BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            THOMAS J. NUGENT,   
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                             File Nos. 881054, 862826, 
 
            DUDS N' SUDS,                              959391
 
                        
 
                 Employer,                     A R B I T R A T I O N
 
                      
 
            and                                  D E C I S I O N
 
                      
 
            AETNA CASUALTY AND SURETY CO.,
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
                                 INTRODUCTION
 
            
 
                 This is a proceeding in arbitration filed by Thomas J. 
 
            Nugent, claimant, against Duds N' Suds, employer and Aetna 
 
            Casualty and Surety Company, insurance carrier, defendants 
 
            for benefits as the result of three alleged injuries.  
 
            Industrial commissioner's file number 881054 alleges that 
 
            claimant injured his right hand and arm on August 14, 1986, 
 
            when equipment fell on his arm.  Industrial commissioner's 
 
            file number 862826 alleges that claimant injured his back on 
 
            August 7, 1987, lifting washers and dryers.  Industrial 
 
            commissioner's file number 959391 alleges that claimant 
 
            injured his hips, knees and legs on November 2, 1989, as a 
 
            result of a motor vehicle accident.  All three cases were 
 
            consolidated and a hearing was held on June 14, 1993, in Des 
 
            Moines, Iowa and the case was fully submitted at the close 
 
            of the hearing.  Claimant was represented by Gregory T. 
 
            Racette.  Defendants were represented by Lorraine J. May.  
 
            Lynn Pelisek, claim representative for the insurance carrier 
 
            was also present in the courtroom at the time of the hearing 
 
            (Transcript pp. 14 & 15).  The record consists of the 
 
            testimony of Thomas J. Nugent, claimant, and joint exhibits 
 
            1 through 35.  Both attorneys made excellent preparations 
 
            for the hearing and submitted outstanding trial briefs at 
 
            the time of the hearing.  The exhibits were carefully 
 
            selected and well organized for easy reference which 
 
            facilitated the decision of this case.  The deputy ordered a 
 
            transcript of the hearing.  
 
            
 
                                     SYNOPSIS
 
            
 
                 A synopsis of this case will be helpful.  
 
            
 
                 Claimant injured his back at work on August 7, 1987.  
 
            Objective tests demonstrated that claimant had a number of 
 
            preexisting back anomalies (1) spina bifida occulta, (2) 
 

 
            
 
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            scoliosis, (3) spondylolisthesis and (4) degenerative disc 
 
            disease.  None of these conditions had been symptomatic 
 
            prior to this injury.  After a conservative course of 
 
            treatment and release by one firm of orthopedic surgeons, a 
 
            subsequent surgeon determined that surgery was indicated and 
 
            performed surgery.  This generated a causal connection and 
 
            entitlement to benefits question with respect to this 
 
            injury.
 
            
 
                 While recuperating from the surgery claimant was en 
 
            route to give a deposition at the request of defendants' 
 
            counsel when he was involved in a devastating head-on motor 
 
            vehicle collision with a semi-tractor and tractor which 
 
            presents a second and third set of legal issues to include 
 
            (1) whether the motor vehicle accident injuries were sequela 
 
            of the back injury and (2) considering the motor vehicle 
 
            injury as a separate and distinct injury, whether (a) an 
 
            employer-employee relationship existed and (b) whether the 
 
            motor vehicle injury was an injury arising out of and in the 
 
            course of employment.
 
            
 
                                   STIPULATIONS
 
            
 
                 The parties stipulated that claimant did in fact 
 
            sustain an injury to his back on August 7, 1989.  The 
 
            parties further stipulated that if it is determined that the 
 
            back injury was the cause of the temporary disability which 
 
            is being claimed by claimant, then claimant is entitled to 
 
            temporary disability benefits for the period from August 8, 
 
            1987 through March 13, 1989 and again from June 13, 1989 
 
            through February 2, 1990 (Tran. p. 6).  During the first 
 
            period of time objective tests did not show an operative 
 
            lesion and claimant was treated conservatively by John H. 
 
            Kelley, M.D. and Joe F. Fellows, M.D., and released.  
 
            Subsequent to their treatment William R. Boulden, M.D., 
 
            performed back surgery and he treated claimant during this 
 
            second period of time.
 
            
 
                 The parties stipulated that if certain employer 
 
            witnesses were called that they would testify that (1) 
 
            employer took bankruptcy in April of 1988 and (2) that 
 
            claimant was told that he was terminated from his employment 
 
            in May of 1988 and (3) that claimant never returned to work 
 
            after that date and (4) received no wages from employer 
 
            after that date and (5) that there was no one in the 
 
            maintenance position previously held by claimant after May 
 
            of 1988 (Tran. pp. 11-14, 20, & 22).  The actual bankruptcy 
 
            date was stipulated to be April 26, 1988 (Tran. p. 36).
 
            
 
                                PRELIMINARY MATTER
 
            
 
                 At the time of the hearing claimant's counsel moved to 
 
            dismiss file number 881054, which alleged that claimant 
 
            injured his right hand and arm on August 14, 1986, when 
 
            equipment fell on his arm.  Claimant's counsel stated on the 
 
            record (1) that claimant did not miss any time from work and 
 
            (2) that there were no long-term problems from this injury.  
 
            Therefore he requested to dismiss this case without 
 
            prejudice.  Claimant's motion was granted and the case with 
 
            respect to this particular injury was dismissed without 
 

 
            
 
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            prejudice (Tran. pp. 4 & 5).  
 
            
 
                                      ISSUES
 
            
 
                    industrial commissioner's file no. 862826
 
                                          BACK INJURY OF AUGUST 7, 1987
 
            
 
                 With respect to the injury to claimant's back which 
 
            occurred on August 7, 1987, while lifting washers and dryers 
 
            the parties submitted the following issues for determination 
 
            at the time of the hearing.
 
            
 
                 Whether the back injury was the cause of temporary or 
 
            permanent disability to include whether the alleged motor 
 
            vehicle injury of November 2, 1989 (file number 959391) was 
 
            sequela of the back injury of August 7, 1987 (file number 
 
            862826).
 
            
 
                 Whether claimant is entitled to permanent disability 
 
            benefits as a result of the back injury of August 7, 1987 
 
            and if so, the extent of benefits to which he is entitled.
 
            
 
                 Whether claimant is entitled to permanent disability 
 
            benefits for the reason that the alleged motor vehicle 
 
            injury of November 2, 1989 was sequela of the back injury of 
 
            August 7, 1987. 
 
            
 
                 Whether claimant is an odd-lot employee either because 
 
            of the back injury of August 7, 1987 or because the alleged 
 
            motor vehicle injury of November 2, 1989 was sequela of the 
 
            back injury of August 7, 1987.  
 
            
 
                 Whether claimant is entitled to the payment of a 
 
            certain medical bill for the reason that the alleged injury 
 
            of November 2, 1989 was sequela of the back injury of August 
 
            7, 1987.
 
            
 
                    industrial commissioner's file no. 959391
 
                     MOTOR VEHICLE INJURY OF NOVEMBER 2, 1989
 
            
 
                 With respect to the alleged motor vehicle injury to 
 
            claimant's hips, knees and legs which occurred on November 
 
            2, 1989 from the motor vehicle accident, when considered as 
 
            a separate and distinct injury and not as sequela of the 
 
            injury that occurred on August 7, 1987, the parties 
 
            submitted the following issues for determination. 
 
            
 
                 Whether an employer-employee relationship existed 
 
            between claimant and employer at the time of the alleged 
 
            injury.
 
            
 
                 Whether claimant sustained an injury on November 2, 
 
            1989, which arose out of and in the course of employment 
 
            with employer.
 
            
 
                 Whether this injury was the cause of either temporary 
 
            or permanent disability.
 
            
 
                 Whether claimant is an odd-lot employee.
 
            
 

 
            
 
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                 What is the proper rate of compensation for this 
 
            injury.
 
            
 
                 Whether claimant is entitled to medical benefits for 
 
            this injury.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                    industrial commissioner's file no. 862826
 
                          BACK INJURY OF AUGUST 7, 1987
 
            
 
              causal connection-entitlement-temporary and permanent 
 
                                    disability
 
            
 
                 It is determined that the back injury of August 7, 
 
            1987, was the cause of the temporary disability claimed by 
 
            claimant and that claimant is entitled to healing period 
 
            benefits from August 8, 1987 through March 13, 1989 and 
 
            again from June 13, 1989 through February 2, 1990.  
 
            
 
                 It is further determined that the injury of August 7, 
 
            1987 to claimant's back was the cause of a 50 percent 
 
            industrial disability to the body as a whole and that 
 
            claimant is entitled to 250 weeks of permanent partial 
 
            disability benefits.
 
            
 
                 It is further determined that the motor vehicle injury 
 
            of November 2, 1989, was not sequela of the back injury 
 
            which occurred on August 7, 1987 and that claimant is not 
 
            entitled to any temporary or permanent disability benefits 
 
            for the injuries caused in the motor vehicle accident of 
 
            November 2, 1989.  
 
            
 
                 It is further determined that claimant is not an 
 
            odd-lot employee due to the injury of August 7, 1987.
 
            
 
                 It is further determined that claimant is not entitled 
 
            to the medical bill presented for payment at the time of the 
 
            hearing (on the ground that the injury of November 2, 1989, 
 
            was sequela of the injury which occurred on August 7, 1987) 
 
            because it is determined that the motor vehicle injury was 
 
            not the sequela of the previous back injury.
 
            
 
                 Defendants dispute their liability for the temporary 
 
            and permanent disability claimed by claimant for two basic 
 
            reasons.  First, at the time of the back injury on August 7, 
 
            1987 x-rays taken by John H. Kelley, M.D., on August 20, 
 
            1987, disclosed that claimant had certain preexisting 
 
            congenital conditions of his back or conditions that were 
 
            developed prior to this injury, to wit:  (1) spina bifida 
 
            occulta L5, (2) right lumbar scoliosis, (3) 
 
            spondylolisthesis L5-S1 (Ex. 2, p. 8) and (4) degenerative 
 
            disc disease (Ex. 5, p. 26).  Second, claimant showed a 
 
            pattern of improvement after a series of objective tests and 
 
            conservative treatment and was actually released by his 
 
            treating physician from further follow-up on March 14, 1989 
 
            (Ex. 2, pp. 8-20).  Subsequently another orthopedic surgeon 
 
            performed surgery on claimant's lower back on August 2, 
 
            1989.
 
            
 

 
            
 
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                 The objective testing is summarized as follows.  
 
            
 
                 A MRI performed on November 5, 1987 showed degenerative 
 
            disc disease at L4-L5 level.  There was posterior bulging of 
 
            this disc but no definite evidence of compression or 
 
            displacement of the exiting nerve roots (Ex. 5, p. 26).  A 
 
            CT scan performed on the same day by the same radiologist 
 
            concluded as follows:
 
            
 
                    Impression:  1) Bilateral spondylolysis at the 
 
                 L5 level.  This causes mild narrowing of both 
 
                 neural foramina but does not appear to 
 
                 significantly compress the exiting nerve roots.
 
            
 
                    2)  Mild diffuse bulging of the L4-L5 disc 
 
                 without evidence of significant compression of the 
 
                 exiting nerve roots.
 
            
 
                    3)  Spina bifida occulta of the posterior arch 
 
                 of L5.  (Ex. 5, p. 27)
 
            
 
                 A second MRI performed on February 15, 1988 showed no 
 
            change.  "Impression:  Minimal degenerative disc disease at 
 
            L 4-L 5 without evidence of compression of the thecal sac or 
 
            nerve roots.  There appears to have been no change from a 
 
            previous exam of 11-5-87." (Ex. 6, p. 28).
 
            
 
                 The third MRI performed on August 15, 1988, a period of 
 
            one year after the injury, showed some disc herniation for 
 
            the first time.  "Impression:  Disc herniation at the L4-5 
 
            level on the left side with displacement of the L5 nerve 
 
            root as described above.  This is more prominent than seen 
 
            on the studies of 2/15/88." (Ex. 6, p. 29).
 
            
 
                 A lumbar myelogram was carried out on December 6, 1988 
 
            and revealed no abnormalities in the lower back as far as 
 
            the discs were concerned except for some very slight 
 
            blunting of the nerve root at L4-L5 on the left but no disc 
 
            protrusion.  Joe F. Fellows, M.D., an associate in the same 
 
            medical firm as Dr. Kelley and who succeeded Dr. Kelley and 
 
            took over the care of claimant stated, "This certainly is a 
 
            definite improvement from his MRI results." (Ex. 2, p. 17).
 
            
 
                 Laymen, lawyers, deputies, and others could all draw 
 
            different conclusions based on claimant's preexisting 
 
            conditions and the fact that claimant's conservative 
 
            treatment demonstrated improvement until he was discharged 
 
            on March 14, 1989.  Therefore, it has been the rule of law 
 
            for quite some time that 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).  
 
            
 
                 Consequently, looking at the medical evidence of Dr. 
 
            Kelley, he diagnosed "Spondylolisthesis with acute low back 
 
            strain." (Ex. 2, p. 8).  He said claimant had no history of 
 
            previous back problems (Ex. 2, p. 9).  Claimant testified 
 
            that he had no prior injuries to his back (Tran. p. 50).  
 
            Dr. Kelley ordered work hardening and back strengthening 
 
            (Ex. 2, p. 10).  Dr. Kelley concluded in his last office 
 

 
            
 
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            note that if claimant was no better after the work hardening 
 
            program then "... we should consider him as a possible 
 
            candidate for spinal fusion." (Ex. 2, p. 11).
 
            
 
                 Looking to the opinion of Dr. Fellows, who took over 
 
            claimant's care on November 3, 1987, he mentioned frequently 
 
            the possibility of surgery even though he treated claimant 
 
            conservatively.  He mentioned a possible lumbar fusion on 
 
            his first office visit of November 3, 1987 (Ex. 2, p. 12).  
 
            He mentioned lumbar fusion on his second office visit on 
 
            December 4, 1987 (Ex. 2, p. 13).  On the fourth office visit 
 
            on February 12, 1988, Dr. Fellows said that claimant 
 
            continued to be a candidate for disc removal but not until 
 
            he has significant nerve root impingement (Ex. 2, p. 14).  
 
            On the sixth office visit on April 8, 1988, Dr. Fellows 
 
            recommended against rushing into a fusion and stabilization.  
 
            On August 2, 1988, Dr. Fellows considered but recommended 
 
            against an arthrodesis or fusion at that time because of the 
 
            improvement in claimant's condition (Ex. 2, p. 15).  On 
 
            October 18, 1988, after the herniation was seen on the MRI 
 
            he indicated that this might eventually require surgical 
 
            correction but he wanted to continue conservative care.  On 
 
            November 1, 1988, Dr. Fellows stated that he felt that the 
 
            disc herniation at L4-5 was directly related to the injury 
 
            of August 7, 1987 (Ex. 2, p. 17).  In a letter to claimant's 
 
            counsel on November 2, 1988, Dr. Fellows stated, "I think 
 
            the problem of the disc protrusion at the L4-5 level did 
 
            begin on August 7, 1987, while he was lifting a tool box 
 
            from a truck.  ... As you know, Tom has a spondylolisthesis 
 
            at L5-S1 which pre-existed his acute back strain and disc 
 
            protrusion, and I think is unrelated to the back injury."  
 
            (Ex. 4, p. 23).
 
            
 
                 Thus, Dr. Fellows concluded that the bulging disc at 
 
            L4-L5 was caused by this injury, but that the instability of 
 
            the spondylolisthesis was not caused by this injury.  Also, 
 
            at all times Dr. Fellows considered this diskectomy and 
 
            fusion but decided that claimant's condition did not in his 
 
            opinion indicate surgery during his period of treatment.  
 
            
 
                 Claimant's first period of healing would end when he 
 
            was discharged by Dr. Fellows on March 14, 1989.
 
            
 
                 After claimant was discharged by Dr. Fellows, he saw 
 
            William R. Boulden, M.D., on June 13, 1989, who said at this 
 
            point in time the patient continues to be symptomatic.  He 
 
            found no history of significant previous back problems.  Dr. 
 
            Boulden recorded that as long as claimant does absolutely 
 
            nothing he is able to get by but if he gets more active and 
 
            tries to do anything he has increasing pain concurrently in 
 
            his lower back and going down his left leg (Ex. 7, p. 31).  
 
            
 
                 Dr. Boulden attributed the need for a decompression of 
 
            the herniation at L4-L5, and also a two level fusion for the 
 
            spondylolisthesis, to the injury of August 7, 1987.  With 
 
            respect to temporary disability Dr. Boulden stated on June 
 
            13, 1989, "At this point in time it is our feeling the 
 
            patient is still temporarily disabled because of the injury 
 
            of August 7, 1987, ..." (Ex. 7, p. 32)  Thus, claimant is 
 
            entitled to the beginning of a second period of healing.
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
                 With respect to the injury of August 7, 1987, being the 
 
            cause of both surgeries Dr. Boulden stated as follows, "We 
 
            reviewed the myelogram, CT scan and MRI and confirmed that 
 
            he has a spondylolisthesis secondary to spondyloysis and 
 
            that he has a protruding disc at L4/5 that is probably 
 
            causing L5 neural impingement as well as the 
 
            spondylolisthesis lesion." (Ex. 7, p. 32).  Dr. Boulden 
 
            stated that surgical intervention can have a good effect in 
 
            reversing claimant's temporary disability to the point where 
 
            he can be a productive individual again.  Dr. Boulden 
 
            concluded by stating, "Therefore, I think that all the 
 
            questions have been answered and we feel that the accident 
 
            of August 7, 1987 is the contributing factor of the present 
 
            symptom complex." (Ex. 7, p. 32).
 
            
 
                 Wherefore, it is determined that the injury of August 
 
            7, 1987 was a substantial factor in causing the surgery that 
 
            took place on August 2, 1989.  Blacksmith v. All American, 
 
            Inc., 290 N.W.2d 348, 354 (Iowa 1980).
 
            
 
                 In the opinion of this deputy Dr. Boulden's decision is 
 
            correct as well as claimant's decision to have the surgery.  
 
            At the time of the surgery on August 2, 1989, Dr. Boulden 
 
            commented in the surgical notes as follows, "Therefore, 
 
            because of failure to yet improve with over two years of 
 
            conservative management, he has elected to have surgery." 
 
            (Ex. 12, p. 39).  The surgery was successful.  On August 21, 
 
            1989, Dr. Boulden stated, "The patient's left leg pain is 
 
            gone.  The only pain that he has is some buttock pain and 
 
            some low back discomfort." (Ex. 8, p. 33; Ex. 9. p. 34; Ex. 
 
            10, p. 35).
 
            
 
                 During his recuperation from the surgery, claimant was 
 
            driving en route from his parents' home in Churdan, Iowa to 
 
            Des Moines at the request of defendants' counsel for a 
 
            deposition when he was involved in a head-on collision with 
 
            a semi-tractor and trailer which totally demolished his car 
 
            and caused numerous,  massive injuries to claimant's body, 
 
            in particular his lower extremities.  The emergency room at 
 
            the Green County Medical Center recorded:  
 
            
 
                 1. Mental confusion, probable cerebral contusion. 
 
            
 
                 2.  Fracture, left femur, pelvis and acetabulum. 
 
            
 
                 3.  Deep laceration, right leg, involving patella.  
 
            
 
                 4.  Laceration, left forehead and right shoulder.  
 
            
 
                 5.  Possible internal injuries.  
 
            
 
                 6.  Meatal stenosis (Ex. 13, p. 42).
 
            
 
                 Claimant was air flighted to Iowa Methodist Medical 
 
            Center in Des Moines where he was treated by another team of 
 
            physicians and received a number of surgeries (Ex. 14, pp. 
 
            46-54, Ex. 15, 55-69).  Claimant was then transferred to The 
 
            University of Iowa Hospitals and Clinics on December 4, 
 
            1989, where a number of other surgical operations were 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            performed (Ex. 16, pp. 71, 73, Ex. 17, pp. 74 & 74, Ex. 18, 
 
            pp. 76-81, Ex. 22, pp. 86-88).
 
            
 
                 Since claimant's healing period from the back surgery 
 
            caused by the August 7, 1987 injury was interrupted by the 
 
            automobile accident, Dr. Boulden opined that on the average, 
 
            most people, after six months are healed and rehabilitated 
 
            from this type of fusion technique (Ex. 11, p. 36).  Both 
 
            parties have agreed that Dr. Boulden's estimate as to the 
 
            termination of healing period is reasonable and have agreed 
 
            that the healing period from the August 7, 1987 back injury 
 
            should end on February 2, 1990.
 
            
 
                 With respect to the amount of permanent partial 
 
            disability attributable to the back injury of August 7, 
 
            1987, Dr. J. Marsh, M.D., Associate Professor, Department of 
 
            Orthopedics, at The University of Iowa, stated that he did 
 
            not expect any additional permanent damage to the back based 
 
            upon this new motor vehicle injury of November 2, 1989 (Ex. 
 
            21, p. 85).   
 
            
 
                 Claimant was evaluated for permanent impairment by 
 
            Thomas W. Bower, LPT, on August 21, 1991.  Mr. Bower rated 
 
            the impairment from the injury of August 7, 1987 at 13 
 
            percent impairment to the body as a whole.  He noted that 
 
            even though the spondylolisthesis was preexisting, that it 
 
            became symptomatic following the lifting incident of August 
 
            7, 1987 (Ex. 23, p. 90).  Mr. Bower conducted a physical 
 
            capacity examination on September 13, 1991 (Ex. 24, pp. 
 
            92-105).  On September 19, 1991, Mr. Bower reported that 
 
            approximately 50 percent of claimant's reduction in overall 
 
            functional capacity was attributable to the injury that 
 
            occurred on August 7, 1987 (Ex. 25, p. 106).
 
            
 
                 Roger F. Marquardt, CRC, CIRS, vocational specialist, 
 
            evaluated claimant and reported on January 27, 1992.  
 
            Marquardt summarized the functional capacity examination as 
 
            follows.
 
            
 
                    The functional capacity assessment of Mr. 
 
                 Nugent as measured September 13, 1991 by physical 
 
                 therapist Tom Bower projected physical 
 
                 restrictions including:
 
                 
 
                 Sit              - 1.5 to 2 hours
 
                 Stand            - 15 to 20 minutes
 
                 Walk             - 300 to 400 yards (cane assist)
 
                 Squat            - substantially limited
 
                 Maximum lift     - 40 lbs. floor to waist
 
                                  - 30 lbs. chest height
 
                 Maximum carry    - 22 lbs.
 
                 Frequent lift    - 0 lbs. floor to waist
 
                                  - 20 lbs. chest height
 
                 Frequent carry   - 0 lbs. floor to waist
 
                 Push/pull        - 60/70 lbs.  
 
                 (Ex. 34, p. 125)
 
            
 
                 Marquardt noted that Iowa Division of Vocational 
 
            Rehabilitation recommended a two year college program for 
 
            claimant which might be followed by completion of a four 
 

 
            
 
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            year program.
 
            
 
                 Marquardt found that claimant was limited to sedentary 
 
            activities which meant a loss of access of 88.4 percent of 
 
            all jobs regardless of skill level and 90.9 percent of the 
 
            unskilled market.  He said this makes claimant eligible for 
 
            social security disability.  He added that if claimant were 
 
            allowed to perform light work this would increase his access 
 
            to 50 percent and 55.5 percent of the market (Ex. 34, p. 
 
            127).  He said that the light work jobs were rare but that 
 
            if claimant could find one, an inspector job might pay $7.25 
 
            per hour and a parts clerk job might pay $7.17 per hour.  
 
            This is more than claimant was earning for employer.  
 
            
 
                 Claimant testified that he earned $250 per week and 
 
            worked approximately 60 hours which by computation results 
 
            in an hourly wage of approximately $4.16 per hour.  It 
 
            should be noted, however, that industrial disability does 
 
            not measure loss of actual earnings but rather loss of 
 
            earnings capacity.  If claimant is foreclosed from heavy and 
 
            medium work to light and sedentary work, which is the case 
 
            here, and requires further education in order to find that 
 
            kind of work, then claimant's industrial disability is 
 
            substantial.  Education involves loss of earnings while in 
 
            school, living expenses with no income, plus the expenses of 
 
            tuition, books, fees and transportation.  At the time 
 
            Marquart interviewed claimant on November 20, 1991, he said 
 
            that claimant was a full-time business major carrying 12 
 
            hours at Iowa Central Community College in Fort Dodge, Iowa.  
 
            After that he hoped to obtain a bachelors degree in business 
 
            and obtain work with computers (Ex. 34, pp. 125 & 126).  
 
            Claimant has demonstrated that he is a good student and has 
 
            received good grades.  Marquardt testified that as the 
 
            result of both the back injury and motor vehicle injury that 
 
            claimant was restricted to sedentary work.  He estimated 
 
            that if the motor vehicle accident would not have occurred 
 
            then claimant would only be restricted to light work (Ex. 
 
            34, p. 128). 
 
            
 
                 Marquardt concluded his report by summarizing.
 
            
 
                    From this research it is my opinion that, if 
 
                 Tom Nugent were restricted to only light jobs with 
 
                 minimal stress to his back, he would experience 
 
                 both a loss of access to his pre-injury job market 
 
                 and a loss of potential earnings, each calculated 
 
                 to be approximately 50 %.  (Ex. 34, p. 128).
 
            
 
                 Claimant, born September 25, 1964, was 22 years old at 
 
            the time of the injury and 28 years old at the time of the 
 
            hearing.  His young age provides him an opportunity to train 
 
            for new employments and tends to reduce his industrial 
 
            disability.  Becke v. Turner-Busch, Inc., Thirty-fourth 
 
            Biennial Report of the Industrial Commissioner 34 (Appeal 
 
            Decision  1979); Walton v. B & H Tank Corp., II Iowa 
 
            Industrial Commissioner Report 426 (1981); McCoy v. 
 
            Donaldson Company, Inc., file numbers 782670 & 805200 (App. 
 
            Dec. 1989).  Claimant has demonstrated that he is 
 
            intelligent, hard working and is re-trainable.  Conrad v. 
 
            Marquette School, Inc., IV Iowa Industrial Commissioner 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            Report 74, 89 (1984). 
 
            
 
                 After graduation from high school in 1983 he obtained a 
 
            diploma in refrigeration and air-conditioning from Des 
 
            Moines Area Community College.  He also attended several 
 
            manufacturer schools to learn how to repair their products 
 
            (Tran. p. 47 & 51).  
 
            
 
                 Claimant's only other employment prior to this employer 
 
            was a construction job immediately after high school (Tran. 
 
            p. 48).  Claimant sustained an extremely incapaciting injury 
 
            as verified by his own testimony and the medical evidence 
 
            (Tran. pp. 55061).  Claimant's job required him to lift 
 
            shipping boxes weighing 40 to 50 pounds and to move machines 
 
            which weighed from 200 to 300 pounds (Tran. pp. 49 & 50).  
 
            At the time of the injury claimant had unloaded two tool 
 
            boxes off of the truck.  One of them weighed 50 to 60 pounds 
 
            (Tran. p. 53).  The other weighed 40 to 50 pounds (Tran. p. 
 
            54).
 
            
 
                 It should be noted that as early as April 8, 1988, Dr. 
 
            Fellows stated that if a fusion was carried out claimant 
 
            would be foreclosed from any extremely heavy work or lifting 
 
            (Ex. 2, p. 15).  On September 23, 1988, Dr. Fellows stated 
 
            that even if claimant would not have had the surgery he 
 
            would have been restricted to light work (Ex. 12, p. 22).
 
            
 
                 Although the Social Security Administration follows 
 
            different criteria than the industrial commissioner, 
 
            consideration is given to the fact that claimant is 
 
            receiving social security disability benefits from the 
 
            Social Security Administration which at the very least 
 
            implies a significant amount of permanent disability, even 
 
            though all of it may not be attributable to this injury of 
 
            August 7, 1987.  
 
            
 
                 Wherefore, based upon the foregoing evidence it is 
 
            determined that the injury of August 7, 1987, was the cause 
 
            of temporary disability and that claimant is entitled to 
 
            healing period benefits for the period from August 8, 1987 
 
            through March 13, 1989 and again from June 13, 1989 through 
 
            February 2, 1990.  Dr. Kelley and Dr. Fellows kept claimant 
 
            off work on account of this injury during the first period 
 
            of time. Dr. Kelley implied and Dr. Fellows found that the 
 
            injury was the cause of the protruded disc at L4-5.  Dr. 
 
            Boulden took claimant off work again on June 13, 1989 and 
 
            opined that a reasonable recovery period would be until six 
 
            months after the surgery which would be February 2, 1990.  
 
            The parties have agreed that these are the proper dates for 
 
            healing period benefits if the injury is found to be a cause 
 
            of temporary disability and it has been so found.  
 
            
 
                 Therefore, claimant is entitled to 83.429 weeks of 
 
            healing period benefits for the first period of time and 
 
            33.571 weeks of healing period benefits for the second 
 
            period of time which is a total of 117 weeks of healing 
 
            period benefits.
 
            
 
                 The same evidence, in particular the evidence of Dr. 
 
            Boulden, establishes that this injury was the cause of the 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            diskectomy and decompression at L4/5 and also the two level 
 
            fusion of L5/S1.  He said the protruding disc at L4-5 which 
 
            was caused by this injury also caused the L5 neural 
 
            impingement as well as the spondylolisthesis lesion which 
 
            was the cause of the spondylolisthesis problem (Ex. 7, p. 
 
            32).  Dr. Boulden's testimony is not controverted, 
 
            contradicted, rebutted or refuted.  
 
            
 
                 Wherefore, based upon the foregoing considerations of 
 
            claimant's age in the mid-20s, his high school education, 
 
            his mechanical skills and a diploma in refrigeration and 
 
            air-conditioning; the fact that he has completed two years 
 
            of college training since the injury and the fact that he is 
 
            re-trainable; the fact that he is foreclosed from very 
 
            heavy, heavy, and medium work and is restricted to light or 
 
            sedentary work in the future; that claimant has a 13 percent 
 
            permanent impairment to the body as a whole because of this 
 
            injury and surgery to his lumbar spine; and that claimant 
 
            has lost 50 percent access to the employment market, it is 
 
            determined that claimant has sustained an industrial 
 
            disability of 50 percent to the body as a whole and is 
 
            entitled to 250 weeks of permanent partial disability 
 
            benefits.
 
            
 
                 It is determined that the motor vehicle injury of 
 
            November 2, 1989, was not the sequela of the back injury of 
 
            August 7, 1987.  The sequela of injuries is discussed at 
 
            length in Lawyer and Higgs, Iowa Workers' Compensation--Law 
 
            and Practice, (2d ed.) section 4.4.  This concept has been 
 
            applied when claimants have had continuing health problems 
 
            from the original injury, but none of the cases extend to 
 
            the situation where claimant was injured in a second, new, 
 
            separate and distinct motor vehicle accident en route to a 
 
            deposition pursuant to a litigated workers' compensation 
 
            claim.  
 
            
 
                 Claimant cites three recent supreme court cases 
 
            concerning the issue of in course of employment.  
 
            Caterpillar Tractor Co. v. Shook, 313 N.W.2d 503 (Iowa 
 
            1981); Tuttle v. Mickow Corp., 418 N.W.2d 364, 366 (Iowa 
 
            Appeals 1987); McMullin v. Dept. of Revenue, 437 N.W.2d 597 
 
            (Iowa Appeals 1989).  These are course of employment 
 
            decisions based upon the facts of those individual cases but 
 
            they have no application to the current case.  Those cases 
 
            decided that the claimant at the time of the injury was in 
 
            the course of his employment.  They did not decide that the 
 
            claimant was in the course of his employment as sequela of a 
 
            prior injury at the time of a subsequent separate and 
 
            distinct motor vehicle accident.  
 
            
 
                 Sequela is addressed by Larson at 1 Larson Workers 
 
            Compensation Law 13.00 pages 3-502 to 3-574.  At 13.10 page 
 
            3-503, Larson states that the simplest application of this 
 
            principle is the rule that all medical consequences that 
 
            flow from the primary injury are sequela and are 
 
            compensable.  The medical consequences in this case flow 
 
            from a totally different occurrence - an intervening cause.  
 
            On the first injury claimant injured his back.  On the 
 
            subsequent injury claimant injured his pelvis and lower 
 
            extremities as well as several other parts of his body but 
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            none of the medical authorities found that his back was 
 
            specifically affected in any way by the second injury.  The 
 
            injuries flowing from the second accident are all 
 
            specifically identifiable and they are clearly distinct from 
 
            claimant's back injury.  
 
            
 
                 The typical cases where the sequela doctrine has been 
 
            followed are found at 1 Larson, 13.13 page 3-564, concerning 
 
            accidents en route to a doctor's office for treatment for 
 
            injuries sustained in the work-caused initial injury.  At 
 
            the time of the motor vehicle accident on November 2, 1989, 
 
            claimant was not en route to obtain medical treatment for 
 
            his back injury of August 7, 1987.  Claimant was still under 
 
            the care of Dr. Boulden but was not going to seek any 
 
            medical care at the time of the accident.  
 
            
 
                 Claimant cites the special errand rule found in 1 
 
            Larson, 16.10 pages 4-204 to 4-208.19 and more particularly 
 
            the case of Abshire v. City of Rockland, 388 A. 2d 512 (ME. 
 
            1978).  Abshire is not a sequela case.  A policeman was 
 
            injured on his way to testify in court.  This was part of 
 
            his job.  As in McMullin, Shook and Tuttle there was no 
 
            prior injury for which the second injury could be sequela.  
 
            
 
                 Claimant cites the "quasi-course of employment" concept 
 
            which is now found at 1 Larson 13.11(d) pages 3-541 to 
 
            3-546.  Again these cases are based upon the worsening of a 
 
            health condition after an initial injury and none pertain to 
 
            traveling in route to give a deposition at the request of 
 
            defendants' counsel.
 
            
 
                 Traveling to receive medical care is distinguishable 
 
            from traveling to give a deposition.  Under the workers' 
 
            compensation law employers are required to provide medical 
 
            care and injured employees are expected to pursue reasonable 
 
            medical care.  Likewise, travel expenses to and from medical 
 
            care are provided for the injured employee in the statute.  
 
            In the case of traveling to give a deposition the employer 
 
            is not required by law to pay for claimant's litigation 
 
            costs nor is the employer required to pay for claimant's 
 
            traveling expenses going to and from giving a deposition.  
 
            Iowa Rule of Civil Procedure 147(c) and (d).  
 
            
 
                 Defendants' cite the case of Hendrickson v. George 
 
            Madsen Constr. Co., 281 N.W. 2d 672 (Minn. 1979) for the 
 
            proposition that the employer was not liable when a claimant 
 
            suffered a heart attack shortly after testifying at a 
 
            workers' compensation hearing.  The court stated this did 
 
            not fit either the special errand doctrine or the quasi 
 
            course of employment approach.  This case is found in 1 
 
            Larson 13.13 Accident during trip to doctor's office at page 
 
            3-571.
 
            
 
                 On that same page an employee who was injured in a bus 
 
            collision en route to a medical examination requested by the 
 
            industrial commissioner's medical staff was denied benefits 
 
            for the reason there was no proximate causal relationship 
 
            between the employment and the injury.  Carlson v. Young, 84 
 
            Ohio App. 403, 171 N.E.2d 737 (1959).  On the same page a 
 
            claimant who was injured in his own car en route to a 
 

 
            
 
            Page  13
 
            
 
            
 
            
 
            
 
            hearing on his workers' compensation claim was also denied 
 
            benefits.  Douglas v. Sparten Mills, Startex Division, 245SC 
 
            265, 140 S.E.2d 173 (1965).  The Carlson case and the 
 
            Douglas case would be sequela cases but the court in Ohio 
 
            and the court in South Carolina refused to extend the 
 
            doctrine of accidents during a trip to a "doctor's office."  
 
            
 
                 A case not cited by either party also found in 1 Larson 
 
            13.13 page 3-571 supports claimant's proposition of sequela 
 
            in this case.  In Freeman v. Texas Comp. Ins. Co., 603 
 
            S.W.2d 186 (Tex. 1980), a claimant who was killed in a 
 
            single car accident after leaving a polygraph test that the 
 
            employer requested him to take was found to be entitled to 
 
            benefits under an exception to the general rule of 
 
            non-compensability of travel injuries because the employer 
 
            had requested the decedent to make the trip.  The Freeman 
 
            case is the most analogous case or similar case to the 
 
            instant case.  The Freeman case, however, appears to be an 
 
            isolated case and is contrary to the weight of the authority 
 
            found in all of foregoing cited sections of Larson as well 
 
            as all the foregoing cited cases by both parties.  It is the 
 
            determination of the deputy not to adopt the law of the 
 
            Freeman case as the law of this case.
 
            
 
                 Wherefore, it is determined, as a matter of fact, that 
 
            the motor vehicle injury which occurred on November 2, 1989 
 
            is not sequela of the injury that occurred to claimant's 
 
            back on August 7, 1987.  All of the true sequela cases 
 
            involve the health condition of the claimant, that is, where 
 
            claimants were traveling to pursue medical care.  
 
            
 
                 In this case the deputy does not wish to adopt the one 
 
            isolated case of Freeman for the reason that it is contrary 
 
            to the weight of authority in other jurisdictions.  
 
            Furthermore, there is no precedential support for it in the 
 
            state of Iowa.  It is common knowledge that the workers' 
 
            compensation law is to be interpreted for the benefit of the 
 
            injured worker but as with most laws there is a point beyond 
 
            which a law cannot be stretched if it is to remain a viable 
 
            and workable law.
 
            
 
                   industrial commissioner's file number 959391
 
                   MOTOR VEHICLE INJURY OF NOVEMBER 2, 1989
 
            
 
                          employer-employee relationship
 
            
 
                 With respect to the injury of November 2, 1989, as a 
 
            separate and distinct injury in its own right rather than as 
 
            sequela of the injury of August 7, 1987, it is determined 
 
            that there was no employer-employee relationship between 
 
            claimant and employer at the time of the injury.  
 
            
 
                 The parties stipulated at the beginning of the hearing 
 
            that defendants' witnesses would testify (1) that employer 
 
            took bankruptcy in April of 1988 and (2) that claimant's 
 
            employment was terminated in May of 1988, and (3) that 
 
            claimant never returned to work after that date and (4) that 
 
            claimant never received any wages from employer after that 
 
            date and (5) that no individual replaced claimant in the 
 
            maintenance position that he previously held at the time of 
 

 
            
 
            Page  14
 
            
 
            
 
            
 
            
 
            his injury (Tran. pp. 10-14).  The parties stipulated the 
 
            actual date of the bankruptcy as April 26, 1988 (Tran. p. 
 
            36).  This is a valid and acceptable stipulation because it 
 
            is supported by the evidence of record and not contradicted 
 
            by the evidence of record.  In answer to interrogatory no. 8 
 
            defendants asserted that claimant never returned to work 
 
            after the injury of August 7, 1987 and that his last 
 
            paycheck was issued on September 1, 1987.  Defendants 
 
            further stated that bankruptcy was filed on April 26, 1988 
 
            and that employer is no longer in existence and had no 
 
            employees after that date.  These interrogatories were 
 
            served on April 21, 1989.  
 
            
 
                 Claimant testified at the hearing that he was released 
 
            by Dr. Fellows for light duty work in the Summer of 1988 but 
 
            his employer told him that if he was not able to perform his 
 
            regular job that he was going to be terminated.  Claimant 
 
            testified that he believed that he was terminated at that 
 
            point.  He was never called to go back to work and he never 
 
            went back and asked if he could be employed (Tran. pp. 70 & 
 
            71).  Claimant testified that he did not consider himself to 
 
            be an employee of the employer at the time of the automobile 
 
            accident on November 2, 1989 (Tran. p. 94).  
 
            
 
                 Wherefore, it is determined (1) that claimant did not 
 
            establish that an employer-employee relationship existed on 
 
            November 2, 1989, (2) that the evidence demonstrates that 
 
            claimant was not an employee of employer at the time of the 
 
            automobile accident on November 2, 1989 and (3) furthermore 
 
            the evidence tends to indicate that employer was no longer 
 
            in business because employer was in bankruptcy.  This being 
 
            the case it was not possible for an employer-employee 
 
            relationship to exist between claimant and employer on 
 
            November 2, 1989.  
 
            
 
                                     INJURY
 
            
 
                 It is determined that the injuries from the automobile 
 
            accident that occurred on November 2, 1989, were not 
 
            injuries that arose out of and in the course of employment 
 
            with employer.  As noted above it has been established that 
 
            claimant was not an employee of employer on the date of the 
 
            accident.  Furthermore, the evidence tends to indicate that 
 
            since employer was in bankruptcy that employer was not a 
 
            viable and operating business at the time of the injury 
 
            either.
 
            
 
                 Claimant testified that he was not an employee on 
 
            November 2, 1989.  There is evidence the employer was not in 
 
            business on November 2, 1989.  Under these circumstances it 
 
            is not possible for claimant to sustain an injury arising 
 
            out of and caused by  employment for this employer
 
            
 
                                     MEDICAL
 
            
 
                 It is determined that since (1) an employer-employee 
 
            relationship did not exist at the time of the automobile 
 
            accident and (2) that claimant did not sustain an injury 
 
            arising out of and in the course of employment at that time, 
 
            that claimant is not entitled to the payment of the medical 
 

 
            
 
            Page  15
 
            
 
            
 
            
 
            
 
            bill in the amount of $3,003 from Associated 
 
            Anesthesiologists for services between November 2, 1989 and 
 
            November 7, 1989, which is attached to the prehearing 
 
            report.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 Wherefore, based upon the foregoing and following 
 
            principles of law, these conclusions of law are made:
 
            
 
                 That claimant did sustain the burden of proof by a 
 
            preponderance of the evidence that the back injury of August 
 
            7, 1987, was the cause of temporary disability for the 
 
            period from August 8, 1987 through March 13, 1989 and again 
 
            from June 13, 1989 through February 2, 1990.  Bodish v. 
 
            Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965); Lindahl 
 
            v. L.O. Boggs Co., 236 Iowa 296 18 N.W.2d 607 (1945).
 
            
 
                 That claimant is entitled to healing period benefits of 
 
            83.429 weeks for the first period of time and 33.571 weeks 
 
            for the second period of time for a total amount of healing 
 
            period benefits of 117 weeks.  Iowa Code section 85.34(1).
 
            
 
                 That claimant sustained the burden of proof by a 
 
            preponderance of the evidence that the injury of August 7, 
 
            1987, was the cause of permanent disability.  Bodish v. 
 

 
            
 
            Page  16
 
            
 
            
 
            
 
            
 
            Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965); Lindahl 
 
            v. L.O. Boggs Co., 236 Iowa 296 18 N.W.2d 607 (1945).
 
            
 
                 That claimant sustained a 50 percent industrial 
 
            disability to the body as a whole and is entitled to 250 
 
            weeks of permanent partial disability benefits.  Iowa Code 
 
            section 85.34(2)(u).
 
            
 
                 That claimant did not sustain the burden of proof by a 
 
            preponderance of the evidence that he is an odd-lot employee 
 
            for the reason that the record establishes that claimant is 
 
            capable of performing either sedentary or light work.  
 
            Guyton v. Irving Jensen Co., 373 N.W.2d 101 (Iowa 1985).
 
            
 
                 That claimant did not sustain the burden of proof by a 
 
            preponderance of the evidence that the motor vehicle injury 
 
            of November 2, 1989, while en route to give a deposition at 
 
            the request of defendants' counsel, was the sequela of the 
 
            injury to his back injury which occurred on August 7, 1987.  
 
            See the previous cites to Larson in the body of this 
 
            decision.
 
            
 
                 That claimant did not sustain the burden of proof by a 
 
            preponderance of the evidence that he is entitled to payment 
 
            of the medical bill for anesthesiology which grew out of the 
 
            November 2, 1989 motor vehicle accident for the reason that 
 
            he did not prove that it was a sequela of the previous 
 
            injury.
 
            
 
                 That claimant did not sustain the burden of proof by a 
 
            preponderance of the evidence that an employer-employee 
 
            relationship existed or that he was an employee of employer 
 
            on the date of the November 2, 1989 motor vehicle injury 
 
            when it is considered as a separate distinct claim from the 
 
            back injury.
 
            
 
                 That claimant did not sustain the burden of proof by a 
 
            preponderance of the evidence that he sustained a separate 
 
            and distinct injury which arose out of and in the course of 
 
            the automobile accident which occurred on November 2, 1989, 
 
            for the reason that he was not an employee of employer on 
 
            that date and the employer was no longer in business.
 
            
 
                 That claimant did not sustain the burden of proof by a 
 
            preponderance of the evidence that he is entitled to the 
 
            medical bill that grew out of the second accident.
 
            
 
                 In view of the foregoing findings of fact and law all 
 
            other issues with respect to the automobile accident of 
 
            November 2, 1989 are moot.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 That defendants pay to claimant one hundred seventeen 
 
            (117) weeks of healing period benefits for the period from 
 
            August 8, 1987 through March 13, 1989 and again from June 
 
            13, 1989 through February 2, 1990, with the commencement of 
 
            benefits for the first period to begin on August 8, 1987 and 
 

 
            
 
            Page  17
 
            
 
            
 
            
 
            
 
            the commencement of benefits for the second period to begin 
 
            on June 13, 1989 and that these benefits are to be paid at 
 
            the stipulated rate of one hundred thirty-six and 06/100 
 
            dollars ($136.06) per week in the total amount of fifteen 
 
            thousand nine hundred nineteen and 02/100 dollars 
 
            ($15,919.02).
 
            
 
                 That defendants pay to claimant two hundred fifty (250) 
 
            weeks of permanent partial disability benefits at the 
 
            stipulated rate of one hundred thirty-six and 06/100 dollars 
 
            ($136.06) based upon an industrial disability of fifty 
 
            percent (50%) to the body as a whole and that these benefits 
 
            are to commence on March 14, 1989 and again on February 3, 
 
            1990, as stipulated to by the parties in the total amount of 
 
            thirty-four thousand fifteen dollars ($34,015).  
 
            
 
                 That defendants are entitled to a credit in the amount 
 
            of two hundred seventeen (217) weeks of workers compensation 
 
            benefits paid to claimant at the rate of one hundred 
 
            fifty-six and 26/100 dollars ($156.26) per week in the total 
 
            amount of thirty-three thousand nine hundred eight and 
 
            43/100 dollars ($33,908.43) as stipulated to by the parties.
 
            
 
                 That all accrued benefits are to be paid in a lump sum.
 
            
 
                 That interest will accrue pursuant to Iowa Code section 
 
            85.30. 
 
            
 
                 That the costs of this action, including the cost of 
 
            the attendance of the court reporter at hearing and the cost 
 
            of the  transcript, are charged to defendants pursuant to 
 
            rule 343 IAC 4.33 and Iowa Code sections 86.19(1) and 86.40.
 
            
 
                 That respect to the statement of costs filed by 
 
            claimant that claimant is entitled to recover the filing fee 
 
            with the industrial commissioner in the amount of sixty-five 
 
            dollars ($65).  Claimant is not entitled to recover the 
 
            fifty dollar ($50) fee charged by Des Moines orthopedic 
 
            surgeons for medical records or the fifty dollar ($50) fee 
 
            charged by The University of Iowa Hospital for medical 
 
            records for the reason that medical records are not 
 
            allowable costs pursuant to rule 343 IAC 4.33, but rather 
 
            they are considered trial preparation expenses which must be 
 
            borne by claimant.
 
            
 
                 That defendants file claim activity reports as 
 
            requested by this agency pursuant to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of February, 1994.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          WALTER R. McMANUS, JR.
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Gregory T. Racette
 

 
            
 
            Page  18
 
            
 
            
 
            
 
            
 
            Attorney at Law
 
            2700 Grand - Suite 111
 
            Des Moines, IA  50312
 
            
 
            Ms. Lorraine J. May
 
            Attorney at Law
 
            Fourth Floor, Equitable Bldg.
 
            Des Moines, 50309
 
            
 
            
 
 
            
 
            
 
            
 
            
 
                                      1108, 1401, 1402.10, 1402.20,                
 
                                      1402.30, 1402.40, 2001, 51802, 
 
                                      51803, 52501, 52700, 4100
 
                                      Filed February 24, 1994
 
                                      Walter R. McManus, Jr.
 
            
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            THOMAS J. NUGENT,   
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                              File Nos. 881054, 862826, 
 
            DUDS N' SUDS,                               959391
 
                        
 
                 Employer,                    A R B I T R A T I O N
 
                      
 
            and                                  D E C I S I O N
 
                      
 
            AETNA CASUALTY AND SURETY CO.,
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            1108, 1401, 1402.10, 1402.20, 1402.30, 1402.40, 2001
 
            
 
                 It was determined that the back injury of August 7, 
 
            1987 was the cause of both temporary and permanent 
 
            disability.
 
            
 
                 Even though claimant had preexisting (1) spina bifida 
 
            occulta, (2) scoliosis, (3) spondylolisthesis and (4) 
 
            degenerative disc disease he produced medical evidence to 
 
            support the fact that his back problems were made 
 
            symptomatic by the injury of August 7, 1987 and that this 
 
            injury was the cause of his back surgery.
 
            
 
                 The next issue was a novel issue and probably an issue 
 
            of first impression in Iowa as well as other jurisdictions.
 
            
 
                 It was determined that the head-on motor vehicle 
 
            collision with a semi-tractor and trailer which occurred on 
 
            November 2, 1989, while claimant was en route to give a 
 
            deposition at the request of defendants' attorney, which 
 
            demolished claimant's car and inflicted massive injuries to 
 
            his hips, legs and knees was not sequela of the back injury 
 
            of August 7, 1987.  It was determined that the motor vehicle 
 
            injuries did not arise out of and in the course of 
 
            employment with employer.
 
            
 
                 It was determined that when the motor vehicle accident 
 
            of November 2, 1989 was considered as a separate and 
 
            distinct accident, and not as sequela of the August 7, 1989 
 
            back injury, that (1) no employer-employee relationship 
 
            existed between claimant and employer at that time and (2) 
 
            that claimant did not sustain an injury that arose out of 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            and in the course of employment with employer.
 
            
 
            51802
 
            
 
                 Claimant was awarded healing period for two periods of 
 
            time that were stipulated to by the parties.
 
            
 
            51803
 
            
 
                 It was determined that claimant sustained a 50 percent 
 
            industrial disability from the back injury of August 7, 1987 
 
            and was awarded 250 weeks of permanent partial disability 
 
            benefits.
 
            
 
            52501, 52700
 
            
 
                 Claimant was denied a medical bill that was caused by 
 
            the November 2, 1989 motor vehicle injury.
 
            
 
            4100
 
            
 
                 It was determined that claimant was not an odd-lot 
 
            employee because he could perform light work.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            HELEN BOODRY,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :        File No. 862914
 
            vs.                           :
 
                                          :
 
            DALLAS SERVICE CORPORATION,   :     A R B I T R A T I O N
 
                                          :
 
                 Employer,                :        D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INSURANCE CO., :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration wherein the 
 
            claimant seeks compensation for additional healing period 
 
            and greater permanent partial disability benefits as a 
 
            result of an injury that occurred on August 31, 1987.  The 
 
            record in this proceeding consists of the testimony of 
 
            claimant, Donna Nord, and Michael Raymond; and joint 
 
            exhibits I through VIII.
 
            
 
                                      issues
 
            
 
                 The issues for resolution are:
 
            
 
                 1.  The nature and extent of claimant's disability and 
 
            entitlement to benefits; and,
 
            
 
                 2.  Claimant's entitlement to 85.27 medical benefits, 
 
            based basically on causal connection and authorization.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy industrial commissioner having 
 
            heard the evidence and considered all the evidence, finds 
 
            that:
 
            
 
                 Claimant is 47 years old and has completed the eighth 
 
            grade.  Her only other formal education was in a truck 
 
            driving school which she completed in eight days rather than 
 
            the thirty days it would normally take.
 
            
 
                 Claimant related her work history which began when she 
 
            finished the eighth grade.  Claimant worked as a waitress, 
 
            laundry sorter, and making electrical auto parts until she 
 
            left the employment field in 1961 for approximately ten 
 
            years while she reared her children.  After this 
 
            interruption, claimant worked again at such jobs as making 
 
            bags, being a waitress, and a cashier at Dahls.
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                 Around 1982-1983, claimant began driving a truck with 
 
            her husband.  Claimant had a permit to drive but was not 
 
            actually employed.  Claimant's husband was an employee of 
 
            the particular trucking company and claimant's help in 
 
            driving the truck with her husband increased her husband's 
 
            income by increasing the miles driven.  Claimant went to 
 
            truck driving school in 1983 and thereafter drove for a 
 
            couple of trucking companies until she was hired by 
 
            defendant employer on March 28, 1986, and drove with her 
 
            husband as a team.  They were each paid 13.5 cents per mile.  
 
            Claimant was considered a long haul over-the-road driver and 
 
            was driving 18-wheel trucks.
 
            
 
                 Claimant described four instances in which she 
 
            sustained an injury, sprain or a spasm in her back prior to 
 
            August 31, 1987.  It is obvious from the record that these 
 
            were minor or short-term sprains or injuries and left 
 
            claimant with no impairments of any kind.  These conditions 
 
            occurred approximately ten years or more prior to claimant's 
 
            August 31, 1987 injury and in no way contributed to her 
 
            present condition.  The record is clear that claimant was 
 
            not suffering at the time of her 1987 injury from any 
 
            effects of these prior injuries or sprain.  It does appear 
 
            that claimant has a degeneration of the L-5 and S1 vertebra 
 
            in her back which has slowly progressed over the years.  The 
 
            record is clear that she was having no physical or 
 
            functional problems from any calcification or arthritis in 
 
            the spine, at least that was in anyway interfering with her 
 
            truck driving.
 
            
 
                 Claimant injured her low back on August 31, 1987, when 
 
            the trailer shifted on the fifth wheel of the tractor cab 
 
            resulting in a combination of jerks and pulling, causing the 
 
            trailer to hit the tractor cab leaving the trailer in a 
 
            precarious position on the tractor cab's fifth wheel.  
 
            Claimant was a passenger in the tractor cab and her husband 
 
            was driving.  Claimant's body was jerked around and jolted 
 
            when the loaded trailer hit the fifth wheel of the tractor 
 
            cab.  Claimant related that she and her husband had told the 
 
            terminal manager of the faulty fifth wheel before they left 
 
            for their scheduled trip, but defendant employer told 
 
            claimant and her husband that the load had to go.  After 
 
            this incident, claimant and her husband wrote up the 
 
            accident report and claimant went home.  Claimant described 
 
            her stiffness and inability to get up at home.  Claimant 
 
            sought medical attention and the employer okayed claimant to 
 
            see her family doctor as the company doctor was unavailable 
 
            at that time.  Claimant eventually saw several doctors, 
 
            including specialists.  Claimant's moving from the state of 
 
            Iowa contributed to claimant's changing doctors.  Claimant 
 
            testified to the medical treatment she obtained and her 
 
            complaints.
 
            
 
                 On February 18, 1988, C.A. Sarantopoulos, M.D., an 
 
            orthopedic surgeon, wrote that claimant's problems, 
 
            including cardiac complaints, were due exclusively to 
 
            claimant's August 31, 1987 injury.  He said claimant had not 
 
            yet reach maximum healing.  He also questioned whether 
 
            claimant would be able to work in her prior truck driving 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            capacity, but should be able to resume in the very near 
 
            future some of the activities, (Joint Exhibit I(G), page 
 
            23).  Claimant said she was frustrated by what she thought 
 
            was a slowness in her recovery and indicated she wanted to 
 
            see another doctor besides Dr. Sarantopoulos.  Claimant was 
 
            having numbness in her legs and a Cortisone injection 
 
            treatment she was receiving from this doctor gave her 
 
            temporary relief from pain but claimant felt it was not a 
 
            cure for her problems.  It is not clear whether defendants 
 
            sent claimant to Anthony N. Pannozzo, M.D., because of 
 
            claimant's feeling above or because they wanted an opinion 
 
            from their own doctor.  The undersigned believes it is the 
 
            latter situation.  Claimant indicated she was not upset with 
 
            Dr. Sarantopoulos but did not feel she was progressing as 
 
            well as she wanted.
 
            
 
                 Dr. Pannozzo examined claimant on April 27, 1988.  
 
            Claimant described the rude and threatening attitude of this 
 
            doctor toward her.  She indicated she thought this was the 
 
            doctor's manner of operating and his attitude was not 
 
            because of anything claimant did.  Dr. Pannozzo concluded 
 
            that claimant probably has reached maximum recovery and 
 
            incurred a 4 percent impairment from intervertebral joint 
 
            trauma on the left side L5-S1.  He also concluded claimant's 
 
            condition would not inhibit the performance of her duties as 
 
            a truck driver.  (Jt. Ex. I(E), p. 16)  It would appear in 
 
            Dr. Pannozzo's report that he had some doubt at that time as 
 
            to whether claimant had reached maximum recovery but used 
 
            the word probably.  It also appears from his statement 
 
            concerning claimant's ability to drive a truck that he may 
 
            not be familiar with the rigors to the body that results 
 
            from driving a truck.  It seems he is convinced that 
 
            claimant's problems she had could basically be solved at 
 
            least in part by localization-type exercises or local 
 
            injections.  He does not suggest any exercise program so 
 
            apparently feels that she needs some type of program and yet 
 
            she is able to drive a truck.  Whether he feels truck 
 
            driving would be a form of exercise that would help her 
 
            recovery is not clear.  It appears to the undersigned that 
 
            something should have been done in helping claimant to 
 
            recover prior to her attempt to actively participate in her 
 
            long haul over-the-road truck driving.  The undersigned 
 
            believes claimant is credible and believes her experience 
 
            with this particular doctor, in fact, occurred and that it 
 
            had an effect on the ultimate medical report.
 
            
 
                 After claimant's experience with Dr. Pannozzo, claimant 
 
            then saw John P. Scullin, M.D., on April 4, 1988.  Claimant 
 
            said she went to Dr. Scullin upon recommendation of a friend 
 
            who had low back surgery.  Claimant did not get defendants' 
 
            authorization to see this doctor.  Claimant contends she 
 
            thought she was on her own after Dr. Pannozzo had given her 
 
            an impairment rating and said she reached maximum recovery.  
 
            Although claimant felt otherwise regarding the doctor's 
 
            conclusions, she said she did not think defendant insurance 
 
            carrier would okay anyone else.
 
            
 
                 Dr. Scullin's examination revealed a disc problem at 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            claimant's L4-5.  On May 21, 1988, Dr. Scullin performed a 
 
            left L4-5 automated percutaneous lumbar discectomy which 
 
            relieved claimant's radiculopathy (Jt. Ex. VIII, p. 195).  
 
            The doctor opined on April 19, 1989 that:
 
            
 
                    It is my opinion that the patient's herniated 
 
                 disc problem resulted from the accident of 
 
                 September 1987.  Ideally the patient would be 
 
                 encouraged to find work other than truck driving 
 
                 that would not be as stressful to the back.  It is 
 
                 my opinion that the patient has a ten per cent 
 
                 whole body physical impairment and loss of 
 
                 physical function to the whole body because of the 
 
                 herniated disc problem.
 
            
 
            (Jt. Ex. I(G), p. 24)
 
            The undersigned believes, without question, the doctor meant 
 
            the October 31, 1987 injury when he referred to the 
 
            September 1987 injury.
 
            
 
                 There was considerable testimony concerning an 
 
            evaluation report by CRS Care Corporation (Jt. Ex. II(A).  
 
            Claimant denied she wasn't looking for jobs because of other 
 
            medical problems unrelated to her August 31, 1987 injury.  
 
            Claimant contends she had no other problems that prevented 
 
            her from work.  The report refers to "apparent transferable 
 
            skills."  There is no question that claimant's earning 
 
            capacity lies in the trucking industry.  The report referred 
 
            to claimant's vocational liabilities which were basically 
 
            the fact that claimant "participated in no educational 
 
            program since the eighth grade.  Her employment history has 
 
            not provided her with a great deal of technical skills which 
 
            can be used in an employment search."  (Jt. Ex. II(A), p. 
 
            30)  This same report mentions claimant's vocational 
 
            strengths as being extensive knowledge of the truck driving 
 
            industry.  The evaluation report mentioned above was dated 
 
            September 14, 1989.
 
            
 
                 On July 20, 1990, Fortis Restoring Futures did a report 
 
            concerning claimant (Jt. Ex. II(A), p. 34-35).  There seems 
 
            to be considerable disagreement in the testimony as to some 
 
            of the actual circumstances and the contents of this report.  
 
            The report is given little weight as to this decision.
 
            
 
                 Of particular note is the fact that defendants have 
 
            gone to the expense of having these reports or evaluations 
 
            but have not found or provided anything concrete as to what 
 
            the undersigned is interested in and what the undersigned 
 
            believes the claimant would like; namely, a job using her 
 
            skills which would basically be in the truck driving or 
 
            trucking industry itself and an attempt at rehabilitation to 
 
            reach that goal.  It is one thing to have an evaluation and 
 
            make a report and another thing to produce a job or see if, 
 
            in fact, there is a job available for this claimant to do.  
 
            Likewise, subjecting an effort towards rehabilitation and 
 
            finding claimant a job to decrease the extent of industrial 
 
            disability is much more valuable than a report as such.  The 
 
            undersigned finds it all to common that defendants procure 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            the services of a consultant and come up with various 
 
            reports but completely fail in helping search and finding 
 
            through their resources a suitable job for claimant, thereby 
 
            reducing the loss of income which would have an effect on 
 
            the extent of industrial disability.
 
            
 
                 Defendants seem to contend that there is a considerable 
 
            amount of claimant's medical expense that is for medical 
 
            care unrelated to her August 31, 1987 injury and, 
 
            particularly, some relating to her cardiac evaluation by 
 
            Atef Labib, M.D.  It appears clear to the undersigned that 
 
            the findings are negative and that the complaints are 
 
            exclusively related to the back and stem from her injury of 
 
            August 31, 1987, as reflected by Joint Exhibit I(G), page 
 
            23, a February 18, 1988 report of Dr. Sarantopoulos.  It 
 
            would appear that claimant was on a considerable amount of 
 
            drugs due to her August 31, 1987 injury and that this was 
 
            another example of a side effect or reaction to medicine.
 
            
 
                 The parties set out as an issue the nature and extent 
 
            of claimant's disability and entitlement to benefits but, 
 
            basically, the main arguments here is whether claimant's 
 
            healing period was only from August 31, 1987 to and 
 
            including April 19, 1988 as contended by defendants or 
 
            whether it extended up to and including Agusut 24, 1988, as 
 
            contended by claimant, and the extent of claimant's 
 
            permanent disability.  There is really no denial that 
 
            claimant had a permanent partial disability.   Dr. Pannozzo 
 
            opined a 4 percent impairment to claimant's body as a whole 
 
            and Dr. Scullin, who performed claimant's low back surgery 
 
            on May 21, 1988, opined a 10 percent whole body physical 
 
            impairment and loss of physical function to the whole body 
 
            because of the herniated disc problem.  The undersigned 
 
            finds that Dr. Scullin's report is more credible under all 
 
            the evidence herein.  Dr. Scullin actually performed the 
 
            surgery and actually saw the extent of claimant's low back 
 
            injury and was better able to determine the impairment of 
 
            claimant.  The undersigned finds that claimant has a 10 
 
            percent whole body physical impairment and loss of physical 
 
            function to her body as a result of the August 31, 1987 
 
            injury, and further finds that the surgery on May 21, 1988 
 
            was necessary, reasonable, and was caused by claimant's 
 
            August 31, 1987 injury which arose out of and in the course 
 
            of her employment.
 
            
 
                 The parties have stipulated that claimant was off work 
 
            from August 31, 1987, the date of injury, to and including 
 
            August 24, 1988.  Defendants contend that the healing period 
 
            actually ended through and including April 19, 1988.  They 
 
            apparently are basing, in part, their conclusion on Dr. 
 
            Pannozzo's letter (Jt. Ex. I(E), p. 16).  What is confusing 
 
            is that his May 2, 1988 letter indicated maximum medical 
 
            recovery ended at that time and he had not examined claimant 
 
            until April 27, 1988.  It appears that defendants would more 
 
            credibly contend claimant's healing period ended through 
 
            April 27, 1988.  As indicated earlier, the undersigned is 
 
            not accepting Dr. Pannozzo's conclusion and believes that 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            claimant's healing did not end until a period of time after 
 
            her May 21, 1988 surgery.  The parties stipulated that 
 
            claimant was off through and including August 24, 1988.  The 
 
            undersigned finds that claimant's healing period began 
 
            August 31, 1987 through and including August 24, 1988.
 
            
 
                 In October 1987, claimant moved back to Ohio and 
 
            indicated that she did not intend to go back to work for 
 
            defendant employer in Des Moines as she thought she would be 
 
            laid off.  It appeared from other testimony that there was 
 
            talk that this particular team route of claimant and her 
 
            husband would be discontinued because of lack of business.  
 
            It is a fact that it had not been discontinued at the time 
 
            of claimant's injury.  Claimant indicated that she could 
 
            drive for defendant employer in Ohio if her health was 
 
            better and that there would be no problems with her doing 
 
            that and working from that area.  It would be just a matter 
 
            of making her contacts, picking up and dropping her truck 
 
            off in that area rather than the Des Moines area.
 
            
 
                 It is obvious from the testimony that claimant enjoyed 
 
            being with her family, including her husband.  It appears 
 
            claimant worked well with her husband and that things were 
 
            going well until her August 31, 1987 injury.  It seems as 
 
            though claimant had an ideal situation which satisfied her 
 
            desire to work, her desire to be a truck driver and her 
 
            desire to be with her husband as much as possible.  Claimant 
 
            made over $16,000 in 1985 and 1986 and in 1987 had made 
 
            $13,086.
 
            
 
                 The medical evidence seems clear that claimant's return 
 
            to the trucking industry and driving a truck with her 
 
            current condition would not be advisable and that the 
 
            doctors (other than Dr. Pannozzo) had questions as to 
 
            whether she would be able to enter the truck driving 
 
            industry again and drive a truck as she was doing on August 
 
            31, 1987.  The undersigned finds that claimant's condition 
 
            is such that she is unable to drive a truck over the road on 
 
            long hauls and has thus lost substantial income which has 
 
            affected her earning capacity.  The undersigned further 
 
            finds that claimant's August 31, 1987 injury has 
 
            additionally prevented her from being a team driver with her 
 
            husband, which was a unique situation, and that on the 
 
            present status of the record appears not to be obtainable 
 
            under the current circumstances.
 
            
 
                 Mr. Nord, the district manager for Ruan Transport 
 
            Company's Des Moines Park Avenue terminal, (of which 
 
            defendant employer is a subsidiary) testified that he found 
 
            claimant to be fair and honest.  There was testimony 
 
            concerning claimant having initially reported some prior 
 
            back problems years earlier and stated the same on a report 
 
            and was requested to tear that report up and leave it off on 
 
            an amended report so as to prevent her from being rejected 
 
            from her original employment with defendant employer.  
 
            Although Mr. Nord denied that he requested claimant to tear 
 
            up the application, this fact is immaterial.  It is a 
 
            well-known fact that the trucking industry does not like to 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            hire people with prior back injuries.  It is obvious that 
 
            claimant had no back injury that was causing her any 
 
            problems and any rejection of employment because of that 
 
            would have been most unfair under the circumstances.  The 
 
            undersigned finds claimant credible, as previously stated, 
 
            and will not alter his opinion at this time.  Mr. Nord 
 
            indicated that had claimant presented herself to the company 
 
            on April 18, 1988 with a work release, she would have been 
 
            put back to work.  Mr. Nord acknowledged that claimant would 
 
            not get hired if she put her current restrictions on an 
 
            employment application or if she indicated that she had 
 
            received some workers' compensation for an injury.  Mr. Nord 
 
            indicated that this was a Federal DOT form and not the 
 
            company's special form.  Of course, it is immaterial whose 
 
            form the employer uses.  The reality of the fact is that it 
 
            is obvious claimant is unemployable in the trucking 
 
            industry, particularly as a truck driver.
 
            
 
                 Claimant is 47 years of age with an eighth grade 
 
            education.  There is no evidence she was suffering from any 
 
            prior problems until she was injured on August 31, 1987, 
 
            which injury has prevented her from working and particularly 
 
            working as a team truck driver with her husband.  Claimant 
 
            has not made an effort to search for a job.  It is obvious 
 
            that defendant employer has not made an effort to hire her 
 
            back or to rehabilitate her so that she would be able to 
 
            return.  It is obvious that with claimant's condition, 
 
            claimant is not suitable for over-the-road long haul truck 
 
            driving as indicated by Mr. Nord.  It is understandable that 
 
            claimant has not made a significant effort to find a job as 
 
            she is still suffering from her impairment and that her real 
 
            transferable skill is driving a truck.  The undersigned 
 
            believes that claimant should make some effort in attempting 
 
            to find some work so that she may become gainfully employed 
 
            in some respect.
 
            
 
                 Claimant testified she has applied for social security 
 
            benefits and this may have affected her efforts.  The 
 
            undersigned also realizes that the search may be fruitless 
 
            under the circumstances.
 
            
 
                 Taking into consideration claimant's work experience, 
 
            the very good job she lost and the necessity of having a 
 
            nonimpaired back in order to satisfactorily drive an 
 
            over-the-road 18-wheel truck let alone obtaining a job, 
 
            claimant has a substantial disability.
 
            
 
                 Richard L. Catterlin, D.O., treated claimant for a 
 
            period of time after Dr. Scullin.  On June 6, 1990, Dr. 
 
            Catterlin wrote:
 
            
 
                    In my opinion the patients present problems 
 
                 resulted from a work related accident of Aug. 31, 
 
                 1987.  She is still having much pain and spasm.
 
            
 
                    I believe with a resonable [sic] degree of 
 
                 medical certainty that this patient has a 
 
                 permanent partial disability in this area to 
 
                 approximately 50%.  This is a chronic long 
 
                 standing permanent problem that we are not going 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
                 to be able to resolve with just a shot of 
 
                 penicillin.  She has chronic instability, 
 
                 inflammation in this area and will indeed have 
 
                 this for the rest of her life.  As she gets older 
 
                 I feel that the osteoarthritis the degenerative 
 
                 condition will just progress and get worse, she is 
 
                 always going to have to be a back conscious 
 
                 individual where she does things to avoid stress 
 
                 to this area....
 
            
 
                    In conclusion, I feel that this is going to be 
 
                 a permanent injury that is going to be with her 
 
                 for the rest of her life.  She will be working 
 
                 with it, living with it, learning how to controll 
 
                 [sic] it, taking medication for it.
 
            
 
            (Jt. Ex. I(B), p. 6)
 
            
 
                 In considering all the medical testimony, the 
 
            undersigned finds that claimant had a latent preexisting 
 
            osteoarthritic and degenerative condition from which she was 
 
            suffering no impairment or problems prior to August 31, 1987 
 
            and which preexisting condition was materially and 
 
            substantially aggravated, worsened and lighted up as a 
 
            result of claimant's August 31, 1987 injury.
 
            
 
                 Taking into consideration claimant's medical history 
 
            prior and subsequent to her accident, her work experience, 
 
            education, vocation, severity of her injury, healing period, 
 
            her age, motivation, functional impairment and loss of 
 
            income, the undersigned finds claimant to have a 60 percent 
 
            industrial disability.
 
            
 
                 Initially, at the beginning of the hearing, the parties 
 
            were not able to agree on the rate but at the end of the 
 
            hearing they stipulated that the rate for any benefits that 
 
            may be payable to this claimant would be $266.18 per week.
 
            
 
                 The final issue involves 85.27 benefits.  Without any 
 
            further discussion or further elaboration on the causal 
 
            connection previously found as to claimant's injury and 
 
            condition, the undersigned finds that all medical in dispute 
 
            is causally connected to claimant's injury.  There is still 
 
            the issue of authorization.  It is understandable that 
 
            claimant thought that after her evaluation and experience 
 
            with Dr. Pannozzo, there was no need to further attempt to 
 
            get authorization from defendant employer for any future 
 
            medical even though she was determined that she needed 
 
            further medical treatment.  Dr. Scullin was not an 
 
            authorized physician.  He did perform surgery which appeared 
 
            obviously necessary and which was not performed or suggested 
 
            by any prior authorized physician.  It appears the previous 
 
            physicians were taking a more conservative approach and yet 
 
            obviously their treatment was not helping claimant.  It 
 
            appears Dr. Scullin's surgery at least helped for a period 
 
            of time.  There were certain fragments removed through the 
 
            surgery.  The undersigned finds that Dr. Scullin's surgery 
 
            was necessary and provided relief and benefits to claimant 
 
            even though it did not put her in full health or a truck 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            driving condition.  The undersigned finds that defendants 
 
            are responsible for and shall pay Dr. Scullin's medical 
 
            bill.
 
            
 
                 Claimant saw another doctor after seeing Dr. Scullin, 
 
            namely, Dr. Catterlin, for additional treatment.  Dr. 
 
            Catterlin was not authorized.  It does not appear that Dr. 
 
            Catterlin's treatment improved or lowered claimant's 
 
            impairment.  The undersigned finds that Dr. Catterlin was 
 
            not an authorized doctor and that any expense connected with 
 
            his evaluation or treatment is solely at the expense of the 
 
            claimant and not the obligation of defendants.
 
            
 
                                conclusions of law
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of August 31, 
 
            1987 is causally related to the disability on which she now 
 
            bases her claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
            N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 296, 18 
 
            N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903 (Iowa 1974).  However, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Id. at 907.  Further, the weight to be given to such 
 
            an opinion is for the finder of fact, and that may be 
 
            affected by the completeness of the premise given the expert 
 
            and other surrounding circumstances.  Bodish, 257 Iowa 516, 
 
            133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
            Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
            
 
                 While a claimant is not entitled to compensation for 
 
            the results of a preexisting injury or disease, the mere 
 
            existence at the time of a subsequent injury is not a 
 
            defense.  Rose v. John Deere Ottumwa Works, 247 Iowa 900, 
 
            908, 76 N.W.2d 756, 760-61 (1956).  If the claimant had a 
 
            preexisting condition or disability that is aggravated, 
 
            accelerated, worsened or lighted up so that it results in 
 
            disability, claimant is entitled to recover.  Nicks v. 
 
            Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, 815 
 
            (1962).
 
            
 
                 When an aggravation occurs in the performance of an 
 
            employer's work and a causal connection is established, 
 
            claimant may recover to the extent of the impairment.  
 
            Ziegler v. United States Gypsum Co., 252 Iowa 613, 620, 106 
 
            N.W.2d 591, 595 (1960).
 
            
 
                 The Iowa Supreme Court cites, apparently with approval, 
 
            the C.J.S. statement that the aggravation should be material 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            if it is to be compensable.  Yeager v. Firestone Tire & 
 
            Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961); 100 C.J.S. 
 
            Workmen's Compensation sec. 555(17)a.
 
            
 
                 Our supreme court has stated many times that a claimant 
 
            may recover for a work connected aggravation of a 
 
            preexisting condition.  Almquist v. Shenandoah Nurseries, 
 
            218 Iowa 724, 254 N.W. 35 (1934).  See also Auxier v. 
 
            Woodward State Hosp. Sch., 266 N.W.2d 139 (Iowa 1978); Gosek 
 
            v. Garmer and Stiles Co., 158 N.W.2d 731 (Iowa 1968); Barz 
 
            v. Oler, 257 Iowa 508, 133 N.W.2d 704 (1965); Olson v. 
 
            Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 
 
            (1963); Yeager, 253 Iowa 369, 112 N.W.2d 299; Ziegler, 252 
 
            Iowa 613, 106 N.W.2d 591.
 
            
 
                 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, and cases cited.
 
            
 
                 If 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.2d 899, 902 (1935) as follows: 
 
            "It is therefore plain that the legislature intended the 
 
            term `disability' to mean `industrial disability' or loss of 
 
            earning capacity and not a mere `functional disability' to 
 
            be computed in the terms of percentages of the total 
 
            physical and mental ability of a normal man."
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, 
 
            experience and inability to engage in employment for which 
 
            he is fitted.  Olson v. Goodyear Service Stores, 255 Iowa 
 
            1112, 1121, 125 N.W.2d 251, 257 (1963).
 
            
 
                 Iowa Code section 85.34(1) provides that if an employee 
 
            has suffered 31, 1987 injury 
 
            materially and substantially accelerated, worsened and 
 
            lighted up.
 
            
 
                 That claimant incurred a healing period beginning 
 
            August 31, 1987 up to and including August 24, 1988, 
 
            amounting to 51.429 weeks at the rate of $266.18.
 
            
 
                 That claimant incurred an automated percutaneous lumbar 
 
            discectomy at left L4, L5 on May 21, 1988 which was causally 
 
            connected to claimant's August 31, 1987 injury.  The surgery 
 
            and cost thereof was necessary and reasonable, helped 
 
            claimant's medical and physical situation at least 
 
            temporarily and further resulted in removing certain 
 
            fragments from her spine.
 
            
 
                 That claimant has not worked since her August 31, 1987 
 
            injury.
 
            
 
                 That claimant has not made a diligent search after her 
 
            healing period but claimant's incentive to search was 
 
            substantially affected by her medical condition and 
 
            treatment, education, and transferable skills, all which 
 
            affected the reality of obtaining a job.
 
            
 
                 That claimant has a 30 percent permanent partial 
 
            physical impairment to her whole body and loss of physical 
 
            function to the whole body because of her August 31, 1987 
 
            injury.
 
            
 
                 That Dr. Scullin was not an original authorized doctor 
 
            but because claimant's surgery was necessary and had not 
 
            previously been prescribed by any prior authorized doctor, 
 
            defendants are responsible for the cost of surgery and all 
 
            of Dr. Scullin's bills.
 
            
 
                 That claimant's treatment with Dr. Catterlin was not 
 
            authorized and that said treatment was basically for 
 
            evaluation.  Claimant is responsible for all Dr. Catterlin's 
 
            bills.
 
            
 
                 That claimant has a 60 percent industrial disability.
 
            
 
                 That claimant is a credible witness.
 
            
 
                                      order
 
            
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendants shall pay unto claimant healing period 
 
            benefits at the rate of two hundred sixty-six and 18/100 
 
            dollars ($266.18) for the period beginning August 31, 1987 
 
            to and including August 24, 1988, totaling fifty-one point 
 
            four two nine (51.429) weeks.
 
            
 
                 That defendants shall pay unto claimant three hundred 
 
            (300) weeks of permanent partial disability benefits at the 
 
            rate of two hundred sixty-six and 18/100 dollars ($266.18) 
 
            beginning August 25, 1988.
 
            
 
                 That defendants shall pay all of claimant's medical 
 
            bills incurred except for the medical bills of Dr. 
 
            Catterlin.  If claimant has already paid the bills covered 
 
            herein, then defendants shall reimburse claimant.  (See list 
 
            of medical bills attached to the parties' prehearing report)
 
            
 
                 That defendants shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against the award for 
 
            weekly benefits previously paid.  Defendants have previously 
 
            paid thirty-one point eight five six (31.856) weeks of 
 
            healing period at the rate of two hundred sixty-two and 
 
            27/100 dollars ($262.27) and twenty-two point two eight six 
 
            (22.286) weeks of permanent partial disability benefits, 
 
            totaling fifty-four point one four two (54.142) weeks all 
 
            paid at the two hundred sixty-two and 27/100 dollars 
 
            ($262.27) weekly rate.  The rate has now been established by 
 
            the parties as two hundred sixty-six and 18/100 dollars 
 
            ($266.18).
 
            
 
                 That defendants shall pay interest on the benefits 
 
            awarded herein as set forth in Iowa Code section 85.30.
 
            
 
                 That defendants shall pay the costs of this action, 
 
            pursuant to Division of Industrial Services Rule 343-4.33.
 
            
 
                 That defendants shall file an activity report upon 
 
            payment of this award as required by this agency, pursuant 
 
            to Division of Industrial Services Rule 343-3.1
 
            
 
                 Signed and filed this _____ day of August, 1990.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          BERNARD J. O'MALLEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies to:
 
            
 
            Mr Robert W Pratt
 
            Attorney at Law
 
            1913 Ingersoll Ave
 
            Des Moines IA 50309
 
            
 
            Mr W C Hoffmann
 
            Mr Joseph A Happe
 

 
            
 
            Page  13
 
            
 
            
 
            
 
            
 
            Attorneys at Law
 
            500 Liberty Bldg
 
            Des Moines IA 50309
 
            
 
                 
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          5-1803; 5-2503
 
                                          Filed August 27, 1990
 
                                          Bernard J. O'Malley
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            HELEN BOODRY,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :        File No. 862914
 
            vs.                           :
 
                                          :
 
            DALLAS SERVICE CORPORATION,   :     A R B I T R A T I O N
 
                                          :
 
                 Employer,                :        D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INSURANCE CO., :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-1803
 
            Found claimant had a 60% industrial disability.
 
            
 
            5-2503
 
            Found part of claimant's medical causally connected but 
 
            unauthorized and some causally connected and medically 
 
            necessary (surgery) which led to some improvement in 
 
            claimant's condition, at least temporarily.  Defendants 
 
            ordered to pay the latter bill.  Claimant to pay the others.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
                      2906;2209;2402;2201;2602;2901;
 
                      1803.1;3001;3800;4000.2;2908
 
                      Filed May 24, 1991
 
                      CLAIR R. CRAMER
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            PATRICIA TERWILLIGER,    :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :      File Nos. 777628/791749
 
                      :                862946/877065
 
            SNAP-ON TOOLS CORPORATION,    :
 
                      :            A P P E A L
 
                 Employer, :
 
                      :          D E C I S I O N
 
            and       :
 
                      :
 
            ROYAL INSURANCE COMPANY, :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            2906
 
            Held on appeal that deputy could properly limit posthearing 
 
            brief to four pages.  Claimant's attempt to circumvent this 
 
            limitation by incorporating by reference a 164 page brief in 
 
            another case was thwarted, and the incorporated brief was 
 
            not considered.  
 
            
 
            2209, 2402
 
            Claimant filed three petitions, each alleging a different 
 
            injury date and cumulative injury to the upper extremities, 
 
            shoulder, and neck.  Two of the petitions were filed beyond 
 
            three years from the last date of payment, and were 
 
            dismissed under 85.26(1).  Claimant urged on appeal that 
 
            since the injuries were cumulative, the actual date of 
 
            injury spanned several years and was still ongoing at the 
 
            time of the hearing, thus resulting in a "running" injury 
 
            date.  Claimant argued that the stated injury dates on the 
 
            petitions were merely manifestations.  Held on appeal that 
 
            McKeever establishes the injury date for cumulative injury 
 
            cases.  A cumulative injury date was determined for 
 
            claimant's third petition, and the other two petitions, 
 
            alleging injury dates beyond the statute of limitations, 
 
            were properly dismissed by the deputy.
 
            
 
            2201, 2602, 2901
 
            Claimant urged error by the deputy in not analyzing her 
 
            three petitions, which had been consolidated for hearing, as 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            a single "unitary" injury to the arms, shoulders and neck.  
 
            Held that the nature of claimant's injury is determined by 
 
            the medical evidence in the record, and is not controlled by 
 
            claimant's pleadings.
 
            
 
            1803.1
 
            Claimant sought industrial disability, based on pain 
 
            extending to her shoulders and neck.  However, both doctors 
 
            that rated claimant's bilateral hand conditions confined 
 
            their ratings to the upper extremities.  The only evidence 
 
            of involvement of the shoulders and neck was claimant's 
 
            subjective complaints of pain, which were not substantiated.  
 
            In addition, even if such pain existed, it was not shown to 
 
            be disabling.  Finally, there were non-work incidents in the 
 
            record that could as likely have caused any shoulder or neck 
 
            pain, and claimant was diagnosed as suffering significant 
 
            functional overlay.  Held that claimant had failed to carry 
 
            her burden to show that her injury extended to the body as a 
 
            whole.
 
            
 
            2602
 
            Testimony of evaluating physician given greater weight, 
 
            where evaluating physician nevertheless had greater contact 
 
            with claimant, and observed her later in time.
 
            
 
            3001
 
            Claimant argued that her rate should be calculated using the 
 
            highest wage she was paid during the period of the 
 
            cumulative injury.  Held that McKeever establishes the date 
 
            of injury, and that date determines the wages to be used in 
 
            the rate calculation.
 
            
 
            3800
 
            Claimant sought an order specifying the calculation of 
 
            interest due on unpaid benefits, with interest accruing on a 
 
            weekly basis as each payment came due.  This issue was not 
 
            raised before the deputy.  The decision pointed out Farmer's 
 
            Elevator Co., Kingsley v. Manning, 286 N.W. 2d 174 (Iowa 
 
            1979), to the parties and ordered them to calculate interest 
 
            and if a dispute existed, to bring the matter before the 
 
            agency for determination.
 
            
 
            4000.2
 
            Claimant also sought 86.13 penalty benefits.  However, the 
 
            delays in payment were minimal, in most cases three to four 
 
            weeks.  Where no benefits were previously paid, it was found 
 
            that a reasonable dispute existed between the parties.  
 
            Penalty benefits were not appropriate.
 
            
 
            2908
 
            Claimant waited until the day of hearing to dismiss a fourth 
 
            petition, dealing with an injury to her leg.  The deputy 
 
            found that claimant was not diligent and should have 
 
            dismissed the petition sooner, but since defendants would 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            have conducted the same discovery with or without the fourth 
 
            petition, sanctions were not ordered.  Claimant, on appeal, 
 
            sought a reversal of the finding of fact that she had not 
 
            been diligent.  Held that since sanctions were not imposed, 
 
            the matter was moot.  Claimant's cross-motion for sanctions 
 
            against defendants also found to be without merit.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            PATRICK PINNEY,     :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :      File No.  863234
 
            BROWER CONSTRUCTIONS CO.,      :
 
                      :  A R B I T R A T I O N
 
                 Employer, :
 
                      :      D E C I S I O N
 
            and       :
 
                      :
 
            AETNA LIFE AND CASUALTY, :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            This is a proceeding in arbitration brought by Patrick 
 
            Pinney as a result of injuries to his head, neck and right 
 
            shoulder which occurred on September 9, 1987.  Defendants 
 
            accepted compensability for the injury and paid weekly 
 
            benefits and medical expenses.
 
            The case was heard and fully submitted at Sioux City, Iowa, 
 
            on December 28, 1990.  The record in the proceeding consists 
 
            of claimant's exhibits 1 through 13, defendants' exhibits A 
 
            through N, and testimony from claimant, Lynne Easterday, 
 
            Karen Stricklett and Dennis Moore
 
                                      ISSUES
 
            The issues for determination are as follows:
 
            l.  The extent of entitlement to weekly compensation for 
 
            temporary total disability or healing period;
 
            2.  The nature of permanent partial disability;
 
            3.  The extent of entitlement to weekly compensation for 
 
            permanent partial disability; and
 
            4.  The commencement date for permanent partial disability.
 
                                 FINDINGS OF FACT
 
            Having considered all the evidence received the following 
 
            findings of fact are made:
 
            Patrick Pinney injured his head, neck and right shoulder 
 
            when he was working on a truck at his employer's place of 
 
            business on September 9, 1987.  On that date claimant was 
 
            working under the box of a dump truck when the driver 
 
            unhooked some hoses causing the box to suddenly fall and 
 
            strike claimant.
 
            Claimant was rendered unconscious for about five minutes 
 
            after the injury.  He immediately noted that he had a weak 
 
            and numb right arm.  He also had severe pain in the jaw and 
 
            face and over the right side of the neck.  Claimant was 
 
            taken to the hospital for treatment and a long period of 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            convalescence followed.
 
            Claimant was off work starting on the date of injury, 
 
            September 9, 1987.  He was released to work by Mark Wheeler, 
 
            M.D., on May 17, 1988, with a 20 pound work restriction, 
 
            exhibit 6a.  Claimant testified that he returned to work for 
 
            Brower Construction on June 7, 1988.
 
            Brower Construction had eliminated claimant's old job due to 
 
            the sale of a part of the company.  Claimant was offered 
 
            another position which consisted of unloading train cars and 
 
            running loaders.  Claimant testified that some of the work 
 
            he performed when unloading train cars violated his work 
 
            restriction. However, he was able to perform the duties 
 
            assigned to him during that period.
 
            Claimant left work again on September 10, 1988, so as to 
 
            have shoulder surgery performed by Dr. Wheeler.  The date of 
 
            the shoulder surgery is not precisely revealed in the 
 
            medical records offered.  The records do show that as of 
 
            October 24, 1988, his wounds were healing, exhibit 6e.  
 
            Therefore, the shoulder surgery performed by Dr. Wheeler 
 
            must have occurred between September 10, 1988 and October 
 
            24, 1988.
 
            Claimant was off work for the shoulder surgery between 
 
            October 1988 and June 1989.  During that time, claimant was 
 
            participating in a no contact hockey league.  Claimant 
 
            testified that Dr. Wheeler was concerned with the hockey 
 
            league at first. After receiving more information, Dr. 
 
            Wheeler endorsed the program as it was good for claimant's 
 
            shoulder mobility.
 
            Claimant also worked at his father's business during that 
 
            period of time.  He performed duties such as answering the 
 
            telephones, running loaders and driving trucks.  This work 
 
            was part-time and without compensation.
 
            Claimant returned to Brower Construction Company after the 
 
            shoulder surgery so as to discuss his employment situation. 
 
            Jim Reganschied, of Brower Construction, told claimant to 
 
            come back to see him with a doctor's work release.  Claimant 
 
            did not obtain a release and never returned to Brower 
 
            Construction. Vocational rehabilitation records revealed 
 
            that claimant received a job offer from Brower.  Claimant 
 
            rejected the job due to the travel involved.
 
            Claimant went to work for Berkley Construction Company in 
 
            June of 1989.  He worked as a paver operator and drove dump 
 
            trucks until August 1989.  His rate of pay was $7 per hour 
 
            and he worked about 50 to 60 hours per week.
 
              Claimant, in August 1989, went to work at Jack Pinney 
 
            Construction Company.  This business is owned by claimant's 
 
            father.  His duties were to feed a crusher and perform 
 
            crusher maintenance.  The starting salary was $500 per week.  
 
            Claimant, at the time of hearing was still employed with his 
 
            father's company doing the same job at the same rate of pay.
 
            Claimant still complains of soreness in his shoulder and 
 
            teeth.  He stated that his present job allows him to work 
 
            within his medical restrictions.  He still takes aspirin and 
 
            Motrin for infrequent pain.
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            Claimant testified that while at Brower Construction he 
 
            worked 80 to 100 hours per week.  This was refuted by Dennis 
 
            Moore who was a foreman at Brower Construction during the 
 
            period in question.  Moore stated that claimant would have 
 
            worked six days per week for 12 hours per day.
 
            Both claimant and Moore are found to be credible witnesses. 
 
            Exhibit 13, page 11 reveals claimant's 13 week wage history. 
 
            With claimants rate being $9.10 per hour, he would have 
 
            worked between 25 and 88 hours per week.  His average week 
 
            would have consisted of about 68 hours per week assuming 
 
            that all weeks were paid at $9.10 per hour.
 
            It is not unusual for the hours worked to vary.  Therefore, 
 
            the statements of claimant and Moore are not inconsistent.
 
            Exhibit 13, page 11 does reveal that claimant's average 
 
            weekly wage was improperly calculated.  The week of May 30, 
 
            1987, indicates $35.03 as one week of wages.  This would not 
 
            account for one full day of wages based upon an hourly rate 
 
            of $9.10. Short weeks should be disregarded when calculating 
 
            the average weekly wage.  The week of May 30, 1987, should 
 
            have been excluded with the remaining 12 weeks used to 
 
            determine the average weekly wage. The 12-week average is 
 
            $619.86.
 
            Using the July 1, 1987, benefit schedule, a claimant who is 
 
            married with four exemptions is entitled to a weekly rate of 
 
            $384.82.
 
            The deputy is free to find that the average weekly wage is 
 
            different from the stipulation if such is supported by the 
 
            record.  In this proceeding the record supporting the 
 
            contrary finding is in the form of defendants' answers to 
 
            interrogatories. The stipulation as to average weekly wage 
 
            is rejected.  It is found that claimant's average weekly 
 
            wage is $619.86 and his rate is $384.82.
 
            Dennis Moore also testified that claimant did not complain 
 
            of shoulder problems after the return to work in June of 
 
            1988. Moore stated that claimant was a good worker.
 
             Lynne Easterday testified on behalf of claimant as a 
 
            vocational rehabilitation expert.  She stated that claimant 
 
            was not a candidate for further schooling, that he had a 
 
            loss of access to the labor market in the range of 5l to 72 
 
            percent and that he had a wage loss of 21 to 40 percent.
 
            Karen Stricklett testified on behalf of defendants as a 
 
            vocational rehabilitation expert.  She stated that claimant 
 
            was employable as a heavy equipment operator at a rate of $9 
 
            per hour or higher.  She was also of the opinion that 
 
            claimant was employable as a heavy equipment salesman or as 
 
            a packing house quality control inspector.  Stricklett 
 
            stated that claimant has many desirable characteristics 
 
            which make him a valuable employee.  She described claimant 
 
            as articulate, pleasant, straight forward, knowledgeable, 
 
            hard working, skilled and presents with a good appearance.
 
            Stricklett also testified that most construction work is 
 
            seasonal in nature and claimant was subject to seasonal lay 
 
            offs. She stated that claimant's wages reported on tax 
 
            returns ranged from $8,800 to $13,700 per year for the tax 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            years 1983 through 1987.
 
            Neither vocational rehabilitation expert attempted to locate 
 
            other employment for claimant.  Their testimony and reports 
 
            appeared to be motivated by the litigation as opposed to job 
 
            placement.
 
            The first issue concerns claimant's entitlement to healing 
 
            period benefits.  Claimant was injured on September 9, 1987 
 
            and was off work until June 11, 1988.  However, Dr. Wheeler 
 
            released claimant to return to work on May 17, 1988, exhibit 
 
            6a.  Claimant was not authorized off work by the treating 
 
            doctor between May 17, 1988 and June 11, 1988.  Entitlement 
 
            to benefits has been proven during that period.  It is found 
 
            that claimant's first healing period starts on September 9, 
 
            1987 and continued through May 16, 1988.
 
            Claimant again left work with Brower Construction on 
 
            September 10, 1988, for the purpose of having surgery on his 
 
            shoulder.  Contrary evidence was not presented by 
 
            defendants. The medical records did not reveal the date of 
 
            surgery on the shoulder.  Since claimant has been found to 
 
            be credible his testimony will be accepted to the extent it 
 
            coincides with the stipulation shown in paragraph four of 
 
            the prehearing report and order approving the same.  The 
 
            start of the second healing period is October 14, 1988.  
 
            The end of the second healing period is a more difficult 
 
            question.  
 
            The exhibits and testimony reveal that claimant was involved 
 
            in exercise hockey, house moving and some construction work 
 
            during the period in question.  Claimant testified that he 
 
            went to work in June 1989 because that was the date he felt 
 
            that he had healed sufficiently.  Claimant did not provide a 
 
            specific date in June for his return to work.
 
            Dr. Wheeler stated on June 27, 1989, that the maximum 
 
            medical improvement had not yet been achieved, exhibit 6d.
 
            However, on June 13, 1989, Dr. Wheeler stated that claimant 
 
            had been released and was actually working, exhibit F.
 
            Having reviewed and considered all of the evidence, it is 
 
            found that claimant's healing period ended on June 1, 1989.  
 
            This date coincides with his return to full-time employment.  
 
            June 1, 1989 was used as claimant did not specify the 
 
            precise day he started work in that month.  No other 
 
            evidence specifically identified the actual return to work 
 
            date.
 
            It is found that claimant incurred a second healing period 
 
            starting on October 14, 1988 and continuing through June 1, 
 
            1989.
 
            The next issue concerns the type of permanent partial 
 
            disability.  It may be argued that claimant's permanent 
 
            partial disability is limited to the scheduled member.  This 
 
            argument is rejected.  The medical records clearly reveal 
 
            that claimant sustained injuries to his head, jaw and right 
 
            shoulder on September 9, 1987.  The medical exhibits reveal 
 
            a right shoulder surgery that invaded the trunk of the body.  
 
            Furthermore, claimant's symptoms caused by the shoulder 
 
            joint separation also extend beyond the head of the humerus 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            as shown by the medical records.
 
              It is found that claimant incurred an injury to the body 
 
            as a whole on September 9, 1987.
 
            The next issue concerns the extent of entitlement to 
 
            industrial disability.  Claimant's age, education, 
 
            experience and work restrictions must first be considered.
 
            Claimant, age 27, is a high school graduate.  The majority 
 
            of his productive work life has been devoted to heavy 
 
            equipment operation in the construction industry.  Claimant 
 
            is a hard worker and very motivated to work.  He stated that 
 
            he often worked 80 hours per week or more.  This was 
 
            substantiated by defendants' answers to interrogatories.
 
            Claimant has no formal education beyond high school. It is 
 
            found that claimant is not a suitable candidate for further 
 
            schooling.
 
            Claimant's wage on September 9, 1987 was $9.10 per hour with 
 
            a resulting average weekly wage of $619.86.  The 
 
            construction work was seasonal in nature.  Claimant's 
 
            highest yearly income reported on tax returns was $13,700.
 
            Claimant is currently employed at his father's construction 
 
            company earning $500 per week feeding a crusher.  He is able 
 
            to perform that work with appropriate rest periods.
 
            Leonel H. Herrera, M.D., stated that claimant had shown a 
 
            good recovery from the serious injury with no restrictions 
 
            needed, exhibit K.  Dr. Herrera appears to be a practicing 
 
            neurologist as shown by his letterhead.  Dr. Herrera also 
 
            recommended that claimant see an orthopedist for his 
 
            shoulder pain, exhibits J and K.  Claimant saw Dr. Herrera 
 
            on one occasion.
 
            Paul Kirkegaard is a physical therapist who administered a 
 
            functional capacity evaluation with respect to claimant's 
 
            right shoulder and right upper extremity.  Kirkegaard opined 
 
            that claimant should work no more than eight hours per day 
 
            with the right arm limited to below shoulder height and 
 
            close to the body, exhibit 10a.
 
            Dr. Wheeler was the treating orthopedic surgeon with respect 
 
            to claimant's shoulder injury.  After reviewing Kirkegaard's 
 
            assessment, he assigned the following permanent work 
 
            restrictions.  "I would allow him work below shoulder level 
 
            and lifting no greater than 20-30 lbs. with the arm.  
 
            Repetitive use of the arm such as shoveling would also 
 
            aggravate his symptoms and should be avoided." exhibit 6c.
 
            Bernard L. Kratochvil, M.D., is an orthopedic surgeon who 
 
            performed an independent evaluation at the request of 
 
            claimant.  He opined that claimant's activities be 
 
            restricted to the capabilities set forth in the functional 
 
            capacity assessment.  Dr. Kratochvil also stated that 
 
            claimant sustained a 15 percent permanent partial impairment 
 
            to the right upper extremity as a result of his injuries.
 
            Dr. Wheeler's work restrictions are found to be the most 
 
            credible as he is the treating orthopedic surgeon most 
 
            familiar with claimant's treatment.  Furthermore, his work 
 
            restrictions are based upon objective testing performed by 
 
            Paul Kirkegaard.  It is also noted that Dr. Herrera 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            recommended a referral to an orthopedist.
 
            Permanent partial impairment is also a consideration when 
 
            assessing industrial disability.  In this case, Dr. 
 
            Kratochvil assigned a 15 percent impairment rating to 
 
            claimant's right upper extremity, exhibit 8a.
 
            Dr. Herrera stated that claimant had incurred no impairment.
 
            It appears that Dr. Wheeler assigned a 10 percent impairment 
 
            rating, exhibit 12.  However, no such medical report was 
 
            offered.  It would be speculative to find that a 10 percent 
 
            rating was assigned by Dr. Wheeler based upon the evidence 
 
            presented.
 
            It is found that claimant sustained a 15 percent permanent 
 
            partial impairment to his right upper extremity as a result 
 
            of his shoulder injury.  This rating is consistent with 
 
            claimant's work restrictions and medical history involving a 
 
            shoulder surgery.
 
            Claimant's motivation to work is also a consideration.  In 
 
            this proceeding claimant has proven himself to be a hard 
 
            working and highly motivated individual.  Claimant's work 
 
            history proves that he is willing to work very long hours at 
 
            heavy labor.
 
            Claimant did return to Brower Construction Company in June 
 
            of 1989 to request work.  He was told to get a doctor's 
 
            release and come back.  Claimant was offered a job in a 
 
            remote location outside of Sioux City, Iowa.  Claimant did 
 
            not return to Brower Construction.  Instead he went to work 
 
            for another construction company.
 
            It is found that claimant was not motivated to return to 
 
            work at Brower Construction.
 
            It is found that claimant is motivated to work.
 
            The loss of claimant's ability to earn income must be 
 
            considered.  
 
            Claimant is presently earning $500 per week as compared to 
 
            his average weekly wage of $619.86.  This would appear to 
 
            result in a 20 percent loss of earnings.
 
            However, the wage loss is tempered by the fact that 
 
            claimant's construction work is seasonal.  Therefore, 
 
            claimant's yearly earnings at Brower is much lower when a 
 
            full year is considered.  This reduces his loss of earnings.
 
            It should be noted that claimant is now employed in a family 
 
            business.  If claimant worked for a nonfamily enterprise, he 
 
            may be more susceptible to seasonal lay offs.
 
            Claimant testified that on the date of injury he earned 
 
            $9.10 per hour.  He now receives a $500 weekly salary and 
 
            works 50 to 65 hours per week.  Based upon an average 55 
 
            hour work week, claimant now earns $9.10 per hour.
 
            Factors which tend to increase industrial disability are as 
 
            follows:
 
            Claimant's work experience consists primarily of manual 
 
            labor.  He has lost access to a significant segment of the 
 
            manual labor job market due to the work injury and the 
 
            resulting work restrictions.  Claimant is not a candidate 
 
            for further schooling.  At age 27 he is highly motivated and 
 
            in the prime of his working life.
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            Factors which tend to decrease industrial disability are as 
 
            follows:
 
            Claimant is presently earning an hourly wage equal to that 
 
            earned at the time of injury.  Claimant is a skilled 
 
            equipment operator and can maintain his present earning 
 
            capacity outside of the family business.  The construction 
 
            performed at Brower Construction Company is seasonal in 
 
            nature which tends to lower yearly income.  Claimant is 
 
            capable of working 50 to 60 hours per week which is in 
 
            excess of the 8-hour per day work restriction.  Claimant's 
 
            injury was to his nondominant upper extremity.
 
            Having considered all of the evidence, it is found that 
 
            claimant sustained a 20 percent industrial disability as a 
 
            result of the September 9, 1987 injury.
 
            The commencement date for permanent partial disability is 
 
            May 17, 1988.  This is the first day following the end of 
 
            the first healing period.  The permanent partial disability 
 
            benefits are to be paid intermittently before and after the 
 
            second healing period.
 
            conclusions of law
 
            The hearing deputy is free to make findings different from a 
 
            stipulation if supported by the record.  DeHoer v. Clarklift 
 
            of Des Moines, file number 804375 (Appeal Decision May 12, 
 
            1989).
 
            The basis of compensation shall be the weekly earnings of 
 
            the injured employee at the time of the injury.  Weekly 
 
            earnings means gross salary, wages, or earnings of an 
 
            employee to which such employee would have been entitled had 
 
            the employee worked the customary hours for the full pay 
 
            period in which the employee was injured, as regularly 
 
            required by the employee's employer for the work or 
 
            employment for which the employee was employed, computed or 
 
            determined as follows and then rounded to the nearest 
 
            dollar:
 
            
 
            6.   In the case of an employee who is paid on a daily,      
 
            or hourly basis, or by the output of the employee, the 
 
            weekly earnings shall be computed by dividing by thirteen 
 
            the earnings, not including overtime or premium pay, of said 
 
            employee earned in the employ of the employer in the last 
 
            completed period of thirteen consecutive calendar weeks 
 
            immediately preceding the injury.
 
            
 
            Iowa Code section 85.36
 
                 Short weeks are not included in the 13 weeks for 
 
            determining the rate under Iowa Code section 85.36(6); Lewis 
 
            v. Aalf 's Mfg. Co., I Iowa Industrial Commissioner Report 
 
            206, 207 (Appeal Decision 1980). 
 
            The work week of May 30, 1987, was not representative of 
 
            claimant's weekly earnings as it contained less than one 
 
            full day of compensation.  Having excluded the week dated 
 
            May 30, 1987, it is found that claimant's average weekly 
 
            wage is $619.86 and his weekly rate is $384.82.
 
            Section 85.34(l), Code of Iowa, provides that healing period 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            benefits are payable to an injured worker who has suffered 
 
            permanent partial disability until (1) he has returned to 
 
            work; (2) is medically capable of returning to substantially 
 
            similar employment; or (3) has achieved maximum medical 
 
            recovery.  The industrial commissioner has recognized that 
 
            healing period benefits can be interrupted or intermittent.  
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
                      51802 51803.1 51803 53000
 
                      Filed February 4, 1991
 
                      Marlon D. Mormann
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            PATRICK PINNEY,     :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :      File No.  863234
 
            BROWER CONSTRUCTIONS CO.,     :
 
                      :  A R B I T R A T I O N
 
                 Employer, :
 
                      :      D E C I S I O N
 
            and       :
 
                      :
 
            AETNA LIFE AND CASUALTY, :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            51802
 
            Claimant established entitlement to intermittent healing 
 
            period
 
            
 
            51803.1
 
            Claimant's injury to the face, neck and shoulder found to be 
 
            body as a whole.
 
            
 
            51803
 
            Claimant at age 27 with a work restriction of no repetitive 
 
            use of shoulder, lifting 30 pounds or less and now earning 
 
            same wage as prior to injury found entitled to 20 percent 
 
            partial disability.
 
            
 
            53000
 
            Short week excluded from 13 week calculation of average 
 
            weekly wage.
 
            
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         CLIFFORD DE MOSS,
 
         
 
              Claimant,
 
                                                    File No. 863341
 
         vs.
 
                                                 A R B I T R A T I O N
 
         ACCURATE MECHANICAL CO., INC., 
 
                                                    D E C I S I O N
 
              Employer,
 
         
 
         and                                           F I L E D
 
         
 
         MARYLAND CASUALTY COMPANY,                   OCT 12 1989
 
         
 
              Insurance Carrier,              IOWA INDUSTRIAL COMMISSIONER
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Clifford De 
 
         Moss, claimant, against Accurate Mechanical Company, Inc., 
 
         employer (hereinafter referred to as Accurate), and Maryland 
 
         Casualty Company, insurance carrier, for workers' compensation 
 
         benefits as a result of an alleged injury on July 8, 1987.  On 
 
         April 18, 1989, a hearing was held on claimant's petition and the 
 
         matter was considered fully submitted at the close of this 
 
         hearing.
 
         
 
              The parties have submitted a prehearing report of contested 
 
         issues and stipulations which was approved and accepted as a part 
 
         of the record of this case at the time of hearing.  Oral 
 
         testimony and written exhibits were received during the hearing 
 
         from the parties.  The exhibits offered into the evidence are 
 
         listed in the prehearing report.
 
              
 
              According to the prehearing report, the parties have 
 
         stipulated to the following matters:
 
              
 
              1.  An employee-employer relationship existed between 
 
         claimant and Accurate at the time of the alleged injury.
 
              
 
              2.  If defendants are liable for the alleged work injury, 
 
         claimant is entitled to temporary total disability benefits from 
 
         August 17, 1987 through October 12, 1987.
 
              
 
              3.  The alleged work injury is not a cause of permanent 
 
         disability.
 
         
 
              4.  Claimant's rate of weekly compensation shall be $414.78.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
              
 
              5.  The medical bills submitted by claimant at hearing were 
 
         fair and reasonable and causally connected to the hernia 
 
         condition upon which the claim is based, but that the issue of 
 
         the causal connection of this hernia condition to a work injury 
 
         remained at issue.
 
         
 
                                      ISSUES
 
         
 
              The parties submitted the following issues for determination 
 
         in this proceeding:
 
         
 
               I.  Whether the claimant received an injury arising out of 
 
         and in the course of employment;
 
         
 
              II.  Whether there is a causal relationship between the 
 
         work injury and the claimed disability;
 
         
 
              III.  The extent of claimant's entitlement to weekly 
 
         benefits for temporary disability; and,
 
         
 
              IV.  The extent of claimant's entitlement to medical 
 
         benefits.
 
         
 
              The parties also submitted at the time of hearing an issue 
 
         as to the appropriateness of defendants taking a credit against 
 
         this award under Iowa Code section 85.38(2) for benefits paid 
 
         under a Union Health and Welfare Fund.  This issue was not listed 
 
         as a hearing issue in the hearing assignment order.  Although 
 
         this assignment order was amended upon application subsequent to 
 
         the prehearing conference to include other issues, the 
 
         applicability of 85.38(2) was not one of these new issues.  As 
 
         stated to the parties in the instructions to complete the 
 
         prehearing report, issues not raised at the last prehearing 
 
         conference cannot be raised for the first time in the prehearing 
 
         report which is submitted at hearing.  The undersigned deputy 
 
         commissioner has authority to hear only those issues listed in 
 
         the hearing assignment order and cannot modify the orders of 
 
         another deputy commissioner.  Therefore, the issue concerning 
 
         Iowa Code section 85.38(2) cannot be dealt with in this decision.
 
         
 
                                STATEMENT OF FACTS
 
         
 
              The following is a brief statement highlighting some of the 
 
         more pertinent evidence presented.  Whether or not specifically 
 
         referred to in this statement, all of the evidence received at 
 
         the hearing was reviewed and considered in arriving at this 
 
         decision. Any conclusions about the evidence received contained 
 
         in the following statement should be viewed as preliminary 
 
         findings of fact.
 
         
 
              Claimant is a union pipe fitter working out of Local 33, 
 
         Plumbers and Steamfitters Union.  At the time of the alleged 
 
         injury claimant was employed by Accurate and assigned to duty at 
 
         various locations including the Millard Warehouse located in Iowa 
 
         City, Iowa.  Claimant testified that on approximately July 8, 
 
         1987, "or within a week" of that date he suffered groin pain and 
 
         swelling after unloading pipe and welding equipment from his 
 
         truck onto the loading dock at the Millard Warehouse in Iowa 
 
         City, Iowa. There was little dispute in the record that the 
 
         equipment and materials were heavy and bulky.  After the lifting 
 
         incident, claimant said that his groin area was tender to the 
 
         touch over the next several days and weeks.  Dan Seale, an 
 
         employee of Millard Warehouse in Iowa City, testified by 
 
         deposition that he recalls an oral complaint to him from claimant 
 
         of groin pain at the time he unloaded the equipment.  Pay records 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         submitted into evidence from Accurate indicated that claimant was 
 
         working in Iowa City on July 2 and 3, 1987 but not on the 7th or 
 
         8th of July.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              On July 11, 1987, claimant sought medical treatment for his 
 
         groin pain at an emergency room of a hospital.  Emergency records 
 
         indicate that claimant complained to doctors at that time of pain 
 
         in the left testicle and lower abdominal region for the last 11 
 
         days.  The emergency room doctors indicated that "no hernia was 
 
         seen or felt."  Upon a diagnosis of epididymitis or infection, 
 
         claimant was given antibiotics.  Claimant testified that his 
 
         swelling decreased after receiving treatment but a "grabbing 
 
         pain" persisted over the next several weeks which continued to 
 
         bother his lifting at work.  Claimant explained he did not file 
 
         an accident report at that time with Accurate because of the 
 
         diagnosis of infection.
 
              
 
              On August 17, 1987, claimant left the employment of Accurate 
 
         for reasons unrelated to any work injury and at that time sought 
 
         further medical treatment for his persistent groin pain from R. 
 
         D. DesKamps, D.O.  Dr. DesKamps diagnosed;that claimant had a 
 
         hernia and surgically repaired the hernia on August 25, 1987.
 
         
 
              Dr. DesKamps testified live at hearing and explained that he 
 
         felt from the history presented that the lifting incident in July 
 
         of 1987 was the cause of the hernia.  He stated that the symptoms 
 
         of hernia can resemble epididymitis and it was possible for a 
 
         physician to miss a hernia upon examination.  The fact that 
 
         claimant did not respond to antibiotic therapy was good evidence 
 
         of the original misdiagnosis according to Dr. DesKamps.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              Note:  A credibility finding is necessary to this decision 
 
         as defendants placed claimant's credibility at issue as to the 
 
         time and extent of the alleged injury.  From his demeanor while 
 
         testifying, claimant was found credible.
 
         
 
               I.  Claimant has the burden of proving by a preponderance 
 
         of the evidence that claimant received an injury which arose out 
 
         of and in the course of employment.  The words "out of" refer to 
 
         the cause or source of the injury.  The words "in the course of" 
 
         refer to the time and place and circumstances of the injury.  See 
 
         Cedar Rapids Community Sch. v. Cady, 278 N.W.2d 298 (Iowa 1979); 
 
         Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 
 
         (1955). An employer takes an employee subject to any active or 
 
         dormant health impairments, and a work connected injury which 
 
         more than slightly aggravates the condition is considered to be a 
 
         personal injury.  Ziegler v. United States Gypsum Co., 252 Iowa 
 
         613, 620, 106 N.W.2d 591 (1960) and cases cited therein.
 
         
 
              II.  The claimant has the burden of proving by a 
 
         preponderance of the evidence that the work injury is a cause of 
 
         the claimed disability.  A disability may be either temporary or 
 
         permanent.  In the case of a claim for temporary disability, the 
 
         claimant must establish that the work injury was a cause of 
 
         absence from work and lost earnings during a period of recovery 
 
         from the injury.  Generally, a claim of permanent disability 
 
         invokes an initial determination of whether the work injury was a 
 
         cause of permanent physical impairment or permanent limitation in 
 
         work activity.  However, in some instances, such as a job 
 
         transfer caused by a work injury, permanent disability benefits 
 
         can be awarded without a showing of a causal connection to a 
 
         physical change of condition.  Blacksmith v. All-American, Inc., 
 
         290 N.W.2d 348, 354 (Iowa 1980); McSpadden v. Big Ben Coal Co., 
 
         288 N.W.2d 181 (Iowa 1980).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              The question of causal connection is essentially within the 
 
         domain of expert medical opinion.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).  The opinion of 
 
         experts need not be couched in definite, positive or unequivocal 
 
         language and the expert opinion may be accepted or rejected, in 
 
         whole or in part, by the trier of fact.  Sondag v. Ferris 
 
         Hardware, 220 N.W.2d 903 (Iowa 1974).  The weight to be given to 
 
         such an opinion is for the finder of fact, and that may be 
 
         affected by the completeness of the premise given the expert and 
 
         other surrounding circumstances.  Bodish v. Fischer, Inc., 257 
 
         Iowa 516, 133 N.W.2d 867 (1965).
 
         
 
              Furthermore, if the available expert testimony is 
 
         insufficient along to support a finding of causal connection, 
 
         such testimony may be coupled with nonexpert testimony to show 
 
         causation and be sufficient to sustain an award.  Giere v. Asse 
 
         Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 911, 915 (1966). 
 
         Such evidence does not, however, compel an award as a matter of 
 
         law.  Anderson v. Oscar Mayer & Co., 217 N.W.2d 531, 536 (Iowa 
 
         1974).  To establish compensability, the injury need only be a 
 
         significant factor, not be the only factor causing the claimed 
 
         disability.  Blacksmith, 290 N.W.2d 348, 354.  In the case of a 
 
         preexisting condition, an employee is not entitled to recover for 
 
         the results of a preexisting injury or disease but can recover 
 
         for an aggravation thereof which resulted in the disability found 
 
         to exist.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 
 
         N.W.2d 251 (1963).
 
         
 
              In the case sub judice, the fact that claimant was not 
 
         precisely correct in his alleged injury date does not defeat his 
 
         claim.  The onset of pain after lifting at Iowa City while 
 
         working for Accurate was verified by an independent, 
 
         disinterested witness.  The credible history presented to Dr. 
 
         DesKamps demonstrated to the doctor that the lifting incident was 
 
         a likely cause of the hernia.  Dr. DesKamps' opinions are not 
 
         controverted in the record.  The views of the emergency room 
 
         doctor given claimant's subsequent history were notably absent 
 
         from the evidence.
 
         
 
              Pursuant to Iowa Code section 85.27, claimant is entitled to 
 
         payment of reasonable medical expenses incurred for treatment of 
 
         a work injury.  However, claimant is entitled to an order of 
 
         reimbursement only if claimant has paid those expenses.  Krohn v. 
 
         State, 420 N.W.2d 463 (Iowa 1988).  Defendants argue that they, 
 
         therefore, are not obligated to pay the expenses.  This is 
 
         incorrect.  The Supreme Court in Krohn also stated that claimant 
 
         is entitled to an order from this agency directing the 
 
         responsible defendants to make such payments directly to the 
 
         provider or to others who have made those payments on behalf of 
 
         claimant.  This order is likewise enforceable in the Iowa 
 
         District Court.
 
              
 
              As the hernia was found to be work related, under the 
 
         parties' stipulation in the prehearing report, there is no 
 
         further issue involving causal connection.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Claimant was a credible witness.  Claimant's appearance 
 
         while testifying indicated that he was testifying truthfully.
 
         
 
              2.  On or about July 8, 1987, claimant suffered a hernia 
 
         injury which arose out of and in the course of employment with 
 
         Accurate.  This injury was initially misdiagnosed as infection. 
 
         The injury eventually required surgery and a period of recovery 
 
         from surgery.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant has established under law entitlement to 8 1/7 
 
         weeks of temporary total disability benefits and to $2,552.27 in 
 
         medical benefits.
 
         
 
                                      ORDER
 
         
 
              1.  Defendants shall pay to claimant temporary total 
 
         disability benefits from August 17, 1987 through October 12, 1987 
 
         at the rate of four hundred fourteen and 78/100 dollars ($414.78) 
 
         per week.
 
         
 
              2.  Defendants shall pay the medical expenses listed in the 
 
         prehearing report.  Claimant shall be reimbursed for any of these 
 
         expenses paid by him.  Otherwise, defendants are ordered to pay 
 
         the provider directly or reimburse the Union Health and Welfare 
 
         Fund for any of the expenses paid by it.
 
              
 
              3.  Defendants shall pay accrued weekly benefits.in a lump 
 
         sum.
 
              
 
              4.  Defendants shall pay interest on weekly benefits awarded 
 
         herein as set forth in Iowa Code section 85.30.
 
              
 
              5.  Defendants shall pay the costs of this action pursuant 
 
         to Division of Industrial Services Rule 343-4.33.
 
              
 
              6.  Defendants shall file activity reports on the payment of 
 
         this award as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
         
 
              Signed and filed this 12th day of October, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                       LARRY P. WALSHIRE
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         Ms. Martha Mertz
 
         Attorney at Law
 
         P O Box 496
 
         Knoxville, IA  50138
 
         
 
         Mr. Richard G. Book
 
         Mr. Jon Kurt Hoffmann
 
         Attorneys at Law
 
         500 Liberty Bldg
 
         Des Moines, IA  50309
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                                             5-1108
 
                                             Filed October 12, 1989
 
                                             LARRY P. WALSHIRE
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         CLIFFORD DE MOSS,
 
         
 
              Claimant,
 
                                                 File No. 863341
 
         vs.
 
                                                A R B I T R A T I O N
 
         ACCURATE MECHANICAL CO., INC.,
 
                                                 D E C I S I O N 
 
              Employer,
 
              
 
         and
 
         
 
         MARYLAND CASUALTY COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
              
 
              
 
              
 
         5-1108 - Nonprecedential - medical causation issue involving a 
 
         hernia.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            TERRANCE LEE SIMMONS,         :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 863395
 
            HEYL TRUCK LINES,             :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            AETNA CASUALTY & SURETY,      :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This case came on for hearing on August 6, 1991, in 
 
            Fort Dodge, Iowa.  The record in the proceeding consists of 
 
            the testimony of claimant and Keith Pease; claimant's 
 
            exhibits A, B and C; and defendants' exhibits 1 through 14.
 
            
 
                                      issues
 
            
 
                 The issues for resolution in this case are:
 
            
 
                 1.  Whether claimant's alleged injury on January 18, 
 
            1988 arose out of and in the course of claimant's 
 
            employment;
 
            
 
                 2.  Whether there is any causal connection between 
 
            claimant's alleged disability and the January 18, 1988 
 
            alleged injury; and
 
            
 
                 3.  The nature and extent of claimant's disability and 
 
            entitlement to disability benefits.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy having heard the testimony and 
 
            considered all the evidence, finds that:
 
            
 
                 Claimant is a 44 year old high school dropout who has 
 
            been an over-the-road truck driver for sixteen or seventeen 
 
            years.  He obtained his GED in 1967.  Claimant has worked 
 
            with defendant employer on two occasions, for one month in 
 
            1987 and again December 2, 1987 until his alleged January 
 
            18, 1988 injury.
 
            
 
                 Claimant described the nature of his alleged injury on 
 
            January 18, 1988, at which time he was preparing to load 
 
            some pallets in the company truck in Madison, Nebraska.  He 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            said he opened the rear truck door which was then blown shut 
 
            by the gusty winds, knocking him down.  He recalled the 
 
            event occurring around noon.  He described the weather as a 
 
            blizzard.  He said he was knocked back to the ground and 
 
            stunned but was not unconscious.  He indicated he doesn't 
 
            remember everything that really happened except he recalled 
 
            he was lying in the snow.  Claimant said he eventually 
 
            called the dispatcher.  Claimant desired to return for 
 
            medical help but was told by the dispatcher to continue his 
 
            route of picking up and delivering at certain locations.  He 
 
            described the places to which he delivered and picked up 
 
            merchandise subsequent thereto.  Claimant contends he was 
 
            hurting during this time.  Claimant eventually arrived at 
 
            defendant employer's home base truck yard on January 21, 
 
            1988, as he recalls, after refusing to pick up another load.
 
            
 
                 Claimant testified as to his medical treatment and the 
 
            various doctors he went to.
 
            
 
                 Claimant said he tried to work at two separate jobs but 
 
            could not do the moving and lifting required without pain in 
 
            his low back and neck and down his leg.  His last job was at 
 
            a countryside fertilizer company in Minnesota in April 1989, 
 
            in which he did shop welding for one and one-half months, 
 
            three days a week.  He quit when they started going to the 
 
            fields as he could not do the work.  Claimant has not worked 
 
            since April 1989.
 
            
 
                 Claimant has been living on ADC since that time with 
 
            his wife and three children.
 
            
 
                 Claimant obtained funding through state and federal 
 
            grants to go to a heating and air conditioning technical 
 
            school beginning in September 1990.  He dropped out because 
 
            he was having marital problems.  He did not obtain any 
 
            credits.  He intends to start again in September 1991 for a 
 
            two year course.  He believes he can do this heating and air 
 
            conditioning type work but emphasized he can no longer drive 
 
            trucks because of the sitting, jiggling and bouncing.
 
            
 
                 Claimant was a substance abuse counselor several years 
 
            ago but indicated his knowledge would be outdated today.  He 
 
            has not tried to find work in this area.  He said the pay is 
 
            too little and he could not support himself on this.
 
            
 
                 Claimant is not getting medical help now as he said it 
 
            doesn't do any good.  Claimant related one of his current 
 
            problems as sleeping one or two hours due to pain which he 
 
            said he relieves by drinking a lot.  He also takes Tylenol.  
 
            Claimant had no logical explanation as to how he would 
 
            expect to work or go to school if he sleeps every two hours.  
 
            Claimant acknowledged he was a cook in the navy and has 
 
            restored cars and done mechanical work but it is obvious he 
 
            has not tried to find work in this area either.
 
            
 
                 Claimant admitted he fell off a truck three years ago 
 
            but denies he injured his mid-back.  He said he only hurt a 
 
            muscle in his back.
 
            
 
                 Claimant initially agreed he has been given no 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            restrictions by a doctor, but later he referred to a social 
 
            security record in which weight restrictions were indicated 
 
            (Claimant's Exhibit C).
 
            
 
                 On cross-examination, claimant was asked about several 
 
            items defendants contend were inconsistencies in his 
 
            testimony at the time of his deposition now and in his 
 
            medical records.  They involve the extent of the weather 
 
            conditions, extent of his consciousness at the time of the 
 
            injury, what parts of his back were affected by the alleged 
 
            January 18, 1988 injury, whether he was injured the 17th, 
 
            18th or the 12th and exactly what he was doing at the time 
 
            of the alleged injury.
 
            
 
                 Keith Pease, director of safety for defendant employer, 
 
            said claimant was first employed on September 25, 1987 until 
 
            October 1987, and quit without notice.  Claimant was again 
 
            employed on December 2, 1987.  He indicated defendants' 
 
            records show claimant's itinerary was January 11 and 12 to 
 
            January 17, 1988, on which day claimant was off work and not 
 
            the January 18 to approximately January 23, 1988, as 
 
            claimant indicated.
 
            
 
                 He said claimant was told by defendant employer after 
 
            the doctor released him that a truck was available.  
 
            Claimant indicated he would like to try.  A DOT physical was 
 
            scheduled to see if claimant was qualified to drive.  
 
            Claimant never showed up nor did he call so the load was 
 
            given to another driver.  Three or four days later, claimant 
 
            called and said he could not work.
 
            
 
                 The medical records of McCrary-Rost Clinic, of which 
 
            Dave Archer, M.D., is a member, reflect that claimant's 
 
            first visit on January 18, 1988 was regarding claimant's 
 
            neck pain.  Claimant was a "no show" on May 2, 1988, and on 
 
            June 30, 1988, claimant was released to go back to work on 
 
            July 1, 1988 (Cl. Ex. A).  On this date, the doctor referred 
 
            to claimant's neck and back pain.  On July 29, he referred 
 
            to claimant's "vague" lower back pain.  On April 7, 1988, 
 
            Dr. Archer presumed that claimant is doing fine and returned 
 
            to work (Defendants' Exhibit 4).
 
            
 
                 Claimant's x-ray report of February 3, 1988 shows only 
 
            cervical spine exam which was normal.
 
            
 
                 John R. McKee, M.D., examined claimant on June 14, 
 
            1988, and found no neurologic deficit or cervical or lumbar 
 
            radiculopathy.  He suggested an MRI to settle a cervical 
 
            disc issue.  Defendants' exhibit 9, Dr. McKee's letter of 
 
            October 11, 1988, indicates an MRI was normal and he said he 
 
            has no indication that claimant's current problems are work 
 
            related.  He had not seen claimant since August 2, 1988.
 
            
 
                 Dr. Archer, a family practitioner, wrote a letter on 
 
            March 21, 1989, reflecting claimant was injured on January 
 
            11, 1988.  The history is obvious that the events are the 
 
            same or similar as claimant described occurred on January 
 
            18, 1988 in his petition and testimony.  He indicated 
 
            claimant had a permanent impairment and was unable to 
 
            continue working as a truck driver (Cl. Ex. A).
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
                 Claimant applied for social security benefits.  A 
 
            medical report of Dr. Larry T. Grubbs, M.D., attached to the 
 
            social security decision, indicated claimant has a chronic 
 
            neck and back pain of a stable variety secondary to a prior 
 
            injury.  The lumbar spine films were normal by the 
 
            radiologist (Cl. Ex. C).
 
            
 
                 Robert J. Weatherwax, M.D., an orthopedic surgeon, on 
 
            April 19, 1988, indicated claimant would be released to work 
 
            on May 2, 1988, and he anticipated no permanent impairment 
 
            (Def. Ex. 5).
 
            
 
                 There was considerable testimony on cross-examination 
 
            of claimant concerning inconsistencies or alleged 
 
            discrepancies in his testimony, comments, deposition or 
 
            medical records, as to the facts of this case.  Claimant's 
 
            deposition was not an exhibit.  It is of interest to the 
 
            undersigned that claimant's petition alleges a January 18, 
 
            1988 injury and yet it would appear that the events 
 
            concerning the weather and considering that defendants' 
 
            records are accurate as to the route and pickup of the loads 
 
            that claimant was delivering, that the accident, if it 
 
            happened, had to occur on or around January 12, 1988.  The 
 
            undersigned believes the testimony of Mr. Pease, who had the 
 
            records concerning the travel itinerary of the claimant and 
 
            January 11 through 17 are the dates in which claimant was 
 
            making the loads as he described.
 
            
 
                 Claimant described the nature of the weather on the 
 
            date of his alleged injury.  Defendants' exhibit 14 is the 
 
            weather records, and it would appear that January 12 would 
 
            fit closely to the description claimant gave as to the 
 
            weather conditions on that date.  Although there are no 
 
            records for Madison, Nebraska, the place where the alleged 
 
            injury occurred, the records of Norfolk, Nebraska, 
 
            approximately fifteen miles away, indicate blowing snow a 
 
            good portion of that day around 8:30 that morning through 
 
            2:30 in the afternoon, which would encompass the time to 
 
            which claimant referred during the day of his alleged 
 
            injury.  The temperatures were basically in single digits 
 
            and the wind velocity was in the 30 mile range.  Defendants 
 
            seem to indicate or contests claimant's description of a 
 
            blizzard occurring.  Although there is no definition in the 
 
            record for a blizzard, the undersigned finds that the 
 
            conditions were such that one could consider a blizzard 
 
            occurring.
 
            
 
                 There is agency precedence that a deputy can determine 
 
            a date different than a date either stipulated by the 
 
            parties or stated in the petition.  Although the undersigned 
 
            is surprised that the claimant did not amend his petition, 
 
            the undersigned finds that the date in question of 
 
            claimant's alleged injury is January 12, 1988, and so finds.  
 
            The undersigned believes that on January 12, 1988, claimant 
 
            was injured after having been struck by the rear door of the 
 
            company truck which was blown by the wind.  Therefore, the 
 
            undersigned finds that claimant did receive an injury which 
 
            arose out of and in the course of his employment on January 
 
            12, 1988.
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
                 Claimant has not worked since April 1989.  Claimant 
 
            contends he is unable to drive a truck any longer nor is he 
 
            able to do much of anything.  Unfortunately, the claimant 
 
            has not tried to do much and appears very unmotivated.  
 
            Claimant appears to be satisfied living on ADC and it 
 
            appears after two years that the welfare system is 
 
            claimant's mode of living.  Claimant did attempt to enroll 
 
            in a technical school but marital problems forced him to 
 
            drop out.  Although he intends to begin again in the fall of 
 
            1991, claimant's lack of motivation makes it doubtful that 
 
            he will complete any course of study unless he improves his 
 
            attitude.  He contends he sleeps only two hours and wakes up 
 
            and then goes back to sleep again.  He seems to feel that 
 
            drinking relieves his problem without realizing that it will 
 
            only compound his problem, which may be the reason claimant 
 
            has little or no motivation.
 
            
 
                 Claimant's medical records indicate there has been no 
 
            impairment rating.  Although impairment rating isn't 
 
            necessary to find industrial disability, it is an element to 
 
            consider.  Claimant's MRI's have been normal and x-rays of 
 
            the spine are normal.  Dr. Weatherwax, an orthopedic 
 
            surgeon, found no permanent impairment.  He released 
 
            claimant to go back to work May 2, 1988.  Defendants contend 
 
            he is the only authorized doctor.  Dr. Archer released 
 
            claimant to go back to work July 1, 1988 (Cl. Ex. A), but 
 
            then on April 7, 1988, he presumed that claimant is doing 
 
            fine and returned to work (Def. Ex. 4).  
 
            
 
                 Medical testimony in this case is something to be 
 
            desired taken as a whole.  Dr. McKee examined claimant on 
 
            June 14, 1988 and found no neurological deficit or cervical 
 
            or lumbar radiculopathy.  A subsequent MRI was normal.  Dr. 
 
            Archer is a family practitioner.  The other two referred to 
 
            doctors are specialists in their fields.  The undersigned 
 
            finds that on January 12, 1988, claimant incurred a work-
 
            related injury which resulted in a temporary total 
 
            disability beginning January 18, 1988 and ending up to but 
 
            not including May 2, 1988, at which the defendants' 
 
            authorized doctor indicated claimant had no permanent 
 
            impairment and was released to return to work.  The 
 
            undersigned finds that this temporary total disability was 
 
            causally connected to his January 12, 1988 injury.
 
            
 
                 The greater weight of medical testimony indicates that 
 
            claimant has no permanent impairment or any permanent work 
 
            restrictions.  The undersigned realizes that a social 
 
            security decision referred to in its explanation of 
 
            determination the reports of two doctors, namely, Dr. Archer 
 
            and Dr. Grubbs (Cl. Ex. C).  This explanation referred to 
 
            certain lifting restrictions which would appear to have been 
 
            taken from one of the two doctor's reports referred to.  The 
 
            only medical report attached was that of Dr. Grubbs.  He 
 
            does not refer to any restrictions.  There is no report 
 
            attached of Dr. Archer dated January 8, 1991.  The 
 
            undersigned finds that claimant has failed in his burden of 
 
            proof to show that there is a causal connection between 
 
            claimant's current problems and his work injury of January 
 
            12, 1988.  The undersigned believes that if claimant made an 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            effort to try to find a job, he would be able to do more 
 
            than he has convinced himself he can't do.
 
            
 
                 Claimant had an opportunity to return to his truck 
 
            driving and indicated he would try it.  A DOT examination 
 
            was scheduled and claimant did not show nor did he call for 
 
            an explanation until three or four days later.  The 
 
            undersigned finds that claimant has no industrial disability 
 
            resulting from a January 12, 1988 injury.
 
            
 
                                conclusions of law
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that he received an injury on January 12, 
 
            1988, 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 claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of January 12, 
 
            1988 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).
 
            
 
                 It is further concluded that:
 
            
 
                 Claimant incurred a temporary total disability on 
 
            January 12, 1988, which arose out of and in the course of 
 
            his employment.
 
            
 
                 Claimant's temporary total disability was causally 
 
            connected to his January 12, 1988 work injury.
 
            
 
                 Claimant incurred no permanent impairment or industrial 
 
            disability as a result of his January 12, 1988 work injury
 
            
 
                 Claimant was temporary totally disabled beginning 
 
            January 18, 1988 up to but not including May 2, 1988, as a 
 
            result of his January 12, 1988 work injury.  Claimant's 
 
            total period of temporary total disability amounted to 
 
            14.857 weeks and is payable at the rate of $219.91.  Said 
 
            rate is based on the parties' stipulated gross weekly 
 
            earnings of $330.00 with four exemptions.
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendants shall pay unto claimant temporary total 
 
            disability benefits for the period beginning January 18, 
 
            1988 up to but not including May 2, 1988, at the weekly rate 
 
            of two hundred nineteen and 91/100 dollars ($219.91).  The 
 
            total of said weeks is fourteen point eight five seven 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            (14.857).
 
            
 
                 That defendants shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against the award for 
 
            weekly benefits previously paid.  The parties agreed that 
 
            claimant has been paid twenty-eight point four two nine 
 
            (28.429) weeks.
 
            
 
                 That defendants shall pay interest on benefits awarded 
 
            herein as set forth in Iowa Code section 85.30.
 
            
 
                 That defendants shall pay the costs of this action, 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 That defendants shall file an activity report upon 
 
            payment of this award as required by this agency, pursuant 
 
            to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of August, 1991.
 
            
 
            
 
            
 
                                          ______________________________
 
                                          BERNARD J. O'MALLEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies to:
 
            
 
            Mr Daniel T McGrevey
 
            Attorney at Law
 
            142 North 9th St
 
            Fort Dodge IA 50501
 
            
 
            Ms Judith Ann Higgs
 
            Attorney at Law
 
            701 Pierce St  Ste 200
 
            P O Box 3086
 
            Sioux City IA 51102
 
            
 
            
 
                 
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      5-1801
 
                      Filed August 22, 1991
 
                      Bernard J. O'Malley
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            TERRANCE LEE SIMMONS,         :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 863395
 
            HEYL TRUCK LINES,             :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            AETNA CASUALTY & SURETY,      :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-1801
 
            Claimant awarded temporary total disability benefits which 
 
            amount defendants had already paid.  Basically, claimant 
 
            took nothing further in this decision.