and among others the following:
 
               ....
 
               An order refusing to allow the disobedient party to 
 
            support or oppose designated claims or defenses, or 
 
            prohibiting him from introducing designated matters in 
 
            evidence;
 
            
 
                 Rule 343 IAC 4.35 states:
 
            
 
                    The rules of civil procedure shall govern the 
 
                 contested case proceedings before the industrial 
 
                 commissioner unless the provisions are in conflict 
 
                 with these rules and Iowa Code chapters 85, 85A, 
 
                 85B, 86, 87 and 17A, or obviously inapplicable to 
 
                 the industrial commissioner.  In those 
 
                 circumstances, these rules or the appropriate Iowa 
 
                 Code section shall govern.  Where appropriate, 
 
                 reference to the word "court" shall be deemed 
 
                 reference to the "industrial commissioner."
 
            
 
                                     ANALYSIS
 
            
 
                 The analysis of the evidence in conjunction with the 
 
            law is adopted.  In addition, the following additional 
 
            analysis is made.
 
            
 
                 Defendants were prohibited from offering evidence at 
 
            the hearing.  A review of the procedural history of the case 
 
            leading up to the imposition of this sanction is 
 
            appropriate.
 
            
 
                 On June 25, 1988 claimant filed a request for 
 
            production of documents, seeking certain records from 
 
            defendants.  On September 29, 1988 claimant filed an 
 
            application for an 85.39 independent medical examination, to 
 
            be conducted at the Mayo Clinic in Rochester, Minnesota.  
 
            Defendants did not resist this application.  On October 26, 
 
            1988 a deputy industrial commissioner granted claimant's 
 
            application for an examination, including travel expenses.
 
            
 
                 On November 1, 1988 claimant propounded interrogatories 
 
            to defendants.  On January 5, 1989 claimant's attorney 
 
            contacted defendants and requested production of the 
 
            documents identified in the motion to compel by January 23, 
 
            1989.  On February 10, 1989, after failing to receive the 
 
            documents, claimant filed a motion to compel production of 
 
            the documents, and to compel defendants to answer the 
 
            interrogatories.  On February 23, 1989, a ruling sustaining 
 
            the motion to compel was issued, ordering defendants to 
 
            comply within 14 days of the order.  No reconsideration of 
 
            this ruling was sought by defendants.
 
            
 
                 On March 7, 1989 claimant received a letter from 
 
            defendant insurance carrier stating that the travel expenses 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            associated with the medical examination at Mayo Clinic would 
 
            not be paid because the examination was not done locally.  
 
            On March 30, 1989 claimant filed an application for 
 
            sanctions on defendants' failure to pay the travel expenses 
 
            of the independent medical examination previously ordered, 
 
            and on April 14, 1989 claimant filed another motion for 
 
            sanctions against defendants for failing to produce the 
 
            documents ordered on February 23, 1989.  Also on April 14, 
 
            1989 claimant amended his petition to seek penalty benefits 
 
            under Iowa Code section 86.13, and to add odd-lot as an 
 
            issue.
 
            
 
                 On April 18, 1989 defendants served unverified answers 
 
            to the interrogatories on claimant.  The documents 
 
            previously ordered were not provided.  On April 19, 1989 a 
 
            ruling was issued on claimant's motion for sanctions for 
 
            failure to produce the documents.  The ruling closed the 
 
            record to defendants.
 
            
 
                 On April 24, 1989 defendants filed a resistance to the 
 
            motion for sanctions, and a motion to reconsider the ruling, 
 
            alleging that defendants' counsel never received the ruling 
 
            ordering production within 14 days.  On May 1, 1989 
 
            claimant's attorney contacted defendants by telephone, 
 
            requesting claimant's personnel file, and a formal response 
 
            to the request for production of documents.  Defendants did 
 
            not respond to either request.  On May 4, 1989 claimant 
 
            filed a resistance to defendants' motion to reconsider 
 
            sanctions.  On the same date, the deputy who issued the 
 
            sanctions order reversed the order.
 
            
 
                 On May 5, 1989 defendants filed a supplemental 
 
            resistance to motion to compel, reciting that some portions 
 
            of the bill for the independent medical examination 
 
            represented treatment.  Apparently counsel for defendants 
 
            confused the motion to compel the production of documents 
 
            with the application for an 85.39 examination. 
 
            
 
                 On May 19, 1989 claimant's attorney sent a letter to 
 
            defendants asking for an answer to interrogatory number 25, 
 
            and again asking for claimant's personnel file.  There was 
 
            no response from defendants.  Defendants indicate they never 
 
            received this correspondence.
 
            
 
                 On May 22, 1989 a deputy industrial commissioner 
 
            ordered that claimant's motion for sanctions on the failure 
 
            to pay the costs of the independent medical examination 
 
            would be ruled on at the hearing. 
 
            
 
                 On June 14, 1989 claimant's attorney again wrote to 
 
            defendants, again reciting documents requested in the May 
 
            19, 1989 letter, and also requesting vocational 
 
            rehabilitation test results.  Again, defendants did not 
 
            respond. 
 
            
 
                 On July 7, 1989 claimant filed a second motion for 
 
            sanctions on the failure to produce documents, alleging that 
 
            although the interrogatories had been answered, the 
 
            documents requested had still not been provided.  This 
 
            motion was not resisted.  However, on July 20, 1989, 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            defendants' attorney sent a letter to claimant's attorney 
 
            indicating defendants felt they had sent all the documents 
 
            requested.  On July 20, 1989 a deputy industrial 
 
            commissioner sustained claimant's motion for sanctions on 
 
            the failure to produce documents, and again closed the 
 
            record to defendants.  On July 21, 1989 defendants' attorney 
 
            sent by letter to claimant's attorney wage information 
 
            requested.  Defendants also on this date made both an oral 
 
            and a written motion to reconsider the sanction order.  
 
            During the telephone hearing on the motion to reconsider, 
 
            defendants offered to FAX wage information to claimant's 
 
            attorney, and did so the same day.  The motion to reconsider 
 
            was overruled.
 
            
 
                 The arbitration hearing was held on July 27, 1989.  On 
 
            that date, claimant filed a resistance to defendants' motion 
 
            to reconsider.
 
            
 
                 The deputy's arbitration decision was filed August 31, 
 
            1989.  A notice of appeal was filed September 19, 1989.  
 
            Claimant filed a motion to dismiss the appeal on November 
 
            14, 1989, for defendants' failure to file a transcript and 
 
            failure to file an appeal brief.  Defendants filed the 
 
            transcript on November 21, 1989.  A letter from the 
 
            shorthand reporter indicated that defendants' counsel had 
 
            called her on November 20, 1989, and requested preparation 
 
            of the transcript. 
 
            
 
                 On January 23, 1990 an appeal ruling extended the time 
 
            for filing of the transcript, but ordered that the appeal 
 
            would be considered generally.  Claimant later requested 
 
            permission to file a brief, but this was denied in a ruling 
 
            dated February 22, 1990.  On July 9, 1990, new counsel 
 
            appeared for defendants.
 
            
 
                 Defendants were prohibited from producing evidence at 
 
            the arbitration hearing as a result of an order for 
 
            sanctions.  The procedural history of the case, taken as a 
 
            whole, reveals that defendants did not comply with their 
 
            discovery obligations, or comply with orders of this agency, 
 
            on more than one occasion.  Defendants suffered one sanction 
 
            order prohibiting their evidence, but were able to obtain a 
 
            reversal of that order.  However, continued noncompliance 
 
            resulted in yet another sanction order, which was not 
 
            reversed.
 
            
 
                 The Iowa Rules of Civil Procedure are applicable to 
 
            workers' compensation proceedings under rule 343 IAC 4.35.  
 
            Documents are discoverable under Iowa R.Civ.P. 122"a".  The 
 
            remedy for a failure to respond to discovery is governed by 
 
            Iowa R.Civ.P. 134, which includes prohibiting a party from 
 
            introducing evidence.  Rule 343 IAC 4.36 provides the 
 
            commissioner the authority to close the record to further 
 
            activity or evidence by a party failing to comply with the 
 
            rules or an order.  Defendants ignored repeated requests and 
 
            orders to provide the documents claimant sought.  It was 
 
            only after a motion for sanctions was granted that 
 
            defendants made any effort to comply with their discovery 
 
            obligations.  
 
            
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                 The imposition of discovery sanctions is discretionary.  
 
            When discovery sanctions are imposed by a district court, 
 
            they will not be disturbed on appeal absent an abuse of 
 
            discretion.  Suckow v. Boone State Bank & Trust Co., 314 
 
            N.W.2d 421, 425 (Iowa 1982).  Dismissal is a discovery 
 
            sanction generally used when a party has violated a trial 
 
            court's order.  Id., at 426, citing Zimmerman v. Purex 
 
            Corp., 256 Iowa 190, 194-5, 125 N.W.2d 822, 825 (1964); 
 
            Krugman v. Palmer College, 422 N.W.2d 470 (Iowa 1988).  
 
            Before a court can impose the sanctions of dismissal or 
 
            default, it must find that the refusal to comply was the 
 
            result of willfulness, fault, or bad faith.  Smiley v. Twin 
 
            City Beef Co., 236 N.W.2d 356, 360 (Iowa 1975).  Dismissal 
 
            or default as sanctions are usually limited to violation of 
 
            a court's order.  Postma v. Sioux Center News, 393 N.W.2d 
 
            314, 318 (Iowa 1986).  This is not to say that a court may 
 
            never impose sanctions of dismissal or default even absent 
 
            willfulness or bad faith.  Kendall Hunt Publishing Co. v. 
 
            Rowe, 424 N.W.2d 235 (Iowa 1988).  
 
            
 
                 It is noted that in this case, defendants violated the 
 
            deputy's order to produce the documents within 14 days.  
 
            Similar conduct, along with procrastination and 
 
            inattentiveness in the case, was held to justify a dismissal 
 
            in Krugman, 422 N.W.2d 470.  Defendants' actions in this 
 
            case, if performed by a claimant, might well justify a 
 
            dismissal under our rule.  Defendants' conduct therefore 
 
            justifies the entry of a default against defendants.  
 
            However, the deputy imposed a less onerous sanction of 
 
            closing the record to defendants.  Defendants' conduct 
 
            justifies closing the record to defendants as the most 
 
            appropriate sanction for the noncompliance with the deputy's 
 
            order.  
 
            
 
                 Defendants have not been denied due process in the 
 
            imposition of sanctions.  The sanction imposed in this case 
 
            was pursuant to Iowa R.C.P. 134.  Before sanctions under 
 
            R.C.P. 80"a", dealing with the filing of legal actions, can 
 
            be imposed, the Iowa Supreme Court has held that the alleged 
 
            offender be afforded (1) fair notice and (2) an opportunity 
 
            to be heard.  K. Carr v. Hovick, 451 N.W.2d 815 (Iowa 1990).  
 
            In Carr, the Iowa Supreme Court noted that counsel was 
 
            entitled to a hearing not only on the question of what 
 
            sanctions would be imposed, but also on the question of 
 
            whether a violation of R.C.P. 80"a" had occurred.
 
            
 
                 The Carr case involved R.C.P. 80"a".  Although it is 
 
            not clear that the due process holdings in Carr would apply 
 
            to sanctions imposed under R.Civ.P. 134, it is found that 
 
            defendants in this case did have both notice of the fact 
 
            that sanctions were contemplated, and an opportunity to be 
 
            heard on both the question of whether sanctions would be 
 
            imposed and what the sanctions would be.  Claimant filed a 
 
            written motion for sanctions, and in the prayer of the 
 
            motion moved for (1) default, or (2) closure of the record 
 
            to defendants, and (3) assessment of attorney's fees.  Thus, 
 
            defendants were on notice that sanctions were being sought.
 
            
 
                 The sanction order in question was issued on July 20, 
 
            1989, after the deputy reviewed the file.  Apparently no 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            hearing was held prior to the order imposing sanctions.  
 
            Defendants sought, and were granted, a hearing on 
 
            reconsideration of the imposition of this sanction.  
 
            Defendants were given an opportunity to participate in a 
 
            telephone hearing on the question of whether a sanction 
 
            should be imposed, and what the extent of the sanction 
 
            should be.  This is all that due process requires.  Olson v. 
 
            Wilson Foods Corp., Appeal Decision, May 31, 1990.  
 
            
 
                 Next the issue of sanctions against defendants for 
 
            failing to pay for claimant's section 85.39 independent 
 
            medical examination will be addressed.  Defendants, in spite 
 
            of being ordered to pay for the exam and the transportation 
 
            costs associated with it, did not do so.  Defendants later 
 
            objected to the costs on the basis that they were obligated 
 
            only to pay for an examination in the state of Iowa, and 
 
            that claimant visited the Mayo Clinic three times.  These 
 
            are not valid reasons for not paying.  Claimant's motion for 
 
            an 85.39 examination clearly stated that the Mayo Clinic of 
 
            Rochester, Minnesota, was to be used for the examination.  
 
            This motion was not resisted by defendants.  In addition, 
 
            there is no requirement that an independent medical 
 
            examination must be completed in one session.  A 
 
            supplemental explanation of charges obtained from the clinic 
 
            by claimant's counsel shows that the three visits were all 
 
            part of the examination and not treatment.  Finally, 
 
            defendants' adjuster had no medical evidence to justify a 
 
            refusal to pay.  
 
            
 
                 The deputy that conducted the arbitration hearing noted 
 
            that penalty benefits under Iowa Code section 86.13 and 
 
            interest under Iowa Code section 85.30 are limited to the 
 
            non-payment of weekly benefits, and those sections cannot be 
 
            applied to the non-payment of medical benefits.  The deputy 
 
            granted the motion for sanctions for failure to pay medical 
 
            benefits, and again closed the record to defendants as a 
 
            sanction separate and distinct from the earlier sanction.  
 
            The deputy's ruling was correct.  There was no rational 
 
            basis for denying the payment of medical benefits, and 
 
            pursuant to rule 343 IAC 4.36, the record was properly 
 
            closed to defendants on this ground as well.
 
            
 
                 Claimant is 37 years old, with a GED.  He has worked 
 
            nearly all his life in ironworking.  Claimant cannot return 
 
            to his old job.  Claimant has a permanent partial impairment 
 
            rating of 20 percent of the body as a whole as a result of 
 
            his work injury.  Claimant has work restrictions.  
 
            Vocational rehabilitation tests of claimant show low 
 
            potential for retraining.  Vocational rehabilitation, 
 
            however, had not been completed at the time of the hearing.  
 
            Part of claimant's vocational rehabilitation program 
 
            involved working with a counselor on obtaining employment, 
 
            and one potential line of work identified for claimant was 
 
            in distributing or selling industrial supplies or equipment.  
 
            Claimant was still in a work-hardening program, however, and 
 
            thus no actual job applications had been made.
 
            
 
                 Claimant alleged that he was an odd-lot employee.  
 
            Claimant's cooperative efforts with the vocational 
 
            rehabilitation program in this case, which was clearly 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            designed to enable claimant to re-enter the work force, 
 
            satisfies claimant's obligation under the odd-lot doctrine 
 
            to actively seek employment, especially since claimant had 
 
            not yet completed the work hardening program.  The record as 
 
            a whole shows that with claimant's impairment and work 
 
            restrictions, his education and work experience, he is 
 
            incapable of obtaining employment in any well known branch 
 
            of the labor market, and the services he can perform are so 
 
            limited in quality, dependability, or quantity that a 
 
            reasonably stable market for them does not exist.  
 
            Defendants were precluded from presenting evidence, and thus 
 
            did not rebut the presumption that no jobs were available to 
 
            claimant.  The deputy correctly noted that if the completion 
 
            of claimant's vocational rehabilitation program improves his 
 
            employability, defendants have the option of seeking a 
 
            review-reopening.  However, as of the time of the hearing, 
 
            claimant was permanently and totally disabled.
 
            
 
                 Claimant is also entitled to payment of his medical 
 
            expenses.  As noted above the charges associated with the 
 
            Mayo Clinic examination were properly authorized and 
 
            defendants are responsible for their payment.  Defendants 
 
            are also responsible for claimant's other medical expenses 
 
            associated with his work injury.  Defendants denied the 
 
            compensability of claimant's injury, and thus are precluded 
 
            from objecting to medical expenses because they were not 
 
            authorized.  Kindhart v. Fort Des Moines Hotel, I State of 
 
            Iowa Industrial Commissioner Decision 611 (Appeal Decision 
 
            1985); Barnhart v. MAQ Inc., I Iowa Industrial Commissioner 
 
            Report 16 (Appeal Decision 1981); Pickett v. Davenport 
 
            Lutheran Home, Appeal Decision, October 30, 1987.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 1.  On April 6, 1987 claimant suffered an injury to the 
 
            low back which arose out of and in the course of employment 
 
            with Rinderknecht.  This injury precipitated chronic low 
 
            back and right leg pain as a result of extruded and 
 
            herniated disc in claimant's lower spine.  Claimant 
 
            underwent two surgeries in an attempt to alleviate this 
 
            pain.  As a result of his injuries, claimant was off work 
 
            from April 6, 1987 through April 20, 1987 and continuously 
 
            since June 2, 1987.
 
            
 
                 2.  The work injury of April 6, 1987 was a cause of a 
 
            20 percent permanent partial impairment to the body as a 
 
            whole and of permanent restrictions upon claimant's physical 
 
            activity consisting of no lifting over 20 pounds, no 
 
            bending, pushing, pulling or prolonged sitting or standing 
 
            in excess of one hour without a change of positions.  
 
            Claimant is restricted to sedentary occupations.
 
            
 
                 3.  The work injury of April 6, 1987 and the resulting 
 
            permanent partial impairment and work restrictions are a 
 
            cause of a 100 percent loss of earning capacity.  Claimant 
 
            is unable to return to any of the work for which he is best 
 
            suited given his age, education and past work history.  
 
            Claimant is 37 years of age with only a tenth grade formal 
 
            education.  Claimant has earned his GED but has low 
 
            potential for scholarly endeavor.  Claimant has made a 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            reasonable attempt to look for employment in the 
 
            geographical area of his residence but no suitable work has 
 
            been offered to him despite the assistance of a vocational 
 
            rehabilitation counselor.  Despite full cooperation with all 
 
            vocational and physical rehabilitation efforts, claimant 
 
            remains unemployed as a result of his work injury.  
 
            Therefore, no suitable work is available to claimant and he 
 
            remains unemployable.
 
            
 
                 4.  The medical expenses requested by claimant in the 
 
            prehearing report, including those from the Mayo Clinic in 
 
            1989, are fair and reasonable.  To the extent that the Mayo 
 
            Clinic examinations in this case are considered treatment as 
 
            opposed to disability evaluation, such treatment is 
 
            reasonable treatment as a second opinion as suggested by the 
 
            primary treating physician.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 Claimant has established under law entitlement to 
 
            permanent total disability benefits and to medical benefits 
 
            as ordered below.
 
            
 
                 WHEREFORE, the decision of the deputy is affirmed.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendants shall pay permanent total disability 
 
            benefits at the rate of three hundred nineteen and 02/100 
 
            dollars ($319.02) per week from April 6, 1987 through April 
 
            20, 1987 and from June 2, 1987 for an indefinite period of 
 
            time during the period of claimant's disability.
 
            
 
                 That defendants shall pay claimant the medical expenses 
 
            listed in the prehearing report.  Claimant shall be 
 
            reimbursed only to the extent he paid those expenses.  
 
            Otherwise, defendants shall pay the provider directly.
 
            
 
                 That defendants shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against this award for 
 
            weekly benefits previously paid.
 
            
 
                 That defendants shall pay interest on weekly benefits 
 
            awarded herein as set forth in Iowa Code section 85.30.
 
            
 
                 That defendants shall pay the costs of this action 
 
            including the cost of the transcription of the hearing 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 That defendants file claim activity reports as 
 
            requested by this agency pursuant to rule 343 IAC 3.1.
 
            Signed and filed this ____ day of September, 1991.
 
            
 
            
 
            
 
            
 
                      ________________________________
 
                               BYRON K. ORTON
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
                          INDUSTRIAL COMMISSIONER
 
            
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr. Robert R. Rush
 
            Mr. Matthew J. Nagle
 
            Attorneys at Law
 
            526 2nd Ave. SE
 
            P.O. Box 2457
 
            Cedar Rapids, Iowa 52406
 
            
 
            Mr. Larry L. Shepler
 
            Attorney at Law
 
            Executive Square, Suite 102
 
            400 Main Street
 
            Davenport, Iowa 52801
 
            
 
            Mr. Jeff M. Margolin
 
            Attorney at Law
 
            2700 Grand Ave., Suite 111
 
            Des Moines, Iowa 50312
 
            
 
            
 
                 
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      2908
 
                      Filed September 24, 1991
 
                      BYRON K. ORTON
 
                      LPW
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            JERRY L. CLAIR,     :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :      File No. 850320
 
            RINDERKNECHT ASSOCIATES, INC. :
 
                      :        A P P E A L
 
                 Employer, :
 
                      :      D E C I S I O N
 
            and       :
 
                      :
 
            WAUSAU INSURANCE COMPANIES,   :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            2908
 
            After a long history of noncompliance with discovery 
 
            obligations, defendants suffered the sanction of having the 
 
            record closed to their evidence under 343 IAC 4.36, and 
 
            I.R.C.P. 134(b)(2)(B).  Held that the sanction was 
 
            justified.  Also, without holding that the due process 
 
            requirements for imposing rule 80(a) sanctions were 
 
            applicable to I.R.C.P. 134 discovery sanctions, it was found 
 
            that defendants had notice and an opportunity to be heard 
 
            before the imposition of sanctions.  
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JERRY L. CLAIR,
 
         
 
              Claimant,
 
                                                  File No. 850320
 
         vs.
 
                                               A R B I T R A T I O N
 
         RINDERKNECHT ASSOCIATES, INC.,
 
                                                  D E C I S I O N
 
              Employer,
 
         
 
         and                                       F I L E D
 
         
 
         WAUSAU INSURANCE COMPANIES,                AUG 31 1989
 
         
 
              Insurance Carrier,           IOWA INDUSTRIAL COMMISSIONER
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
              
 
              This is a proceeding in arbitration brought by Jerry L. 
 
         Clair, claimant, against Rinderknecht Associates, Inc., employer 
 
         (hereinafter referred to as Rinderknecht), and Wausau Insurance 
 
         Company, insurance carrier, defendants, for workers' compensation 
 
         benefits as a result of an alleged injury on April 6, 1987.  On 
 
         July 27, 1989, 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.  Oral 
 
         testimony and exhibits were received during the hearing only from 
 
         claimant. According to the prehearing report, the parties have 
 
         stipulated to the following matters:
 
          
 
              1.  On April 6, 1987, claimant received an injury which 
 
         arose out of and in the course of employment with Rinderknecht.
 
              
 
              2.  If the injury is found to have caused permanent 
 
         disability, the type of disability is an industrial disability to 
 
         the body as a whole.
 
              
 
              3.  Claimant's rate of weekly compensation in the event of 
 
         an award of weekly benefits from this proceeding shall be 
 
         $319.02.
 
         
 
              No evidence was received from defendants as a result of 
 
         sanctions imposed prior to hearing by another deputy industrial 
 
         commissioner for failure to comply with her orders.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              Prior to hearing, upon application by claimant pursuant to 
 
         Iowa Code section 85.39, defendants were ordered to pay 
 
         reasonable costs of claimant's independent evaluation of 
 
         disability at the Mayo Clinic.  Initially, defendants denied 
 
         payment on the basis that they were not obligated to pay more 
 
         than an evaluation of claimant's domicile.  Later on they denied 
 
         payment of a portion of the expenses on the basis that the unpaid 
 
         portion constituted treatment and not an evaluation.  In the 
 
         resistance to claimant's motion for sanctions, defendants state 
 
         that they were only ordered to provide one examination, not 
 
         several as occurred at the Mayo Clinic.  They state that claimant 
 
         attended the Mayo Clinic on three separate occasions.  Despite 
 
         the order to pay the reasonable transportation expenses, no 
 
         portion of these transportation expenses were paid.  The motion 
 
         for sanctions was deferred to the undersigned to be dealt with in 
 
         this decision.
 
              
 
              The undersigned feels sanctions are appropriate for failure 
 
         to pay the full expenses.  First, no portion of the 
 
         transportation expenses were paid.  Secondly, nothing in 
 
         defendants' responses show defendants' views as to what was or 
 
         was not treatment or evaluations are based upon competent medical 
 
         expert opinion. Without such backup by expert opinion, 
 
         defendants' adjuster had no reasonable basis to deny payment of a 
 
         physician imposed bill for impairment evaluation, especially in 
 
         light of the adjustment explanation of charges by the Mayo Clinic 
 
         which was obtained at the request of claimant's attorney.  The 
 
         fact that claimant attended three separate sessions as a part of 
 
         a total evaluation process is not a reasonable basis for denial 
 
         of payment.
 
         
 
              With references to sanctions to be imposed, the undersigned 
 
         is quite limited.  It has been held that the provisions of Iowa 
 
         Code sections 86.13 and 85.30 allowing the commissioner to award 
 
         penalties or interest for delays in payment of benefits are only 
 
         applicable to weekly benefits, not medical expenses.  Klein v. 
 
         Furnas Elec. Co., 384 N.W.2d 370, 375 (Iowa 1986).  The 
 
         undersigned is only an administrative law judge and has no 
 
         contempt power or equitable powers of judges in the district 
 
         court.  The only sanction power available is that contained in 
 
         Division of Industrial Services Rule 343-4.36, a closing of the 
 
         record to defendants.  Defendants have already been sanctioned 
 
         under this rule.  However, in the event that this prior sanction 
 
         is overturned on appeal, the undersigned now orders that he 
 
         likewise imposes sanctions under Division of Industrial Services 
 
         343-4.36 by closing the record to further evidence or activity of 
 
         defendants.
 
         
 
                                      ISSUES
 
         
 
              The parties submitted the following issues for determination 
 
         in this proceeding:
 
         
 
              1.  Whether there is a causal relationship between the work 
 
         injury and the claimed disability;
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              
 
              2.  The extent of claimant's entitlement to weekly benefits 
 
         for disability; and,
 
              
 
              3.  The extent of claimant's entitlement to medical 
 
         benefits.
 
         
 
                              STATEMENT OF THE FACTS
 
         
 
              The following is a brief statement highlighting some of the 
 
         more pertinent evidence presented.  Whether or not specifically 
 
         referred to in this statement, all of this evidence received at 
 
         the hearing was independently reviewed and considered in arriving 
 
         at this decision.  Any conclusions about the evidence received 
 
         contained in the following statement should be viewed as 
 
         preliminary findings of fact.
 
         
 
              Claimant testified that he was an iron worker, a buildings 
 
         and trades job, before the work injury. He was engaged in this 
 
         type of work beginning in 1976 but has only been a journeyman 
 
         iron worker following completion of an apprenticeship program in 
 
         1979. Claimant testified that he has worked primarily for 
 
         Rinderknecht since receiving his journeyman card.  Claimant 
 
         testified that for the last several years before his injury he 
 
         was been a foreman at Rinderknecht.  Claimant explained that as a 
 
         foreman he receives orders from the superintendent and directs 
 
         the work of a crew but stills performs physical labor as an iron 
 
         worker.  Rinderknecht indicated, when asked after the work 
 
         injury, that claimant was a good foreman but was not 
 
         superintendent material and that they would not return him to 
 
         work as a superintendent following the work injury.
 
              
 
              The facts surrounding the work injury are not in dispute. 
 
         Claimant testified that on April 6, 1987, while pulling metal 
 
         roof openings onto a roof using a rope, claimant began to feel 
 
         stiff and achy with pain in the low back and leg.  Claimant 
 
         stated that the next morning he could not continue working and 
 
         upon reporting the problem to his superintendent, it was 
 
         suggested that he begin treatment with the local chiropractor, 
 
         David Johnson, D.C. Claimant received such treatment and 
 
         continued to work while receiving chiropractic treatments.  After 
 
         nine such treatments, claimant said that Dr. Johnson felt that he 
 
         could not do anything further for him and claimant was to return 
 
         to work with instructions to avoid lifting and bending.  Claimant 
 
         testified that he continued to worsen and was finally referred to 
 
         a neurosurgeon, James R. LaMorgese, M.D., in May of 1987.  
 
         Following his testing of claimant, Dr. LaMorgese diagnosed that 
 
         claimant suffered from an extruded disc at the L4-5 level and a 
 
         herniated disc at the L5-S1 level of the lower spine.  In July 
 
         1987, Dr. LaMorgese performed surgery called a laminectomy at 
 
         both levels. Following surgery, Dr. LaMorgese treated claimant 
 
         with medication and exercises.  Claimant testified that the 
 
         surgery helped his pain only temporarily and the pain began to 
 
         worsen after only a few weeks.  Conservative care was continued 
 
         with the use of steroid injections but nothing helped to 
 
         alleviate claimant's continuing symptoms.  In January 1987, a 
 
         reexploration surgery was performed at the L4-5 level by Dr. 
 
         LaMorgese.  In March 1988, claimant received extensive physical 
 
         therapy from St. Luke's Hospital.  On May 3, 1988, Dr. LaMorgese 
 
         opined that claimant had reached maximum healing and further 
 
         opined that claimant suffers from a 20 percent permanent partial 
 
         impairment to the body as a whole.  Dr. LaMorgese states that 
 
         claimant cannot return to work as an iron worker.  He stated that 
 
         claimant would have to limit his vocational alternatives to 
 
         sedentary work and work with no stooping, bending, lifting, 
 
         pushing or pulling and no lifting over 20 pounds.
 

 
         
 
 
 
 
 
 
 
 
 
 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Later that summer, upon the recommendation of Dr. LaMorgese, 
 
         claimant began a conditioning program at a rehabilitation center 
 
         with the goal of eventually entering a full work hardening 
 
         program.  Despite progress in increasing his functional 
 
         capabilities, this program was discontinued pending a second 
 
         evaluation at the Mayo Clinic in January 1989.  The Mayo Clinic 
 
         performed extensive testing of claimant over three sessions and 
 
         arrived at much the same conclusions as Dr. LaMorgese and 
 
         likewise rated claimant as suffering from a 20 percent permanent 
 
         partial impairment to the body as a whole.  Mayo Clinic 
 
         physicians recommended that claimant return to the conditioning 
 
         program.
 
         
 
              Claimant attempted to return to the conditioning program but 
 
         was not able to do so.  Initially there was a problem with 
 
         approval from the insurance company as a result of its cost but 
 
         claimant was eventually given a YMCA card at the expense of 
 
         defendants.  Claimant, since receiving this card, has resumed 
 
         swimming and other exercise activity but this is not within a 
 
         structured physical rehabilitation program.
 
         
 
              A vocational counselor was retained by defendants and began 
 
         working with claimant in April 1988.  In reports prepared by this 
 
         counselor, Lewis E. Vierling, MS, CHCM, testing at the local 
 
         skill center indicated that claimant was above average in 
 
         cognitive and conceptual skills.  Vierling states that claimant's 
 
         vocational strengths lie in interpersonal skills, high 
 
         motivation, positive attitude, ability to grasp verbal 
 
         instruction, good work pace, good concentration, ability to adapt 
 
         to changing tasks and circumstances and excellent motor 
 
         coordination with average spacial and form perception.  Many 
 
         areas of interest were identified by Vierling but mostly were not 
 
         suitable vocational alternatives due to either a lack of formal 
 
         education or physical abilities.  Claimant stated that over a two 
 
         month period in 1988, he looked for work in the area of his 
 
         residence making applications to 12 to 18 employers.  Claimant 
 
         has received no offers of employment from this effort.  Claimant 
 
         inquired into an electrical technician program at a local 
 
         community college but was told that he had to complete at least 
 
         one to two years of algebra training perform he could enroll.  
 
         The director of this program indicated to Vierling that claimant 
 
         has a low potential for successful completion of this training 
 
         program given his low math and schooling skills revealed by 
 
         testing.
 
         
 
              Claimant testified that he fully cooperated with Vierling, 
 
         his physicians and physical therapists in an effort to return to 
 
         work.  However, no such alternative employment has been found.  
 
         To date, Rinderknecht has not returned claimant to work in any 
 
         capacity.
 
         
 
             Claimant is 37 years of age and dropped out of formal 
 
         education during eleventh grade.  Claimant earned his GED in 
 
         1973. Claimant's past employment, other than iron work, consists 
 
         of nine months of janitorial work and one year of pest control 
 
         work.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant stated that he had no back problems or medical care 
 
         for his back prior to April 6, 1987.  Claimant fell 20 to 30 feet 
 
         onto a beam at a construction site in 1983 injuring his abdomen 
 
         and fracturing two ribs.  He denied that he suffered any back 
 
         injury from this incident.  Claimant stated that he returned to 
 
         full duty after only a few weeks of recuperation.  Claimant has 
 
         been blind in one eye throughout his working career.
 
         
 
              Claimant's appearance and demeanor at hearing indicated he 
 
         was testifying truthfully.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
               I.  The claimant has the burden of proving by a 
 
         preponderance of the evidence that the work injury is a cause of 
 
         the claimed disability.  A disability may be either temporary or 
 
         permanent.  In the case of a claim for temporary disability, the 
 
         claimant must establish that the work injury was a cause of 
 
         absence from work and lost earnings during a period of recovery 
 
         from the injury.  Generally, a claim of permanent disability 
 
         invokes an initial determination of whether the work injury was a 
 
         cause of permanent physical impairment or permanent limitation in 
 
         work activity.  However, in some instances, such as a job 
 
         transfer caused by a work injury, permanent disability benefits 
 
         can be awarded without a showing of a causal connection to a 
 
         physical change of condition.  Blacksmith v. All-American, Inc., 
 
         290 N.W.2d 348, 354 (Iowa 1980); McSpadden v. Big Ben Coal Co., 
 
         288 N.W.2d 181 (Iowa 1980).
 
         
 
              The question of causal connection is essentially within the 
 
         domain of expert medical opinion.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).  The opinion of 
 
         experts need not be couched in definite, positive or unequivocal 
 
         language and the expert opinion may be accepted or rejected, in 
 
         whole or in part, by the trier of fact.  Sondag v. Ferris 
 
         Hardware, 220 N.W.2d 903 (Iowa 1974).  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 v. Fischer, Inc., 257 
 
         Iowa 516, 133 N.W.2d 867 (1965).
 
         
 
              Furthermore, if the available expert testimony is 
 
         insufficient along to support a finding of causal connection, 
 
         such testimony may be coupled with nonexpert testimony to show 
 
         causation and be sufficient to sustain an award.  Giere v. Asse 
 
         Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 911, 915 (1966). 
 
         Such evidence does not, however, compel an award as a matter of 
 
         law.  Anderson v. Oscar Mayer & Co., 217 N.W.2d 531, 536 (Iowa 
 
         1974).  To establish compensability, the injury need only be a 
 
         significant factor, not be the only factor causing the claimed 
 
         disability.  Blacksmith, 290 N.W.2d 348, 354.  In the case of a 
 
         preexisting condition, an employee is not entitled to recover for 
 
         the results of a preexisting injury or disease but can recover 
 
         for an aggravation thereof which resulted in the disability found 
 
         to exist.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 
 
         N.W.2d 251 (1963).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              In the case sub judice, the evidence is uncontroverted that 
 
         claimant has suffered a 20 percent permanent partial impairment 
 
         to the body as a whole as a result of the incident on April 6, 
 
         1987. Claimant's credible testimony established that he had no 
 
         prior back problems.  There was no evidence that anything 
 
         happened subsequent to the work injury to cause his permanent 
 
         partial impairment.
 
         
 
              II.  Claimant must establish by a preponderance of the 
 
         evidence the extent of weekly benefits for permanent disability 
 
         to which claimant is entitled.  As the claimant has shown that 
 
         the work injury was a cause of a permanent physical 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).  However, unlike scheduled member 
 
         disabilities, the degree of disability under this provision is 
 
         not measured solely by the extent of a functional impairment or 
 
         loss of use of a body member.  A disability to the body as a 
 
         whole or an "industrial disability" is a loss of earning capacity 
 
         resulting from the work injury.  Diederich v. Tri-City Railway 
 
         Co., 219 Iowa 587, 593, 258 N.W. 899 (1935).  A physical 
 
         impairment or restriction on work activity may or may not result 
 
         in such a loss of earning capacity.  The extent to which a work 
 
         injury and a resulting medical condition has resulted in an 
 
         industrial disability is determined from examination of several 
 
         factors. These factors include the employee's medical condition 
 
         prior to the injury, immediately after the injury and presently; 
 
         the situs of the injury, its severity and the length of healing 
 
         period; the work experience of the employee prior to the injury, 
 
         after the injury and potential for rehabilitation; the employee's 
 
         qualifications intellectually, emotionally and physically; 
 
         earnings prior and subsequent to the injury; age; education; 
 
         motivation; functional impairment as a result of the injury; and 
 
         inability because of the injury to engage in employment for which 
 
         the employee is fitted.  Loss of earnings caused by a job 
 
         transfer for reasons related to the injury is also relevant.  
 
         Olson, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963). See 
 
         Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 
 
         28, 1985).
 
         
 
              Claimant's medical condition before the work injury was 
 
         excellent and he had no functional impairments or ascertainable 
 
         disabilities.  Claimant was fully able to perform physical tasks 
 
         including heavy lifting, repetitive lifting, bending, twisting 
 
         and stooping along with prolonged standing and sitting.  Claimant 
 
         was blind in one eye prior to the injury but this has not 
 
         affected his employability throughout his life.  Claimant has 
 
         held a driver's license since his youth and is only limited in 
 
         his driving by his back condition following the work injury.
 
         
 
              All physicians have given claimant a significant permanent 
 
         impairment rating.  These physicians have restricted claimant's 
 
         work activities by prohibiting tasks which prevent his return to 
 
         heavy work which is the work most suited to him given his lack of 
 
         education and limited work experience.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              
 
              Claimant is 37 years of age and should be in the most 
 
         productive years of his life.  His disability is more severe than 
 
         would be the case for a younger or even an older individual. 
 
         Claimant has shown considerable motivation in cooperating with 
 
         vocational rehabilitation and physical rehabilitation efforts.  
 
         He has made a reasonable effort to seek other employment in the 
 
         area of his residence.  Claimant's potential for vocational 
 
         retraining appears quite low.
 
              
 
              As pointed out by defendants in cross-examination, 
 
         vocational rehabilitation efforts are continuing.  However, 
 
         predicting the success or such efforts is speculation and is not 
 
         a proper factor in measuring an injured worker's current 
 
         industrial disability. Steward v. Crouse Cartage Co., Appeal 
 
         Decision February 20,1987. However, this agency is available upon 
 
         proper application in the future to review such matters should 
 
         any vocational rehabilitation efforts prove successful.
 
         
 
              Claimant remains unemployed despite a reasonable effort to 
 
         return to the labor market.  Claimant has not been reemployed by 
 
         Rinderknecht in any capacity sedentary or otherwise.  Despite 
 
         competent vocational rehabilitation efforts, claimant remains 
 
         unemployed to date.  According to the Iowa Supreme Court, such a 
 
         factual setting invokes the so-called "odd-lot" doctrine.  This 
 
         doctrine is a procedural device designed to shift the burden of 
 
         proof with respect to employability to the employer in certain 
 
         factual situations.  Klein v. Furnas Elec. Co., 384 N.W.2d 370, 
 
         375 (Iowa 1986).
 
         
 
              Under the odd-lot doctrine, claimant is able to establish a 
 
         prima facie case for unemployability and permanent total 
 
         disability benefits from a factual showing of a reasonable but 
 
         unsuccessful effort to find suitable work.  If defendants then 
 
         fail to go forward with the evidence on the issue of availability 
 
         of suitable work to claimant, claimant is entitled to an award of 
 
         permanent total disability.  See Guyton v. Irving Jensen Co., 373 
 
         N.W.2d 101, 105 (Iowa 1985).
 
         
 
              After examination of all the factors, it is found as a 
 
         matter of fact that claimant has shown by his reasonable effort 
 
         to return to the work force and other evidence a prima facie case 
 
         for permanent total disability or a total loss of his earning 
 
         capacity as a result of his work injury.  Claimant has shown that 
 
         he is not employable.  Defendants have not gone forward with the 
 
         evidence to show that suitable work is available within the 
 
         geographical area of his residence.  The available evidence 
 
         indicates that suitable work has been sought through vocational 
 
         rehabilitation but none was offered.  Based upon such a finding, 
 
         claimant is entitled as a matter of law to permanent total 
 
         disability benefits under Iowa Code section 85.34(3) during the 
 
         period of claimant's disability.
 
              
 
              III.  Pursuant to Iowa Code section 85.27, claimant is 
 
         entitled to payment of reasonable medical expenses incurred for 
 
         treatment of a work injury.  To the extent that the Mayo Clinic 
 
         bills do not qualify under Iowa Code section 85.39, such expenses 
 
         would qualify as a second opinion and reasonable and medical 
 
         treatment under Iowa Code section 85.27.  The advisability of 
 
         getting a second opinion was first suggested by Dr. LaMorgese in 
 
         March 1988, several months before the Mayo Clinic evaluation was 
 
         scheduled by claimant's attorney.  Furthermore, defendants had no 
 
         right to control the medical as defendants have denied the causal 
 
         connection of the work injury to permanent disability and to 
 
         claimant's continuing problems which require treatment.  The 
 
         agency has long held that it is inconsistent to deny liability 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         for and the necessity to furnish treatment and at the same time 
 
         claim a right to control the treatment never offered.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              It is unclear from the prehearing report whether claimant is 
 
         asking for transportation expenses in exhibit 5.  To the extent 
 
         they have not been paid by defendants, they shall be ordered paid 
 
         herein.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Claimant was a credible witness.  A credibility finding 
 
         was necessary because his testimony was the only evidence offered 
 
         to demonstrate a lack of prior back problems even after a serious 
 
         fall in 1983.
 
         
 
              2.  On April 6, 1987; claimant suffered an injury to the low 
 
         back which arose out of and in the course of employment with 
 
         Rinderknecht.  This injury precipitated chronic low back and 
 
         right leg pain as a result of extruded and herniated disc in 
 
         claimant's lower spine.  Claimant underwent two surgeries in an 
 
         attempt to alleviate this pain.  As a result of his injuries, 
 
         claimant was off work from April 6, 1987 through April 20, 1987 
 
         and continuously since June 2, 1987.
 
         
 
              3.  The work injury of April 6, 1987, was a cause of a 20 
 
         percent permanent partial impairment to the body as a whole and 
 
         of permanent restrictions upon claimant's physical activity 
 
         consisting of no lifting over 20 pounds, no bending, pushing, 
 
         pulling or prolonged sitting or standing in excess of one hour 
 
         without a change of positions.  Claimant is restricted to 
 
         sedentary occupations.
 
         
 
              4.  The work injury of April 6, 1987, and the resulting 
 
         permanent partial impairment and work restrictions are a cause of 
 
         a 100 percent loss of earning capacity.  Claimant is unable to 
 
         return to any of the work for which he is best suited given his 
 
         age, education and past work history.  Claimant is 37 years of 
 
         age with only a tenth grade formal education.  Claimant has 
 
         earned his GED but has low potential for scholarly endeavor.  
 
         Claimant has made a reasonable attempt to look for employment in 
 
         the geographical area of his residence but no suitable work has 
 
         been offered to him despite the assistance of a vocational 
 
         rehabilitation counselor.  Despite full cooperation with all 
 
         vocational and physical rehabilitation efforts, claimant remains 
 
         unemployed as a result of his work injury.  Therefore, no 
 
         suitable work is available to claimant and he remains 
 
         unemployable.
 
         
 
              5.  The medical expenses requested by claimant in the 
 
         prehearing report, including those from the Mayo Clinic in 1989, 
 
         are fair and reasonable to the extent that the Mayo Clinic 
 
         examinations in this case are considered treatment as opposed to 
 
         disability evaluation, such treatment is reasonable treatment as 
 
         a second opinion as suggested by the primary treating physician.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              Claimant has established under law entitlement to permanent 
 
         total disability benefits and to medical benefits as ordered 
 
         below.
 
         
 
                                      ORDER
 
         
 
              1.  Defendants shall pay permanent total disability benefits 
 
         at the rate of three hundred nineteen and 02/100 dollars 
 
         ($319.02) per week from April 6, 1987 through April 20, 1987 and 
 
         from June 2, 1987 for an indefinite period of time during the 
 
         period of claimant's disability.
 
         
 
              2.  Defendants shall pay claimant the medical expenses 
 
         listed in the prehearing report including any and all lawful late 
 
         charges.  Claimant shall be reimbursed only to the extent he is 
 
         paid those expenses.  Otherwise, defendants shall pay the 
 
         provider directly.
 
         
 
              3.  Defendants shall pay accrued weekly benefits in a lump 
 
         sum and shall receive credit against this award for weekly 
 
         benefits previously paid.
 
              
 
              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 pursuant 
 
         to Division of Industrial Services Rule 343-4.33.
 
              
 
              6.  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 31st day of August, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            LARRY P. WALSHIRE
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Robert R. Rush
 
         Mr. Matthew J. Nagle
 
         Attorneys at Law
 
         526 2nd Ave. S.E.
 
         P. 0. Box 2457
 
         Cedar Rapids, Iowa  52406
 
         
 
         Mr. Larry L. Shepler
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         Attorney at Law
 
         Executive Square, STE 102
 
         400 Main St.
 
         Davenport, Iowa  52801
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
                                                 4100
 
                                                 Filed August 31, 1989
 
                                                 LARRY P. WALSHIRE
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JERRY L. CLAIR,
 
         
 
              Claimant,
 
                                                File No. 850320
 
         RINDERKNECHT ASSOCIATES, INC.,
 
                                              A R B I T R A T I O N
 
              Employer,
 
                                                 D E C I S I O N
 
         and
 
         
 
         WAUSAU INSURANCE COMPANIES,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         4100
 
         
 
              Odd-lot doctrine applied.  Permanent total disability 
 
         benefits awarded.