BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         ROBERT DENTON,
 
         
 
              Claimant,                         File No. 850358
 
         
 
         vs.                                   A R B I T R A T I O N
 
         
 
         COUNTY OF UNION,                         D E C I S I O N
 
         
 
              Employer,
 
                                                     F I L E D
 
         and
 
                                                    OCT 4 1989
 
         NORTHWESTERN NATIONAL,
 
                                           IOWA INDUSTRIAL COMMISSIONER
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by the claimant, 
 
         Robert Denton, against County of Union, employer, and 
 
         Northwestern National, insurance carrier, to recover benefits as 
 
         a result of an alleged injury sustained on April 9, 1987.  This 
 
         matter came on for hearing before the deputy industrial 
 
         commissioner in Des Moines, Iowa, on July 12, 1989.  The record 
 
         consists of the testimony of claimant, Carma Mitchell, Curt 
 
         Greenfield, Allen Adam, and Dean Lowenberg; and joint exhibits I 
 
         through VII.
 
         
 
                                      ISSUES
 
         
 
              The issues for resolution are:
 
         
 
              1.  Whether the claimant's alleged disability is causally 
 
         connected to his injury of April 9, 1987;
 
              
 
              2.  The nature and extent of claimant's disability; and
 
              
 
              3.  Whether claimant is entitled to 86.13 penalty benefits.
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              Claimant testified he is 46 years old and a high school 
 
         graduate.  Claimant said he has had no further formal education. 
 
         Claimant stated he has been a farmer all his life up to the time 
 
         of his injury in 1987.  Claimant indicated that since 1964 he has 
 
         been a part-time farmer, basically on weekends, and after working 
 
         his regular job.  Claimant said he has raised some cattle and 
 
         sows and tills 34 of 84 acres he owns.  Claimant said he has 
 
         raised no livestock since 1982 and has had help with the 34 acres 
 
         of tillable farmland since his April 9, 1987 injury.  Claimant 
 
         stated he started to Christian Community College in the early 
 
         1980's but did not finish.  Claimant said he did not like his 
 
         instructor. Claimant stated he has a reading problem, but his 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         reading is better than his writing.  He said he only reads 
 
         magazines and newspapers.  Claimant testified he has been 
 
         operating a road maintainer (grader) or other equipment for 
 
         defendant employer from 1971 to April 9, 1987.  Claimant said his 
 
         job also involves: running a bulldozer with or without a scraper, 
 
         digging out or laying culverts, cleaning fence row, shoveling and 
 
         tampering dirt, putting in elbows weighing up to 100 pounds, 
 
         lifting pipes, cutting brush, operating a chain saw, loading and 
 
         unloading road signs and barricades weighing 100 pounds, changing 
 
         blades and tires, and some general equipment maintenance.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant said that on April 9, 1987, he was having trouble 
 
         with the scraper that was attached to the bulldozer.  Claimant 
 
         described the manner in which the equipment is attached.  
 
         Claimant said that while attempting to connect two cables with a 
 
         bolt, someone pulled the wrong release lever and a scraper was 
 
         lowered onto his left shoulder as he was squatting on the ground.  
 
         Claimant said he was rolled over as a result of this incident and 
 
         could not stand up.  Claimant said he felt a muscle in his back 
 
         pull and it began to hurt and burn down his lower back.  Claimant 
 
         said he returned to work part time for two weeks in July 1987 and 
 
         then worked up to his ten hours per day summer schedule.  
 
         Claimant stated that in August 1987 he was having so much pain he 
 
         reduced his hours to six hours per day until November 1987 and 
 
         then went back to his regular schedule (40 hours per week).  
 
         Claimant stated his job duties or responsibilities changed since 
 
         the injury.  He indicated he does not do lifting.  He said he 
 
         tried to operate the dozer in the spring of 1988, but had to quit 
 
         after one hour.  He said he tried again in the summer of 1988 and 
 
         had to quit. Claimant indicated he is not able, nor has he been 
 
         asked, to do several other tasks he used to do for the county 
 
         because of his back injury.  Claimant indicated he is primarily 
 
         running the grader on the road as his present job task.
 
         
 
              Claimant said he applied for a position through bidding in 
 
         October 1987, but did not get the job.  Claimant said he filed a 
 
         grievance with the employer since he had seniority and was passed 
 
         over by another person.  Claimant contends he did not get the job 
 
         because of his back injury.  Claimant said in 1988 he applied for 
 
         a foreman job because it would be easier than running the 
 
         maintainer (grader) and easier on his back.  He indicated a 
 
         foreman goes around and tells people what to do.  Claimant said 
 
         he was qualified for the job, but he did not get it.
 
         
 
              Claimant acknowledged that he has the same job with 
 
         defendant employer today as he did 18 years ago.  Claimant said 
 
         he has not looked for other jobs.  Claimant indicated he plans to 
 
         stay with Union County if he can stand to run the maintainer.  
 
         Claimant acknowledged that he had right shoulder problems and 
 
         some mid-back problems in the late 1970's and early 1980's; 
 
         scoliosis in October 1975 and August 1976; bursitis in 1979; 
 
         right shoulder treatment in December of 1980 and July of 1982; 
 
         and a back strain resulting in one week off work in 1982.
 
         
 
              Carma Mitchell is a vocational consultant.  She testified 
 
         she assists people in returning to work.  She said claimant's 
 
         attorney requested that she evaluate claimant.  Although Mitchell 
 
         testified she had been provided with some depositions and medical 
 
         information on claimant, she acknowledged she did not have a pre 
 
         1987 medical history or any knowledge of claimant's back 
 
         condition.  Mitchell admitted that as of the time of her May 1, 
 
         1989 report, she had not talked to claimant nor had she seen 
 
         claimant's job description.
 
         
 
              Allen Adam testified he is an attorney and litigation 
 
         supervisor for defendant insurance company.  He said he 
 
         personally handled claimant's case beginning May 28, 1987.  Adam 
 
         acknowledged that he did not consult with a physician before 
 
         concluding that the TENS unit claimant was wearing would be of no 
 
         help to claimant after he wore it for six months.  Adam said he 
 
         based his judgment on his expertise and seminars he has attended.  
 
         He could not recall any seminar or doctor who told him that six 
 
         months was the limit.  Adam said he knew claimant returned to 
 
         work on November 15, 1987.  He said he did not know why he didn't 
 
         pay accrued benefits for the period of November 15, 1987 to June 
 
         8, 1988, rather than beginning weekly benefits on June 8, 1988, 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         based on a 10 percent impairment rating, except on advice of 
 
         counsel.  Adam also indicated that it was never brought to his 
 
         attention that claimant wanted accrued benefits.  Adam said that 
 
         when he was notified on May 20, 1988 as to a permanent impairment 
 
         rating being given claimant, he wrote Dr. Bunten that same day 
 
         for the report. He stated that when he received claimant's 10 
 
         percent rating from Dr. Bunten on June 8, 1988, he began paying 
 
         the 50 weeks on a weekly basis beginning June 8, 1988.  Adam 
 
         acknowledged Dr. Bunten was a defendant authorized treating 
 
         physician.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Curt Greenfield is a Union County engineer.  He testified 
 
         claimant's job is to operate the road maintainer.  He indicated 
 
         that claimant grades roads 70 to 80 percent of the time versus 
 
         performing other jobs, unless there is a heavy snowfall.  He 
 
         acknowledged that the other jobs require heavy lifting.  
 
         Greenfield said the county put a new seat on claimant's grader.  
 
         He acknowledged claimant applied for a foreman job and is 
 
         qualified to be a foreman.  He indicated claimant has never 
 
         complained to him as to any specific back complaint.  He does not 
 
         contemplate any layoffs.  Greenfield acknowledged claimant has 
 
         the same job and job description now as he had at the time of his 
 
         injury.  He admits claimant no longer operates the crawler, dozer 
 
         and scraper, does not operates the endloader, does not drive a 
 
         truck, and does not plow snow with a truck-mounted blade or with 
 
         a grader.  He said claimant is basically limited to operating the 
 
         grader when he is dragging the road.  He contends that the reason 
 
         claimant doesn't operate equipment other than the grader 
 
         (maintainer) now is not because of claimant's back condition.
 
         
 
              Dean Lowenberger's (claimant's union foreman) testimony, for 
 
         the most part, was repetitive and cumulative to parts of Mr. 
 
         Greenfield's testimony.  He did acknowledge that he understood 
 
         there was a weight limit imposed on claimant in July 1987.
 
         
 
              An x-ray report dated April 10, 1987 with Creston Medical 
 
         Clinic reflects the following:
 
         
 
              EXAMINATION OF THE LUMBOSACRAL SPINE WITH THE INITIAL 
 
              EXAMINATION BEING A TRANSLATERAL CROSSTABLE VIEW WITH THE 
 
              REPEAT LATERAL AP BOTH OBLIQUE AND SPOT VIEW OF THE 
 
              LUMBOSACRAL AREA BEING WITH STANDARD POSITION AND TECHNIQUE 
 
              demonstrates evidence of a minimal wedge compression of L-1 
 
              in the anterior superior aspect of the vertebral body with 
 
              it being slightly more compressed on the left margin than 
 
              that on the right.  The lumbosacral spine is otherwise not 
 
              remarkable.
 
              
 
         (Joint Exhibit 32, page 31)
 
         
 
              An x-ray report dated April 24, 1987 with Creston Medical 
 
         Clinic reflects:
 
         
 
              CT OF THE LUMBAR SPINE:  Studies were done at the L4-5, L5, 
 
              S1 and L3-4 levels.  There is no evidence of herniated 
 
              intervertebral disc.  At the two and a half centimeter area 
 
              below the L5,S1 interspace there is an apparent transverse 
 
              fracture involving the sacrum.  This is not separated and 
 
              the sacroiliac joint does not appear disrupted.
 
              
 
              IMPRESSION:  No evidence of herniated disc.
 
              
 
              2.  Apparent non-displaced fracture of the right sacrum.
 
              
 
         (Jt. Ex. A, P. 33)
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              An x-ray report dated May 20, 1987 with Creston Medical 
 
         Clinic reflects:
 
         
 
              EXAMINATION OF THE LUMBAR SPINE WITH PARTICULAR REFERENCE TO 
 
              THE LOWER THORACIC AND UPPER LUMBAR REGION:
 
              
 
                Again demonstrates the minimal wedge compression of L1 
 
              which appears to be healing satisfactorily with no increase 
 
              in the degree of compression as compared with the initial 
 
              films with, on this examination, a minimal lipping of what 
 
              appears to be T12 which I feel is of traumatic origin which 
 
              was not clearly defined on the previous lumbar spine films. 
 
              This is only a very minimal compression defect.
 
              
 
         (Jt. Ex. A, p. 34)
 
         
 
              Claimant's medical report with James E. Mansour, M.D., dated 
 
         June 12, 1987, reflects:  "Wedge compression fracture L 1, 
 
         Lumbosacral Strain & Sacral fracture."  (Jt. Ex. A, p. 18)
 
         
 
              Ronald K. Bunten, M.D., an orthopedic surgeon, noted the 
 
         following on November 11, 1987:
 
         
 
                I think he has a 10% permanent partial impairment of his 
 
              total body function based on the residuals of this injury.  
 
              No additional orthopaedic treatment seems presently 
 
              indicated or likely to occur in the future.  I suggested he 
 
              try returning to his usual work activities.  We could 
 
              reassess him on a p.r.n. basis.
 
              
 
         (Jt. Ex. E, p. 84)
 
         
 
              Thomas W. Bower, LPT, wrote the following in his report of 
 
         January 4, 1989:
 
         
 
              [H]e would be classified into a light to medium category 
 
              lifting slightly higher than 20 pounds occasionally, 10 
 
              pounds frequently, and negligible weight lifted constantly. 
 
              This appears not to be a problem with the job he is 
 
              currently performing since there is not a great deal of 
 
              heavy lifting to be done....
 
              
 
               In regards to the patient's overall disability, the values 
 
              specifically pertaining to active range of motion have 
 
              accounted for an 11 percent impairment.  I feel these, 
 
              however, are temporary and certainly could be improved upon 
 
              through proper mobilization procedures to restore range of 
 
              motion.  Therefore, I do not feel that the 11 percent would 
 
              be an accurate impairment on the basis of that 
 
              acknowledgement.
 
         
 
              If there is substantial compression of the vertebral bodies 
 
              then those would have to be accounted for but again I have 
 
              no report to substantiate that at this time.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
              
 
         (Jt. Ex. F, p. 94)
 
         
 
         
 
                In my report of January 4, 1989, I acknowledged the fact 
 
              that if there were substantial compression of the vertebral 
 
              bodies, this would definitely need to be accounted for in 
 
              terms of a permanency rating.  Utilizing the 3rd addition of 
 
              the American Medical Association guides, a 0 to 25% 
 
              compression of a vertebral body, which apparently is where 
 
              this particular situation would fall, would account for an 
 
              additional 5% impairment.  Therefore, utilizing the 11% that 
 
              we had previously stated, the 5% would be added to this 
 
              through the accumulative charts providing a 15% impairment 
 
              -to the body as a whole.  As you also recall in my report of 
 
              January 4, 1989, I felt that the range of motions and the 
 
              impairment based on those range of motions could be improved 
 
              upon with proper mobilization procedures.
 
              
 
         (Jt. Ex. F, p. 96)
 
         
 
              Bower testified through a deposition on June 28, 1989 that 
 
         there is a very good possibility of improvement as to claimant's 
 
         range of motion with the proper mobilization procedures.
 
         
 
              He indicated it would be speculative to determine the degree 
 
         of reduction since claimant has not been exposed to these 
 
         mobilization techniques.  Bower emphasized that the 5 percent he 
 
         referred to in his May 23, 1989 letter would not be reduced at 
 
         all by the mobilization procedures.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of April 9, 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).
 
              
 
              As a claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
         593, 258 N.W. 899, 902 (1935) as follows:  "It is therefore plain 
 
         that the legislature intended the term 'disability' to mean 
 
         'industrial disability' or loss of earning capacity and not a 
 
         mere 'functional disability' to be computed in the terms of 
 
         percentages of the total physical and mental ability of a normal 
 
         man."
 
         
 
              The opinion of the supreme court in Olson v. Goodyear 
 
         Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963) at 1121, 
 
         cited with approval a decision of the industrial commissioner for 
 
         the following proposition:
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Disability * * * as defined by the Compensation Act means 
 
              industrial disability, although functional disability is an 
 
              element to be considered . . . In determining industrial 
 
              disability, consideration may be given to the injured 
 
              employee's age, education, qualifications, experience and 
 
              his inability, because of the injury, to engage in 
 
              employment for which he is fitted. * * * *
 
              
 
              
 
         Iowa Code section 86.13 states, in part:
 
         
 
                If a delay in commencement or termination of benefits 
 
              occurs without reasonable or probable cause or excuse, the 
 
              industrial commissioner shall award benefits in addition to 
 
              those benefits payable under this chapter, or chapter 85, 
 
              85A, or 85B, up to fifty percent of the amount of benefits 
 
              that were unreasonably delayed or denied.
 
              
 
              Claimant is 46 years old and has only a high school diploma. 
 
         Claimant has worked 18 years for Union County at the same job. 
 
         Although claimant applied for a foreman job, he has not 
 
         progressed above his original classification when he began work 
 
         in 1971. Claimant's work classification is comprised of various 
 
         work tasks from light duty to heavy duty work.  It appears for 16 
 
         years claimant did all types of work including heavy duty work.  
 
         He operated all types of machinery and appears skilled in their 
 
         operation.
 
         
 
              Claimant is making the same comparable income today as he 
 
         did at the time of his April 9, 1987 injury.  Claimant has no 
 
         loss of earnings.  Defendants contend that since claimant is 
 
         working and has no loss of earnings, claimant has no industrial 
 
         disability, at least nothing more than what defendants have 
 
         already paid to claimant.
 
         
 
              Loss of income does not equate to loss of earning capacity. 
 
         It is only one of the criteria to consider in determining 
 
         industrial disability.  Claimant has lost the capacity to operate 
 
         most, if not all, of the equipment he operated before his injury, 
 
         except the road grader (maintainer).  Claimant is not able to do 
 
         the various jobs he used to be requested to do which required 
 
         lifting.  Mr. Greenfield indicated the reason claimant is not 
 
         operating other equipment or performing the various other jobs is 
 
         not because of his back.  The undersigned does not accept that 
 
         statement as correct.  It is no coincidence that those activities 
 
         ceased at the time of claimant's April 9, 1987 injury.  It is 
 
         obvious that claimant cannot perform many of those jobs that are 
 
         set out in his job classification and description.  Defendant 
 
         employer is to be congratulated for keeping claimant employed and 
 
         accommodating him.  This has had a large effect on maintaining 
 
         claimant's earning capacity at a higher level than if he lost his 
 
         job.  The undersigned must consider claimant's earning capacity 
 
         at the present and not speculate as to what might happen to 
 
         claimant if he lost his job or tried to find new employment with 
 
         his present limitations.  The undersigned cannot speculate as to 
 
         claimant's future employment.  Umphress v. Armstrong Rubber 
 
         Company, Appeal Decision filed August 27, 1987).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Dr. Bunten opined a 10 percent impairment to the body as a 
 
         whole as a result of claimant's April 29, 1987 injury.  Thomas 
 
         Bower, LPT, opined a 15 percent impairment to the body as a 
 
         whole. He included a 5 percent impairment attributable to the 
 
         substantial compression of the vertebral bodies.  He utilized the 
 
         AMA Guides. He indicated that the other approximate 10 percent 
 
         impairment could possibly be reduced if claimant was exposed to 
 
         the proper mobilization procedures.  The undersigned must 
 
         consider the current status of claimant and not speculate as to 
 
         such possibility of a reduction.  The fact is, claimant has not 
 
         been subjected to the mobilization techniques referred to by Mr. 
 
         Bower. The undersigned finds claimant has a 50 percent impairment 
 
         to his body as a whole and has a reduction in earning capacity.  
 
         The undersigned finds that claimant's impairment and reduction in 
 
         earning capacity is causally connected to his injury of April 9, 
 
         1987.
 
         
 
              The remaining issue is whether claimant is entitled to 86.13 
 
         benefits.  Defendants' in-house counsel admits claimant incurred 
 
         a permanent impairment.  Defendants' doctor issued a 10 percent 
 
         rating.  Defendants contend that when they received the rating 
 
         confirmed in writing, they started paying permanent partial 
 
         disability benefits.  Defendants indicated they started paying 
 
         based on 10 percent impairment; therefore, defendants apparently 
 
         felt that they were going to follow their doctor's opinion.  
 
         There was no doubt as to the causal connection in Dr. Bunten's 
 
         opinion. It would seem logical that defendants would pay the 
 
         accrued permanent partial disability benefits at 10 percent in a 
 
         lump sum rather than beginning the first weekly payment based on 
 
         a 10 percent impairment rating.  Mr. Adam indicated he did not 
 
         know claimant wanted accrued benefits.  The parties stipulated 
 
         that permanent partial disability benefits, if found, would begin 
 
         July 19, 1987.  The law provides that compensation for permanent 
 
         partial disability shall begin at the termination of the healing 
 
         period.  It is obvious that the healing period ended July 18, 
 
         1987, when claimant returned to work.  Iowa Code section 86.13 
 
         provides that the industrial commissioner shall award additional 
 
         benefits if there is an unreasonable delay in commencement or 
 
         termination of payments.  The undersigned finds that there was an 
 
         unreasonable delay in the payment of 50 weeks of permanent 
 
         partial disability benefits.  Defendants are liable for an 
 
         additional 10 percent penalty on the 50 weeks of permanent 
 
         partial disability benefits that accrued since July 19, 1987 and 
 
         which benefits defendants began paying on June 8, 1988 on a 
 
         weekly basis.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Claimant received a work-related wedge compression 
 
         fracture L-1, lumbosacral strain and sacral fracture on April 9, 
 
         1987.
 
         
 
              2.  Claimant's current disability is causally connected to 
 
         claimant's work-related injury on April 9, 1987.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              
 
              3.  Claimant has no loss of income as a result of his April 
 
         9, 1987 injury.
 
              
 
              4.  Claimant is working at the same job he had at the time 
 
         of his April 9, 1987 injury, but is limited in his lifting and 
 
         the use of certain equipment.
 
              
 
              5.  Claimant has a 15 percent impairment to his body as a 
 
         whole as a result of his April 9, 1987 work-related injury.
 
              
 
              6.  Claimant has received all the healing period benefits 
 
         and temporary partial disability benefits to which he is entitled 
 
         and as stipulated by the parties.
 
              
 
              7.  Claimant has a reduction in earning capacity.
 
              
 
              8.  Defendant employer has accommodated claimant, which has 
 
         enabled claimant to continue his job with some modification.
 
         
 
              9. Claimant should have been paid the accrued permanent 
 
         partial disability benefits on June 8, 1988, at which time 
 
         defendants knew of claimant's impairment from defendants' own 
 
         doctor.  Defendants then determined claimant was entitled to at 
 
         least 10 percent permanent partial disability benefits, but 
 
         decided to begin payments to claimant on a weekly basis.
 
              
 
              10.  Claimant is entitled to a 10 percent penalty on 50 
 
         weeks of permanent partial disability benefits.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant's injury on April 9, 1987 arose out of and in the 
 
         course of claimant's employment.
 
         
 
              Claimant's disability is causally connected to his injury 
 
         on-April 9, 1987.
 
              
 
              Claimant has a 13 percent industrial disability as a result 
 
         of his April 9, 1987 injury.
 
              
 
              Claimant is entitled to a 10 percent penalty on 50 weeks of 
 
         permanent partial disability benefits, which amounts to $979.85.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That claimant is entitled to sixty-five (65) weeks of 
 
         permanent partial disability benefits at the weekly rate of one 
 
         hundred ninety-five and 97/100 dollars ($195.97) beginning July 
 
         19, 1987.
 
         
 
              That claimant has been paid all healing period benefits and 
 
         temporary partial disability benefits to which he is entitled and 
 
         as stipulated to by the parties.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              
 
              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 nine hundred seventy-nine and 
 
         85/100 dollars ($979.85) penalty benefits.
 
              
 
              That defendants shall pay interest on benefits awarded 
 
         herein as set forth in Iowa Code section 85.30.
 
              
 
              That defendants shall pay the cost of this action pursuant 
 
         to Division of Industrial Services Rule 343-4.33.
 
         
 
              That defendants shall pay an activity report upon payment of 
 
         this award as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
              
 
              Signed and filed this 4th day of October, 1989.
 
              
 
         
 
         
 
         
 
         
 
                                            BERNARD J. O'MALLEY
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies to:
 
         
 
         Mr. Steven C. Jayne
 
         Attorney at Law
 
         5835 Grand Ave
 
         Suite 201
 
         Des Moines, IA  50312
 
         
 
         Mr. William D. Scherle
 
         Attorney at Law
 
         803 Fleming Bldg
 
         Des Moines, IA  50309
 
         
 
         Mr. Helmut A. Mueller
 
         Attorney at Law
 
         RR 5
 
         Osceola, IA  50213
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         
 
                                         5-1108.50: 5-1803
 
                                         4000
 
                                         Filed October 4, 1989
 
                                         Bernard J. O'Malley
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
                                                                          
 
         ROBERT DENTON,
 
         
 
              Claimant,                         File No. 850358
 
         
 
         vs.                                 A R B I T R A T I O N
 
         
 
         COUNTY OF UNION,                       D E C I S I O N
 
         
 
              Employer,
 
              
 
         and
 
         
 
         NORTHWESTERN NATIONAL,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
              
 
              
 
         5-1108.50
 
         
 
              Claimant incurred a work-related wedge compression fracture 
 
         L-1, lumbosacral strain and sacral fracture resulting in a 15% 
 
         impairment to his body as a whole.  Causal connection between 
 
         disability and injury found.
 
         
 
         5-1803
 
         
 
              Claimant incurred no loss of income as a result of his work 
 
         injury, but incurred a reduction in earning capacity.  Claimant 
 
         awarded 13% industrial disability.
 
         
 
         4000
 
         
 
              Claimant awarded 10% penalty benefits ($979.85) on the 10% 
 
         permanent partial disability benefits paid by defendants 
 
         approximately one year later.  Defendants received a permanent 
 
         impairment rating from their own doctor approximately 14 months 
 
         after injury and determined claimant was entitled to 10% 
 
         permanent partial disability benefits.  Defendants began paying 
 
         weekly benefits rather than the amount of benefits accrued at 
 
         time of defendants' determination of benefits.  Defendants 
 
         contended they did not know claimant wanted accrued amount in a 
 
         lump sum.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
                                        
 
         
 
         DENNIS HENDRIX,
 
                                                     File No. 850405
 
              Claimant,
 
                                                  A R B I T R A T I O N
 
         vs.
 
                                                     D E C I S I O N
 
         IOWA POWER AND LIGHT COMPANY,
 
                                                        F I L E D 
 
              Employer,
 
              Self-Insured,                             FEB 9 1989
 
              Defendant.
 
                                                   INDUSTRIAL SERVICES
 
         
 
         
 
                                   INTRODUCTION
 
                                        
 
              This is a proceeding in arbitration brought by Dennis 
 
         Hendrix against Iowa Power and Light Company, the self-insured 
 
         employer. The case was heard and fully submitted at Council 
 
         Bluffs, Iowa on November 21, 1988.  The record in this proceeding 
 
         consists of joint exhibit A, defendant's exhibits 1 through 33 
 
         and claimant's testimony.
 
              
 
                                      ISSUES
 
                                        
 
              Claimant sustained an injury when he inhaled a substance 
 
         used to test the seal of a respirator mask device worn on his 
 
         face.  He seeks compensation for temporary total disability or 
 
         healing period, compensation for permanent disability and 
 
         authorization for alternate medical care.  The employer contends 
 
         that benefits should be suspended under the provisions of Iowa 
 
         Code section 85.39 and that the treatment it has offered is 
 
         reasonable.
 
              
 
                               SUMMARY OF EVIDENCE
 
                                        
 
              The following is a summary of evidence presented in this 
 
         case.  Of all the evidence received at the hearing, only that 
 
         considered most pertinent to this decision is discussed.  
 
         Conclusions about what the evidence showed are inevitable with 
 
         any summarization.  The conclusions in the following summary 
 
         should be considered to be preliminary findings of fact.
 
              
 
              The Iowa Power and Light Company plant where claimant was 
 
         employed was a coal-fired plant and had areas where airborne coal 
 
         and other dust particles were highly concentrated.  Parts of the 
 
         plant required use of a respirator device to prevent inhalation 
 
         of airborne particles.  The type of respirator device in use at 
 
         the time of claimant's injury was a facemask-type device which 
 
         fit on the worker's face and covered his mouth and nose.  If the 
 
         device is to work properly and prevent all inhalation of airborne 
 
         particles, it must have an airtight seal against the worker's 
 
         face.  Facial hair can prevent an airtight seal from being 
 
         achieved.  Iowa Power and Light Company adopted a policy 
 
         requiring its employees who work in areas where respirator use is 
 
         required to shave in such a fashion as to allow the respirator 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         devices to make a tight seal. Claimant is afflicted with an 
 
         ailment which causes his facial hairs to become ingrown if he 
 
         shaves closely.  He has consulted a dermatologist and has been 
 
         advised to leave at least one-quarter inch of stubble when he 
 
         shaves.  Claimant appeared at hearing with a full beard and has 
 
         customarily worn facial hair.  There is apparently litigation 
 
         ongoing regarding the propriety of the employer's policy 
 
         regarding facial hair.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              
 
              On July 23, 1987, Dennis Hendrix was in the process of 
 
         testing the fit and seal of two different respirators on his 
 
         face. A substance known as stannic chloride was being used to 
 
         test for leaks around the seal of the respirator devices.  The 
 
         material safety data sheet issued by the U. S. Department of 
 
         Labor for the substance indicates that when the substance 
 
         hydrolyzes with moisture in the air, it forms hydrochloric acid 
 
         and stannic oxychloride.  The data sheet cautions that it 
 
         contains a corrosive acid chemical that causes burns and it 
 
         recommends that contact with it be avoided and that breathing the 
 
         smoke or fumes should be avoided because it can cause irritation 
 
         of the upper respiratory tract (exhibit A, deposition exhibit 6).  
 
         During the course of the testing process, claimant asked the 
 
         management representative what the smoke from the stannic 
 
         chloride smelled or tasted like, and the management 
 
         representative sprayed a quantity of the substance directly into 
 
         claimant's mouth.  Claimant immediately experienced acute 
 
         laryngeal spasm, difficulty breathing, laryngitis, a cough and 
 
         throat distress (defendant's exhibit 7).  A representative of the 
 
         employer took claimant to A. M. Romano, M.D., for treatment.
 
              
 
              Claimant returned to work with a restriction from Dr. Romano 
 
         that he not work in polluted air (exhibit 6).  On July 28, 1987, 
 
         the fit and seal of respirators on claimant's face was again 
 
         tested, this time using saccharin rather than stannic chloride. 
 
         Claimant again complained of a flare-up of the problem and 
 
         returned to Dr. Romano.  At that time, Dr. Romano authorized 
 
         claimant to resume employment, but with restrictions that 
 
         claimant not be subjected to further testing and also that he 
 
         avoid smoky and/or dirty air (exhibits 5 and 7).  Claimant stated 
 
         that he was not allowed to work with those restrictions and was 
 
         sent home without pay.
 
              
 
              Claimant was seen again by Dr. Romano on August 5, 1987, at 
 
         which time he continued to voice complaints of hoarseness, 
 
         shortness of breath on exertion and that trying to smoke caused 
 
         laryngitis and coughing.  Dr. Romano indicated that further 
 
         evaluation by an internal medicine specialist or a pulmonologist 
 
         was indicated (exhibit 7, page 2).  Claimant declined to attend 
 
         appointments which the employer had scheduled with Randall R. 
 
         Hanson, M.D., a specialist in internal medicine and pulmonary 
 
         disease who practices in Des Moines, Iowa.  On August 18, 1987, 
 
         Dr. Romano noted claimant's continued complaints of hoarseness, 
 
         breathlessness and shortness of breath.  Dr. Romano indicated 
 
         that he felt three weeks was an excessive period of time and that 
 
         claimant should be completely recovered from the incident.  Dr. 
 
         Romano indicated that claimant continues to smoke and that this 
 
         may be an aggravating factor.  He again indicated that a referral 
 
         to a pulmonologist was in order (exhibit 7, page 3).  Dr. Romano 
 
         authorized claimant to return to work with restrictions (exhibit 
 
         7, page 4).  Claimant was not allowed to return to work at that 
 
         time, however.
 
              
 
              Dr. Hanson examined claimant on August 24, 1987 and found 
 
         his lungs, chest x-rays and pulmonary function studies to be 
 
         normal. Dr. Hanson found claimant to have no persistent pulmonary 
 
         problems (exhibit A, pages 7-9).  Dr. Hanson expressed the 
 
         opinion that claimant's inhalation of stannic chloride and 
 
         saccharin, both of which are irritants, caused symptoms of a 
 
         cough and spasm, but no permanent effects.  He found no evidence 
 
         of mucous membrane damage or burning.  Dr. Hanson found no 
 
         evidence of chronic bronchitis or emphysema (exhibit A, pages 34, 
 
         35 and 56-60).  Dr. Hanson stated that claimant has no permanent 
 
         impairment and no permanent condition as a result of the 
 
         incident, that claimant has no further need for treatment and 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         that no need exists for claimant to restrict his activities 
 
         (exhibit A, pages 11, 12, 30 and 47). Claimant regularly smokes 
 
         cigarettes.  Dr. Hanson indicated that cigarette smoking provides 
 
         a continual irritant and that all of his symptoms could be caused 
 
         by cigarette smoking (exhibit A, pages 49 and 50).  Dr. Hanson 
 
         also stated that, after an acute inhalation injury, the effect is 
 
         transient and that it is extremely unlikely for symptoms to 
 
         persist for more than a month (defendant's exhibit 4).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              
 
              When examining claimant, Dr. Hanson found an apparent 
 
         abnormality in claimant's throat and recommended that claimant be 
 
         evaluated by an ear, nose and throat specialist.  Claimant was 
 
         then evaluated by D. A. Syre, M.D., at Council Bluffs, who 
 
         determined that the condition of claimant's throat was normal 
 
         (defendant's exhibit 2).  Dr. Syre released claimant to return to 
 
         work on September 2, 1987 (defendant's exhibit 3).
 
              
 
              Claimant sought an evaluation on his own from John D. 
 
         Roehrs, M.D., on September 24, 1987.  Dr. Roehrs examined 
 
         claimant and found no abnormalities.  In his report, Dr. Roehrs 
 
         indicated that there was little that claimant could do from a 
 
         workers' compensation standpoint because his complaints were 
 
         nebulous and could be attributed to claimant's tobacco use 
 
         (defendant's exhibit 8, page 2).
 
              
 
              When claimant returned to work, he was not allowed to work 
 
         as an electrician due to the restrictions that had been 
 
         recommended by Dr. Romano.  Claimant was allowed a medical bump 
 
         and selected the job of a janitor which paid approximately $4.00 
 
         per hour less than his position as an electrician.  Claimant 
 
         filed a grievance with his union and was reinstated to the 
 
         position of electrician. The employer was also required to 
 
         provide claimant with a full-face respirator which could be worn 
 
         effectively in spite of his facial hair.  Claimant has 
 
         subsequently been discharged from his employment, purportedly for 
 
         excessive absenteeism.  The discharge is being contested through 
 
         the collective bargaining procedure.
 
              
 
                           APPLICABLE LAW AND ANALYSIS
 
                                        
 
              Claimant is entitled to recover compensation for temporary 
 
         total disability or healing period from the date of injury until 
 
         he returns to work, is medically capable of engaging in work 
 
         substantially similar to that he performed at the time of injury 
 
         or until further significant improvement from the injury is not 
 
         anticipated, whichever event occurs first.  Iowa Code sections 
 
         85.33 and 85.34(1).  Claimant had apparently made sufficient 
 
         recovery by July 27, 1987 in order for Dr. Romano to allow him to 
 
         resume employment, but he was then reexposed to an irritant.  In 
 
         view of Dr. Romano's restrictions, claimant was sent home from 
 
         work without pay.  Since claimant's release to return to work was 
 
         with restrictions, he was not capable of performing employment 
 
         substantially similar to that he performed at the time of injury. 
 
         It was not until September 2, 1987 that claimant was allowed to 
 
         return to work by the employer.  Accordingly, claimant's 
 
         entitlement to weekly compensation for his period of recuperation 
 
         runs from July 23, 1987 until September 2, 1987.  This is a span 
 
         of five and six-sevenths weeks.
 
              
 
              The issue of permanency must be decided in a setting where 
 
         claimant voices complaints of continuing symptoms, where he is 
 
         working under restrictions imposed by Dr. Romano, yet where none 
 
         of the physicians who have evaluated him have found any permanent 
 
         impairment of any type resulting from the injury.  If claimant's 
 
         grievance regarding being required to take a lower paying job as 
 
         a janitor had been unsuccessful, claimant could arguably be 
 
         entitled to an award of permanent partial disability under 
 
         McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980) and 
 
         Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 1980).  
 
         The grievance was, however, successful and claimant was returned 
 
         to work in his former position as an electrician.  The fact that 
 
         claimant apparently has some permanent symptoms and restrictions, 
 
         as indicated by Dr. Romano, could support an award of permanent 
 
         partial disability, but the evidence fails to show that the 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         claimant's symptoms and those restrictions were proximately 
 
         caused by the July 23, 1987 inhalation injury.  The sequence of 
 
         events suggests a causal connection, yet none of the physicians 
 
         have found any objective evidence of permanent injury.  Drs. 
 
         Hanson and Syre have indicated that restrictions are not 
 
         necessary.  In particular, it should be noted that the 
 
         restrictions recommended by Dr. Romano are probably something 
 
         which should be followed by all employees, regardless of their 
 
         symptomatology.  Further, claimant's smoking and use other 
 
         irritants could have impaired the recovery which Drs. Romano and 
 
         Hanson indicated should have occurred in no more than one month 
 
         following his inhalation injury.  If such voluntary activity on 
 
         claimant's part had in fact prevented his recovery, such would be 
 
         tantamount to willful self-injury for which the employer would 
 
         not be liable.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of July 23, 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).
 
              
 
              The record in this case is totally devoid of any opinion 
 
         from any physician which relates claimant's continued subjective 
 
         complaints to the July 23, 1987 inhalation injury.  In view of 
 
         the other possible sources for claimant's complaints, the fact 
 
         that the complaints are not supported by any objective medical 
 
         findings and the claimant's appearance and demeanor as he 
 
         testified at hearing, it is determined that the claimant has 
 
         failed to prove, by a preponderance of the evidence, that his 
 
         continued complaints and subjective symptoms were proximately 
 
         caused by the inhalation injury of July 23, 1987.
 
              
 
              The employer seeks a suspension of benefits for claimant's 
 
         failure to be examined under the provisions of Iowa Code section 
 
         85.39.  Claimant, on the other hand, contests the reasonableness 
 
         of an examination under section 85.39 and/or treatment under 
 
         section 85.27 from Dr. Hanson in Des Moines, Iowa.  Claimant 
 
         resides at Council Bluffs, Iowa and worked for Iowa Power at 
 
         Council Bluffs, Iowa.  Travel to Des Moines, Iowa is 
 
         approximately 260 miles round trip.  It would normally be 
 
         expected that quality medical care would be available in the 
 
         Omaha-Council Bluffs area as claimant has requested.  There is no 
 
         evidence in the record which shows any lack of proper or adequate 
 
         physicians or facilities for treatment or examinations in the 
 
         Omaha-Council Bluffs area.  Based upon claimant's testimony, it 
 
         is determined that claimant has objected to traveling to Des 
 
         Moines for treatment from the outset and has sought to have 
 
         treatment be authorized in the Omaha-Council Bluffs area.  The 
 
         employer initially delivered claimant to Dr. Romano for treatment 
 
         in the Council Bluffs area.  The act of delivering claimant to 
 
         Dr. Romano certainly manifests authorization for treatment by Dr. 
 
         Romano.  At page 3 of exhibit 7, Dr. Romano suggested that 
 
         claimant have an appointment with Dr. Angellilo in Omaha who 
 
         apparently is a pulmonologist.
 
              
 
              When claimant was first directed by the employer to be seen 
 
         by Dr. Hanson, it was apparently unclear as to whether the 
 
         appointment was for purposes of treatment or for an examination. 
 
         Failure to attend an appointment made for purposes of treatment 
 
         does not warrant a suspension of weekly compensation under the 
 
         provisions of Code section 85.39.  Assmann v. Blue Star Foods, 
 
         Inc., file number 866389, (Declaratory Ruling, May 18, 1988). 
 
         According to claimant's unrebutted testimony, when it was made 
 
         clear to claimant that his appointment with Dr. Hanson was solely 
 
         for the purpose of an examination, and not for treatment, 
 
         claimant consented and was then examined by Dr. Hanson on August 
 
         24, 1987. These facts do not constitute a basis for suspension of 
 
         weekly compensation under section 85.39.  This determination is 
 
         made without making any indication regarding whether or not 
 
         direct contact was made between the employer's in-house counsel, 
 
         Mary Nelson, and claimant, who was at the time represented and 
 
         also without determining whether or not any such purported 
 
         contact would have been ethically improper.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              
 
              Code section 85.27, in particular the fourth unnumbered 
 
         paragraph, gives an employer the obligation to furnish reasonable 
 
         services to treat an injured employee and also the right to 
 
         select the care.  The section also states:
 
              
 
              The treatment must be offered promptly and be reasonably 
 
              suited to treat the injury without undue inconvenience to 
 
              the employee.
 
              
 
         Clearly, requiring an inhabitant of Council Bluffs, Iowa to 
 
         travel to Des Moines, Iowa to obtain medical treatment which was 
 
         in all likelihood readily available in his own locality 
 
         constitutes undue inconvenience and is clearly unreasonable.  
 
         Since the care offered was unreasonable, claimant was free to 
 
         seek reasonable care from a source of his own choice.  There is, 
 
         however, no indication in the record of this case that further 
 
         treatment is warranted.  Claimant was thoroughly evaluated by Dr. 
 
         Hanson.  Dr. Roehrs recommended that those same diagnostic tests 
 
         be again performed, but claimant chose to continue smoking rather 
 
         than engage in further testing. It should be noted that the test 
 
         results under Dr. Hanson's direction were normal in spite of the 
 
         fact that claimant was still smoking and that cessation of 
 
         smoking would likely improve his pulmonary function, if it 
 
         changed it at all.  An employer's responsibility is to provide 
 
         reasonable care.  This does not require an employer to duplicate 
 
         treatment or tests that have already been provided.  It does not 
 
         require an employer to pay for office calls which are not 
 
         medically warranted.  In this case, there is no indication, 
 
         beyond claimant's subjective complaints, that further treatment 
 
         is indicated.  In fact, the only further treatment that any of 
 
         the physicians have recommended in this case is that pulmonary 
 
         function studies be again performed.  Such would be a duplication 
 
         of those previously performed and the employer should not be 
 
         required to pay the cost of duplicative care. Accordingly, in 
 
         view of claimant's request for alternate care, it is determined 
 
         that St. Joseph Hospital in Omaha, through Creighton University, 
 
         is authorized to provide care and treatment for claimant to the 
 
         extent that any care or treatment is or should become medically 
 
         warranted.  At the time of hearing, no further treatment was 
 
         indicated.
 
         
 
              An examination under section 85.39 is intended to be an 
 
         "independent" examination.  It is not unusual for a second 
 
         opinion or independent evaluation to be sought from physicians in 
 
         a locality other than the locality where the claimant has been 
 
         receiving treatment.  Such avoids the potential for familiarity 
 
         among physicians and enhances the credibility of the independent 
 
         opinion that is rendered.  Claimant does not have any known 
 
         physical problems with traveling.  It was not unreasonable for an 
 
         independent examination under section 85.39 to be conducted in 
 
         Des Moines, Iowa.  The employer is, of course, required under 
 
         section 85.39 to pay claimant for lost time from work and travel 
 
         expenses. Since claimant was in a temporary total disability 
 
         status at the time of  his travel to Des Moines to be examined by 
 
         Dr. Hanson, the lost time pay is satisfied by payment of 
 
         temporary total disability compensation.  Defendant does, 
 
         however, owe claimant $54.60 for travel expenses (260 miles at 
 
         $.21 per mile).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              
 
                                 FINDINGS OF FACT
 
                                        
 
              1.  Dennis Hendrix suffered an inhalation injury which arose 
 
         out of and in the course of his employment with Iowa Power and 
 
         Light Company.
 
              
 
              2.  Following the injury, claimant was medically incapable 
 
         of performing work in employment substantially similar to that he 
 
         performed at the time of injury from July 24, 1987 until 
 
         September 2, 1987 when claimant returned to work.
 
              
 
              3.  Claimant failed to introduce sufficient evidence to show 
 
         it to be probable that he suffered any permanent physical 
 
         impairment or any permanent loss of earning capacity as a result 
 
         of the inhalation injury.
 
              
 
              4.  Claimant has continuing subjective complaints, but those 
 
         complaints are not shown to be more likely related to the 
 
         inhalation injury than they are to other possible causes.
 
              
 
              5.  The credibility of claimant's subjective complaints is 
 
         not established.
 
              
 
              6.  Appropriate medical treatment for claimant's inhalation 
 
         injury is readily available in the Omaha-Council Bluffs locality 
 
         and it was not reasonable to require him to travel to Des Moines, 
 
         Iowa for purposes of treatment.
 
              
 
              7.  It was not unreasonable to require claimant to travel to 
 
         Des Moines, Iowa for purposes of a section 85.39 examination.
 
              
 
              8.  When claimant was first requested or directed by the 
 
         employer to travel to Des Moines, Iowa to be evaluated by Dr. 
 
         Hanson, it was unclear as to whether the travel was for purposes 
 
         of an examination under Code section 85.39 or for treatment under 
 
         Code section 85.27.
 
              
 
              9.  When claimant was assured that the purpose was an 
 
         independent examination, he promptly complied with the request.
 
              
 
             10.  Claimant has failed to prove, by a preponderance of the 
 
         evidence, that any further or additional medical treatment is 
 
         warranted.
 
             
 
             11.  If further or additional treatment is or were to become 
 
         warranted, St. Joseph Hospitals in Omaha, through Creighton 
 
         University, would be an appropriate source of treatment.
 
             
 
             12.  There is no evidence in the record that claimant's 
 
         exposure to airborne particles in his work place caused an 
 
         inhalation injury or aggravated any pulmonary condition, other 
 
         than the exposure to substances used when testing the fit and 
 
         seal of respirator devices.
 
             
 

 
         
 
 
 
 
 
 
 
 
 
 
 
                                CONCLUSIONS OF LAW
 
                                        
 
              1.  This agency has jurisdiction of the subject matter of 
 
         this proceeding and its parties.
 
              
 
              2.  Claimant is entitled to recover five and six-sevenths 
 
         weeks of compensation for temporary total disability at the 
 
         stipulated rate of $353.41 per week payable commencing July 23, 
 
         1987.
 
              
 
              3.  Claimant has failed to prove, by a preponderance of the 
 
         evidence, that the injury of July 23, 1987 proximately caused any 
 
         permanent impairment or permanent loss of earning capacity. 
 
         Accordingly, he is not entitled to recover any compensation for 
 
         permanent partial disability.
 
              
 
              4.  An employer fails to comply with its statutory duty of 
 
         promptly offering treatment that is reasonably suited to treat 
 
         the injury without undue inconvenience to the employee when it 
 
         designates a physician located 130 miles from claimant's 
 
         residence if reasonable and appropriate treatment is readily 
 
         available in the locality of the claimant's residence.
 
              
 
              5.  An employer is entitled to require a claimant to travel 
 
         130 miles for purposes of obtaining an independent medical 
 
         examination under the provisions of Code section 85.39 if the 
 
         claimant is physically capable of traveling and a means of travel 
 
         is available.
 
              
 
              6.  In order to suspend compensation for failure to attend 
 
         an independent medical examination under the provisions of Code 
 
         section 85.39, the employer must prove, by a preponderance of the 
 
         evidence, that the employee was clearly and concisely notified of 
 
         the time, place and purpose of the examination, in particular 
 
         that it was an independent medical examination rather than an 
 
         appointment for purposes of treatment.
 
              
 
                                      ORDER
 
                                        
 
              IT IS THEREFORE ORDERED that defendant pay claimant five and 
 
         six-sevenths (5 6/7) weeks of compensation for temporary total 
 
         disability at the rate of three hundred fifty-three and 41/100 
 
         dollars ($343.41) per week payable commencing July 24, 1987.  The 
 
         entire amount thereof is past due and owing and shall be paid to 
 
         claimant in a lump sum together with interest pursuant to section 
 
         85.30 of The Code.
 
              
 
              IT IS FURTHER ORDERED that defendant is entitled to credit 
 
         for any weekly compensation previously paid on account of the 
 
         July 23, 1987 inhalation injury.
 
              
 
              IT IS FURTHER ORDERED that defendant is not entitled to 
 
         suspend benefits based upon the alleged failure to attend an 
 
         independent medical examination under the provisions of Code 
 
         section 85.39.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              
 
              IT IS FURTHER ORDERED that, in the event claimant should 
 
         require further treatment for the injury, he may   obtain that 
 
         treatment at St. Joseph Hospital in Omaha, Nebraska.
 
              
 
              IT IS FURTHER ORDERED that defendant pay claimant fifty-four 
 
         and 60/100 dollars ($54.60) for travel expenses.
 
              
 
              IT IS FURTHER ORDERED that defendant pay the costs of this 
 
         action pursuant to Division of Industrial Services Rule 343-4.33.
 
              
 
              IT IS FURTHER ORDERED that defendant file Claim Activity 
 
         Reports as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
              
 
              Signed and filed this 9th day of February, 1989.
 
              
 
              
 
              
 
              
 
              
 
                                            MICHAEL G. TRIER
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Lyle A. Rodenburg
 
         Attorney at Law
 
         100-101 Park Building
 
         Council Bluffs, Iowa  51501
 
         
 
         Mr. Cecil L. Goettsch
 
         Attorney at Law
 
         1100 Des Moines Building
 
         Des Moines, Iowa  50309
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                                                                                                    
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                                                                       
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                                            1108.30, 1402.30, 1402.40
 
                                            1403.10, 1801, 1803, 2501
 
                                            2503, 2700
 
                                            Filed February 9, 1989
 
                                            MICHAEL G. TRIER
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
                                        
 
         
 
         DENNIS HENDRIX,
 
         
 
              Claimant,
 
                                                   File No. 850405
 
         vs.
 
                                                A R B I T R A T I O N
 
         IOWA POWER AND LIGHT COMPANY,
 
                                                   D E C I S I O N
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         1108.30, 1402.30, 1402.40, 1403.10, 1801, 1803, 2501, 2503,
 
         2700
 
         
 
              Claimant awarded temporary total disability for the period 
 
         following the injury until such time as the employer allowed the 
 
         claimant to return to work following his examination by a number 
 
         of employer-selected physicians.  The evidence failed to show any 
 
         permanent impairment or permanent disability as a result of the 
 
         admitted inhalation injury, even though claimant complained of 
 
         continuing, subjective symptoms.  Claimant failed to prove the 
 
         validity of his complaints or that they were proximately caused 
 
         by the inhalation injury.
 
         
 
              It was held that requiring an employee to travel 130 miles 
 
         from the Omaha-Council Bluffs area to Des Moines for purposes of 
 
         treatment was a violation of the employer's duty to provide 
 
         reasonable treatment without undue inconvenience to the employee, 
 
         where it was indicated that adequate treatment was available in 
 
         the Omaha-Council Bluffs area.  It was further held, however, 
 
         that requiring such travel for purposes of an independent medical 
 
         examination under section 85.39 was not unreasonable.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         
 
         
 
         
 
                                                                                                                    
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                                                                       
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DENNIS HENDRIX,                              File No. 850405
 
         
 
              Claimant,                                 A P P E A L
 
         
 
         vs.                                            R U L I N G
 
         
 
         IOWA POWER AND LIGHT COMPANY,                   F I L E D
 
         
 
              Employer,                                 MAR 28 1988
 
              Self-Insured,
 
              Defendant.                       IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
              Division of Industrial Services Rule 343-4.27 states in 
 
              part:
 
         
 
                   No appeal shall be separately taken under this or 4.25 
 
              (17A, 86) from an interlocutory decision, order or ruling of 
 
              a deputy industrial commissioner.  A decision, order or 
 
              ruling is interlocutory if it does not dispose of the 
 
              contested case, unless the sole issue remaining for 
 
              determination is claimant's entitlement to additional 
 
              compensation for unreasonable denial or delay of payment 
 
              pursuant to Iowa Code section 86.13.
 
         
 
              The ruling filed February 26, 1988, which is the subject 
 
         matter of this appeal, is not dispositive of the contested case 
 
         and therefore interlocutory.
 
         
 
              THEREFORE, the appeal filed March 8, 1988 is hereby 
 
         dismissed.
 
         
 
         
 
              Signed and filed this 28th day of March, 1988.
 
         
 
         
 
         
 
         
 
         
 
                                                    DAVID E. LINQUIST
 
                                                 INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Lyle A. Rodenburg
 
         Attorney at Law
 
         101 Park Building
 
         Council Bluffs, Iowa  51501
 
         
 
         Mr. Cecil L. Goettsch
 
                                                
 
                                                         
 
         Attorney at Law
 
         1100 Des Moines Building
 
         Des Moines, Iowa 50309-2464
 
 
 
         
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            WILLIAM J. LITTLE,  :
 
                      :
 
                 Claimant, :      File No. 850409
 
                      :
 
            vs.       :        A P P E A L
 
                      :
 
            IOWA POWER AND LIGHT COMPANY, :      D E C I S I O N
 
                      :
 
                 Employer, :
 
                 Self-Insured,  :
 
                 Defendant.     :
 
            ___________________________________________________________
 
            The record, including the transcript of the hearing before 
 
            the deputy and all exhibits admitted into the record, has 
 
            been reviewed de novo on appeal.  The decision of the deputy 
 
            filed September 26, 1989 is affirmed and is adopted as the 
 
            final agency action in this case, with the following 
 
            additional analysis:
 
            Claimant's request for a change in medical treatment was not 
 
            required to be ruled on prior to the hearing.  Claimant's 
 
            request for medical evaluation, which is designed to produce 
 
            evidence for use at the hearing, was granted prior to the 
 
            hearing, but claimant delayed the scheduling of the 
 
            evaluation until after the hearing.  Claimant bears the 
 
            burden of proving his entitlement to benefits.  Claimant's 
 
            lack of medical evidence in his favor is the product of his 
 
            own misreading of the statutes and delay caused by himself.
 
            Defendant raises as an issue on appeal an alleged error in 
 
            the award of temporary total disability, contrary to the 
 
            stipulation of the parties.  However, defendant did not file 
 
            a cross-appeal and therefore cannot raise issues on appeal.  
 
            A review of the file also indicates that no request for an 
 
            order nunc pro tunc was made after the decision was issued.
 
            Claimant shall pay the costs of the appeal, including the 
 
            preparation of the hearing transcript.
 
            Signed and filed this ____ day of September, 1991.
 
            
 
            
 
            
 
            
 
                      ________________________________
 
                               BYRON K. ORTON
 
                          INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Lyle A. Rodenburg
 
            Attorney at Law
 
            101 Park Building
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            Council Bluffs, Iowa 51501
 
            
 
            Mr. Cecil L. Goettsch
 
            Attorney at Law
 
            801 Grand Ave., Suite 3700
 
            Des Moines, Iowa 50309
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            9999
 
            Filed September 17, 1991
 
            Byron K. Orton
 
            MAM
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            WILLIAM J. LITTLE,  :
 
                      :
 
                 Claimant, :      File No. 850409
 
                      :
 
            vs.       :        A P P E A L
 
                      :
 
            IOWA POWER AND LIGHT COMPANY, :      D E C I S I O N
 
                      :
 
                 Employer, :
 
                 Self-Insured,  :
 
                 Defendant.     :
 
            ___________________________________________________________
 
            
 
            9999
 
            Summary affirmance of deputy's decision filed September 26, 
 
            1989, with short additional analysis.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         WILLIAM J. LITTLE,                           File No. 850409
 
         
 
              Claimant,                            A R B I T R A T I O N
 
         
 
         vs.                                          D E C I S I O N
 
         
 
         IOWA POWER AND LIGHT COMPANY,                   F I L E D
 
         
 
              Employer,                                 SEP 26 1989
 
              Self-Insured,
 
              Defendant.                       IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
                                INTRODUCTION
 
         
 
              This is a proceeding in arbitration.  The case is brought by 
 
         William J. Little, claimant, against Iowa Power and Light Co., 
 
         self-insured employer.  The case was heard by the undersigned on 
 
         January 25, 1989, in Council Bluffs, Iowa.
 
         
 
              The record consists of claimant's exhibit 1.  The record 
 
         also consists of defendant's exhibits 1-18.
 
         
 
              At the time of the hearing, claimant's proposed exhibit 2 
 
         was not made part of the record.  Claimant proposed to offer a 
 
         deposition, taken subsequent to the hearing of an unnamed 
 
         physician at the Creighton Pulmonary Clinic.  The basis for the 
 
         decision was that paragraph six of the prehearing assignment 
 
         order governed the use of witnesses and exhibits.  Paragraph six 
 
         provided that:
 
         
 
                   6.  Witness and Exhibit Lists.  A list of all witnesses 
 
              to be called at the hearing and a list of all proposed 
 
              exhibits to be offered into the evidence at the hearing 
 
              along with copies of all written exhibits not previously 
 
              served shall be served upon opposing parties no later than 
 
              fifteen (15) days prior to the date of hearing.  Only those 
 
              witnesses listed will be permitted to testify at the hearing 
 
              unless their testimony is clearly rebuttal or sur-rebuttal.  
 
              Medical records, practitioners reports and all other written 
 
              evidence shall not be admitted as exhibits at the hearing 
 
              unless they have been timely served upon an opposing party 
 
              ordered herein.  The service of witness lists pursuant to 
 
              this order does not modify the requirements of Iowa Rule of 
 
              Civil Procedure 125c to supplement responses to discovery as 
 
              to experts not less than thirty (30) days prior to hearing.
 
         
 
              Claimant's attorney did not list a specific physician from 
 
         the Creighton Pulmonary Clinic on the witness list and the 
 
         witness list was not served upon the opposing party at least 15 
 
         days prior to the time of the hearing.
 
                                                
 
                                                         
 
         
 
              Additionally, proposed exhibit 2 was not made part of the 
 
         record because of Rule 343-4.31 of the Division of Industrial 
 
         Services.  The rule provides that:  "No evidence shall be taken 
 
         after the hearing.  This rule is intended to implement Iowa Code 
 
         section 86.18."
 
         
 
                                    ISSUES
 
         
 
              As a result of the prehearing report and order submitted on 
 
         January 25, 1989, the issues presented by the parties are:
 
         
 
              1)  Whether there is a causal relationship between the 
 
         alleged injury and the disability;
 
         
 
              2)  Whether claimant is entitled to temporary disability/ 
 
         healing period benefits or permanent partial or total disability 
 
         benefits;
 
         
 
              3)  Whether defendant has provided reasonable medical care 
 
         under section 85.27; and,
 
         
 
              4)  Whether claimant is entitled to alternate care under 
 
         section 85.27.
 
         
 
                                STIPULATIONS
 
         
 
              Prior to the hearing, the parties entered into a number of 
 
         stipulations.  The stipulations were:
 
         
 
              1.  The existence of an employer-employee relationship 
 
         between claimant and employer at the time of the alleged injury;
 
         
 
              2.  That the claimant sustained an injury on June 5, 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.  That the type of permanent disability, if the injury is 
 
         found to be a cause of permanent disability, is stipulated to be 
 
         an industrial disability to the body as a whole;
 
         
 
              5.  In the event of an award of weekly benefits, the rate of 
 
         weekly compensation is stipulated to be $303.64 per week;
 
         
 
              6.  Defendant seeks credit under section 85.38(2) for 
 
         previous payment of sick pay/disability income in the amount of 
 
         $643.74; and,
 
         
 
              7.  Defendant paid claimant 1 2/7 weeks of compensation at 
 
         the rate of $303.64 per week prior to the hearing.
 
         
 
                                FACTS PRESENTED
 
                                                
 
                                                         
 
         
 
              Claimant is employed as a coal hauler for defendant.  He has 
 
         held this position since April of 1986.  Prior to that time, 
 
         claimant had held various other positions with defendant.  
 
         Claimant lives in Omaha, Nebraska and works in Council Bluffs, 
 
         Iowa.
 
         
 
              On June 5, 1987, claimant was involved in an industrial fire 
 
         at the Council Bluffs plant.  The fire involved some oil 
 
         saturated insulation which was burning.  Claimant was apparently 
 
         ordered to pour water onto the burning insulation.  Steam 
 
         resulted. Claimant's face was exposed to the steam.  Several 
 
         minutes later, claimant experienced complications.  Claimant's 
 
         recollection is sketchy, at best.  During his deposition, 
 
         claimant indicated he lost consciousness and woke up in the 
 
         Jennie Edmundson Hospital in Council Bluffs, Iowa.
 
         
 
              Medical records indicate claimant was hospitalized from June 
 
         5, 1987 to June 10, 1987.  The records provide in relevant 
 
         portion:
 
         
 
              HOSPITAL COURSE:  Patient was admitted on emergency basis 
 
              for apparent unresponsive episode following exposure to 
 
              fumes at the workplace encountered from putting out a fire 
 
              using an extinguishe [sic].  Patient appeared stable, 
 
              however, with the apparent unresponsiveness at the time of 
 
              admission and the possible toxic exposure, he was admitted 
 
              for observation and treatment.  He was placed on IV 
 
              Solu-Medrol for 24 hours and then converted to Prednisone 
 
              which was gradually being tapered to help with the 
 
              possibility of (unreadable) pulmonary edema.  The patient 
 
              had no relapse during the hospital course.  His breathing 
 
              became easier, and he complained less of tightness in the 
 
              chest.  There was no significant cough.  Vital signs 
 
              remained stable.  He was having occasional spells of 
 
              headache, dizziness and hot flashes with mild nausea but 
 
              this seemed to clear, and he seemed to be resting well with 
 
              normal vital signs.  He was able to ambulate without 
 
              difficulty.  At the time of discharge, he was felt to be 
 
              stable with clear lungs and no evidence of any adverse 
 
              effects from his previous exposure. He was seen in 
 
              consultation by Dr. Kullbom for possible dental extraction 
 
              in view of very seriously decayed teeth. This will be 
 
              followed up as an outpatient.
 
         
 
              DISCHARGE DIAGNOSES:  Inhalation of acute toxic fumes, 
 
              currently improved, with no evidence of residual disease or 
 
              limitations.  Severely carious and nonrestorable teeth. 
 
              Status post appendectomy; arthroscopic right knee surgery 
 
              [sic].
 
         
 
              DISCHARGE MEDICATIONS:  Prednisone, 10 mg po b.i.d.
 
              for two days and then to be decreased to 15 mg q a.m.
 
         
 
              DISCHARGE DISPOSITION:  Patient will be seen in the office 
 
                                                
 
                                                         
 
                   in two days for further adjustment of the Prednisone.  It is 
 
              anticipated that he may return to work on 6/15/87.  It is 
 
              not expected that there would be any permanent residual from 
 
              the acute exposure.  It is felt that the patient should 
 
              recover very smoothly and that the steroids will be tapered 
 
              off over the course of the next week.  The patient is to 
 
              follow up with Dr. Kullbom for outpatient dental corrections 
 
              at his own expense.
 
         
 
         
 
              John W. Marshall, MD/pc
 
         
 
         
 
              Subsequent to his hospital discharge, claimant was again 
 
         seen by Dr. Marshall.  Dr. Marshall issued three releases.  They 
 
         stated as follows:
 
         
 
              6-15-87
 
                Mr. Little may try returning to work 6/18/87.
 
              He was off due to wc 6/5/87 -> 6/18/87
 
         
 
              6-22-87
 
                Mr. Little should avoid dust/smoke for 1 week for health 
 
              reasons
 
         
 
                                
 
                                                         
 
              7/6/87
 
                Mr. Little was suffering from headaches 6/19 ; 6/20.  He 
 
              was seen in the office 6/22 and seemed fairly stable    He 
 
              is seen today and is released to resume usual duties.
 
         
 
              Claimant returned to work on July 7, 1987.  He testified 
 
         during his deposition that despite Dr. Marshall's work release, 
 
         claimant still avoided certain work situations.  He indicated he 
 
         avoided very dusty work areas and areas where hot coal was 
 
         smoking.
 
         
 
              On July 30, 1987, claimant was seen by Randall Hanson, M.D. 
 
         Dr. Hanson is a specialist in pulmonary disease.  A physical 
 
         examination was conducted.  Claimant performed pulmonary function 
 
         tests pursuant to Dr. Hanson's request.  The physician also 
 
         reviewed the x-rays which were taken at the Jennie Edmundson 
 
         Hospital while claimant was hospitalized.
 
         
 
              In his report of August 3, 1987, Dr. Hanson opined:
 
         
 
              ...The patients [sic] current illness occurred on 6-5-87 
 
              when there was an industrial fire at the plant in Countil 
 
              [sic] Bluffs, apparently oil saturated insulation caught 
 
              fire and the chemical extinguishers were applied, and 
 
              subsequently the patient was instructed to put water on the 
 
              fire.  He was approximately 10 ft. from it and a cloud of 
 
              water and fumes engulfed the patient.  He feels he was 
 
              exposed to this for around 4-5 minutes.  He subsequently 
 
              became light headed and felt a burning of his nose and 
 
              throat.  He had shortness of breath and was taken to the 
 
              supervisors office where he was given oxygen.  He apparently 
 
              passed out and awakened in the hospital.  In the hospital, 
 
              he was treated with oxygen and Prednisone and discharged 
 
              after a 5 day hospitalization.  At that time, his blood gas 
 
              on 6 liters revealed a P02 of 164 with a PCO2 of 44 and PH 
 
              of 7.38.  WBC was 9000, his chest x-ray was normal, his 
 
              vital signs remained stable and he was discharged with clear 
 
              lungs and ambulating without difficulty.  The patient 
 
              subsequently notes a sense of inability to take a deep 
 
              breath and breathlessness with exercise and when exposed to 
 
              cigarette smoke, dust and fumes. He denies cough and sputum 
 
              production.  He states he feels jittery at these times and 
 
              also complains of headache.
 
         
 
              His symptoms are promptly resolved by breathing fresh air. 
 
              The patient has returned to work and is able to function at 
 
              work while using a 3M paper mask, although he does note a 
 
              sense of breathlessness.  He notes increased fatigue and 
 
              breathlessness also when walking 2-3 flights of stairs which 
 
              he feels would usually not bother him.  He has no night 
 
              sweats, fevers, or wheezing.  He feels his symptoms have not 
 
              changed over the past month.
 
         
 
              The patients [sic] past medical history is positive for the 
 
              afore mentioned [sic] asthma.  He had an appendectomy about 
 
                                                
 
                                                         
 
                   one year ago at Broadlawns.  He has never been told that he 
 
              had an abnormal chest x-ray.  His family history is negative 
 
              for lung disease.  He has no hay fever.  His review of 
 
              systems is otherwise negative.  He is on no maintenance 
 
              medications.
 
         
 
              Physical exam today reveals a black gentleman with a weight 
 
              of 212.  Blood pressure is 128/84.  Pulse is 68 and regular. 
 
              HEENT exam is comensurate [sic] with his age.  His chest is 
 
              clear to auscultation.  Cardiac exam reveals a sinus rhythm 
 
              without gallop.  He has no murmurs and no rubs.  Abdomen 
 
              reveals a 10 cm liver.  There is no spleen.  Bowel sounds 
 
              are regular.  He has no adenopathy.  He has an appendectomy 
 
              scar with keloid formation.  There is no rash.  Peripheral 
 
              pulses are intact.  Reflexes are active and symmetrical.
 
         
 
              Complete PFT's performed on him today are within normal 
 
              limits.  His vital capacity is 4.87, FEV-1 is 4.16, Maximum 
 
              expiratory flow rate is 269.  Total lung capacity is 6.42 
 
              liters, residual volume is 1.55, diffusion capacity is 25.9 
 
              or 76% of normal.  His chest x-ray reveals a top normal 
 
              heart size, some slight hilar calcification and some 
 
              questionable patchy interstitial infiltrates.
 
         
 
              I reassured Mr. Little about the normality of his physical 
 
              exam and pulmonary function studies.  I shared with him that 
 
              his chest x-ray is mildly abnormal.  I agree he did have 
 
              toxic inhalation with probably a degree of 
 
              tracheobronchitis, but feel that this should be short lived 
 
              and he should most likely have no residual problems.
 
         
 
              I have taken the liberty to obtain an angiotensin converting 
 
              enzyme level and will obtain his x-ray's from Broadlawns and 
 
              Jennie Edmundson for comparison.  I suggested that his 
 
              symptoms should resolve over the next couple of months.  He 
 
              should return to full activity and if his symptoms fail to 
 
              resolve we.should repeat PFT's and do an exericise [sic] 
 
              cardiopulmonary test.  Thanks for asking me to see this 
 
              interesting young man.
 
         
 
              In a later report, dated September 29, 1987, Dr. Hanson 
 
         wrote:
 
         
 
              I am responding to the inquiry regarding Mr. William Little. 
 
              He was examined by me on July 30, 1987.  As I noted in my 
 
              letter, I felt he had normal pulmonary functions and 
 
              physical exam.  It was felt that he would not have residual 
 
              or. permanent lung disease.  It is also noted that his chest 
 
              x-ray had a mild abnormality suggestive of possible 
 
              sarcoidosis.  A blood test for this process was obtained on 
 
              him and is negative.  X-ray's were not obtained from 
 
              Broadlawns Polk County Medical Center.
 
         
 
              Mr. Little was advised of the afore mentioned [sic] 
 
              abnormality and of the need for follow-up.
 
                                                
 
                                                         
 
         
 
              If I can be of further assistance, please give me a call.
 
         
 
              During his deposition, Dr. Hanson testified:
 
         
 
              Q.  And would you please state that diagnosis and, if you 
 
              could, describe it in layman's terms?
 
         
 
              A.  Okay.  Basically Mr. Little had a mild abnormal chest 
 
              x-ray, which I shared with him, that he had some mild 
 
              enlargement of his hilar lymph nodes, which I told him was 
 
              most likely not related to his inhalation injury.  I shared 
 
              with him that this might be related to either a previous 
 
              infection with the fungus or a process that is seen in black 
 
              patients as well as white called sarcoidosis.
 
         
 
              I also shared with him that I felt he indeed did have an 
 
              episode of acute toxic inhalation.  I felt that he probably 
 
              had mild chemical tracheobronchitis and that he had no 
 
              residual disease, that his pulmonary function tests were 
 
              normal and his symptoms should resolve.
 
         
 
                   ...
 
         
 
              Q.  Did you recommend any further examinations or 
 
              treatment?
 
         
 
              A.  I did.
 
         
 
              Q.  And what were they?
 
         
 
              A.  Actually we did a blood test for sarcoidosis.  The blood 
 
              test is called an angiotensin converting enzyme test.  We 
 
              obtained that test on him and I suggested to the patient 
 
              that if his symptoms failed to resolve, that he should be 
 
              reevaluated with a follow-up breathing test and/or do an 
 
              exercise test on him.
 
         
 
         (Exhibit 2, page 14, line 23 to page 17, line 4)
 
         
 
              Dr. Hanson also testified claimant conveyed various 
 
         subjective symptoms to him.  The symptoms included, "...that he 
 
         felt that he was unable to take a deep breath, that he had a 
 
         sensation of breathlessness with exercise, and a sensation of 
 
         breathlessness when exposed to cigarette smoke, dust, and fumes. 
 
         He also said that he felt jittery at times and he also complained 
 
         of headaches."  (Ex. 2, p. 22, 11. 1-7)
 
         
 
              According to Dr. Hanson's testimony, the x-ray, the physical 
 
         examination and the pulmonary function tests did not substantiate 
 
         claimant's complaints.  (Ex. 2, p. 22, 11. 15-17)
 
         
 
              Dr. Hanson testified that he believed the symptoms would 
 
         resolve themselves, but that claimant was to return for another 
 
         examination if the symptoms persisted.
 
                                                
 
                                                         
 
         
 
              A second examination with Dr. Hanson was scheduled by 
 
         defendant for March of 1988.  Claimant did not keep the 
 
         appointment.  Nor did claimant return to Dr. Hanson after the 
 
         initial examination.  Prior to the date of the hearing, claimant 
 
         had not seen a medical practitioner because of his work related 
 
         injury.
 
         
 
                              APPLICABLE LAW
 
         
 
              An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
         employment.  Section 85.3(1).
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received an injury on June 5, 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 supreme court of Iowa in Almquist v. Shenandoah 
 
         Nurseries, 218 Iowa 724, 254 N.W. 35 (1934) at 731-32, discussed 
 
         the definition of personal injury in workers' compensation cases 
 
         as follows:
 
         
 
              While a personal injury does not include an occupational 
 
              disease under the workmen's Compensation Act, yet an injury 
 
              to the health may be a personal injury [Citations omitted.] 
 
              Likewise a personal injury includes a disease resulting from 
 
              an injury....The result of changes in the human body 
 
              incident to the general processes of nature do not amount to 
 
              a personal injury.  This must follow, even though such 
 
              natural change may come about because the life has been 
 
     
 
                              
 
                                                         
 
              devoted to labor and hard work.  Such result of those 
 
              natural changes does not constitute a personal injury even 
 
              though the same brings about impairment of health or the 
 
              total or partial incapacity of the functions of the human 
 
              body.
 
         
 
                   ....
 
         
 
              A personal injury, contemplated by the Workmen's 
 
              Compensation Law, obviously means an injury to the body, the 
 
              impairment of health, or a disease, not excluded by the act, 
 
              which comes about, not through the natural building up and 
 
              tearing down of the human body, but because of a traumatic 
 
              or other hurt or damage to the health or body of an 
 
              employee.  [Citations omitted.]  The injury to the human 
 
              body here contemplated must be something, whether an 
 
              accident or not, that acts extraneously to the natural 
 
              processes of nature and thereby impairs the health, 
 
              overcomes, injures, interrupts, or destroys some function of 
 
              the body, or otherwise damages or injures a part or all of 
 
              the body.
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of June 5, 1987 is causally related 
 
         to the disability on which he now bases his claim.  Bodish v. 
 
         Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  Lindahl v. 
 
         L.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A possibility is 
 
         insufficient; a probability is necessary.  Burt v. John Deere 
 
         Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
         question of causal connection is essentially within the domain of 
 
         expert testimony.  Bradshaw v. Iowa Methodist Hospital, 251 Iowa 
 
         375, 101 N.W.2d 167 (1960).
 
         
 
              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, 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, 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).
 
         
 
              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, 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, 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              While a claimant is not entitled to compensation for the 
 
         results of a preexisting injury or disease, the mere existence at 
 
         the time of a subsequent injury is not a defense.  Rose v. John 
 
         Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2nd 756, (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, (1962).
 
         
 
              When an aggravation occurs in the performance of an 
 
         employer's work and a causal connection is established, claimant 
 
         may recover to the extent of the impairment.  Ziegler v. United 
 
         States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591, (1960).
 
         
 
              The Iowa Supreme Court cites, apparently with approval, the 
 
         C.J.S. statement that the aggravation should be material if it is 
 
         to be compensable.  Yeager v, Firestone Tire & Rubber Co., 253 
 
         Iowa 369, 112 N.W.2d 299 (1961); 100 C.J.S. Workmen's 
 
         Compensation section 555(17)a.
 
         
 
              Our supreme court has stated many times that a claimant may 
 
         recover for a work connected aggravation of a preexisting 
 
         condition.  Almquist, 218 Iowa 724, 254 N.W. 35 (1934).  See 
 
         also Auxier v. Woodward State Hospital Sch., 266 N.W.2d 139 
 
         (Iowa 1978); Gosek v. Garmer and Stiles Co., 158 N.W.2d 731 (Iowa 
 
         1968); Barz v. Oler, 257 Iowa 508, 133 N.W.2d 704 (1965); Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); 
 
         Yeager, 253 Iowa 369, 112 N.W.2d 299 (1961); Ziegler, 252 Iowa 
 
         613, 106 N.W.2d 591 (1960).
 
         
 
              An employer takes an employee subject to any active or 
 
         dormant health impairments, and a work connected injury which 
 
         more than slightly aggravates the condition is considered to be a 
 
         personal injury.  Ziegler, 252 Iowa 613, 620, 106 N.W.2d 591 
 
         (1960), and cases cited.
 
         
 
              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, 
 
         255 Iowa 1112, 125 N.W.2d 251 (1963); Yeager, 253 Iowa 369, 112 
 
         N.W.2d 299 (1961); Ziegler, 252 Iowa 613, 106 N.W.2d 591 (1960). 
 
         See also Barz, 257 Iowa 508, 133 N.W.2d 704 (1965); Almquist, 218 
 
         Iowa 724, 254 N.W. 35 (1934).
 
         
 
              As a claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
         593, 258 N.W. 899, 902 (1935) as follows:  "It is therefore plain 
 
         that the legislature intended the term 'disability' to mean 
 
         'industrial disability' or loss of earning capacity and not a 
 
         mere 'functional disability' to be computed in the terms of 
 
         percentages of the total physical and mental ability of a normal 
 
                                                
 
                                                         
 
         man."
 
         
 
              Functional impairment is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson, 
 
         255 Iowa 1112, 1121 125 N.W.2d 251, 257 (1963).
 
         
 
              In Parr v. Nash Finch Co., (Appeal Decision, October 31, 
 
         1980) the industrial commissioner, after analyzing the decisions 
 
         of McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980) and 
 
         Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 1980), 
 
         stated:
 
         
 
              Although the court stated that they were looking for the 
 
              reduction in earning capacity it is undeniable that it was 
 
              the "loss of earnings" caused by the job transfer for 
 
              reasons related to the injury that the court was indicating 
 
              justified a finding of "industrial disability."  Therefore, 
 
              if a worker is placed in a position by his employer after an 
 
              injury to the body as a whole and because of the injury 
 
              which results in an actual reduction in earning, it would 
 
              appear this would justify an award of industrial disability.  
 
              This would appear to be so even if the worker's "capacity" 
 
              to earn has not been diminished.
 
         
 
                                     ANALYSIS
 
         
 
              The first issue to address is whether defendant provided 
 
         reasonable medical care to claimant and whether claimant is 
 
         entitled to alternate medical care under section 85.27 of the 
 
         Iowa Code (1987).
 
         
 
              Claimant resides in Omaha, Nebraska.  Formerly, he resided 
 
         in Des Moines, Iowa with his mother.  Claimant testified he 
 
         routinely traveled to Des Moines on personal matters 
 
         approximately eight times per year.  During his hospital stay, 
 
         claimant was hospitalized in Council Bluffs.  Subsequent to his 
 
         release from the hospital, defendant contacted Randall Hanson, 
 
         M.D., as the authorized treating physician.  Dr. Hanson practices 
 
         medicine in Des Moines, Iowa.  Defendant then set an appointment 
 
         for claimant with Dr. Hanson on July 30, 1987.  Claimant drove 
 
         approximately 260 miles to the appointment and back.
 
         
 
              A second appointment with Dr. Hanson was set for March of 
 
         1988.  Claimant did not keep the appointment.  During his 
 
         deposition, claimant testified he was unhappy with the treatment 
 
         provided by Dr. Hanson.  Nevertheless, claimant, on his own, did 
 
         not schedule an appointment with a different physician.
 
         
 
              There is evidence in the Division of Industrial Services 
 
         file, however, that on December 5, 1988, claimant requested a 
 
         medical examination with a physician from the Creighton 
 
         University Pulmonary Internal Medicine Center.  The examination 
 
                                                
 
                                                         
 
         was to be arranged upon approval of employer pursuant to section 
 
         85.39, Code of Iowa.  The attorney for defendant consented to the 
 
         examination on January 7, 1989.  Deputy Industrial Commissioner 
 
         Helenjean Walleser approved the request on January 20, 1989.
 
         
 
              Section 85.27 provides in relevant portion:
 
         
 
              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.
 
         
 
                   ...
 
         
 
              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.  If the employee has reason to be dissatisfied 
 
              with the care offered, the employee should communicate the 
 
              basis of such dissatisfaction to the employer, in writing if 
 
              requested, following which the employer and the employee may 
 
              agree to alternate care reasonably suited to treat the 
 
              injury.  If the employer and employee cannot agree on such 
 
              alternate care, the commissioner may, upon application and 
 
              reasonable proofs of the necessity therefor, allow and order 
 
     
 
                              
 
                                                         
 
              other care.  In an emergency, the employee may choose the 
 
              employee's care at the employer's expense, provided the 
 
              employer or the employer's agent cannot be reached 
 
              immediately.
 
         
 
              Under section 85.27, the employer has the right to select 
 
         the medical care.  The care must be offered promptly and without 
 
         undue inconvenience to the employee.  England V. Western 
 
         Materials, Inc., Thirty-Second Biennial Report of the Iowa 
 
         Industrial Commissioner 201 (1974).  The medical care under 
 
         section 85-27 must also be reasonable.  Shilling v. Martin K. Eby 
 
         Construction, Co., Inc., II Iowa Industrial Commissioner Report 
 
         350 (Appeal Decision 1981).  If a claimant is dissatisfied with 
 
         the care provided, the claimant should communicate the 
 
         dissatisfaction to the employer.  Niles v. Royal Indus., 
 
         Thirty-Third Biennial Rep., Iowa Indus. Comm'r 214 (1977).
 
         
 
              The undersigned finds that the care provided by Dr. Hanson 
 
         was not unreasonable care.  All claimant stated was:
 
         
 
              Q.  Do you like this doctor?
 
         
 
              A.  No.  I'm not happy with his treatment, no.
 
         
 
         (Ex. 1, p. 38, 11. 10-11)
 
         
 
              Claimant did not elaborate why he was unhappy with the 
 
         treatment provided by Dr. Hanson.  The only other complaint was 
 
         that Dr. Hanson's office was located in Des Moines, while 
 
         claimant resided in Omaha.  Claimant, for personal reasons, 
 
         testified he made approximately eight trips per year to Des 
 
         Moines.  The location of this physician alone is not sufficient 
 
         to render Dr. Hanson's care unreasonable.  Because the care 
 
         provided to claimant was not unreasonable, claimant is not 
 
         entitled to alternate care under section 85.27.
 
         
 
              It should be noted for the record that claimant's attorney 
 
         has confused the right to a medical examination under section 
 
         85.39 with the alternate care provision provided under section.
 
         85.27.
 
         
 
              Paragraph two of section 85.39 provides:
 
         
 
              If an evaluation of permanent disability has been made by a 
 
              physician retained by the employer and the employee believes 
 
              this evaluation to be too low, the employee shall, upon 
 
              application to the commissioner and upon delivery of a copy 
 
              of the application to the employer and its insurance 
 
              carrier, be reimbursed by the employer the reasonable fee 
 
              for a subsequent examination.by a physician of the 
 
              employee's own choice, and reasonably necessary 
 
              transportation expenses incurred for the examination.. The 
 
              physician chosen by the employee has the right to confer 
 
              with and obtain from the employer-retained physician 
 
              sufficient history of the injury to make a proper 
 
                                                
 
                                                         
 
                   examination.
 
         
 
              This section affords claimant the right to an examination 
 
         for purposes of a medical evaluation.  It does not provide 
 
         alternate medical care for claimant, even if defendant consents 
 
         to pay for the cost of the medical examination.
 
         
 
              The statute which provides alternative medical care is 
 
         section 85.27.  It reads:
 
         
 
              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.  If the employee has reason to be dissatisfied 
 
              with the care offered, the employee should communicate the 
 
              basis of such dissatisfaction to the employer, in writing if 
 
              requested, following which the employer and the employee may 
 
              agree to alternate care reasonably suited to treat the 
 
              injury.  If the employer and employee cannot agree on such 
 
              alternate care, the commissioner may, upon application and 
 
              reasonable proofs of the necessity therefor, allow and order 
 
              other care.  In an emergency, the employee may choose the 
 
              employee's care at the employer's expense, provided the 
 
              employer or the employer's agent cannot be reached 
 
              immediately.
 
         
 
              This statute deals with treatment.  It is the authority by 
 
         which a claimant may seek alternate medical treatment.  
 
         Application to the commissioner for alternate medical treatment is 
 
         different than application to the commissioner for a medical 
 
         evaluation under section 85.39.  Counsel for claimant has confused 
 
         the two applications relative to this case.
 
         
 
              The text issue to address is the nature and extent of a 
 
         permanent disability, if any.  No medical practitioner has 
 
         determined claimant has any permanent functional impairment.  Dr. 
 
         Hanson, as of September 29, 1987, opined:  "I felt he had normal 
 
         pulmonary functions and physical exam.  It was felt that he would 
 
         not have residual or permanent lung disease."
 
         
 
              Dr. Marshall, at the time of claimant's medical discharge, 
 
         reported:  "...At the time of discharge, he was felt to be stable 
 
         with clear lungs and no evidence of any adverse effects from his 
 
         previous exposure..."
 
         
 
              While claimant complained of certain symptoms such as 
 
         shortness of breath, objective tests did not substantiate those 
 
         complaints.  Additionally, Dr. Hanson attributed the subjective 
 
         complaints to claimant's childhood asthma and not to claimant's 
 
         work injury.
 
         
 
              It is the determination of the undersigned that claimant has 
 
         no permanent disability.  This finding is based on:  1) the 
 
                                                
 
                                                         
 
         aforementioned considerations; 2) based upon the opinion of Dr. 
 
         Hanson; 3) based upon claimant's deposition testimony; and, 4) 
 
         based upon agency expertise, (Iowa Administrative Procedures Act 
 
         17A.14(s).
 
         
 
              It is also the determination of the undersigned that 
 
         claimant is entitled to temporary total disability benefits.  
 
         Section 85.33(1) defines temporary total disability benefits.  It 
 
         provides:
 
         
 
              Except as provided in subsection 2 of this section, the 
 
              employer shall pay to an employee for injury producing 
 
              temporary total disability weekly compensation benefits, as 
 
              provided in section 85.32, until the employee has returned 
 
              to work or is medically capable of returning to employment 
 
              substantially similar to the employment in which the 
 
              employee was engaged at the time of injury, whichever occurs 
 
              first.
 
         
 
              In the case at hand, claimant was off work from June 5, 1987 
 
         to July 7, 1987.  The time off work is calculated as 4.286 weeks. 
 
         Upon his return to work, claimant continued performing the same 
 
         position he held prior to the date of his injury.  Claimant also 
 
         returned to work at the same rate of pay.  Claimant was under no 
 
         restrictions from a medical practitioner.  Any restrictions were 
 
         self-imposed.  Claimant testified he performed the same tasks 
 
         required of him in his job.  Therefore, it is the decision of the 
 
         undersigned that claimant is entitled to temporary total 
 
         disability benefits for 4.286 weeks at the stipulated rate of 
 
         $303.64 per week.
 
         
 
                   FINDINGS OF FACT AND CONCLUSIONS OF LAW
 
         
 
              WHEREFORE, based on the evidence presented and the 
 
         principles of law previously stated, the following findings of 
 
         fact and conclusions of law are made:
 
         
 
              FINDING 1.  As a result of his work injury on June 5, 1987, 
 
         claimant sustained an injury to his lungs.
 
         
 
              FINDING 2.  Claimant sustained no permanent functional 
 
         impairment as a result of his work injury on June 5, 1987.
 
         
 
              FINDING 3.  Claimant was off work as a result of his work 
 
         injury from June 5, 1987 to July 7, 1987.
 
         
 
              FINDING 4.  Claimant returned to work on July 7, 1987 
 
         without any restrictions from a.medical practitioner.
 
         
 
              CONCLUSION A.  Claimant has met his burden of proving he 
 
         sustained a temporary total disability as a result of his injury 
 
         on June 5, 1987.
 
         
 
               FINDING 5.  Dr. Hanson was the authorized medical 
 
         practitioner.
 
                                                
 
                                                         
 
         
 
              FINDING 6.  Dr. Hanson provided reasonable and necessary 
 
         medical care to claimant.
 
         
 
              CONCLUSION B.  Claimant is not entitled to alternate medical 
 
         care under section 85.27.
 
         
 
                                    ORDER
 
         
 
              THEREFORE, defendant is to pay unto claimant four point 
 
         two-eight-six (4.286) weeks of temporary total disability 
 
         benefits at the stipulated rate of three hundred three and 64/100 
 
         dollars ($303.64) per week.
 
         
 
              Payments that have accrued shall be paid in a lump sum 
 
         together with statutory interest thereon pursuant to Iowa Code 
 
         section 85.30.
 
         
 
              Defendant shall take credit for benefits previously paid.
 
         
 
              Defendant shall file a claim activity report upon payment of 
 
         this award.
 
         
 
              Costs of this action are assessed against defendant pursuant 
 
         to Division of Industrial Services Rule 343-4.33.
 
         
 
         
 
              Signed and filed this 26th day of September, 1989.
 
         
 
         
 
         
 
         
 
                                       MICHELLE A. McGOVERN
 
                                            
 
                                                         
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Lyle A. Rodenbrug
 
         Attorney at Law
 
         100 - 101 Park Bldg.
 
         Council Bluffs, Iowa  51501
 
         
 
         Mr. Cecil L. Goettsch
 
         Attorney at Law
 
         1100 Des Moines Bldg.
 
         Des Moines, Iowa  50309
 
 
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            2500; 2601.20; 2700
 
                                            Filed September 26, 1989
 
                                            MICHELLE A. McGOVERN
 
         
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         WILLIAM J. LITTLE,
 
         
 
              Claimant,                             File No. 850409
 
         
 
         vs.                                     A R B I T R A T I O N
 
         
 
         IOWA POWER AND LIGHT COMPANY,              D E C I S I O N
 
         
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         
 
         2601.20
 
         
 
              Claimant was not allowed to depose an unnamed physician 
 
         subsequent to hearing.
 
         
 
         2500; 2700
 
         
 
              Claimant was not given alternate medical care under section 
 
         85.27 even though defendant had consented to an examination under 
 
         section 85.39.