BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
           
 
            ROBERT PEARSON,       
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                                   File No. 866314
 
            FIRESTONE TIRE & RUBBER    
 
            COMPANY,    
 
                                                    A P P E A L
 
                 Employer,   
 
                                                   D E C I S I O N
 
            and         
 
                        
 
            CIGNA,      
 
                        
 
                 Insurance Carrier,    
 
                 Defendants.      
 
            ____________________________________________________________
 
           
 
            The record, including the transcript of the hearing before 
 
            the deputy and all exhibits admitted into the record, has 
 
            been reviewed de novo on appeal.
 
            
 
                                          ISSUES
 
            
 
            Those portions of the proposed agency decision pertaining to 
 
            issues not raised on appeal are adopted as a part of this 
 
            appeal decision.  Defendants state the following issues on 
 
            appeal:
 
            
 
            I.  Whether claimant proved that the injury of January 19, 
 
            1987 was the cause of permanent disability to the body as a 
 
            whole.
 
            
 
            II.  Whether or not the deputy industrial commissioner erred 
 
            in determining claimant's industrial disability.
 
            
 
            III.  Whether or not the deputy industrial commissioner 
 
            erred in ruling on claimant's left shoulder injury since no 
 
            specific injury date was plead in claimant's petition.
 
            
 
                               FINDINGS OF FACT
 
            
 
            The findings of fact contained in the proposed agency 
 
            decision filed September 21, 1992 are adopted as set forth 
 
            below.  Segments designated by asterisks (*****) indicate 
 
            portions of the language from the proposed agency decision 
 
            that have been intentionally deleted and do not form a part 
 
            of this final agency decision.
 
            
 
                 Robert Pearson, just short of his 52nd birthday at 
 
            hearing, is a 1958 high school graduate.  Mr. Pearson has 
 
            further education in electronics, air craft maintenance 
 
            (during military service) and automobile mechanics.  
 
            Firestone Tire and Rubber Company is a major manufacturer of 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            various tires.  
 
            
 
                 After high school, claimant worked briefly as a gas 
 
            station attendant and a drugstore stocker/bagger.  He served 
 
            as a air craft mechanic in the United States Navy from 1960 
 
            to 1964.  He worked briefly as a mechanic's apprentice for a 
 
            taxi cab company and was a warehouseman for a company that 
 
            contracted with Firestone.  In 1966, claimant took work with 
 
            Firestone in the receiving department.  He remained there 
 
            with intermittent layoffs, for some 21 years, mostly as a 
 
            tire builder and a wire machine operator.  
 
            
 
                 The work injury or injuries here involve both 
 
            shoulders.  Claimant suffered an injury to his left shoulder 
 
            in 1960 and to his right shoulder in 1973.  Neither injury 
 
            required surgical treatment and neither injury left him with 
 
            residual medical restrictions or symptoms.  Although Mr. 
 
            Pearson has suffered numerous minor injuries during his 
 
            career at Firestone, none appear to have left him with 
 
            permanent disability or medical restrictions.
 
            
 
                 Mr. Pearson injured his right shoulder on January 19, 
 
            1987, pulling apart "beads" while building 49 inch tires.  
 
            Beads are strands of metal installed around the inside 
 
            diameter of pneumatic tires to form a seal between the tire 
 
            and its wheel.  The motion involved is similar to drawing a 
 
            heavy bow in the sport of archery.  While doing so, he 
 
            suffered a sudden sharp pain to the right shoulder which, as 
 
            shall be seen, eventually required surgical repair.
 
            
 
                 Claimant was at first treated conservatively and 
 
            returned to work on a light duty basis.  While so employed, 
 
            he developed symptomatology in the left shoulder, which he 
 
            used extensively in lieu of his injured (dominant) right 
 
            arm.  There was no specific traumatic event that brought 
 
            left sided symptomatology, although Mr. Pearson points to 
 
            some heavy work pulling inner tubes out of tires and moving 
 
            "stock" with his left hand.
 
            
 
                 The parties have treated both shoulder problems as, in 
 
            effect, a single incident.  In another case, it is possible 
 
            that the left shoulder symptomatology would be treated more 
 
            properly as a separate injury (for example, if insurance 
 
            coverage had changed during the interim), but there seems no 
 
            compelling reason to do so here.
 
            
 
                 Claimant's primary treating physician was Stephen G. 
 
            Taylor, M.D.  Dr. Taylor is an orthopedic surgeon who 
 
            performed essentially identical procedures on both 
 
            shoulders.  
 
            
 
                 Based on pre-and post-operative diagnoses of chronic 
 
            subacromial impingement syndrome of the right shoulder, Dr. 
 
            Taylor performed the following surgery on September 11, 
 
            1987: (1) Neer acromioplasty, right shoulder; (2) resection 
 
            of coracoacromial ligament, right shoulder; (3) resection 
 
            subacromial bursa, right shoulder.  This procedure without 
 
            question extended into the body as a whole (the deltoid was 
 
            split in the direction of its fiber).
 
            
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                 Based on pre-and post-operative diagnoses of (1) 
 
            chronic subacromial bursitis and impingement syndrome and 
 
            (2) post traumatic arthritis of the acromioclavicular joint, 
 
            Dr. Taylor performed the following operation on the left 
 
            shoulder on November 18, 1987: (1) resection of subacromial 
 
            bursa; (2) Neer acromioplasty and resection of 
 
            coracoacromial ligament, left shoulder; (3) Mumford distal 
 
            clavical resection, left shoulder.  This procedure also 
 
            without question invaded the body as a whole (the clavical 
 
            and deltoid).
 
            
 
                 After assigning an impairment rating of five percent to 
 
            each shoulder, Dr. Taylor wrote on June 29, 1990, that 
 
            claimant has excellent use of both shoulders, but would 
 
            benefit from avoidance of repetitive overhead use of the 
 
            arms or heavy pushing and pulling activities.  On November 
 
            26, 1991, after seeing claimant some five months earlier, 
 
            Dr. Taylor wrote that claimant continued to complain of 
 
            discomfort in both shoulders aggravated by overhead use of 
 
            the arms, but had recovered a full range of motion.  He 
 
            imposed a restriction of no overhead repetitive use of the 
 
            arms and against lifting in excess of 20 pounds above chest 
 
            height.  On July 23, 1991, Dr. Taylor had written that 
 
            claimant's shoulder symptoms had been caused and aggravated 
 
            by his work as a tire builder.  He also noted, as claimant 
 
            also testified, that he had recommended claimant not return 
 
            to work as a tire builder.
 
            
 
                 In fact, Mr. Pearson never did return to work as a tire 
 
            builder.  He remained employed on a light duty basis until 
 
            the employment relationship was severed by an "optional 
 
            layoff."  A number of factors entered into Mr. Pearson's 
 
            decision to avail himself of this separation, a program 
 
            being offered by the company at that time.  First, he knew 
 
            that he would be permanently unable to return to work as a 
 
            tire builder.  The light duty work to which he was relegated 
 
            entailed a wage loss of from 43.4 and 49.7 percent 
 
            (comparing claimant's stipulated gross weekly wage at the 
 
            time of injury to the $80-90 per day paid for light duty to 
 
            which he had been transferred).  Personal pride was also 
 
            involved, in that both management and bargaining unit 
 
            employees did not respect light duty workers and considered 
 
            them malingerers, especially at a time when Firestone was 
 
            pleading unprofitability while successfully seeking repeated 
 
            wage concessions from workers.  Under the optional program, 
 
            which was tailored to complement a Job Service program for 
 
            dislocated workers, claimant was to receive some $42,000 in 
 
            severance pay, 52 weeks of job insurance benefits, continued 
 
            medical insurance, and retraining.  Given his background as 
 
            an automotive mechanic, claimant intended to take additional 
 
            training (as he has since done) and open his own automobile 
 
            repair shop with the severance pay award.
 
            
 
                 The employment relationship actually was severed before 
 
            the first surgery was performed, but after it had been 
 
            scheduled.  Claimant knew at the time that he would not be 
 
            able to resume work as a tire builder.  
 
            
 
                 Unfortunately, Mr. Pearson's plan quickly became bogged 
 
            in the ever-changing morass that is the Internal Revenue 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            Code.  Apparently, he was disqualified from income 
 
            averaging, resulting in tax liability on severance pay in 
 
            excess of $20,000.  Finding this cost unacceptable, claimant 
 
            was able to roll the funds over into an Individual 
 
            Retirement Account, where the funds, although doubtless a 
 
            comfort as he contemplates retirement, are nonetheless 
 
            unavailable for starting a business.
 
            
 
                 Claimant attempted to revoke his participation in the 
 
            "optional layoff" even before his papers had been processed, 
 
            but was refused.  No doubt this contributes to his continued 
 
            bitterness towards Firestone, as does his belief that he was 
 
            poorly advised and informed before exercising the layoff 
 
            option.
 
            
 
                 Since recovering from surgery, claimant has taken a 
 
            number of classes at the Des Moines Area Community College.  
 
            In 1989, he earned an Associate of Applied Sciences degree 
 
            in auto mechanic technology, successfully took automotive 
 
            computer courses and small engine repair courses in 1990, 
 
            and was also certified in engine repair, brakes, engine 
 
            performance, suspension and steering (an Automotive Service 
 
            Excellence certificate) the same year.
 
            
 
                 Mr. Pearson at first conducted a diligent search for 
 
            work in the field of auto mechanics in the Des Moines area.  
 
            He has contacted essentially every such shop he knows of, 
 
            roughly 100 in all.  However, he was at first unsuccessful, 
 
            and appears now to have essentially withdrawn from the labor 
 
            market out of disappointment.  He refused jobs with a 
 
            nationally known automotive tire and repair concern because 
 
            he felt a "commission" method of compensating mechanics 
 
            employed by that business raised ethical questions, by 
 
            encouraging unnecessary repairs.  A similar compensation 
 
            scheme exposed in California has recently received a great 
 
            deal of national media attention.
 
            
 
                 Dr. Taylor has noted (July 23, 1991) that claimant is 
 
            depressed and would likely benefit from some counseling 
 
            concerning his ability to find future work activities.  On 
 
            the recommendation of his attorney, claimant was seen by Sam 
 
            L. Graham, Ph.D., a licensed psychologist.  Dr. Graham 
 
            writes on November 11, 1991:
 
            
 
                    He complains of intense feelings of anger which 
 
                 he broods about daily, sleep onset insomnia, 
 
                 significant anxiety, impairment of concentration 
 
                 and attention, and fleeting feelings of dysphoria.  
 
                 The anger and brooding he reports are focused 
 
                 primarily at Firestone who he perceives as having 
 
                 mistreated him.  He provided me with a copy of a 
 
                 six page memorandum he had directed to you 
 
                 describing his perceived mistreatment by 
 
                 Firestone.
 
            
 
            (Joint Exhibit A, page 33).
 
            
 
                 Dr. Graham recommends a therapy program focusing on 
 
            cognitive restructuring to assist in the management of 
 
            anger, dysphoria and anxiety and a general stress and pain 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            management program.  He concluded that claimant's dysphoria, 
 
            anger, anxiety and irritability were clearly sufficient to 
 
            cause impairment in adjustment to the vocational and home 
 
            environment, and that his condition was causally related to 
 
            the work related injury, the subsequent treatment of it, and 
 
            prolonged difficulty in finding suitable employment.
 
            
 
                 Mr. Pearson complains that he is now limited in many 
 
            respects, as he is weak lifting weight away from his body, 
 
            cannot push/pull, or work overhead.  He has difficulty 
 
            moving his hand across his chest, is limited with respect to 
 
            some of his activities (e.g. woodworking) and has given up 
 
            such athletic pursuits as swimming, shooting pool, riding 
 
            horses and bowling. 
 
            
 
                 He does, however, play golf.  Defendants presented 
 
            evidence that, on at least one occasion, he was able to do 
 
            so without apparent discomfort.  ***** Mr. Pearson's ability 
 
            to play golf (as he has been specifically cleared to do by 
 
            Dr. Taylor) does not reflect any significant impact on 
 
            earning capacity, does not suggest that he is less disabled 
 
            than he claims, or that Dr. Taylor's medical restrictions 
 
            should be disregarded.  *****
 
            
 
                    
 
            
 
            
 
            Page   6
 
            
 
            
 
                                 CONCLUSIONS OF LAW
 
            
 
            The conclusions of law contained in the proposed agency 
 
            decision filed September 21, 1992 are adopted as set forth 
 
            below.  Segments designated by asterisks (*****) indicate 
 
            portions of the language from the proposed agency decision 
 
            that have been intentionally deleted and do not form a part 
 
            of this final agency decision.  Segments designated by 
 
            brackets ([ ]) indicate language that is in addition to the 
 
            language of the proposed agency decision.
 
            
 
            While the parties agree that the work injury caused 
 
            permanent disability, they dispute both the nature and 
 
            extent of that disability.  Defendants are of the view that 
 
            claimant's shoulder injuries have caused disability only to 
 
            the upper extremity, and should be compensated as a 
 
            scheduled loss.  Claimant believes his disability invades 
 
            the body as a whole and should be compensated industrially.  
 
            ***** [The parties seek to distinguish this case from 
 
            Prewitt v. Firestone Tire and Rubber Company, Appeal 
 
            Decision, August 12, 1992.  It is only necessary to 
 
            distinguish one case from another when the other case 
 
            contains a holding of law that is not applicable to the case 
 
            at hand.  Prewitt does not contain a new holding of law.  
 
            Prewitt applied longstanding authority for the proposition 
 
            that the compensation for an injury to a shoulder is 
 
            determined by the situs of the impairment resulting from 
 
            that injury.  If the impairment extends beyond the arm to 
 
            the body, the compensation will be in the form of industrial 
 
            disability.  If the impairment from the injury is confined 
 
            to the arm, the compensation will be according to the 
 
            schedule.  The particular facts of Prewitt resulted in 
 
            compensation for the arm rather than the body as a whole 
 
            because the facts in Prewitt failed to show the impairment 
 
            extended beyond the arm.  Although apparently much 
 
            misunderstood, Prewitt did not set forth new law.
 
            
 
                 *****
 
            
 
                 In this case, the same legal principle applies that 
 
            applies in Prewitt and Lauhoff Grain Co. v. McIntosh, 395 
 
            N.W.2d 834 (Iowa 1986).  That is, the situs of the 
 
            impairment controls the compensation.  Although Lauhoff may 
 
            be summarized by some as standing for the principle that 
 
            "injuries to the shoulder are injuries to the body as a 
 
            whole," such is an oversimplification and misleading.  
 
            Prewitt is consistent with Lauhoff and many other 
 
            precedents of this agency in stating that, in shoulder 
 
            injuries, the situs of the impairment controls the method of 
 
            compensation.  The fact that applying this principle to the 
 
            facts of Prewitt led to an infrequently seen result does not 
 
            indicate that Prewitt has made new law; on the contrary, 
 
            Prewitt has reaffirmed longstanding law.]
 
            
 
                 In this case there is no serious doubt.  Not only do 
 
            operative reports make it clear that surgery extended on 
 
            both sides beyond the shoulder joint and into the body as a 
 
            whole, but more significantly, under Prewitt, residual 
 
            symptoms are on the body side of the joint, as claimant 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            demonstrated in the courtroom.  *****  [Claimant's 
 
            impairment from his injuries clearly extends beyond the arm 
 
            and into the body as a whole.  Dr. Taylor has assigned a 
 
            rating of permanent partial impairment to each "shoulder," 
 
            as opposed to "arm" or "upper extremity."  In addition, the 
 
            permanent restrictions by Dr. Taylor refer to no overhead 
 
            lifting or work by the arms, implying shoulder involvement.  
 
            See Exhibit A, pp. 5-6.]  This bilateral injury must be 
 
            compensated industrially.
 
            
 
                 What then the extent of that disability?
 
            
 
                 Industrial disability was defined in Diederich v. 
 
            Tri-City Ry. Co., 219 Iowa 587, 258 N.W.2d 899 (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, motivation, loss of earnings, severity and situs 
 
            of the injury, work restrictions, inability to engage in 
 
            employment for which the employee is fitted and the 
 
            employer's offer of work or failure to so offer.  Olson v. 
 
            Goodyear Serv. Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); 
 
            McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980); 
 
            Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 
 
            (1961).
 
            
 
                 Compensation for permanent partial disability shall 
 
            begin at the termination of the healing period.  
 
            Compensation shall be paid in relation to 500 weeks as the 
 
            disability bears to the body as a whole.  Section 85.34.
 
            
 
                 The diminution in Robert Pearson's earning capacity is 
 
            most clearly reflected in his post-injury employment history 
 
            at Firestone.  Before his injury, he was a tire builder 
 
            earning roughly $20.00 per hour.  Afterwards, being 
 
            permanently disqualified for that job, he found himself 
 
            relegated to light duty (and sometimes "make work" duties) 
 
            paying roughly $10.00 per hour.  Given his age, experience 
 
            and educational background, as now so heavily influenced by 
 
            medical restrictions against repetitive overhead work and 
 
            lifting over 20 pounds at chest level, the latter wage is 
 
            much more reflective of actual current earning capacity.  
 
            While claimant is admittedly unemployed at present, note 
 
            that this status came about through a separate transaction: 
 
            the decision to accept optional layoff.  Even if it be 
 
            assumed that Firestone is culpable for giving bad advice, 
 
            whether in the arcane field of federal taxation or 
 
            otherwise, claimant's remedy lies, if at all, in an action 
 
            at law rather than before the industrial commissioner.
 
            
 
                 Considering then these factors in particular and the 
 
            record otherwise in general, it is held that claimant has, 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            as a result of his bilateral shoulder injury of January 19, 
 
            1987, sustained an industrial disability equivalent to 50 
 
            percent of the body as a whole, or 250 weeks.
 
            
 
                 The parties also dispute entitlement to compensation 
 
            for Dr. Graham's evaluation.  Defendants deny that it is 
 
            causally related to the original work injury.  This, of 
 
            course, is claimant's burden to prove.  Blacksmith v. 
 
            All-American, Inc., 290 N.W.2d 348 (Iowa 1980).
 
            
 
                 The question of causal connection is essentially within 
 
            the domain of expert testimony.  The expert medical evidence 
 
            must be considered with all other evidence introduced 
 
            bearing on the causal connection between the injury and the 
 
            disability.  The weight to be given to any expert opinion is 
 
            determined by the finder of fact and may be affected by the 
 
            accuracy of the facts relied upon by the expert as well as 
 
            other surrounding circumstances.  The expert opinion may be 
 
            accepted or rejected, in whole or in part.  Sondag v. Ferris 
 
            Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar 
 
            Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, 
 
            Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
 
            
 
            While Dr. Taylor has opined that claimant suffers 
 
            depression, it does not appear that he has causally related 
 
            this need to the work injury itself, as opposed to inability 
 
            to locate work.  As noted, claimant's current unemployed 
 
            status relates to a different transaction entirely, even 
 
            though that transaction may itself have come about in large 
 
            part because of the injury.  Dr. Graham attributes causation 
 
            to a number of factors, only one of which is the work 
 
            injury.  Dr. Graham, of course, is not in any event a 
 
            physician.  The agency has previously held that a 
 
            psychologist does not have expertise in the relationship the 
 
            mind and body such as a physician, so as to express an 
 
            opinion on that issue.  Saunders v. Cherry Burrell 
 
            Corporation, II Iowa Indus. Comm'r. Rep. 333 (1982).  On 
 
            balance, the undersigned finds the causal relationship 
 
            between the original work injury and claimant's current 
 
            psychological status to be too attenuated to impose 
 
            liability.  The burden of proof is unsatisfied. 
 
            
 
            WHEREFORE, the decision of the deputy is affirmed.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE it is ordered:
 
            
 
                 That defendants shall pay unto claimant two hundred 
 
            fifty (250) weeks of permanent partial disability benefits 
 
            at the stipulated rate of four hundred fifty-two and 10/100 
 
            dollars ($452.10) per week commencing April 8, 1988.
 
            
 
                 That defendants shall have credit for all benefits 
 
            voluntarily paid prior to hearing.
 
            
 
                 That all accrued benefits shall be paid in a lump sum 
 
            together with statutory interest pursuant to Iowa Code 
 
            section 85.30.
 
            That defendants shall pay the costs of this matter including 
 
            the transcription of the hearing.  
 
            
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
                 That defendants shall file claim activity reports as 
 
            requested by the agency pursuant to rule 343 IAC 3.1.
 
            
 
            Signed and filed this ____ day of August, 1993.
 
            
 
            
 
            
 
            
 
                                      ________________________________
 
                                                 BYRON K. ORTON
 
                                           INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Channing L. Dutton
 
            Attorney at Law
 
            West Towers Office Complex
 
            1200 35th St., Ste 500
 
            West Des Moines, Iowa 50265
 
            
 
            Mr. Jeff M. Margolin
 
            Attorney at Law
 
            2700 Grand Ave., Ste 111
 
            Des Moines, Iowa 50312
 
            
 
 
            
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            ROBERT PEARSON,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 866314
 
            FIRESTONE TIRE & RUBBER       :
 
            COMPANY,                      :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            CIGNA,                        :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 Claimant Robert Pearson seeks benefits under the Iowa 
 
            Workers' Compensation Act upon his petition in arbitration 
 
            against defendant employer Firestone Tire and Rubber Company 
 
            (Firestone) and its insurance carrier, Cigna Insurance.  Mr. 
 
            Pearson sustained a work injury on January 19, 1987.
 
            
 
                 This cause came for hearing in Des Moines, Iowa on 
 
            August 31, 1992.  The record consists of joint exhibits A-G 
 
            and 5-11 along with the testimony of claimant, James 
 
            Allpress and Gregory Weiss.
 
            
 
                                      ISSUES
 
            
 
                 The parties have stipulated that claimant sustained an 
 
            injury arising out of and in the course of his employment on 
 
            January 19, 1987, that the injury caused both temporary (for 
 
            which no further relief is sought) and permanent disability, 
 
            to the commencement date for permanent partial disability 
 
            (April 8, 1988), to the rate of compensation ($452.10 per 
 
            week) and agree that defendants voluntary paid 30 weeks of 
 
            compensation at the stipulated rate over and above healing 
 
            period.
 
            
 
                 Issues presented for resolution include:
 
            
 
                 1.  The nature and extent of permanent disability;
 
            
 
                 2.  Entitlement to medical benefits.
 
            
 
                 Defendants have stipulated that the provider of medical 
 
            services (a psychologist, Sam Graham, Ph.D.) would testify 
 
            in the absence of contrary evidence that fees were 
 
            reasonable and incurred for reasonable and necessary 
 
            treatment of the work injury.  Causal connection of those 
 
            services to the work injury is disputed, as is whether the 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            expenses were authorized by defendants.  The authorization 
 
            defense was ruled invalid at hearing since defendants denied 
 
            liability on the claim, thus waiving the right to control 
 
            medical care.  Barnhart v. MAQ, Inc., I Iowa Industrial 
 
            Commissioner Report 16 (App. Dec. 1981).
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The undersigned deputy industrial commissioner finds:
 
            
 
                 Robert Pearson, just short of his 52nd birthday at 
 
            hearing, is a 1958 high school graduate.  Mr. Pearson has 
 
            further education in electronics, air craft maintenance 
 
            (during military service) and automobile mechanics.  
 
            Firestone Tire and Rubber Company is a major manufacturer of 
 
            various tires.  
 
            
 
                 After high school, claimant worked briefly as a gas 
 
            station attendant and a drugstore stocker/bagger.  He served 
 
            as a air craft mechanic in the United States Navy from 1960 
 
            to 1964.  He worked briefly as a mechanic's apprentice for a 
 
            taxi cab company and was a warehouseman for a company that 
 
            contracted with Firestone.  In 1966, claimant took work with 
 
            Firestone in the receiving department.  He remained there 
 
            with intermittent layoffs, for some 21 years, mostly as a 
 
            tire builder and a wire machine operator.  
 
            
 
                 The work injury or injuries here involve both 
 
            shoulders.  Claimant suffered an injury to his left shoulder 
 
            in 1960 and to his right shoulder in 1973.  Neither injury 
 
            required surgical treatment and neither injury left him with 
 
            residual medical restrictions or symptoms.  Although Mr. 
 
            Pearson has suffered numerous minor injuries during his 
 
            career at Firestone, none appear to have left him with 
 
            permanent disability or medical restrictions.
 
            
 
                 Mr. Pearson injured his right shoulder on January 19, 
 
            1987, pulling apart "beads" while building 49 inch tires.  
 
            Beads are strands of metal installed around the inside 
 
            diameter of pneumatic tires to form a seal between the tire 
 
            and its wheel.  The motion involved is similar to drawing a 
 
            heavy bow in the sport of archery.  While doing so, he 
 
            suffered a sudden sharp pain to the right shoulder which, as 
 
            shall be seen, eventually required surgical repair.
 
            
 
                 Claimant was at first treated conservatively and 
 
            returned to work on a light duty basis.  While so employed, 
 
            he developed symptomatology in the left shoulder, which he 
 
            used extensively in lieu of his injured (dominant) right 
 
            arm.  There was no specific traumatic event that brought 
 
            left sided symptomatology, although Mr. Pearson points to 
 
            some heavy work pulling inner tubes out of tires and moving 
 
            "stock" with his left hand.
 
            
 
                 The parties have treated both shoulder problems as, in 
 
            effect, a single incident.  In another case, it is possible 
 
            that the left shoulder symptomatology would be treated more 
 
            properly as a separate injury (for example, if insurance 
 
            coverage had changed during the interim), but there seems no 
 
            compelling reason to do so here.
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
                 Claimant's primary treating physician was Stephen G. 
 
            Taylor, M.D.  Dr. Taylor is an orthopedic surgeon who 
 
            performed essentially identical procedures on both 
 
            shoulders.  
 
            
 
                 Based on pre-and post-operative diagnoses of chronic 
 
            subacromial impingement syndrome of the right shoulder, Dr. 
 
            Taylor performed the following surgery on September 11, 
 
            1987: (1) Neer acromioplasty, right shoulder; (2) resection 
 
            of coracoacromial ligament, right shoulder; (3) resection 
 
            subacromial bursa, right shoulder.  This procedure without 
 
            question extended into the body as a whole (the deltoid was 
 
            split in the direction of its fiber).
 
            
 
                 Based on pre-and post-operative diagnoses of (1) 
 
            chronic subacromial bursitis and impingement syndrome and 
 
            (2) post traumatic arthritis of the acromioclavicular joint, 
 
            Dr. Taylor performed the following operation on the left 
 
            shoulder on November 18, 1987: (1) resection of subacromial 
 
            bursa; (2) Neer acromioplasty and resection of 
 
            coracoacromial ligament, left shoulder; (3) Mumford distal 
 
            clavical resection, left shoulder.  This procedure also 
 
            without question invaded the body as a whole (the clavical 
 
            and deltoid).
 
            
 
                 After assigning an impairment rating of five percent to 
 
            each shoulder, Dr. Taylor wrote on June 29, 1990, that 
 
            claimant has excellent use of both shoulders, but would 
 
            benefit from avoidance of repetitive overhead use of the 
 
            arms or heavy pushing and pulling activities.  On November 
 
            26, 1991, after seeing claimant some five months earlier, 
 
            Dr. Taylor wrote that claimant continued to complain of 
 
            discomfort in both shoulders aggravated by overhead use of 
 
            the arms, but had recovered a full range of motion.  He 
 
            imposed a restriction of no overhead repetitive use of the 
 
            arms and against lifting in excess of 20 pounds above chest 
 
            height.  On July 23, 1991, Dr. Taylor had written that 
 
            claimant's shoulder symptoms had been caused and aggravated 
 
            by his work as a tire builder.  He also noted, as claimant 
 
            also testified, that he had recommended claimant not return 
 
            to work as a tire builder.
 
            
 
                 In fact, Mr. Pearson never did return to work as a tire 
 
            builder.  He remained employed on a light duty basis until 
 
            the employment relationship was severed by an "optional 
 
            layoff."  A number of factors entered into Mr. Pearson's 
 
            decision to avail himself of this separation, a program 
 
            being offered by the company at that time.  First, he knew 
 
            that he would be permanently unable to return to work as a 
 
            tire builder.  The light duty work to which he was relegated 
 
            entailed a wage loss of from 43.4 and 49.7 percent 
 
            (comparing claimant's stipulated gross weekly wage at the 
 
            time of injury to the $80-90 per day paid for light duty to 
 
            which he had been transferred).  Personal pride was also 
 
            involved, in that both managment and bargaining unit 
 
            employees did not respect light duty workers and considered 
 
            them malingerers, especially at a time when Firestone was 
 
            pleading unprofitability while successfully seeking repeated 
 
            wage concessions from workers.  Under the optional program, 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            which was tailored to complement a Job Service program for 
 
            dislocated workers, claimant was to receive some $42,000 in 
 
            severance pay, 52 weeks of job insurance benefits, continued 
 
            medical insurance, and retraining.  Given his background as 
 
            an automotive mechanic, claimant intended to take additional 
 
            training (as he has since done) and open his own automobile 
 
            repair shop with the severance pay award.
 
            
 
                 The employment relationship actually was severed before 
 
            the first surgery was performed, but after it had been 
 
            scheduled.  Claimant knew at the time that he would not be 
 
            able to resume work as a tire builder.  
 
            
 
                 Unfortunately, Mr. Pearson's plan quickly became bogged 
 
            in the ever-changing morass that is the Internal Revenue 
 
            Code.  Apparently, he was disqualified from income 
 
            averaging, resulting in tax liability on severance pay in 
 
            excess of $20,000.  Finding this cost unacceptable, claimant 
 
            was able to roll the funds over into an Individual 
 
            Retirement Account, where the funds, although doubtless a 
 
            comfort as he contemplates retirement, are nonetheless 
 
            unavailable for starting a business.
 
            
 
                 Claimant attempted to revoke his participation in the 
 
            "optional layoff" even before his papers had been processed, 
 
            but was refused.  No doubt this contributes to his continued 
 
            bitterness towards Firestone, as does his belief that he was 
 
            poorly advised and informed before exercising the layoff 
 
            option.
 
            
 
                 Since recovering from surgery, claimant has taken a 
 
            number of classes at the Des Moines Area Community College.  
 
            In 1989, he eaned an Associate of Applied Sciences degree in 
 
            auto mechanic technology, successfully took automotive 
 
            computer courses and small engine repair courses in 1990, 
 
            and was also certified in engine repair, brakes, engine 
 
            performance, suspension and steering (an Automotive Service 
 
            Excellence certificate) the same year.
 
            
 
                 Mr. Pearson at first conducted a diligent search for 
 
            work in the field of auto mechanics in the Des Moines area.  
 
            He has contacted essentially every such shop he knows of, 
 
            roughly 100 in all.  However, he was at first unsuccessful, 
 
            and appears now to have essentially withdrawn from the labor 
 
            market out of disappointment.  He refused jobs with a 
 
            nationally known automotive tire and repair concern because 
 
            he felt a "commission" method of compensating mechanics 
 
            employed by that business raised ethical questions, by 
 
            encouraging unnecessary repairs.  A similar compensation 
 
            scheme exposed in California has recently received a great 
 
            deal of national media attention.
 
            
 
                 Dr. Taylor has noted (July 23, 1991) that claimant is 
 
            depressed and would likely benefit from some counseling 
 
            concerning his ability to find future work activities.  On 
 
            the recommendation of his attorney, claimant was seen by Sam 
 
            L. Graham, Ph.D., a licensed psychologist.  Dr. Graham 
 
            writes on November 11, 1991:
 
            
 
                    He complains of intense feelings of anger which 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                 he broods about daily, sleep onset insomnia, 
 
                 significant anxiety, impairment of concentration 
 
                 and attention, and fleeting feelings of dysphoria.  
 
                 The anger and brooding he reports are focused 
 
                 primarily at Firestone who he perceives as having 
 
                 mistreated him.  He provided me with a copy of a 
 
                 six page memorandum he had directed to you 
 
                 describing his perceived mistreatment by 
 
                 Firestone.
 
            
 
            (Joint Exhibit A, page 33).
 
            
 
                 Dr. Graham recommends a therapy program focusing on 
 
            cognitive restructuring to assist in the management of 
 
            anger, dysphoria and anxiety and a general stress and pain 
 
            management program.  He concluded that claimant's dysphoria, 
 
            anger, anxiety and irritability were clearly sufficient to 
 
            cause impairment in adjustment to the vocational and home 
 
            environment, and that his condition was causally related to 
 
            the work related injury, the subsequent treatment of it, and 
 
            prolonged difficulty in finding suitable employment.
 
            
 
                 Mr. Pearson complains that he is now limited in many 
 
            respects, as he is weak lifting weight away from his body, 
 
            cannot push/pull, or work overhead.  He has difficulty 
 
            moving his hand across his chest, is limited with respect to 
 
            some of his activities (e.g. woodworking) and has given up 
 
            such athletic pursuits as swimming, shooting pool, riding 
 
            horses and bowling. 
 
            
 
                 He does, however, play golf.  Defendants presented 
 
            evidence that, on at least one occasion, he was able to do 
 
            so without apparent discomfort.  This observer does not find 
 
            that Mr. Pearson's ability to play golf (as he has been 
 
            specifically cleared to do by Dr. Taylor) reflects any 
 
            significant impact on earning capacity, does not suggest 
 
            that he is less disabled than he claims, or that Dr. 
 
            Taylor's medical restrictions should be disregarded.  
 
            Claimant plays to a seven handicap for nine holes, on a 
 
            course well known to this observer, also a golfer, as 
 
            relatively easy one.  This is roughly "bogey golf," or an 
 
            average of one stroke over par per hole.  Golf at that level 
 
            clearly does not suggest potential employment as a golf 
 
            professional.  And, although his handicap is certainly 
 
            respectable, it does not indicate that claimant is so highly 
 
            skilled at the sport as to negate the existence of residual 
 
            shoulder problems.  Mr. Pearson also claims that he played 
 
            golf at a higher skill level before his surgery, although it 
 
            should be recognized that golfers, as a class, are 
 
            notoriously unreliable historians of their own former 
 
            greatness.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 While the parties agree that the work injury caused 
 
            permanent disability, they dispute both the nature and 
 
            extent of that disability.  Defendants are of the view that 
 
            claimant's shoulder injuries have caused disability only to 
 
            the upper extremity, and should be compensated as a 
 
            scheduled loss.  Claimant believes his disability invades 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            the body as a whole and should be compensated industrially.  
 
            This agency formerly compensated shoulder injuries 
 
            industrially on the basis that such injuries involved 
 
            disability to the body as a whole.  Streeter v. Iowa Meat 
 
            Processing Co., (Appeal Decision, March 31, 1989).  A recent 
 
            appeal decision emphasized that it is the situs of 
 
            disability that is determinative.  In Prewitt v. Firestone 
 
            Tire and Rubber Company, (App. Dec., August 12, 1992), the 
 
            surgeon's knife, as here, invaded the body side of the 
 
            shoulder joint, but the physician (a frequent defense 
 
            expert) opined that disability was limited to the arm only, 
 
            specifically denying disability to the body as a whole.  In 
 
            this case, though, there is no serious doubt.  Not only do 
 
            operative reports make it clear that surgery extended on 
 
            both sides beyond the shoulder joint and into the body as a 
 
            whole, but more significantly, under Prewitt, residual 
 
            symptoms are on the body side of the joint, as claimant 
 
            demonstrated in the courtroom.  Prewitt is thereby 
 
            distinguished.  This bilateral injury must be compensated 
 
            industrially.
 
            
 
                 What then the extent of that disability?
 
            
 
                 Industrial disability was defined in Diederich v. 
 
            Tri-City Ry. Co., 219 Iowa 587, 258 N.W.2d 899 (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, motivation, loss of earnings, severity and situs 
 
            of the injury, work restrictions, inability to engage in 
 
            employment for which the employee is fitted and the 
 
            employer's offer of work or failure to so offer.  Olson v. 
 
            Goodyear Serv. Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); 
 
            McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980); 
 
            Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 
 
            (1961).
 
            
 
                 Compensation for permanent partial disability shall 
 
            begin at the termination of the healing period.  
 
            Compensation shall be paid in relation to 500 weeks as the 
 
            disability bears to the body as a whole.  Section 85.34.
 
            
 
                 The diminution in Robert Pearson's earning capacity is 
 
            most clearly reflected in his post-injury employment history 
 
            at Firestone.  Before his injury, he was a tire builder 
 
            earning roughly $20.00 per hour.  Afterwards, being 
 
            permanently disqualified for that job, he found himself 
 
            relegated to light duty (and sometimes "make work" duties) 
 
            paying roughly $10.00 per hour.  Given his age, experience 
 
            and educational background, as now so heavily influenced by 
 
            medical restrictions against repetitive overhead work and 
 
            lifting over 20 pounds at chest level, the latter wage is 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            much more reflective of actual current earning capacity.  
 
            While claimant is admittedly unemployed at present, note 
 
            that this status came about through a separate transaction: 
 
            the decision to accept optional layoff.  Even if it be 
 
            assumed that Firestone is culpable for giving bad advice, 
 
            whether in the arcane field of federal taxation or 
 
            otherwise, claimant's remedy lies, if at all, in an action 
 
            at law rather than before the industrial commissioner.
 
            
 
                 Considering then these factors in particular and the 
 
            record otherwise in general, it is held that claimant has, 
 
            as a result of his bilateral shoulder injury of January 19, 
 
            1987, sustained an industrial disability equivalent to 50 
 
            percent of the body as a whole, or 250 weeks.
 
            
 
                 The parties also dispute entitlement to compensation 
 
            for Dr. Graham's evaluation.  Defendants deny that it is 
 
            causally related to the original work injury.  This, of 
 
            course, is claimant's burden to prove.  Blacksmith v. 
 
            All-American, Inc., 290 N.W.2d 348 (Iowa 1980).
 
            
 
                 The question of causal connection is essentially within 
 
            the domain of expert testimony.  The expert medical evidence 
 
            must be considered with all other evidence introduced 
 
            bearing on the causal connection between the injury and the 
 
            disability.  The weight to be given to any expert opinion is 
 
            determined by the finder of fact and may be affected by the 
 
            accuracy of the facts relied upon by the expert as well as 
 
            other surrounding circumstances.  The expert opinion may be 
 
            accepted or rejected, in whole or in part.  Sondag v. Ferris 
 
            Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar 
 
            Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, 
 
            Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
 
            
 
                 While Dr. Taylor has opined that claimant suffers 
 
            depression, it does not appear that he has causally related 
 
            this need to the work injury itself, as opposed to inability 
 
            to locate work.  As noted, claimant's current unemployed 
 
            status relates to a different transaction entirely, even 
 
            though that transaction may itself have come about in large 
 
            part because of the injury.  Dr. Graham attributes causation 
 
            to a number of factors, only one of which is the work 
 
            injury.  Dr. Graham, of course, is not in any event a 
 
            physician.  The agency has previously held that a 
 
            psychologist does not have expertise in the relationship the 
 
            mind and body such as a physician, so as to express an 
 
            opinion on that issue.  Saunders v. Cherry Burrell 
 
            Corporation, II Iowa Indus. Comm'r. Rep. 333 (1982).  On 
 
            balance, the undersigned finds the causal relationship 
 
            between the original work injury and claimant's current 
 
            psychological status to be too attenuated to impose 
 
            liability.  The burden of proof is unsatisfied.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE IT IS ORDERED:
 
            
 
                 Defendants shall pay unto claimant two hundred fifty 
 
            (250) weeks of permanent partial disability benefits at the 
 
            stipulated rate of four hundred fifty-two and 10/100 dollars 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            ($452.10) per week commencing April 8, 1988.
 
            
 
                 Defendants shall have credit for all benefits 
 
            voluntarily paid prior to hearing.
 
            
 
                 All accrued benefits shall be paid in a lump sum 
 
            together with statutory interest pursuant to Iowa Code 
 
            section 85.30.
 
            
 
                 Costs are assessed to defendants pursuant to rule 343 
 
            IAC 4.33.
 
            
 
                 Defendants shall file claim activity reports as 
 
            requested by the agency pursuant to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of September, 1992.
 
            
 
            
 
            
 
            
 
                                          
 
                                         ________________________________
 
                                          DAVID R. RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr Channing L Dutton
 
            Attorney at Law
 
            West Towers Office Complex
 
            1200 35th Street Ste 500
 
            West Des Moines Iowa 50265
 
            
 
            Mr Jeff M Margolin
 
            Attorney at Law
 
            Terrace Center Ste 111
 
            2700 Grand Avenue
 
            Des Moines Iowa 50312
 
            
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                        3800
 
                                        Filed June 19, 1995
 
                                        DAVID RASEY
 
 
 
          BEFORE THE IOWA INDUSTRIAL COMMISSIONER 
 
________________________________________________________________
 
          
 
ROBERT F. PEARSON, 
 
          
 
     Claimant, 
 
          
 
vs.       
 
                                      File No. 866314
 
FIRESTONE TIRE & RUBBER CO., 
 
                                     EXPEDITED HEARING
 
     Employer, 
 
                                         DECISION
 
and       
 
                                      (343 IAC 4.44)
 
CIGNA,   
 
          
 
     Insurance Carrier,  
 
     Defendants.    
 
________________________________________________________________
 
3800
 
In expedited proceeding, claimant asserted entitlement to interest on 
 
interest accrued on a lump sum payment of benefits, where the interest 
 
was paid almost five years after the lump sum payment was made.  Under 
 
Weishaar v. Snap-On Tools, (App. Dec. 1991), there is no provision in 
 
workers' compensation law for "interest on interest."  
 
 
 
 
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                             1803.1 - 1803
 
                                             Filed September 21, 1992
 
                                             DAVID R. RASEY
 
 
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            ROBERT PEARSON,     
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                                 File No. 866314
 
            FIRESTONE TIRE & RUBBER  
 
            COMPANY,  
 
                                             A R B I T R A T I O N
 
                 Employer, 
 
                                                 D E C I S I O N
 
            and       
 
                      
 
            CIGNA,    
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            
 
            1803.1
 
            Shoulder injury was compensated industrially where claimant 
 
            demonstrated that the situs of residual discomfort was on 
 
            the body side of the joint.  Prewitt distinguished.
 
            
 
            1803
 
            Claimant's ability to play "bogey golf" did not suggest 
 
            possible earning capacity as a golf professional or indicate 
 
            disability less than that claimed.
 
            
 
 
 
 
 
 
 
 
 
 
 
 
             BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
________________________________________________________________
 
          
 
ROBERT F. PEARSON, 
 
          
 
     Claimant, 
 
          
 
vs.       
 
                                         File No. 866314
 
FIRESTONE TIRE & RUBBER CO., 
 
                                        EXPEDITED HEARING
 
     Employer, 
 
                                            DECISION
 
and       
 
                                         (343 IAC 4.44)
 
CIGNA,   
 
          
 
     Insurance Carrier,  
 
     Defendants.    
 
________________________________________________________________
 
                    STATEMENT OF THE CASE
 
 
 
This is a contested case proceeding under Iowa Code chapter 17A.  
 
Claimant, Robert F. Pearson, was awarded 250 weeks of permanent partial 
 
disability benefits at the rate of $452.10 in an appeal decision dated 
 
August 31, 1993.  It was ordered that permanent disability benefits 
 
were to commence April 8, 1988 and that accrued benefits should be paid 
 
in a lump sum together with statutory interest pursuant to Iowa Code 
 
section 85.30.
 
 
 
Although the disability benefits and interest were eventually paid, 
 
there was a substantial delay in payment of interest.  Claimant has now 
 
filed a petition for an expedited case proceeding under rule 343 IAC 
 
4.44 to seek interest on that interest during the period of delay.
 
This case was heard by telephone conference call and fully submitted on 
 
May 31, 1995.  The record consists of defendants' exhibits 1 through 5, 
 
claimant's exhibit A, and a stipulation of fact set forth below.
 
 
 
                               ISSUE
 
 
 
The sole issue presented for resolution is whether claimant is entitled 
 
to interest payments during the time payment was delayed on interest 
 
that accrued pursuant to Iowa Code section 85.30 on unpaid permanent 
 
partial disability benefits.
 
 
 
                         FINDINGS OF FACT
 
 
 
The undersigned deputy industrial commissioner finds:
 
 
 
The parties have stipulated to the following events:
 
 
 
1-19-87:   Claimant injures shoulder pulling apart tire beads.           
 
           This results in healing period payments being made.
 
9-11-87:   R. shoulder surgery
 
11-18-87:  L. shoulder surgery
 
4-7-88:    By agreement, the parties end healing period.  PPD            
 
           commences on 4-8-88.
 
4-8-88:    Conversion date for which PPD would be paid based on             
 
           earlier shoulder injuries/surgeries.
 
4-8-88 to 11-4-88:  This is the time period during which the thirty       
 
            weeks of PPD was due.  This thirty weeks was calculated       
 
            based upon ratings to the upper extremities by the treating 
 
            physician.
 
11-6-89:   Almost one year to the day after the thirty weeks was due,        
 
           the employer made a lump sum payment to the claimant for  
 

 
 
 
 
 
 
 
 
 
 
 
 
 
the thirty weeks (452.10 x 30 = approx. 13,563.00).                    
 
 
 
There was no interest included at that time.  Had interest                      been calculated as of this date, 
 
the employer would have owed $1,734.48 in interest.
 
 
 
7-13-94:   1,710 days after the employer made the lump sum payment         
 
           of thirty weeks of PPD, the employer moves forward and           
 
           pays the amount of $1,734.48 as interest.  This is the             
 
           amount of money due as of November 6, 1989 but                     
 
           includes no payment for the nearly 5 year delay in 
 
           payment of benefits (244.286 weeks delayed).
 
 
 
                      CONCLUSIONS OF LAW
 
 
 
Claimant is of the view that interest is owing on the $1,734.48 payment 
 
of interest on permanent disability between the date that lump sum 
 
weekly benefits were paid (November 6, 1989) and the date that the 
 
interest was actually paid (July 13, 1994).
 
 
 
In Weishaar v. Snap-On Tools, 847903/848681/848682 (App. Dec. 1991), 
 
the commissioner reviewed a contention that defendants should be 
 
ordered to pay interest on unpaid benefits under Iowa Code section 
 
85.30 and that interest should be assessed on the interest itself.  The 
 
commissioner held:
 
     
 
     There is no provision in the workers' compensation law for "interest on 
 
interest."  McKeever, above [McKeever Custom Cabinets v. Smith, 379 
 
N.W.2d 368 (Iowa 1985)], establishes the date of injury and the 
 
interest for any unpaid benefits will be calculated according to the 
 
principles enunciated in Teel v. McCord, 394 N.W.2d 405 (1986); 
 
Dickenson v. John Deere Prod. Eng., 395 N.W.2d 644 (Iowa App. 1986);  
 
Farmer's Elevator Co., Kingsley v. Manning, 286 N.W.2d 174 (Iowa 1979); 
 
and Benson v. Good Samaritan Center, Ruling on Rehearing, Oct. 18, 1989 
 
 
 
Weishaar was itself reviewed by the Iowa Court of Appeals, Weishaar v. 
 
Snap-On Tools Corp., 506 N.W.2d 786 (Iowa App. 1993.  The Weishaar 
 
court held that section 86.13 penalty benefits were not allowable on 
 
late interest payments, but did not specifically address the question 
 
of whether interest was due on interest, other than citing section 
 
85.30 and Farmer's Elevator Co. v. Manning, 286 N.W.2d 174 (Iowa 1979). 
 
 
 
Neither the Code nor Farmers Elevator addressed the issue presented.
 
Accordingly, the commissioner's determination in Weishaar remains the 
 
law of this agency.  There is still no provision in the workers' 
 
compensation law for "interest on interest."  Any re-examination of 
 
that standard must come, if at all, from a higher authority.
 
 
 
                               ORDER
 
 
 
THEREFORE IT IS ORDERED:
 
 
 
No additional interest payments are awarded.
 
 
 
Signed and filed this _____ day of June, 1995.         
 
                                  _______________________________
 
                                  DAVID RASEY         
 
                                  DEPUTY INDUSTRIAL COMMISSIONER
 
 
 
Copies To:
 
 
 
Mr. Channing L. Dutton
 
Attorney at Law
 
West Towers Office Complex
 
1200 35th Street STE 500
 
West Des Moines, Iowa 50266
 
 
 
Mr. Jeff Margolin
 
Attorney at Law
 
2700 Grand Ave, STE 111
 
Des Moines, Iowa  50312
 
 
 
 
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            ROBERT HOBBS,    
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                               File No. 866369
 
            WEITZ COMPANY, INC.,       
 
                                                 A P P E A L
 
                 Employer,   
 
                                               D E C I S I O N
 
            and         
 
                        
 
            EMPLOYERS MUTUAL COMPANIES,     
 
                        
 
                 Insurance Carrier,    
 
                 Defendants.      
 
            ____________________________________________________________
 
            
 
            The record, including the transcript of the hearing before 
 
            the deputy and all exhibits admitted into the record, has 
 
            been reviewed de novo on appeal.  The decision of the deputy 
 
            filed December 13, 1993 is affirmed and is adopted as the 
 
            final agency action in this case.
 
            Claimant shall pay the costs of the appeal, including the 
 
            preparation of the hearing transcript.
 
            Signed and filed this ____ day of March, 1994.
 
            
 
            
 
            
 
            
 
                                     ________________________________
 
                                     BYRON K. ORTON
 
                                     INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Scott M. Wood
 
            Attorney at Law
 
            408 SW 3rd 
 
            Ankeny, Iowa 50021
 
            
 
            Mr. D. Brian Scieszinski
 
            Attorney at Law
 
            801 Grand Ave., Ste 3700
 
            Des Moines, Iowa 50309-2727
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                              2909; 2402
 
                                              Filed March 31, 1994
 
                                              Byron K. Orton
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            ROBERT HOBBS,    
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                                File No. 866369
 
            WEITZ COMPANY, INC.,       
 
                                                  A P P E A L
 
                 Employer,   
 
                                                D E C I S I O N
 
            and         
 
                        
 
            EMPLOYERS MUTUAL COMPANIES,     
 
                        
 
                 Insurance Carrier,    
 
                 Defendants.      
 
            ____________________________________________________________
 
            
 
            
 
            2909
 
            Upon a joint motion to bifurcate a limitations issue, the 
 
            parties agreed to contest that question as an expedited 
 
            proceeding.  When the defense succeeded, the pending 
 
            arbitration case was dismissed.
 
            
 
            2402
 
            Payments for "lost time" for repeated medical examinations 
 
            were not "weekly compensation benefits" within the meaning 
 
            of section 85.26(1).  The payments, made under section 
 
            85.39, reimbursed claimant for loss of current wages, not 
 
            his compensation rate for the work injury.  Weekly benefits 
 
            were paid, but claimant failed to file his petition within 
 
            three years after the last payment.  The statute was not 
 
            tolled by the "lost time" payments.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                         2909; 2402
 
                                         Filed December 13, 1993
 
                                         DAVID R. RASEY
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            ROBERT HOBBS,  
 
                      
 
                 Claimant,                     File No. 866369
 
                      
 
            vs.                                E X P E D I T E D
 
                      
 
            WEITZ COMPANY, INC.,               H E A R I N G
 
                      
 
                 Employer,                     D E C I S I O N
 
                      
 
            and                                (343 IAC 4.44)
 
                      
 
            EMPLOYERS MUTUAL COMPANIES,  
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            
 
            2909
 
            Upon a joint motion to bifurcate a limitations issue, the 
 
            parties agreed to contest that question as an expedited 
 
            proceeding.  When the defense succeeded, the pending 
 
            arbitration case was dismissed.
 
            
 
            2402
 
            Payments for "lost time" for repeated medical examinations 
 
            were not "weekly compensation benefits" within the meaning 
 
            of section 85.26(1).  The payments, made under section 
 
            85.39, reimbursed claimant for loss of current wages, not 
 
            his compensation rate for the work injury.  Weekly benefits 
 
            were paid, but claimant failed to file his petition within 
 
            three years after the last payment.  The statute was not 
 
            tolled by the "lost time" payments.
 
            
 
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            ROBERT HOBBS,                 :
 
                                          :
 
                 Claimant,                :      File No. 866369
 
                                          :
 
            vs.                           :         EXPEDITED
 
                                          :
 
            WEITZ COMPANY, INC.,          :          HEARING
 
                                          :
 
                 Employer,                :         DECISION
 
                                          :
 
            and                           :      (343 IAC 4.44)
 
                                          :
 
            EMPLOYERS MUTUAL COMPANIES,   :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                 Claimant Robert Hobbs filed a petition in arbitration 
 
            against employer Weitz Company, Inc., and its insurance 
 
            carrier, Employers Mutual Companies.  The cause was 
 
            scheduled for hearing on January 14, 1994.  On November 12, 
 
            1993, the parties filed a joint application for bifurcated 
 
            hearing to separately address the merits of defendants' 
 
            affirmative defense of limitations under Iowa Code section 
 
            85.26.
 
            
 
                 A telephone hearing on the joint application was held 
 
            on November 15, 1993.  After hearing arguments of counsel, 
 
            the undersigned offered to bifurcate and hear the 
 
            limitations issue either as a binding arbitration under rule 
 
            343 IAC 4.42 or as an expedited proceeding under rule 343 
 
            IAC 4.44(1).  The parties agreed to submit the issue in the 
 
            context of a rule 4.44 expedited proceeding.
 
            
 
                 A telephone hearing was accordingly held on November 
 
            24, 1993.  The record consists of claimant's and Robert 
 
            Truhlsen's testimony, claimant's exhibits 1-3 and 
 
            defendants' exhibits 4-10.
 
            
 
                                      ISSUE
 
            
 
                 The sole issue presented for resolution is whether 
 
            claimant's action is barred by limitations under Iowa Code 
 
            section 85.26.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The undersigned deputy industrial commissioner finds:
 
            
 
                 Robert Hobbs claims to have been injured when he was 
 
            struck by falling concrete on October 2, 1987.  Defendants 
 
            voluntarily paid certain weekly benefits through the week 
 
            ending April 25, 1988.  A check for the last week, based on 
 
            a weekly compensation rate of $283.66, was issued on May 24, 
 
            1988.  
 

 
            
 
            Page   2
 
            
 
            
 
            
 
                 Claimant's petition for arbitration was filed on 
 
            February 27, 1992, almost four years later.
 
            
 
                 On a number of occasions between July 25, 1988 and 
 
            March 9, 1992, claimant was reimbursed for prescription 
 
            costs and for mileage, meals and "lost time" relating to a 
 
            number of doctors' appointments.  The record is a little 
 
            unclear as to whether these appointments were for treatment 
 
            (Iowa Code section 85.27) or evaluation (85.39); however, as 
 
            shall be seen, it makes no difference.
 
            
 
                 Reimbursement for "lost time" was based on claimant's 
 
            actual loss of current wages, not the compensation rate 
 
            under which temporary disability benefits were paid up to 
 
            May 24, 1988.  Different claims adjuster for defendant 
 
            Employers Mutual reimbursed these lost wages at, variously, 
 
            100 percent and 75 percent (a rough approximation of 
 
            claimant's net loss after normal taxes are deducted from 
 
            gross wages).
 
            
 
                 A typical illustration is the April 23, 1990 letter 
 
            from claimant's attorney to Employers Mutual.  That letter 
 
            presented a claim for mileage expense of 240 miles and a 
 
            loss of eight hours wages at $13.60 per hour associated with 
 
            claimant's March 23 appointment with Dr. Verduyn.  On April 
 
            26, a check was issued in the sum of $159.20.  This total is 
 
            consistent, to the penny, with eight hours of lost wages at 
 
            $13.60 and 240 miles at $.21 per mile (the rate at which the 
 
            state of Iowa reimburses mileage, and one commonly used by 
 
            insurance carries).
 
            
 
                         ANALYSIS AND CONCLUSIONS OF LAW
 
            
 
                 Iowa Code section 85.26(1) provides:
 
            
 
                       An original proceeding for benefits under 
 
                    this chapter or chapter 85A, 85B, or 86, 
 
                    shall not be maintained in any contested 
 
                    case unless the proceeding is commenced 
 
                    within two years from the date of the 
 
                    occurrence of the injury for which benefits 
 
                    are claimed or, if weekly compensation 
 
                    benefits are paid under section 86.13, 
 
                    within three years from the date of the last 
 
                    payment of weekly compensation benefits.
 
            
 
                 Under section 85.26(3), filing of an original notice in 
 
            the industrial commissioner's office is the only act 
 
            constituting "commencement" of an original proceeding for 
 
            benefits.  The filing of claimant's petition on February 27, 
 
            1992, is not within three years from the date of the last 
 
            undisputed payment of weekly benefits, May 24, 1988.
 
            
 
                 However, claimant seeks to avoid operation of the 
 
            statute on two colorable theories: (a) the "discovery" rule, 
 
            and (b) that reimbursement for lost time constitutes "weekly 
 
            compensation benefits" within the meaning of section 
 
            85.26(1).
 
            
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                 Under the discovery rule, statutes of limitation do not 
 
            begin to run until an injured party has actual or imputed 
 
            knowledge of the cause of action; a party asserting an 
 
            exception to the expiration of limitations has the burden of 
 
            proving the exception.  Beeck v. Aquaslide 'N' Dive Corp., 
 
            350 N.W.2d 149 (Iowa 1984).  The two-year statute of 
 
            limitations in workers' compensation cases begins running 
 
            when claimant should know, as a reasonable person, that his 
 
            injury is both serious and work connected.  Orr v. Lewis 
 
            Central School Dist., 298 N.W.2d 256 (Iowa 1980).  
 
            
 
                 However, the discovery rule is not applicable in this 
 
            case.  It is undisputed that weekly benefits were paid in 
 
            1987 and 1988.  Therefore, under section 85.26(1), the 
 
            three-year statute (from the date of the last payment) 
 
            applies.  The Iowa court has ruled that the discovery rule 
 
            simply does not apply to the three-year statute of 
 
            limitations.  Whitmer v. International Paper Co., 314 N.W.2d 
 
            411 (Iowa 1982).
 
            
 
                 Only "weekly compensation benefits" paid under section 
 
            86.13 operate to extend the three-year statute of 
 
            limitations.  Payment of medical benefits alone does not 
 
            extend the statute.  Powell v. Bestwall Gypsum Co., 255 Iowa 
 
            937 124 N.W.2d 448 (1963); Rankin v. National Carbide Co., 
 
            254 Iowa 611 118 N.W.2d 575 (1962).
 
            
 
                 Weekly compensation benefits are of five kinds: death 
 
            benefits (85.31), temporary total disability (85.33[1]), 
 
            temporary partial disability (85.33[2]), healing period 
 
            (85.34[1]) and permanent disability, both partial and total 
 
            (85.34[2] and [3]).  Except for death benefits, the key 
 
            concept in each case is "disability."  In the context of 
 
            this analysis, even death may be conceptualized as an 
 
            extreme form of disability.
 
            
 
                 By contrast, the "lost wages" reimbursed here were not 
 
            based on disability, but upon the necessity that claimant 
 
            miss work for doctors' appointments.  As shown by the 
 
            illustration cited above, the reimbursement was not keyed to 
 
            claimant's compensation rate (as all weekly benefits are), 
 
            but to claimant's loss of current wages (along with mileage 
 
            and expenses) based on his employment and wage rate at the 
 
            time of each appointment.  Although claimant professes 
 
            ignorance as to the nature of these payments, it is noted 
 
            that they were generally arranged through his attorney, 
 
            Scott Wood.
 
            
 
                 The "lost time" payments were clearly not offered on 
 
            account of disability, but to compensate time lost due to 
 
            medical appointments.  Defendants take the position that all 
 
            such payments were made under Iowa Code section 85.39, which 
 
            requires an employee to submit for examination at the 
 
            employer's request with the following significant proviso:
 
            
 
                    If an employee is required to leave work for 
 
                    which the employee is being paid wages to 
 
                    attend the requested examination, the 
 
                    employee shall be compensated at the 
 
                    employee's regular rate for the time the 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                    employee is required to leave work * * *.
 
            
 
                 Even if the appointments were for treatment, rather 
 
            than for examination at the employer's request, the result 
 
            is the same.  Iowa Code section 85.27, which requires liable 
 
            employers to provide suitable medical care, does not require 
 
            reimbursement for lost work time.  And if such payments were 
 
            construed to fall under section 85.27, we have already seen 
 
            that the mere payment of medical benefits does not extend 
 
            the statute of limitations.  Powell, Rankin, Id.
 
            
 
                 Also, it has been held that time off work for medical 
 
            appointments does not qualify as compensable healing period 
 
            for lack of statutory authority. Thilges v. Snap-On Tools 
 
            Corp., (Appeal Dec., February 10, 1993).
 
            
 
                 For all these reasons, it must be concluded that the 
 
            "lost time" reimbursement made on several occasions 
 
            subsequent to May 24, 1988 cannot reasonably be construed as 
 
            "weekly compensation benefits" within the meaning of section 
 
            85.26(1).
 
            
 
                 Claimant also argued at hearing that limitations have 
 
            not run against him because he remains in healing period 
 
            status.  It is unnecessary to determine whether he is or is 
 
            not; the fact of disability in and of itself does not toll 
 
            the statute.  Rather, under section 85.26(1), limitations is 
 
            specifically measured as three years from the date of the 
 
            last payment of weekly compensation benefits.
 
            
 
                 It is accordingly held that defendants have established 
 
            their affirmative defense.  Under section 85.26(1), this 
 
            original proceeding for benefits "shall not be maintained."  
 
            All pending issues are therefore rendered moot.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Claimant takes nothing.  The pending arbitration case 
 
            is dismissed.
 
            
 
                 Costs are assessed to defendants.
 
            
 
                 Signed and filed this ____ day of December, 1993.
 
            
 
            
 
            
 
            
 
                                          
 
                                       ________________________________
 
                                          DAVID R. RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr Scott M Wood
 
            Attorney at Law
 
            408 SW 3rd 
 
            Ankeny Iowa 50021
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
            Mr D Brian Scieszinski
 
            Attorney at Law
 
            801 Grand Avenue
 
            Suite 3700
 
            Des Moines Iowa 50309-2727
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         LEONARD ASSMANN,
 
         
 
              Claimant,
 
                                                    File No. 866389
 
         vs.
 
                                                 D E C L A R A T O R Y
 
         BLUE STAR FOOD,
 
                                                      R U L I N G
 
              Employer,
 
         
 
         and                                           F I L E D
 
         
 
         MARYLAND CASUALTY COMPANY,                   MAY 18 1988
 
         
 
              Insurance Carrier,              IOWA INDUSTRIAL COMMISSIONER
 
              Defendants.
 
         
 
         
 
              Defendant Maryland Casualty Company has requested a 
 
         declaratory ruling pursuant to Industrial Commissioner's Rule 
 
         343-5.1 (86, 17A).  That rule provides for a declaratory ruling 
 
         by this agency as to the applicability of any statutory 
 
         provision, rule or other written statement of law or policy, 
 
         decision or order of the industrial commissioner.
 
         
 
                                  ISSUES
 
         
 
              Defendant Maryland Casualty Company requests a declaratory 
 
         ruling on the following issues:
 
         
 
              1.  Whether refusal of the employee to consult with and 
 
         permit treatment by Dr. Fabry would constitute an unreasonable 
 
         refusal of medical treatment thereby forfeiting the employee's 
 
         rights to compensation.
 
         
 
              2.  Whether the employee's failure to keep the medical 
 
         appointments and physical therapy appointments constitutes 
 
         unreasonable refusal of medical treatment thereby forfeiting the 
 
         employee's rights to compensation.
 
         
 
              3.  Whether the rehabilitation nurse, Eileen Sasse, has a 
 
         right to attend conferences between the employee's and the 
 
         medical providers in order that the nurse may help provide 
 
         medical history, obtain a first hand report from the medical 
 
         providers of what needs to be done, help furnish centralized 
 
         monitoring of medications and treatment, to help make certain 
 
         that the employee keeps appointments and to help furnish 
 
         information to the medical providers to improve the quality of 
 
         care.
 
         
 
                                                
 
                                                         
 
                           STATEMENT OF THE CASE
 
         
 
              The employer filed a first report of injury in this case on 
 
         October 26, 1987, showing a date of injury of October 21, 1987. 
 
         The first report of injury indicates that the employee suffered 
 
         the traumatic amputation of his arm when his shirt-sleeve was 
 
         caught in a lathe at work.
 
         
 
              The employee has allegedly missed appointments with medical 
 
         providers and physical therapy workers, has declined to meet with 
 
         a psychologist recommended by defendants, and the employee's 
 
         attorney has refused to allow a nurse employed by defendant 
 
         Maryland Casualty Company to be present at medical treatment 
 
         sessions between the employee and Dr. Murphy as well as other 
 
         medical providers.  Defendant Maryland Casualty Company filed a 
 
         petition for declaratory ruling on April 19, 1988.
 
         
 
                             APPLICABLE LAW
 
         
 
              Section 85.39 of the Code of Iowa states, in part:
 
         
 
                   After an injury, the employee, if requested by the 
 
              employer, shall submit for examination at some reasonable 
 
              time and place and as often as reasonably requested, to a 
 
              physician or physicians authorized to practice under the 
 
              laws of this state or another state, without cost to the 
 
              employee; but if the employee requests, the employee, at the 
 
              employee's own cost, is entitled to have a physician or 
 
              physicians of the employee's own selection present to 
 
              participate in the examination.....The refusal of the 
 
              employee to submit to the examination shall suspend the 
 
              employee's right to any compensation for the period of the 
 
              refusal.
 
         
 
              Section 85.27 of the Code of Iowa states, in part:
 
         
 
                   The employer, for all injuries compensable under this 
 
              chapter or chapter 85A, shall furnish reasonable surgical, 
 
              medical, dental, osteopathic, chiropractic, podiatric, 
 
              physical rehabilitation, nursing, ambulance and hospital 
 
              services and supplies therefor and shall allow reasonably 
 
              necessary transportation expenses incurred for such 
 
              services....
 
         
 
                   ....
 
         
 
                   For purposes of this section, the employer is obliged 
 
              to furnish reasonable services and supplies to treat an 
 
              injured employee, and has the right to choose the care.
 
         
 
              The Iowa Supreme Court has recited the proposition that a 
 
         claimant's arbitrary or unreasonable refusal to submit to medical 
 
         treatment or surgery, designed to cure or minimize a disability 
 
         that does not seriously endanger claimant's life or health, may 
 
         warrant a reduction, suspension or forfeiture of such 
 
                                                
 
                                                         
 
         compensation.  Stufflebean v. City of Fort Dodge, 233 Iowa 438, 9 
 
         N.W.2d 281 (1943).
 
         
 
              Iowa Code section 85.39 contemplates examinations by 
 
         psychiatrists and psychiatrist-referred experts authorized to 
 
         practice under the laws of the state of Iowa, but does not 
 
         contemplate examination by a psychologist.  Lucia v. Vitalis 
 
         Truck Lines, 1 Iowa Industrial Commissioner,Report 210 (1981).
 
         
 
              An employer's right to select the provider of medical 
 
         treatment to an injured worker does not include the right to 
 
         determine how an injured worker should be diagnosed, evaluated, 
 
         treated, or other matters of professional medical judgment.  
 
         Graves v. Crouse Cartage Company, (Arbitration Decision, July 27, 
 
         1987); Pote v. Mickow Corporation, (Review-reopening Decision, 
 
         June 17, 1986).  Inclusion by specific mention excludes what is 
 
         not mentioned.  Pierce v. Bekins V. & S. Co., 185 Iowa 1346, 172 
 
         N.W. 191 (1919; North Iowa Steel Co. v. Staley, 253 Iowa 355, 112 
 
         N.W.2d 364 (1962).  Legislative intent is expressed by omission as 
 
         well as by inclusion.  State v. Flack, 251 Iowa 529, 101 N.W.2d 
 
         535 (1960).
 
         
 
                                ANALYSIS
 
         
 
              The insurance carrier requests a ruling that the employee is 
 
         required to consult with and permit treatment by Dr. Fabry, a 
 
         psychologist.  It is to be noted initially that section 85.27 of 
 
         the Code of Iowa speaks of the right of the employer to choose 
 
         the care received by the employee.  That section does not grant a 
 
         similar right to the employer's insurance carrier.
 
         
 
              In addition, section 85.27 refers to the obligation to 
 
         provide reasonable surgical, medical, and other enumerated 
 
         services to an employee.  The services of a psychologist are not 
 
         among the enumerated services.  Unless referred by a medical 
 
         provider, the services of a psychologist are not medical 
 
         services, and therefore are not contemplated by section 85.27.  
 
         Thus, the employee is not required to consult with or submit to 
 
         treatment by Dr. Fabry.
 
         
 
              The employee is required to submit to an independent 
 
         examination under Iowa Code section 85.39, and a refusal to 
 
         submit for an examination may result in suspension of the 
 
         employee's benefits.  That section refers to an examination, and 
 
         does not deal with treatment.  The medical appointments and 
 
         physical therapy appointments referred to in the petition for 
 
         declaratory ruling constitute treatment, not an examination.  The 
 
         employee cannot suffer suspension of compensation under section 
 
         85.39 for a failure to attend treatment.
 
         
 
              The employee is already receiving psychiatric care from a 
 
         psychiatrist, Dr. Graz.  A psychiatrist, being a physician, is 
 
         better equipped to deal with the physical aspects of the 
 
         employee's condition.  The employee has expressed a preference 
 
         for working with Dr. Graz, and it appears that progress is 
 
                                                
 
                                                         
 
         being,made. The employee indicated a reluctance to begin 
 
         counseling sessions with Dr. Fabry, and wanted to avoid "doctor 
 
         hopping."
 
         
 
              Section 85.27 does not contemplate the services of a 
 
         psychologist as part of an employee's medical treatment unless 
 
         the employee is referred to the psychologist by a medical 
 
         provider that is enumerated under section 85.27.  In the instant 
 
         case, there are insufficient facts to make the determination 
 
         whether the services of Dr. Fabry are the result of a referral by 
 
         Dr. Stromberg.  Although Exhibit B alleges a referral to "a 
 
         psychologist" was made by Dr. Stromberg, exhibit B also shows 
 
         that the employee continued to undergo care by Dr. Graz, a 
 
         psychiatrist for some time thereafter.  It appears from the 
 
         information provided that the decision to seek the services of 
 
         Dr. Fabry may have been made by the petitioner rather than the 
 
         treating physician.  The petitioner's nurse, at page 3 of Exhibit 
 
         3, states that the services of both Dr. Graz, the psychiatrist, 
 
         and Dr. Fabry, the psychologist, would be offered to the employee 
 
         and that the employee would make the decision as to which 
 
         services to utilize, and that it would be detrimental to force 
 
         the employee to consult a psychologist if he was not in favor of 
 
         doing so.  It cannot be determined on these facts whether a 
 
         medical referral to a psychologist has been made.
 
         
 
                                
 
                                                         
 
              The exhibits attached to the petition do show that the 
 
         employee failed to attend both medical appointments and physical 
 
         therapy appointments.  The claimant missed one or two 
 
         appointments with each of his doctors.  The medical appointments 
 
         missed were usually rescheduled and the employee then did attend.  
 
         The most recent statement as to physical therapy sessions states 
 
         that the employee's attendance has improved.  Although the 
 
         employee's cooperation in attending medical appointments and 
 
         physical therapy sessions may ultimately affect the determination 
 
         of what benefits, if any, he is entitled to, his non-attendance 
 
         of medical appointments and physical therapy sessions as it 
 
         appears in the exhibits provided does not compel a conclusion 
 
         that he has unreasonably refused medical treatment.
 
         
 
              Defendant insurance carrier also seeks an order permitting a 
 
         nurse employed by it to attend the employee's sessions with his 
 
         doctors.  It should be pointed out that the nurse in question is 
 
         supervising the employee's ongoing recovery and rehabilitation 
 
         processes.  Defendant insurance carrier contemplates her presence 
 
         at sessions between the employee and his doctors not as a nurse 
 
         who will assist the doctor in his physical examination, but 
 
         rather the nurse would be used for the stated purposes of helping 
 
         to "provide medical history, obtain a first hand report from the 
 
         medical providers of what needs to be done, help furnish 
 
         centralized monitoring of medications and treatment, to help make 
 
         certain that claimant [sic] keeps appointments and to help 
 
         furnish information to the medical providers to improve the 
 
         quality of care."
 
         
 
              The nurse may properly converse with the employee and 
 
         attempt to maximize the utilization by the employee of medical 
 
         and rehabilitative services available to him.  But the nurse will 
 
         not be part of the decision as to what course of treatment the 
 
         employee should follow, as that determination is a medical 
 
         decision that will be made by the employee's doctors.
 
         
 
              Section 85.27 does not make any reference to the presence of 
 
         other parties during the employee's treatment sessions with his 
 
         physicians.  By comparison, section 85.39 speaks of the presence 
 
         of a physician of claimant's choice being present at an 
 
         independent examination.  Even that provision is limited to 
 
         physicians, and does not contemplate the presence of nurses, or 
 
         attorneys representing the parties, or rehabilitation 
 
         specialties, for example.  It is a rule of statutory construction 
 
         that the inclusion by specific mention excludes what is not 
 
         mentioned.  If the legislature had intended for persons other 
 
         than the treating physician to be involved in claimant's 
 
         treatment sessions, it could have provided for this under section 
 
         85.27 as it provided for the presence of the employee's physician 
 
         at independent examinations in section 85.39.  Since such a 
 
         provision does not appear in section 85.27, it is concluded that 
 
         the presence of a nurse or other representative of petitioner 
 
         during treatment sessions is not authorized by section 85.27.
 
         
 
                                   ORDER
 
                                                
 
                                                         
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That the failure of an employee to attend treatment sessions 
 
         with a psychologist who is referred by a medical provider may 
 
         result in a forfeiture, suspension, or reduction of benefits.
 
         
 
              That the failure of an employee to attend treatment sessions 
 
         with a psychologist who is not referred by a medical provider 
 
         will not result in a forfeiture, suspension, or reduction of 
 
         benefits.
 
         
 
              That the employee's alleged failure to attend medical and 
 
         physical therapy appointments under the facts presented is not an 
 
         unreasonable refusal such as to result in a forfeiture of 
 
         benefits.
 
         
 
              Section 85.27 does not authorize a nurse or other 
 
         representative of defendants to attend treatment sessions between 
 
         an employee and his medical providers.
 
         
 
              Signed and filed this 18th day of May, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                                    DAVID E. LINQUIST
 
                                                 INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Sheldon M. Gallner
 
         Attorney at Law
 
         P.O. box 1588
 
         Council Bluffs, Iowa  51502
 
         
 
         Mr. Phillip Willson
 
         Attorney at Law
 
         P.O. Box 249
 
         35 Main Place
 
         Council Bluffs, Iowa  51502
 
 
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 2505; 2501
 
                                                 Filed May 18, 1988
 
                                                 David E. Linquist
 
         
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         LEONARD ASSMANN,
 
         
 
              Claimant,
 
                                                   File No. 866389
 
         vs.
 
         
 
         BLUE STAR FOOD,                        D E C L A R A T 0 R Y
 
         
 
              Employer,                             R U L I N G
 
         
 
         and
 
         
 
         MARYLAND CASUALTY COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         2505
 
         
 
              Held a psychologist is not an enumerated medical provider 
 
         under section 85.27.  The failure of an employee to attend 
 
         treatment sessions with a psychologist who is referred by a 
 
         medical provider may result in a forfeiture, suspension, or 
 
         reduction of benefits.  The failure of an employee to attend 
 
         treatment sessions with a psychologist who is not referred by a 
 
         medical provider will not result in a forfeiture, suspension, or 
 
         reduction of benefits.  Insufficient evidence appeared on the 
 
         record to determine if a referral to a psychologist had been made 
 
         in this case.
 
         
 
         2501
 
         
 
              It was held that section 85.27 does not authorize a nurse or 
 
         other representative of defendants to attend treatment sessions 
 
         between an employee and his medical providers.
 
         
 
              Employee's failure to attend some of his medical 
 
         appointments, followed by attendance at rescheduled appointments, 
 
         held not to constitute a refusal.
 
 
 
         
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            EMILIO R. RASCON,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 866750
 
            MT. ARBOR NURSERIES,          :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            CRUM & FORSTER COMMERCIAL     :
 
            INS.,                         :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration upon claimant's 
 
            petition filed October 27, 1988.  Claimant sustained a 
 
            traumatic injury to his back arising out of and in the 
 
            course of his employment on October 24, 1987, and now seeks 
 
            benefits under the Iowa Workers' Compensation Act from his 
 
            employer, Mt. Arbor Nurseries, and its insurance carrier, 
 
            Crum & Forster Commercial Insurance.
 
            
 
                 Hearing on the arbitration petition was had in Council 
 
            Bluffs, Iowa, on December 13, 1989.  The record consists of 
 
            joint exhibits 1 through 6, 8 through 16, and the testimony 
 
            of the following witnesses:  claimant, JoEtta Rascon, 
 
            Carolyn Buckley, Judy Williams, Austin Hegwood and Cecilia 
 
            Blaskovich.
 
            
 
                 In addition, joint exhibit 7 was offered subject to 
 
            objection and ruling was reserved.  Upon review of the 
 
            exhibit, the objection is overruled and joint exhibit 7 is 
 
            received.  Exhibits 7a, 7b, 7c and 7d were excluded from 
 
            evidence at the time of hearing.
 
            
 
                 Since closure of the record, documents have been filed 
 
            indicating that claimant has now undergone surgical 
 
            treatment to his back.  Because it is extraneous to the 
 
            record, this surgery has been ignored in the preparation of 
 
            this decision.
 
            
 
                                      issues
 
            
 
                 Pursuant to the prehearing report, the parties have 
 
            stipulated:  that claimant sustained an injury arising out 
 
            of and in the course of his employment with Mt. Arbor 
 
            Nurseries on October 24, 1987; that the injury caused 
 
            temporary disability; that if claimant has sustained 
 
            permanent disability causally related to the injury, it is 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            an industrial disability to the body as a whole; that the 
 
            appropriate rate of weekly compensation is $166.06; that 
 
            medical benefits are no longer in dispute; that defendants 
 
            paid 80.286 weeks of compensation at the rate of $152.67 on 
 
            a voluntary basis prior to hearing.
 
            
 
                 Issues presented for resolution include:  the extent of 
 
            claimant's entitlement to compensation for temporary total 
 
            disability or healing period; whether the work injury caused 
 
            permanent disability, and if so, the extent and commencement 
 
            date thereof; taxation of costs.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy, having heard the testimony and 
 
            considered all of the evidence, finds:
 
            
 
                 Claimant was 31 years of age at the time of hearing and 
 
            a citizen of Mexico.  He attended school through the sixth 
 
            grade in that country.  Claimant came to the United States 
 
            in approximately 1981 and has since learned to communicate 
 
            in the English language, although he is not entirely fluent 
 
            and cannot read or write (although he has some spelling 
 
            skills, such as puzzling out the names of labeled plants).  
 
            Claimant does not have good arithmetic skills, although he 
 
            demonstrated the ability to correctly (if slowly) add two 
 
            three-digit numbers; he was unable to subtract one 
 
            three-digit number from another.
 
            
 
                 Claimant's work history consists of farming in Mexico, 
 
            itinerant farm work in the United States, brief employment 
 
            in the meat packing industry and intermittent employment 
 
            with defendant in 1982 and again from 1984 through hearing.
 
            
 
                 Defendant is a nursery business.  Claimant has 
 
            performed wide ranging duties characteristic of such a 
 
            business, including digging trees, tying roses, hoeing, 
 
            driving tractors, and propagating plants through cuttings.
 
            
 
                 Prior to the stipulated work injury, claimant had no 
 
            medical restrictions and no history of back problems or 
 
            injury.  He was able to do prolonged heavy lifting (even up 
 
            to 150 pounds) and was a hard, dedicated and motivated 
 
            employee who frequently earned bonuses when assigned piece 
 
            work.
 
            
 
                 The work injury occurred a few days prior to October 
 
            24, 1987, while claimant was helping load potted or 
 
            burlapped trees into a truck.  While lifting, claimant 
 
            suddenly developed a hot, sharp pain in the back.  He tried 
 
            to work a few more days, but the pain gradually increased so 
 
            as to make continued work impossible.
 
            
 
                 Claimant was first seen by Dean A. Teeter, D.O., on 
 
            October 28.  At his request, radiologist William McClain, 
 
            D.O., performed a CT scan on November 9, 1987.  The scan was 
 
            not completely satisfactory, but showed no abnormalities at 
 
            L3-L4 and L4-L5; at L5-S1 a soft tissue density in the 
 
            anterior epidural space was seen, suggesting a bulging or 
 
            herniated annulus, and conjoint nerve roots were also 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            suspected.  Dr. Teeter's report of November 11 described the 
 
            injury as low back strain of unknown permanency and 
 
            concluded that the accident claimant described was the sole 
 
            cause of his condition.
 
            
 
                 Dr. McClain performed a lumbar myelogram on November 
 
            18, 1987, but described the procedure as "fraught with 
 
            technical complications and failure of the fluoroscopic 
 
            unit."  Dr. McClain concluded that the possibility of a 
 
            bulging disc with compression of the dural sac must be 
 
            considered despite the technical limitations of the 
 
            procedure.
 
            
 
                 Claimant was also seen for consultation by Michael 
 
            Morrison, M.D.  His consultation report of November 24 
 
            described a possible disc herniation at L5-S1, described 
 
            potential permanent defects as unknown and concluded that 
 
            the accident described by claimant was the sole cause of his 
 
            condition.
 
            
 
                 A magnetic resonance imaging study was performed by 
 
            Patrick D. Mahoney, M.D., on December 1 and led to an 
 
            impression of degenerative disc at L3-4 with no herniation 
 
            and an otherwise normal study of the lumbar spine.
 
            
 
                 Claimant was next seen by Bernard Kratochvil, M.D., on 
 
            or about February 12, 1988.  Dr. Kratochvil released 
 
            claimant to return to work with restrictions on February 15 
 
            following a diagnosis of acute lumbar strain.  The 
 
            restrictions included sitting or standing at 40-50 minute 
 
            durations, occasional lifting limited to 26 pounds and 
 
            frequent lifting limited to 10 pounds with no bending or 
 
            stooping below 36 inches.  However, claimant was 
 
            unsuccessful in the early return to work and on February 29 
 
            Dr. Kratochvil took him off work until a reexamination 
 
            scheduled for March 7.  On that date, Dr. Kratochvil 
 
            continued claimant off work.  He finally concluded that 
 
            claimant had suffered low back strain without disc 
 
            herniation.
 
            
 
                 On March 17, 1988, claimant was seen by neurological 
 
            surgeon John Greene, M.D.  His report of that date to Dr. 
 
            Kratochvil was not specific as to diagnosis and recommended 
 
            more sophisticated radiological testing.
 
            
 
                 Thereafter, another CT scan of the lumbar spine read on 
 
            March 1 by W. L. Harrison, M.D., showed posterior and right 
 
            lateral disc herniation at L5-S1 and mild posterior bulging 
 
            of the annulus at L4-5 without discrete herniation.  Further 
 
            studies by David Rankin, M.D., reported on March 8, 1988 
 
            (but partly illegible due to the poor photocopy) concluded 
 
            that claimant had conjoined L5 and S1 nerve roots on the 
 
            right side, but was otherwise within normal limits.  No disc 
 
            herniation was seen.
 
            
 
                 Beginning January 21, 1988 and thereafter, claimant was 
 
            also seen by Patrick Bowman, M.D.  After numerous 
 
            appointments, Dr. Bowman concluded on April 21 that a 
 
            differential spinal examination showed claimant's pain to be 
 
            true as opposed to magnified and felt that claimant had a 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            small herniation adjacent to the conjoint tendon.  He 
 
            further concluded that claimant had reached maximum medical 
 
            improvement as of that date (claimant underwent additional 
 
            work hardening and finally did return to work on May 25, 
 
            1988), concluded that claimant had sustained an impairment 
 
            of 11 percent of the body as a whole "as a result of this," 
 
            and suggested further acupuncture treatment, possible 
 
            surgery (which might take away enough of claimant's pain to 
 
            improve his day-to-day life, but probably not enough to 
 
            permit him to return to heavy physical labor) and vocational 
 
            rehabilitation.
 
            
 
                 Dr. Bowman's report of April 28, 1988 specified that 
 
            claimant's condition was caused by an on-the-job injury in 
 
            October, 1987, and stated that restrictions would be imposed 
 
            pursuant to a functional capacity assessment.  That 
 
            analysis, performed by John Dobler, L.P.T., and Vickie 
 
            Vasquez, O.T.R./L., limited claimant as follows:  lifting 26 
 
            pounds from 0 inches to 18 inches, 32.5 pounds from 18 
 
            inches to 30 inches, and 30 pounds from 30 inches to 63 
 
            inches; pushing 68 pounds or pulling 41 pounds up to 2.6 
 
            hours per day; squatting 2.6 hours per day; walking 3-4 
 
            hours per day; carrying 35 pounds (right hand) and 40 pounds 
 
            (left hand) up to 2.6 hours per day; climbing stairs 2.6 
 
            hours per day; standing at 40-50 minute durations up to 4-6 
 
            hours per 8-hour day.
 
            
 
                 Claimant continued on light duty from May 25 through 
 
            June 29, 1988, but then developed additional pain.  He was 
 
            referred to Peter D. Wirtz, M.D., a board-certified 
 
            orthopaedic surgeon, for evaluation on July 13, 1988.  Dr. 
 
            Wirtz originally diagnosed low back pain with right sciatica 
 
            and extradural myelographic defect at L5-S1 on the right and 
 
            opined that claimant was unable to do functional activity 
 
            other than sitting with intermittent standing and walking 
 
            with limitation of bending, twisting, pushing and pulling.  
 
            In a workers' compensation physician's disability report 
 
            prepared July 20, Dr. Wirtz repeated those restrictions, 
 
            found claimant's prognosis to be guarded, suggested only 
 
            limitation of function as treatment, and opined that 
 
            claimant's condition was caused by the on-the-job injury.  
 
            Claimant was also seen for evaluation by a physical 
 
            therapist, Thomas W. Bower, L.P.T., on July 13, 1988.  Mr. 
 
            Bower suspected symptom magnification based on some 
 
            inconsistencies in measurement of grip strength and found 
 
            claimant to have a limited range of motion indicative of a 
 
            nine percent impairment to the whole body (but not stating 
 
            the basis of that opinion).  Although considering endurance 
 
            projections unreliable, Mr. Bower suggested return to light 
 
            work level with a maximum lifting limit of floor to knuckle 
 
            of 15 pounds, 28 pounds from knuckle to shoulder, and 32, 33 
 
            and 28 pounds for carrying, pushing and pulling, 
 
            respectively.  Those projections were to be decreased if on 
 
            a repetitive basis.
 
            
 
                 Dr. Wirtz also testified by deposition on October 13, 
 
            1989.  In addition to examining claimant, Dr. Wirtz reviewed 
 
            radiological reports, including an MRI study dated January 
 
            11, 1989, which he found to show degeneration and 
 
            calcification at the levels of L3-4 and L4-5.  That MRI also 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            ruled out his original tentative diagnosis of extradural 
 
            defect.  Upon a diagnosis of degeneration at L3-4 and L4-5 
 
            without neurologic involvement, Dr. Wirtz opined that 
 
            claimant had sustained a five percent impairment to the body 
 
            as a whole, but did not relate that degeneration and 
 
            calcification to the subject work injury, which he found to 
 
            be "temporary in nature."
 
            
 
                 On cross-examination, Dr. Wirtz described claimant's 
 
            conjoint nerve as a congenital defect in which nerves fail 
 
            to exit from the spinal cord singly at each level, but that 
 
            one nerve will come out at a different level and conjoin 
 
            with the nerve properly at that level.  In itself, that 
 
            congenital defect does not create any particular problems, 
 
            but if there is an irritant in the area such as mass or 
 
            another disease process, the conjoint tendon would tend to 
 
            tether and make the two nerves less mobile than if they were 
 
            separate.  Potentially, this causes pain down the leg and 
 
            possible permanent nerve damage with such ramifications as 
 
            muscle loss, numbness and reflex change.
 
            
 
                 However, Dr. Wirtz noted that the nerve root 
 
            involvement was on the right side at L5-S1, and thus a level 
 
            below the disc disease demonstrated by magnetic resonance 
 
            imaging at L4-5.  Therefore, Dr. Wirtz concluded that the 
 
            conjoint nerve had no bearing on claimant's symptomatology.
 
            
 
                 Dr. Wirtz described claimant's sciatica and pain as 
 
            resulting from an irritation in the disc area caused by his 
 
            disc degeneration, but despite the history that claimant had 
 
            no preexisting pain and has had pain since the work injury, 
 
            the doctor was unable to relate claimant's present condition 
 
            to the work injury.  He noted that claimant would have the 
 
            same degeneration in his spine if he had not suffered any 
 
            trauma, but finally conceded that it was possible claimant 
 
            would now be asymptomatic had he not suffered the subject 
 
            work injury.  He further conceded that he had no reason to 
 
            disbelieve anything claimant had told him with respect to 
 
            either the way the injury occurred or his symptoms.  The 
 
            five percent impairment rating was based strictly on 
 
            American Medical Association guidelines due to the 
 
            degeneration at L3-4 and L4-5 and did not take into account 
 
            sciatica and lower back pain, even though pain is a 
 
            restricting element (AMA guidelines do not rate pain, but 
 
            essentially loss of motion only).  Dr. Wirtz would not 
 
            restrict claimant based upon his pain, and even though 
 
            further physical exertion was a danger of increased 
 
            degeneration to claimant, he admitted that he would advise 
 
            claimant to continue to work even though his pain was 
 
            excruciating.  Nonetheless, he would recommend that claimant 
 
            seek a job that did not necessitate physical exertion.
 
            
 
                 Dr. Wirtz noted that disc degeneration is aggravated 
 
            with such activities as bending the back, twisting the back, 
 
            pushing and pulling activities, prolonged standing and 
 
            jarring activities, all of which should be restricted.  "As 
 
            to what would be compatible with his condition would be a 
 
            limitation of those activities so that he doesn't have 
 
            symptoms, as well as sitting, intermittent standing, walking 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            activities."  Based on his understanding of nursery work, 
 
            Dr. Wirtz recommended that claimant not do that work.
 
            
 
                 Claimant continues to work on a full-time basis, but 
 
            Mt. Arbor Nurseries has made efforts to employ him within 
 
            his work restrictions.  Defendants' witnesses unanimously 
 
            agreed that claimant was an exceptionally good and valued 
 
            employee.  However, claimant for a lengthy time found 
 
            himself unable to work five consecutive days due to back 
 
            pain, and frequently missed Wednesdays (making up the extra 
 
            hours on Saturday).  As a result, he missed receiving a 
 
            raise in early 1989 (and missed an earlier raise while off 
 
            work).  Defendants' assertions to the contrary in an attack 
 
            on claimant's credibility in their post-hearing brief 
 
            constitute a misrepresentation of the record.
 
            
 
                 Let it be noted at this point that the undersigned 
 
            found claimant to be an entirely credible witness by virtue 
 
            of his demeanor and the consistency of his testimony with 
 
            all other facts.
 
            
 
                 Claimant is now driving a forklift truck and there are 
 
            many jobs he can perform for Mt. Arbor Nurseries within his 
 
            restrictions.  Production manager Hegwood pointed out that 
 
            there are three nurseries in the Shenandoah, Iowa area, but 
 
            conceded on cross-examination that he cannot think of anyone 
 
            Mt. Arbor has hired under medical restrictions similar to 
 
            claimant's.  Defendant has no intention at this point of 
 
            terminating the employment relationship.
 
            
 
                 Claimant also intends to continue working for 
 
            defendant, hopes to become a United States citizen and plans 
 
            to learn to read through school attendance.  He conceded 
 
            that he might well be doing the same job now if the work 
 
            injury had never occurred.  However, claimant does find that 
 
            his medical restrictions and lower back and leg pain do 
 
            restrict his activities.  For example, he no longer does 
 
            yard work or gardening at home, retires early (frequently as 
 
            early as 6:30 p.m.), has problems with lengthy automobile 
 
            trips (although he successfully made a long trip to Mexico 
 
            in August, 1989), wears an orthopaedic brace at all times, 
 
            and must be protected from certain work duties, including 
 
            making cuttings (which he found remunerative in the past 
 
            because it is paid on a piece work basis).
 
            
 
                 Cecilia Blaskovich is a rehabilitation consultant for 
 
            Medisult, Ltd.  She believed claimant to be quite fluent (an 
 
            exaggeration from this perspective, although claimant can 
 
            make himself understood) and believed that his ability to 
 
            speak Spanish was a competitive advantage.  She believed 
 
            that claimant had some occupational literacy which she 
 
            characterized as "good."  Further, she noted that claimant 
 
            has greenhouse skills and that forklift driving is a skilled 
 
            occupation.  She pointed out that a sixth grade education is 
 
            average or better in Mexico, but conceded on 
 
            cross-examination that educational attainment of that level 
 
            is less impressive in the United States.  She also conceded 
 
            on cross-examination that claimant's occupational literacy 
 
            is limited to nursery work.
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
                 Rehabilitation specialist Lynda Boyd of Human 
 
            Communication Services, Inc., prepared an employability 
 
            report on May 19, 1989.  She noted that claimant lacks the 
 
            skills he would need in order to obtain work in the majority 
 
            of light and sedentary jobs, suggesting that claimant might 
 
            be able to perform work as a service station attendant or 
 
            cashier given his ability, skills and medical restrictions.  
 
            Further, she noted that claimant could no longer perform the 
 
            work he had done as a meat packer (because of the lifting 
 
            restriction) and that he cannot perform all nursery work.  
 
            Based on his inability to read or write the English 
 
            language, she felt that claimant would be limited to work 
 
            with an entry level wage perhaps between $3.49 and $3.87 per 
 
            hour (even this was based on claimant's ability to do basic 
 
            arithmetic, a questionable assumption in the view of this 
 
            observer).
 
            
 
                                conclusions of law
 
            
 
                 The parties agree that the stipulated work injury 
 
            caused temporary disability, but dispute the extent thereof.
 
            
 
                 Under Iowa Code section 85.34(1), healing period is 
 
            compensable beginning on the date of injury and until the 
 
            employee has returned to work, it is medically indicated 
 
            that significant improvement from the injury is not 
 
            anticipated, or until the employee is medically capable of 
 
            returning to substantially similar employment, whichever 
 
            first occurs.
 
            
 
                 It was medically indicated that significant improvement 
 
            from the work injury was not anticipated as of April 21, 
 
            1988.  This, the first of the enumerated events, ended 
 
            claimant's healing period as of that date, a total of 25 
 
            weeks, 6 days from October 24, 1987.
 
            
 
                 The supreme court of Iowa in Almquist v. Shenandoah 
 
            Nurseries, 218 Iowa 724, 731-32, 254 N.W. 35, 38 (1934) 
 
            discussed the definition of personal injury in workers' 
 
            compensation cases as follows:
 
            
 
                 While a personal injury does not include an 
 
                 occupational disease under the Workmen's 
 
                 Compensation Act, yet an injury to the health may 
 
                 be a personal injury.  [Citations omitted.]  
 
                 Likewise a personal injury includes a disease 
 
                 resulting from an injury....The result of changes 
 
                 in the human body incident to the general 
 
                 processes of nature do not amount to a personal 
 
                 injury.  This must follow, even though such 
 
                 natural change may come about because the life has 
 
                 been devoted to labor and hard work.  Such result 
 
                 of those natural changes does not constitute a 
 
                 personal injury even though the same brings about 
 
                 impairment of health or the total or partial 
 
                 incapacity of the functions of the human body. 
 
            
 
                    ....
 
                 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
                 A personal injury, contemplated by the Workmen's 
 
                 Compensation Law, obviously means an injury to the 
 
                 body, the impairment of health, or a disease, not 
 
                 excluded by the act, which comes about, not through the 
 
                 natural building up and tearing down of the human body, 
 
                 but because of a traumatic or other hurt or damage to 
 
                 the health or body of an employee.  [Citations 
 
                 omitted.]  The injury to the human body here 
 
                 contemplated must be something, whether an accident or 
 
                 not, that acts extraneously to the natural processes of 
 
                 nature, and thereby impairs the health, overcomes, 
 
                 injures, interrupts, or destroys some function of the 
 
                 body, or otherwise damages or injures a part or all of 
 
                 the body.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of October 24, 
 
            1987 is causally related to the disability on which he now 
 
            bases his claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
            N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 296, 18 
 
            N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903 (Iowa 1974).  However, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Id. at 907.  Further, the weight to be given to such 
 
            an opinion is for the finder of fact, and that may be 
 
            affected by the completeness of the premise given the expert 
 
            and other surrounding circumstances.  Bodish, 257 Iowa 516, 
 
            133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
            Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
            
 
                 While a claimant is not entitled to compensation for 
 
            the results of a preexisting injury or disease, the mere 
 
            existence at the time of a subsequent injury is not a 
 
            defense.  Rose v. John Deere Ottumwa Works, 247 Iowa 900, 
 
            908, 76 N.W.2d 756, 760-61 (1956).  If the claimant had a 
 
            preexisting condition or disability that is aggravated, 
 
            accelerated, worsened or lighted up so that it results in 
 
            disability, claimant is entitled to recover.  Nicks v. 
 
            Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, 815 
 
            (1962).
 
            
 
                 The parties dispute whether claimant's current 
 
            permanent disability is causally related to the work injury.  
 
            It now appears that the most reliable diagnosis is the most 
 
            recent one, that of board-certified orthopaedic surgeon 
 
            Wirtz:  degeneration and calcification at L3-4 and L4-5.  
 
            Claimant's congenital conjoint nerves do not appear to be a 
 
            cause of symptomatology.  All of the physicians have opined 
 
            that claimant's condition, at least on a temporary basis, is 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            causally related to the work injury.  Dr. Wirtz is unable to 
 
            conclude that claimant's permanent disability is so related.
 
            
 
                 However, there is no question but that claimant 
 
            sustained a work injury that caused at least temporary 
 
            disability.  The record shows without conflict that claimant 
 
            had no preexisting back problem, and he has suffered 
 
            substantial back and sciatic pain without surcease since 
 
            October, 1987.  Even if the work injury did not cause the 
 
            preexisting degenerative condition, it has clearly 
 
            aggravated and lighted it up.  Therefore, it is compensable 
 
            under Nicks v. Davenport Produce Co., 254 Iowa 130, 115 
 
            N.W.2d 815 (1962).
 
            
 
                 What then is claimant's permanent disability?
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, expe
 
            rience and inability to engage in employment for which he is 
 
            fitted.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 
            125 N.W.2d 251 (1963).  Barton v. Nevada Poultry, 253 Iowa 
 
            285, 110 N.W.2d 660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial disabil
 
            ity.  This is so as impairment and disability are not syn
 
            onymous.  Degree of industrial disability can in fact be 
 
            much different than the degree of impairment because in the 
 
            first instance reference is to loss of earning capacity and 
 
            in the latter to anatomical or functional abnormality or 
 
            loss.  Although loss of function is to be considered and 
 
            disability can rarely be found without it, it is not so that 
 
            a degree of industrial disability is proportionally related 
 
            to a degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  These are matters which the 
 
            finder of fact considers collectively in arriving at the 
 
            determination of the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  There are no 
 
            guidelines which give, for example, age a weighted value of 
 
            ten percent of the total value, education a value of fifteen 
 
            percent of total, motivation - five percent; work experience 
 
            - thirty percent, etc.  Neither does a rating of functional 
 
            impairment directly correlate to a degree of industrial 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            disability to the body as a whole.  In other words, there 
 
            are no formulae which can be applied and then added up to 
 
            determine the degree of industrial disability.  It therefore 
 
            becomes necessary for the deputy or commissioner to draw 
 
            upon prior experience, general and specialized knowledge to 
 
            make the finding with regard to degree of industrial dis
 
            ability.  See Peterson v. Truck Haven Cafe, Inc., (Appeal 
 
            Decision, February 28, 1985); Christensen v. Hagen, Inc., 
 
            (Appeal Decision, March 26, 1985).
 
            
 
                 Claimant is highly motivated and a hard worker, and his 
 
            current actual income is not substantially less than would 
 
            be the case absent the work injury, although he has missed 
 
            two raises (one was restored shortly before hearing, 
 
            although defendants deny that the upcoming hearing motivated 
 
            the raise) and he is no longer able to make extra income 
 
            performing piece work.  Defendants' willingness to provide 
 
            claimant continued employment within his restrictions is a 
 
            factor substantially reducing industrial disability.
 
            
 
                 However, claimant has suffered severe damage to his 
 
            earning capacity.  While there are other nurseries in 
 
            southwestern Iowa, Dr. Wirtz recommended that claimant not 
 
            do such work at all and his medical restrictions require a 
 
            more or less protected work environment and place claimant 
 
            at a severe competitive disadvantage should his employment 
 
            relationship with Mt. Arbor Nurseries come to an end (even 
 
            given defendants' commendable conduct so far, it is not 
 
            unheard of for businesses to fail).  Although claimant 
 
            speaks English well enough to make himself understood, he 
 
            has only a sixth grade education, is functionally illiterate 
 
            in English, and he does not have easily transferrable 
 
            skills, especially in the light or sedentary range of 
 
            employment activity, to which he essentially appears limited 
 
            at this time, if he should lose his protected position with 
 
            defendant.
 
            
 
                 Considering these factors in particular and the record 
 
            in general, it is concluded that claimant has sustained an 
 
            industrial disability of 60 percent of the body as a whole, 
 
            or 300 weeks.  It should be noted that it is merely a 
 
            coincidence that this is the same result reached by 
 
            rehabilitation specialist Boyd, as the writer agrees with 
 
            defendants that her opinion essentially invades the province 
 
            of this agency.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Defendants shall pay unto claimant twenty-five point 
 
            eight five seven (25.857) weeks of healing period benefits 
 
            at the stipulated rate of one hundred sixty-six and 06/100 
 
            dollars ($166.06) per week commencing October 24, 1987 and 
 
            totalling four thousand two hundred ninety-three and 81/100 
 
            dollars ($4,293.81).
 
            
 
                 Defendants shall pay unto claimant three hundred (300) 
 
            weeks of permanent partial disability benefits at the 
 
            stipulated rate of one hundred sixty-six and 06/100 dollars 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            ($166.06) per week commencing April 22, 1988 and totalling 
 
            forty-nine thousand eight hundred eighteen and 00/100 
 
            dollars ($49.818.00).
 
            
 
                 All accrued benefits shall be paid in a lump sum 
 
            together with statutory interest thereon pursuant to Iowa 
 
            Code section 85.30.
 
            
 
                 Defendants shall have credit for all benefits paid 
 
            voluntarily prior to hearing.
 
            
 
                 The costs of this action shall be assessed to 
 
            defendants pursuant to Division of Industrial Services Rule 
 
            343-4.33.
 
            
 
                 Defendants shall file claim activity reports as 
 
            requested by this agency pursuant to Division of Industrial 
 
            Services Rule 343-3.1.
 
            
 
                 Signed and filed this ______ day of ____________, 1990.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          DAVID RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Jon H. Johnson
 
            Attorney at Law
 
            P.O. Box 659
 
            Sidney, Iowa  51652
 
            
 
            Mr. Harry W. Dahl
 
            Attorney at Law
 
            974 73rd Street
 
            Suite 16
 
            Des Moines, Iowa  50312
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           5-1802; 5-1803
 
                           Filed November 5, 1990
 
                           DAVID RASEY
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            EMILIO R. RASCON,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 866750
 
            MT. ARBOR NURSERIES,          :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            CRUM & FORSTER COMMERCIAL     :
 
            INS.,                         :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
            5-1802; 5-1803
 
            Claimant awarded healing period and 60 percent permanent 
 
            partial disability to body as a whole.