Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
            _____
 
                                          :
 
            LARRY G. ELDER,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 870989
 
            RILEY STOKER CORP.,           :
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            CIGNA,                        :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            _____
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 Defendants appeal from an arbitration decision awarding 
 
            permanent partial disability benefits as the result of an 
 
            alleged injury on December 10, 1987.  The record on appeal 
 
            consists of the transcript of the arbitration proceeding; 
 
            defendants' exhibits A through F; and a portion of 
 
            claimant's exhibit A.  Both parties filed briefs on appeal.
 
            
 
                                      ISSUES
 
            
 
                 Defendants state the following issues on appeal:
 
            
 
                 I.  Whether the deputy erred in finding that Elder 
 
                 sustained his burden of proving he has a thirty 
 
                 per cent [sic] permanent partial disability to ht the stipulated rate of four hundred thirty-seven 
 
            and 11/100 dollars ($437.11) per week payable commencing 
 
            December 10, 1987 and totalling twenty-one thousand one 
 
            hundred six and 29/100 dollars ($21,106.29).
 
            
 
                 That defendants shall pay unto claimant nineteen (19) 
 
            weeks of permanent partial disability benefits at the 
 
            stipulated rate of four hundred thirty-seven and 11/100 
 
            dollars ($437.11) per week payable commencing November 12, 
 
            1988 and totalling eight thousand three hundred five and 
 
            09/100 dollars ($8,305.09).
 
            
 
                 That defendants shall have credit for all benefits paid 
 
            voluntarily prior to hearing.
 
            
 
                 That as all benefits have accrued, they shall be paid 
 
            in a lump sum together with statutory interest thereon 
 
            pursuant to Iowa Code section 85.30.
 
            
 
                 That defendants shall pay all reasonable and necessary 
 
            charges for further treatment by Dr. Szabados that are 
 
            causally related to the subject work injury.
 
            
 
                 That defendants shall pay the costs of this matter 
 
            including the transcription of the hearing.  
 
            
 
                 That defendants shall file claim activity reports as 
 
            required by this agency pursuant to rule 343 IAC 3.1(2).
 
            
 
                 Signed and filed this ____ day of March, 1992.
 
            
 
            
 
            
 
            
 
                                          
 
            ________________________________
 
                                                   BYRON K. ORTON
 
                                              INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Joel T. S. Greer
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            Attorney at Law
 
            P.O. Box 496
 
            Marshalltown, Iowa 50158
 
            
 
            Mr. John M. Bickel
 
            Attorney at Law
 
            P.O. Box 2107
 
            Cedar Rapids, Iowa 52406-2107
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            9999
 
            Filed March 25, 1992
 
            Byron K. Orton
 
            DRR
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
            _____
 
                                          :
 
            LARRY G. ELDER,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 870989
 
            RILEY STOKER CORP.,           :
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            CIGNA,                        :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            _____
 
            
 
            9999
 
            Summary affirmance of deputy's decision filed October 18, 
 
            1990, with short additional analysis.
 
            
 
 
         
 
         Page   1
 
         
 
         
 
         
 
         
 
         
 
                     before the iowa industrial commissioner
 
         _________________________________________________________________
 
                                       :
 
         LARRY G. ELDER,               :
 
                                       :
 
              Claimant,                :
 
                                       :      File No. 870989
 
         vs.                           :
 
                                       :         O R D E R
 
         RILEY STOKER CORP.,           :
 
                                       :          N U N C
 
              Employer,                :
 
                                       :           P R O
 
         and                           :
 
                                       :          T U N C
 
         CIGNA,                        :
 
                                       :
 
              Insurance Carrier,       :
 
              Defendants.              :
 
         _________________________________________________________________
 
         
 
         An appeal decision was filed in this case on March 25, 1992.  A 
 
         portion of the decision is in error.  The Order portion of this 
 
         decision should be corrected to read:
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Defendants shall pay unto claimant forty-eight point two 
 
         eight six (48.286) weeks of healing period benefits at the 
 
         stipulated rate of four hundred thirty-seven and 11/100 dollars 
 
         ($437.11) per week payable commencing December 10, 1987 and 
 
         totalling twenty-one thousand one hundred six and 29/100 dollars 
 
         ($21,106.29).
 
         
 
              Defendants shall pay unto claimant fifty-seven (57) weeks of 
 
         permanent partial disability benefits at the stipulated rate of 
 
         four hundred thirty-seven and 11/100 dollars ($437.11) per week 
 
         payable commencing November 12, 1988 and totalling twenty-four 
 
         thousand nine hundred fifteen and 27/100 dollars ($24,915.27).
 
         
 
              Defendants shall have credit for all benefits paid 
 
         voluntarily prior to hearing.
 
         
 
              As all benefits have accrued, they shall be paid in a lump 
 
         sum together with statutory interest thereon pursuant to Iowa 
 
         Code section 85.30.
 
         
 
              Defendants shall pay all reasonable and necessary charges 
 
         for further treatment by Dr. Szabados that are causally related 
 
         to the subject work injury.
 
         
 
              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 May, 1992.
 

 
         
 
         Page   2
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                   ________________________________
 
                            BYRON K. ORTON
 
                       INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Joel T. S. Greer
 
         Attorney at Law
 
         112 West Church Street
 
         P.O. Box 496
 
         Marshalltown, Iowa  50158
 
         
 
         Mr. John M. Bickel
 
         Attorney at Law
 
         500 MNB Building
 
         P.O. Box 2107
 
         Cedar Rapids, Iowa  52406-2107
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            ALAN REED,                    :
 
                                          :
 
                 Claimant,                :         File No. 871076
 
                                          :
 
            vs.                           :      A R B I T R A T I O N
 
                                          :
 
            JAMES M. DAWDY, d/b/a         :         D E C I S I O N
 
            J. D. CARTAGE SERVICE,        :
 
                                          :
 
                 Employer,                :
 
                 Uninsured,               :
 
                 Defendant.               :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Alan 
 
            Reed against James M. Dawdy, d/b/a J. D. Cartage Service.  
 
            Reed seeks compensation and benefits based upon an injury he 
 
            sustained on or about March 22, 1988.  The issues for 
 
            determination include whether Alan Reed was an employee of 
 
            James M. Dawdy or an independent contractor; whether the 
 
            injury arose out of and in the course of employment or 
 
            whether it was a result of horseplay.  No defenses were 
 
            asserted under Code section 85.16.  Claimant seeks to 
 
            recover compensation for healing period.  He asserts a claim 
 
            for a running award.  Claimant, alternatively, seeks 
 
            compensation for permanent partial or permanent total 
 
            disability.  Claimant also seeks payment for medical 
 
            expenses in the total amount of $5,714.16.  In the 
 
            prehearing report, it was stipulated that the providers of 
 
            those medical services would testify that the fees charged 
 
            were reasonable, that the treatment was reasonable and 
 
            necessary and that no evidence to the contrary was being 
 
            offered.  The rate of compensation is also an issue.  It 
 
            was, however, stipulated that claimant was married and 
 
            entitled to five exemptions.
 
            
 
                                 findings of fact
 
            
 
                 Having considered all the evidence in the case and 
 
            having observed the appearance and demeanor of the witnesses 
 
            as they testified, it is found that the full extent of 
 
            whatever occurred on March 22, 1988 at Springfield, Missouri 
 
            cannot be determined.  Mark Dawdy is found to be 
 
            particularly devoid of credibility.  The credibility of Alan 
 
            Reed is not found to be particularly strong, though he is 
 
            found to be considerably more credible than Dawdy.  The 
 
            record contains allegations from Dawdy that Reed was 
 
            speeding and driving somewhat erratically during the travel 
 
            from Sioux City to Springfield.  Reed denies those 
 
            allegations and counters that Mark Dawdy was smoking pot and 
 
            acting erratically.  The medical histories given to the 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            various medical providers are inconsistent (exhibit 1, page 
 
            20; exhibit 2, pages 3, 4, 70, 73 and 74).  It is 
 
            inconceivable that Mark Dawdy would have testified that he 
 
            struck claimant if claimant had simply fallen or been 
 
            accidently bumped in the head by equipment which was being 
 
            unloaded.  The severity of Reed's injuries is irreconcilable 
 
            with Dawdy's statement that he hit Reed only once, but that 
 
            it was not hard enough to have knocked him down.  The 
 
            testimony is sufficiently unlikely as to also render it 
 
            unlikely that Dawdy was acting in self-defense.  Claimant's 
 
            testimony to the effect that he believes he was struck from 
 
            behind is probably incorrect in view of the nature and 
 
            location of the injuries on his head.  That inaccuracy is 
 
            possibly due to the severity of the injuries.  There may 
 
            have been some argument between Mark Dawdy and Alan Reed 
 
            regarding the driving during the travel from Sioux City to 
 
            Springfield.  The only evidence in the record is that any 
 
            argument they might have had dealt with the business and 
 
            activities in which they were engaged for J. D. Cartage 
 
            Service.  The evidence fails to establish that Alan Reed was 
 
            the instigator of any such argument or that he precipitated 
 
            physical violence or physical contact between himself and 
 
            Mark Dawdy.
 
            
 
                 It is specifically found that whatever occurred caused 
 
            Alan Reed to have a laceration inside his mouth on the right 
 
            side which required sutures and a small laceration on the 
 
            back of his head (exhibit 2, pages 30, 70 and 74).  The 
 
            traumas Reed sustained were sufficiently severe to cause 
 
            intracerebral hematoma in the bifrontal and right temporal 
 
            areas of claimant's head (exhibit 2, pages 2 and 16-19; 
 
            exhibit 3).
 
            
 
                 Based upon the testimony from Reed, Dawdy and the 
 
            contents of exhibits 2 and 3, it is found that Mark Dawdy 
 
            did strike Alan Reed and that Reed was knocked to the 
 
            ground.  It is found that the combination of the forces from 
 
            being struck in the face and striking the pavement with his 
 
            head produced Reed's intracerebral hematoma.  The conflicts 
 
            in the evidence and the lack of credibility prohibit further 
 
            findings regarding most details of that altercation or 
 
            incident.
 
            
 
                 It is found that Reed's recovery from the injuries 
 
            extended through October 3, 1988, the time at which his 
 
            active medical work-up by the Veterans Administration was 
 
            completed (exhibit 1, pages 2-15).  In particular, it was 
 
            noted on September 22, 1988 that claimant should be referred 
 
            for better control of his medication levels (exhibit 1, page 
 
            15).  On August 25, 1988, it was noted that he was showing 
 
            slight improvement (exhibit 1, page 10).  The last 
 
            examination upon which the rating decision of December 21, 
 
            1988 was based had been performed on October 3, 1988 
 
            (exhibit 1, pages 2-5).  That October 3, 1988 examination 
 
            appears to mark the end of active treatment, other than that 
 
            which is maintenance in nature.
 
            
 
                 On March 22, 1988, Alan Reed was in the process of 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            driving a truck from Sioux City, Iowa to Springfield, 
 
            Missouri on behalf of J. D. Cartage Service, a business 
 
            owned by James M. Dawdy, the father of Mark Dawdy.  Reed had 
 
            signed a written document which designated him as an 
 
            independent contractor.  Reed did not, however, own a 
 
            vehicle, pay the expenses of operating a vehicle, provide 
 
            insurance for himself, employ assistants or other employees 
 
            or otherwise operate as an independent contractor.  Reed 
 
            operated trucks which were owned by James M. Dawdy.  James 
 
            Dawdy controlled Reed's activities by telling him where to 
 
            go, when to go, where to purchase fuel, where to have 
 
            repairs made and in general completely controlled Reed's 
 
            activities.  Reed was not entitled to solicit loads to haul 
 
            on his own or to otherwise work independently using Dawdy's 
 
            vehicle.  Reed functioned exclusively as an employee of 
 
            James M. Dawdy and did not, in any manner, actually function 
 
            or operate as an independent contractor.  The written 
 
            agreement which designated Reed as an independent contractor 
 
            was a sham.  It did not accurately reflect the actual 
 
            relationship between Reed and James M. Dawdy.
 
            
 
                 The record does not contain any actual showing of 
 
            payments paid by Dawdy to Reed for the services which Reed 
 
            performed.  There is evidence that he was paid a percentage 
 
            of the gross revenues for the deliveries which he made and 
 
            that the pay was based upon the number of miles traveled.  
 
            At one point, it was indicated that he earned as much as 
 
            $540.00 in a week in which he would make five deliveries.  
 
            When Reed prepared an occupational history for the Veterans 
 
            Administration, he reported that he had earned $800.00 
 
            monthly from J. D. Cartage (exhibit 1, page 19).  Taking 
 
            into account the showing on that document as well as 
 
            claimant's testimony, it is found that Reed's gross earnings 
 
            fluctuated from week to week.  It is found that his 
 
            customary gross weekly earnings averaged $200.00 per week on 
 
            a long-term basis.
 
            
 
                 Alan Reed had been afflicted with a seizure disorder 
 
            since being injured while in the Army in 1973.  Prior to 
 
            March 22, 1988, the seizure disorder had generally been 
 
            fairly well controlled, although there had been some 
 
            incidents of seizures during 1987 (exhibit 1, pages 20 and 
 
            28).  When discharged from the Army in 1973, he was noted as 
 
            having epilepsy, temporal lobe.  His final medical profile 
 
            upon discharge was that he was medically qualified for duty 
 
            and that the seizure disorder did not make him unfit for 
 
            military duty or require any major limitations (exhibit 1, 
 
            pages 86 and 123).  A previous profile had recommended 
 
            restrictions upon his activities (exhibit 1, page 87).  Reed 
 
            was discharged from the Army due to the seizure disorder 
 
            (exhibit 1, pages 116-123).  He was awarded a permanent 
 
            disability rating of ten percent by the Veterans 
 
            Administration (exhibit 1, pages 52 and 58).
 
            
 
                 Over the following years, Reed was trained as a 
 
            bricklayer.  He worked as a construction laborer.  He 
 
            performed repairs on semis.  He worked for the post office.  
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            When examined in 1979, he was doing well and the only type 
 
            of care or treatment which was recommended was continued 
 
            monitoring (exhibit 1, pages 53-55).  EEG tests which had 
 
            been conducted prior to March 22, 1988 had all been normal 
 
            (exhibit 1, pages 29, 40 and 101).
 
            
 
                 It is found that the injuries sustained on March 22, 
 
            1988 substantially changed Reed's preexisting seizure 
 
            disorder.  Post-injury EEG's were interpreted as being 
 
            abnormal (exhibit 1, pages 24 and 30).  He has had an 
 
            increase in the frequency of his seizures, despite increased 
 
            efforts at controlling the seizures through medication.  The 
 
            Veterans Administration has raised his disability rating 
 
            from 10 percent to 40 percent (exhibit 1, pages 2 and 15).  
 
            The change in his condition is apparent from a consultation 
 
            sheet report found at pages 3-5 of exhibit 1.  An MMPI 
 
            conducted on or about August 25, 1988 confirmed organic 
 
            cerebral impairment in the low moderate range (exhibit 1, 
 
            page 11).
 
            
 
                 Since the injury of March 22, 1988, Alan Reed has not 
 
            returned to work.  He has attempted further education, but 
 
            has not completed any particular course of study.  His 
 
            success in training thus far does not indicate a high degree 
 
            of probability that he will successfully complete the 
 
            course.  Reed's driving privileges have been taken away.  
 
            His wife has driven him to school.  He refuses to attend 
 
            church with his family.  His wife indicated that he will not 
 
            perform housework and has no interest in marital relations.  
 
            The March 22, 1988 injury clearly caused a substantial 
 
            decrease in Reed's level of functioning.
 
            
 
                 At this point in time, it appears as though Reed can 
 
            probably return to some gainful employment.  The Veterans 
 
            Administration has not considered him to be totally 
 
            disabled.  His access to jobs has been severely decreased, 
 
            however, as a result of the residuals of the March 22, 1988 
 
            injury.  He can no longer drive due to the increase in his 
 
            seizure activity.  That one factor severely limits his 
 
            employment possibilities.  It appears as though his 
 
            short-term memory for visual input and his overall capacity 
 
            to organize visual input present major intellectual 
 
            deficits.  With this reduced level of functioning, his 
 
            chances of successfully obtaining and maintaining gainful 
 
            employment are greatly reduced.  It is found that Alan Reed 
 
            has sustained a 60 percent reduction in his earning capacity 
 
            as a result of the injuries he sustained on March 22, 1988.
 
            
 
                                conclusions of law
 
            
 
                 It is concluded that Alan Reed was an employee of James 
 
            M. Dawdy, d/b/a J. D. Cartage Service, on March 22, 1988.  
 
            Iowa Code sections 85.18 and 85.20 clearly demonstrate that 
 
            a contract cannot be used as a device to avoid the 
 
            provisions of Chapter 85 of The Code.  James M. Dawdy had 
 
            the right of selection, was responsible for payment of 
 
            wages, had the right to discharge or terminate the 
 
            relationship, controlled the work and was responsible for 
 
            having the work performed.  James M. Dawdy was clearly 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            Reed's employer.  Henderson v. Jennie Edmundson Hosp., 178 
 
            N.W.2d 429, 431 (Iowa 1970).  The evidence does not show 
 
            claimant to have been an independent contractor.  Mallinger 
 
            v. Webster City Oil Co., 211 Iowa 847, 851, 234 N.W. 254 
 
            (1929).
 
            
 
                 "An injury occurs in the course of the employment when 
 
            it is within the period of employment at a place the 
 
            employee may reasonably be, and while he is doing his work 
 
            or something incidental to it."  Cedar Rapids Comm. Sch. 
 
            Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979), McClure v. Union 
 
            et al. Counties, 188 N.W.2d 283 (Iowa 1971); Musselman v. 
 
            Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). 
 
            
 
                 Alan Reed was in the process of making a delivery for 
 
            his employer.  Stopping to converse with coemployees is not 
 
            the type of activity which would take him beyond the course 
 
            of his employment.
 
            
 
                 The words "arising out of" refer to the cause or source 
 
            of the injury.  McClure v. Union County, 188 N.W.2d 283, 287 
 
            (Iowa 1971); Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 
 
            402, 68 N.W.2d 63 (1955).  The "arising out of" requirement 
 
            is satisfied by showing a causal relationship between the 
 
            employment and the injury.  Sheerin v. Holin Co., 380 N.W.2d 
 
            415, 417 (Iowa 1986).
 
            
 
                 Acts of violence by coemployees, when the violence is 
 
            motivated by the work environment, are held to arise out of 
 
            the employment.  Cedar Rapids Community School Dist. v. 
 
            Cady, 278 N.W.2d 298 (Iowa 1979); Haney v. University of 
 
            Iowa, I Iowa Industrial Commissioner Report 129 (1980); 
 
            Jacobsen v. Memorial Park Cemetery, I Iowa Industrial 
 
            Commissioner Report 162 (1980); Felder v. Howard Steel Co., 
 
            33rd Biennial Report, Iowa Industrial Commissioner 67 
 
            (1978).  The employer had not raised any defense under 
 
            section 85.16 and is not entitled to rely upon any such 
 
            defense.  If such a defense had been raised, the employer 
 
            would have the burden of proof.  There is no evidence of 
 
            horseplay, only an assault.  It is therefore determined that 
 
            the injuries Alan Reed sustained when he was struck by Mark 
 
            Dawdy and fell to the ground are injuries which arose out of 
 
            and in the course of his employment with James M. Dawdy.
 
            
 
                 After an injury, the worker is entitled to recover 
 
            weekly compensation for healing period under the provisions 
 
            of Iowa Code section 85.34(1).  If the employee does not 
 
            return to work, the healing period ends when it is medically 
 
            indicated that significant improvement from the injury is 
 
            not anticipated or when the employee is medically capable of 
 
            returning to employment substantially similar to that in 
 
            which he was engaged at the time of injury, whichever occurs 
 
            first.  In this case, it does not appear as though Reed will 
 
            ever be able to resume truck driving in view of the nature 
 
            of his seizure disorder.  The healing period is terminated 
 
            upon the end of significant improvement from the injury.  
 
            The healing period terminates at the time the attending 
 
            physician determines that the employee has recovered as far 
 
            as possible from the effects of the injury.  Thomas v. 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            William Knudson & Son, Inc., 349 N.W.2d 124, 126 (Iowa App. 
 
            1984); Armstrong Tire & Rubber Co. v. Kubli, 312 N.W.2d 60, 
 
            65 (Iowa App. 1981).  Reed's entitlement to healing period 
 
            compensation therefore ends on October 3, 1988, the date at 
 
            which his medical treatment ceased, other than for that 
 
            which has been maintenance in nature.  Reed's claim for a 
 
            running award of healing period is therefore denied.
 
            
 
                 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).
 
            
 
                 Reed's injury appears to have permanently worsened his 
 
            preexisting seizure disorder.  Permanent disability is that 
 
            which is lasting rather than temporary.  It need not embrace 
 
            the idea of absolute perpetuity.  Wallace v. Brotherhood, 
 
            230 Iowa 1127, 300 N.W. 322 (1941).  The aggravation of 
 
            Reed's preexisting seizure disorder has lasted sufficiently 
 
            long in order to characterize it as being permanent.
 
            
 
                 If claimant has an impairment to the body as a whole, 
 
            an industrial disability has been sustained.  Industrial 
 
            disability was defined in Diederich v. Tri-City Railway Co., 
 
            219 Iowa 587, 593, 258 N.W.2d 899, 902 (1935) as follows: 
 
            "It is therefore plain that the legislature intended the 
 
            term `disability' to mean `industrial disability' or loss of 
 
            earning capacity and not a mere `functional disability' to 
 
            be computed in the terms of percentages of the total 
 
            physical and mental ability of a normal man."
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, 
 
            experience and inability to engage in employment for which 
 
            he is fitted.  Olson v. Goodyear Service Stores, 255 Iowa 
 
            1112, 1121, 125 N.W.2d 251, 257 (1963).
 
            
 
                 Industrial disability or loss of earning capacity is a 
 
            concept that is quite similar to impairment of earning 
 
            capacity, an element of damage in a tort case.  Impairment 
 
            of physical capacity creates an inference of lessened 
 
            earning capacity.  The basic element to be determined, 
 
            however, is the reduction in value of the general earning 
 
            capacity of the person, rather than the loss of wages or 
 
            earnings in a specific occupation.  Post-injury earnings 
 
            create a presumption of earning capacity.  The earnings are 
 
            not synonymous with earning capacity and the presumption may 
 
            be rebutted by evidence showing the earnings to be an 
 
            unreliable indicator.  Carradus v. Lange, 203 N.W.2d 565 
 
            (Iowa 1973); Holmquist v. Volkswagon of America, Inc., 261 
 
            N.W.2d 516 (Iowa App. 1977) A.L.R.3d 143; Michael v. 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            Harrison County, 34th Biennial Report, 218 (1979); 2 Larson 
 
            Workmen's Compensation Law, sections 57.21 and 57.31.
 
            
 
                 In view of Reed's loss of his ability to drive lawfully 
 
            and the reduction in some of his mental functioning, it is 
 
            clear that he has a very serious injury.  His industrial 
 
            disability from this injury is concluded to be 60 percent.  
 
            He is therefore entitled to recover 300 weeks of 
 
            compensation for permanent partial disability under the 
 
            provisions of Code section 85.34(2)(u).  It is expected that 
 
            his access to employment will be quite limited, but it is 
 
            also expected that he will be employable.
 
            
 
                 Claimant has sought to recover medical expenses 
 
            totalling $5,714.16.  The only real issue with those 
 
            expenses is that of the employer's liability.  Since the 
 
            employer has been found to be liable for the injury, the 
 
            employer is obligated under the provisions of Code section 
 
            85.27 to pay the following medical expenses:
 
            
 
                Lester E. Cox Medical Center (exh. 6)          $4,488.61
 
                Southwest Missouri Neurological Group (exh. 7)    320.00
 
                Robert L. Elworth, M.D. (exh. 8)                   75.00
 
                Radiological Associates, P.C. (exh. 9)            326.00
 
                Emergency Physicians of Springfield (exh. 10)     131.00
 
                Headache and Pain Control Center (exh. 11)        315.00
 
                Greenville Pharmacy (exh. 12)                      58.55
 
                Total                                          $5,714.16
 
            
 
                 The charges from Pat Luse, D.C., appear to have been 
 
            incurred for an examination that was intended to be used for 
 
            purposes of litigation.  It was not for treatment.  The 
 
            employer is therefore not responsible for payment of the 
 
            charges.
 
            
 
                 It was stipulated that Reed was married and entitled to 
 
            five exemptions.  With weekly earnings of $200.00, his rate 
 
            of weekly compensation under the July 1, 1987 benefit 
 
            schedule is $144.69.  Iowa Code section 85.36.
 
            
 
                                      order
 
            
 
                 IT IS THEREFORE ORDERED that James M. Dawdy pay Alan 
 
            Reed twenty-eight (28) weeks of compensation for healing 
 
            period at the rate of one hundred forty-four and 69/100 
 
            dollars ($144.69) per week commencing March 22, 1988.
 
            
 
                 IT IS FURTHER ORDERED that James M. Dawdy pay Alan Reed 
 
            three hundred (300) weeks of compensation for permanent 
 
            partial disability at the rate of one hundred forty-four and 
 
            69/100 dollars ($144.69) per week commencing October 4, 
 
            1988.
 
            
 
                 IT IS FURTHER ORDERED that all accrued amounts be paid 
 
            in a lump sum together with interest computed at the rate of 
 
            ten percent (10%) per annum from the date each payment came 
 
            due until the date of actual payment pursuant to Code 
 
            section 85.30.
 
            
 
                 IT IS FURTHER ORDERED that James M. Dawdy pay the 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            following medical expenses:
 
            
 
                Lester E. Cox Medical Center (exh. 6)          $4,488.61
 
                Southwest Missouri Neurological Group (exh. 7)    320.00
 
                Robert L. Elworth, M.D. (exh. 8)                   75.00
 
                Radiological Associates, P.C. (exh. 9)            326.00
 
                Emergency Physicians of Springfield (exh. 10)     131.00
 
                Headache and Pain Control Center (exh. 11)        315.00
 
                Greenville Pharmacy (exh. 12)                      58.55
 
                Total                                          $5,714.16
 
            
 
                 IT IS FURTHER ORDERED that the costs of this action are 
 
            assessed against James M. Dawdy pursuant to Division of 
 
            Industrial Services Rule 343-4.33.
 
            
 
                 IT IS FURTHER ORDERED that James M. Dawdy 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.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Harry H. Smith
 
            Attorney at Law
 
            632-640 Badgerow Building
 
            P.O. Box 1194
 
            Sioux City, Iowa  51102
 
            
 
            Mr. Rodney D. Vellinga
 
            Attorney at Law
 
            400 Security Bank Building
 
            P.O. Box 3527
 
            Sioux City, Iowa  51102
 
            
 
            
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
                                               1105, 1402.10, 1504
 
                                               1602, 5-1802, 1803
 
                                               2206, 3001
 
                                               Filed July 16, 1990
 
                                               MICHAEL G. TRIER
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            ALAN REED,                    :
 
                                          :
 
                 Claimant,                :         File No. 871076
 
                                          :
 
            vs.                           :      A R B I T R A T I O N
 
                                          :
 
            JAMES M. DAWDY, d/b/a         :         D E C I S I O N
 
            J. D. CARTAGE SERVICE,        :
 
                                          :
 
                 Employer,                :
 
                 Uninsured,               :
 
                 Defendant.               :
 
            ____________________________________________________________
 
            
 
            1105, 1602
 
            Where claimant was struck by a coemployee in what might have 
 
            been a disagreement over claimant's work performance, such 
 
            was held to be an injury which arose out of and in the 
 
            course of employment where the evidence failed to show that 
 
            the claimant instigated the dispute or the physical contact.
 
            
 
            5-1802
 
            Healing period awarded until the medical assessment of the 
 
            condition was completed.
 
            
 
            2206
 
            Claimant had a preexisting seizure disorder which was 
 
            worsened by head injuries sustained when struck and knocked 
 
            to the ground by a fellow employee.
 
            
 
            1803
 
            Where the claimant had lost his ability to drive due to the 
 
            increased frequency of seizures and had some reduction in 
 
            his mental functioning, such was held sufficient to award 60 
 
            percent permanent partial disability.  Claimant was in 
 
            school and appeared to have some potential for resuming 
 
            employment, albeit limited.
 
            
 
            1402.10, 1504
 
            Despite a written independent contractor agreement, the 
 
            claimant was held to be an employee where he clearly worked 
 
            as an employee, did not own a truck and was completely 
 
            controlled in his employment activity by the employer.
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            3001
 
            The evidence did not contain any clear showing of claimant's 
 
            actual earnings.  Based upon claimant's statements and an 
 
            occupational history which he provided to the Veterans 
 
            Administration, his weekly earnings were found to be 
 
            $200.00.
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         ROBERT JOHNSON,
 
         
 
              Claimant,
 
                                               File No. 871107
 
         VS.
 
         
 
         FIRESTONE TIRE & RUBBER              A R B I T R A T I 0 N
 
         CO.,
 
                                               D E C I S I 0 N
 
              Employer,
 
         
 
         and
 
         
 
         CIGNA,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration wherein Robert D. 
 
         Johnson seeks compensation for healing period, permanent partial 
 
         disability and payment of certain psychiatric expenses based upon 
 
         an alleged right foot injury on November 4, 1987, which he 
 
         further alleges resulted in a low back injury and body as a whole 
 
         impairment rather than limited to a scheduled injury.  The case 
 
         was heard on April 2, 1990 in Des Moines, Iowa.  The record in 
 
         the proceeding consists of the testimony of claimant, claimant's 
 
         Exhibits 1 through 10, and defendants, Exhibits A through H.
 
         
 
                                      ISSUES
 
         
 
              The issues for resolution are:
 
         
 
              1. Whether claimant's alleged permanent impairment or 
 
         disability is causally connected to his November 4, 1987 injury;
 
         
 
              2. The nature and extent of claimant's disability and if 
 
         there is a permanent disability, the commencement date of 
 
         payment;  and
 
         
 
              3. Whether claimant is entitled to Iowa Code section 85.27 
 
         benefits regarding any psychiatric treatment.
 
         
 
         
 
         
 
         JOHNSON V. FIRESTONE TIRE & RUBBER CO.
 
         Page 2
 
         
 
         
 
                              REVIEW OF THE EVIDENCE
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant is a 31-year-old high school graduate who has no 
 
         other formal education.  Claimant described his work history 
 
         which basically involved manual labor jobs, including working in 
 
         the meat packing industry and being a brakeman for the Rock 
 
         Island Railroad.
 
         
 
              Claimant began working for defendant employer on March 6, 
 
         1984 and performed various jobs.  Claimant's right foot was 
 
         injured on November 4, 1987 when a mold came open and a tire 
 
         became stuck between the mold and the post inflater, resulting in 
 
         the tire falling on claimant's right foot.  Claimant sought 
 
         medical help from the company nurse but sought  ther help when 
 
         this treatment did not help and claimant's pain became worse.  
 
         Claimant continued to work but was having trouble walking due to 
 
         the pain in his foot, which pain went up to his waist.  Claimant 
 
         then sought the help of Patrick D. Reibold, M.D., on December 2, 
 
         1987.  This doctor eventually referred claimant to David C. 
 
         Johnson, D.P.M., a podiatrist, who treated claimant and then 
 
         referred claimant to a Dana L. Simon, M.D., who diagnosed 
 
         claimant's condition as a sympathetic reflex dystrophy.  Claimant 
 
         was advised to stay off his foot or else his condition would 
 
         become worse.  Claimant was off work then from December 1, 1987 
 
         up to and not including June 19, 1989.
 
         
 
              Claimant's medical records indicate claimant was 
 
         experiencing back pain and was taking medicine for its relief, at 
 
         least up to and including October 17, 1986.  (Defendants, Exhibit 
 
         G, page 85-86)  Claimant was hospitalized on October 11, 1986 for 
 
         a diagnosis of a personality disorder, back pain secondary to 
 
         intervertebral disc disease L5-Sl level, situational stress, 
 
         marital discord, and claimant was having psychotherapy and drug 
 
         therapy.  (Def. Ex. G, p. 34)  Claimant said he was also in the 
 
         hospital at the time for cocaine use.  Claimant was put in Iowa 
 
         Lutheran Hospital in December 1988 for depression and suicidal 
 
         tendencies and for cocaine abuse. (Def. Ex. G, p. 3)  Claimant 
 
         blames his depression on the fact that his injury was getting no 
 
         better and he was not receiving workers, compensation benefits 
 
         and everything was going downhill.  Claimant acknowledged he had 
 
         prior suicidal thoughts, a drug problem and received treatment 
 
         for it at Iowa Methodist Hospital prior to his 1987 injury.
 
         
 
              Foot surgery was recommended at Rochester which would 
 
         involve severing the sympathetic nerve and require a $1,500 
 
         deposit.  Claimant wanted a.second opinion.  No second opinion 
 
         was obtained and no surgery was performed.
 
         
 
              Claimant said he had a foot injury at age 9 when a rod ran 
 
         through his foot, but he emphasized he suffered no impairment 
 
         from that injury.  In claimant's deposition taken April 17, 1989,
 
         
 
         
 
         
 
         JOHNSON V FIRESTONE TIRE & RUBBER CO.
 
         Page 3
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         claimant and/or his attorney indicated that claimant was not 
 
         making a claim for any back injury, that their only claim was for 
 
         a psychiatric problem and a foot and leg problem.  (Def. Ex. A, 
 
         pp. 20-21)   Claimant testified in his deposition that his back 
 
         injury right then was from another injury in November 1985.  
 
         Claimant testified at the hearing that he has filed an action for 
 
         a herniated disc injury to his back and claims no back damage 
 
         from his November 1987 injury, but did contend that he has low 
 
         back pain due to his foot injury.  Claimant said he had emotional 
 
         problems as a child and an unstable home, resulting in detention 
 
         homes and getting into trouble.  Claimant is now working 
 
         full-time driving a fork lift making $12.30 per hour versus 
 
         $14.70 per hour he would be making if he held the same job he 
 
         held at the time of his November 4, 1987 injury.
 
         
 
              Claimant's medical reflects an injury to claimant's right 
 
         foot occurring on November 4, 1987. (Def. Ex. D, pp. 2-4)   
 
         Although claimant complains of pain into his lower back that he 
 
         contends originates from his right foot injury, this is not 
 
         substantiated by the medical evidence.  Any pain claimant is 
 
         having in his low back is a result of claimant's prior injuries. 
 
         Defendants, Exhibit G, page 47, reflects on October 16, 1986 that
 
         
 
              Pt has had a long term history of pain and discomfort
 
              associated with low back.  Pt was initially injured
 
              approx. 1 yr. ago and then earlier this fall did suffer
 
              another injury.  Pt states that he does have
 
              radiological evidence of bulging disc at the L-3,  L-4
 
              level.  Pt. complaining of most pain and discomfort at
 
              this time in low back area.
 
         
 
              Dr. Reibold's November 1989 letter indicated that 
 
         improvement was not anticipated as of claimant's first visit to 
 
         him in December 1987.  Dr. Reibold said claimant had a degree of 
 
         permanent functional impairment to his right lower extremity, but 
 
         he did not specify the percent.  He related work restrictions of 
 
         no extended periods of ambulation and indicated he thought 
 
         claimant could engage in gainful employment as long as he could 
 
         perform a job in which he would basically be sitting all day.  He 
 
         did not think claimant had any disability involving his upper 
 
         extremities or back (Def. Ex. D, p. 2)
 
         
 
              Thomas A. Carlstrom, M.D., in September 1989 could not 
 
         relate any impairment rating (Def. Ex..C).
 
         
 
              There are conflicting reports from three psychiatrists: Karl 
 
         Northwall, M.D., on January 18, 1989 attributed 10 to 15 percent 
 
         mental disability due to claimant's November 18, 1987 injury 
 
         (Claimant's Exhibit 3).  Another doctor, Ilhan Conklu, on 
 
         December 22, 1988 opined claimant's current mental episode as 
 
         partially aggravated by the accident and constant leg pain (Cl.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         JOHNSON V. FIRESTONE TIRE St RUBBER CO.
 
         Page 4
 
         
 
         
 
         Ex. 2).  A third doctor, Michael J. Taylor, on July 26, 1989, 
 
         opined that claimant suffers from a life-long personality 
 
         disorder which is effected by stress and concluded the other two 
 
         psychiatrists overestimated claimant's mental situation.  Dr. 
 
         Taylor saw no need for claimant to take medicine  (Lithium 
 
         Carbonate) that he is currently taking and needs no psychiatric 
 
         intervention to allow claimant to be employed (Def. Ex. B).
 
         
 
              On November 20, 1988, Dana L. Simon, M.D., director of Mercy 
 
         Nerve Block Center, discussed possible surgery, referring to a 
 
         lumbar sympathectomy to relieve claimant's foot pain but was not 
 
         overly optimistic of any success (Cl. Ex. 4).
 
         
 
              David C. Johnson, D.P.M., opined on June 1, 1989 that 
 
         claimant had a 15 to 20 percent disability to the body as a whole 
 
         (Cl. Ex. 5).  Dr. Johnson released claimant to return to work on 
 
         June 1, 1989 providing claimant was able to be off his feet 85 
 
         percent of the time and lift no more than 35 pounds (Cl. Ex. 9).
 
         
 
              N. Gavin, D.O., reports on his impression that claimant has 
 
         a reflexine sympathetic dystrophy (Cl. Ex. 6).  This diagnosis 
 
         was common among most of the various doctors, excluding the 
 
         psychiatrists.
 
         
 
                                  APPLICABLE LAW
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of November 4, 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).
 
         
 
              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).
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         JOHNSON V. FIRESTONE TIRE & RUBBER CO.
 
         Page 5
 
         
 
         
 
              If a claimant contends he has industrial disability he has 
 
         the burden of proving his injury results in an ailment extending 
 
         beyond the scheduled loss.  Kellogg v. Shute and Lewis Coal Co., 
 
         256 Iowa 1257, 130 N.W.2d 667 (1964).
 
         
 
              Permanent partial disabilities are classified as either 
 
         scheduled or unscheduled.  A specific scheduled disability is 
 
         evaluated by the functional method; the industrial method is used 
 
         to evaluate an unscheduled disability.  Martin v. Skelly Oil Co., 
 
         252 Iowa 128, 133, 106 N.W.2d 95, 98 (1960); Graves v. Eagle Iron 
 
         Works, 331 N.W.2d 116 (Iowa 1983); Simbro v. DeLong's Sportswear, 
 
         332 N.W.2d 886, 887 (Iowa 1983).
 
         
 
              Iowa Code section 85.34(l) provides that if an employee has 
 
         suffered a personal injury causing permanent partial disability, 
 
         the employer shall pay compensation for a healing period from the 
 
         day of the injury until (1) the employee returns to work; or (2) 
 
         it is medically indicated that significant improvement from the 
 
         injury is not anticipated; or (3) until the employee is medically 
 
         capable of returning to substantially similar employment.
 
         
 
              Iowa Code section 85.34(2)(n) provides:  "For the loss of a 
 
         foot, weekly compensation during one hundred fifty weeks."
 
         
 
                                     ANALYSIS
 
         
 
              Claimant has had a long-term history of mental disorder. 
 
         This condition is easily triggered by episodes in claimant's life 
 
         like but not limited to a divorce, girlfriend, injury, loss of a 
 
         child, and stress.  Claimant is blaming his mental problems on 
 
         his right foot injury and back problems.
 
         
 
              There is no dispute that claimant injured his right foot, a 
 
         scheduled member, on November 4, 1987.  Claimant has had a long 
 
         history of back problems.  He contends his current back problems 
 
         are the result of his right foot injury.  At the time of 
 
         claimant's deposition in April 1989, his attorney indicated that 
 
         they were not making claim for a back injury which occurred as a 
 
         result of another accident.  The greater weight of medical 
 
         evidence does not support claimant's contentions that his current 
 
         back condition was caused by his November 4, 1987 injury.  
 
         Claimant has failed in his burden of proof to show he has an 
 
         injury to his body as a whole.
 
         
 
              The medical evidence shows claimant injured his right foot 
 
         and the undersigned so finds.  The law is clear that an injury to 
 
         a scheduled member and any impairment found under 85.34(2)(n) 
 
         includes any psychological injury.  The undersigned does not find 
 
         any psychological injury to claimant resulting from his November 
 
         4, 1987 right foot injury but if it did so find, it would be
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         JOHNSON V. FIRESTONE TIRE & RUBBER CO.
 
         Page 6
 
         
 
         
 
         included in any scheduled member impairment found as provided by 
 
         the law.
 
         
 
              The medical testimony indicates no doctor placed an 
 
         impairment rating on claimant's foot, except Dr. Johnson, a 
 
         podiatrist, opined a 15 to 20 percent disability to claimant's 
 
         body as a whole.  It is presumed the doctor means impairment, not 
 
         disability, as the undersigned determines disability.  How this 
 
         doctor arrived at this rating is not determinable without the 
 
         undersigned making certain presumptions or guesses.  The doctor 
 
         may have converted a foot impairment to a body as a whole, but 
 
         this is not proper if the doctor did this, under the facts of 
 
         this case, the nature of the injury and the law.  The doctor did 
 
         place some restrictions on the claimant.   Although a rating need 
 
         not be opined by a doctor before the undersigned can find an 
 
         impairment, the undersigned finds that there is an impairment to 
 
         claimant's right foot and restrictions contribute to this 
 
         impairment.  The overwhelming weight of medical evidence shows 
 
         claimant has a sympathetic reflex nerve dystrophy which resulted 
 
         from claimant's right foot injury.  Claimant was able to work 
 
         before his injury without a sympathetic reflex dystrophy 
 
         condition.  The undersigned finds claimant's November 4, 1987 
 
         injury caused claimant's right foot dystrophy condition causing 
 
         claimant to have an impairment to his right foot.  Dr. Johnson is 
 
         a foot specialist and is the most experienced in this area since 
 
         it involves a foot.  It is obvious that claimant has a serious 
 
         foot condition.  Claimant is coping reasonably well but this does 
 
         not lessen the impairment.  Although some people can lessen the 
 
         effect of an impairment by effort and motivation, the impairment 
 
         is still there.  The undersigned finds claimant has a 45 percent 
 
         permanent partial impairment to his right foot. It  is further 
 
         found that claimant's permanent impairment is causally connected 
 
         to his November 4, 1987 injury.  Claimant was off work as 
 
         stipulated by the parties from December 1, 1987 up to and  not 
 
         including June 19, 1989.  Dr. Johnson released claimant to return 
 
         to work with certain restrictions on or around June 1, 1987  (Cl. 
 
         Ex. 9).  Claimant is. entitled to healing period for the period 
 
         of time as stipulated by the parties.  Any sick pay claimant 
 
         received during this period will be credited against the healing 
 
         period benefits.  Claimant's permanent partial disability 
 
         benefits shall begin June 19, 1989.
 
         
 
              The parties are disputing the psychiatric.bills.  Claimant 
 
         has had many problems in his life which has left him in a 
 
         situation that he will most likely need psychiatric help on and 
 
         off the rest of his life.  It is obvious many things can trigger 
 
         his condition.  Claimant has failed to prove his psychiatric 
 
         bills are causally connected to his injury of November 4, 1987.'
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         JOHNSON V. FIRESTONE TIRE & RUBBER CO.
 
         Page 7
 
         
 
                                 FINDINGS OF FACT
 
                                        
 
              1. Claimant injured his right foot at work on November 4, 
 
         1987 as a result of a tire falling on his right foot.
 
         
 
              2. Claimant suffered a sympathetic reflex dystrophy in his 
 
         right foot as a result of his work injury on November 4, 1987.
 
         
 
              3. Claimant incurred a 45 percent permanent partial 
 
         impairment to his right foot as a result of his November 4, 1987 
 
         injury.
 
         
 
              4. Claimant did not incur an injury or impairment to his low 
 
         back or to his body as a whole as a result of his November 4, 
 
         1987 injury.
 
         
 
              5. Claimant has had a long-term low back problem all his 
 
         life.
 
         
 
              6. Claimant failed to prove his psychological condition and 
 
         expenses is a result of his November 4, 1987 injury.
 
         
 
              7. Claimant has had psychological problems resulting from 
 
         general stress, marital problems, girlfriend problems, cocaine 
 
         use, depression, and a life-long personality disorder, which 
 
         problems are not materially the results of nor caused by 
 
         claimant's November 4, 1987 injury.
 
         
 
              8. Claimant has incurred a healing period beginning December 
 
         1, 1987 up to and not including June 19, 1989, which involves 
 
         80.857 weeks.
 
         
 
              9. Claimant's psychiatric bills are not the result of 
 
         claimant's November 4, 1987 injury and are the sole 
 
         responsibility of claimant.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant's right foot injury arose out of and in the course 
 
         of his employment on November 4, 1987.
 
         
 
              Claimant's November 4, 1987 work injury caused him to incur 
 
         a sympathetic reflex dystrophy condition in his right foot.
 
         
 
              Claimant's November 4, 1987 injury caused him to incur a 45 
 
         percent permanent partial impairment to his right foot.
 
         
 
              Claimant's injury on November 4, 1987 did not cause any low 
 
         back injury or body as a whole injury to claimant.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         JOHNSON V. FIRESTONE TIRE & RUBBER CO.
 
         Page 8
 
         
 
         
 
              Claimant's November 4, 1987 injury caused claimant to incur 
 
         healing period beginning December 1, 1987 up to but not including 
 
         June 19, 1989, involving 80.857 weeks.
 
         
 
              Any psychological problems claimant has were not proximately 
 
         caused by his November 4, 1987 injury.
 
         
 
              Claimant pays his own psychiatric bills.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That defendants shall pay unto claimant healing period 
 
         benefits at the rate of three hundred sixty-one and 74/100 
 
         dollars ($361.74) for the period beginning December 1, 1987 up to 
 
         but not including June 19, 1989, which involves eighty point 
 
         eight five seven (80.857) weeks.
 
         
 
              Claimant shall be given credit for the sick pay benefits he 
 
         received beginning February 22, 1988 through March 19, 1989, 
 
         amounting to eleven thousand seven hundred  dollars ($11,700.00).
 
         
 
              Defendants shall pay unto claimant sixty-seven point five 
 
         (67.5) weeks of permanent partial disability benefits at the rate 
 
         of three hundred sixty-one and 74/100 dollars ($361.74) beginning 
 
         June 19, 1989.
 
         
 
              That defendants shall pay accrued weekly benefits in a lump 
 
         sum and shall receive credit against the award for weekly 
 
         benefits previously paid. The parties agreed that defendants had 
 
         paid ten (10) weeks of benefits at the rate of three hundred 
 
         forty-one and 09/100 dollars ($341.09) for which defendants shall 
 
         receive credit.
 
         
 
              That claimant is responsible for and shall pay all his 
 
         medical and hospital bills incurred for psychiatric treatment and 
 
         services.
 
         
 
              That defendants shall pay interest on benefits awarded 
 
         herein as set forth in Iowa Code section 85.30.
 
         
 
              That defendants shall pay the costs of this action, pursuant 
 
         to Division of Industrial Services Rule 343-4.33.
 
         
 
              That defendants shall file an activity report upon payment 
 
         of this award as required by this agency, pursuant to Division  
 
         of Industrial Services Rule 343-3.1
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         JOHNSON V. FIRESTONE TIRE & RUBBER CO.
 
         Page 9
 
         
 
         
 
              Signed and filed this 23rd day of May, 1990
 
         
 
         
 
         
 
         
 
         
 
         
 
                                       BERNARD J. O'MALLEY
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies to:
 
         
 
         Mr Jeffrey G Flagg
 
         Attorney at Law
 
         2716 Grand Ave
 
         Des Moines IA  50312
 
         
 
         Mr Marvin  Duckworth
 
         Attorney at Law
 
         Terrace Ctr  Ste 111
 
         2700 Grand ave
 
         Des Moines IA  50312
 
         
 
         Mr Stuart M Pepper
 
         Attorney at Law
 
         3913 Ingersoll Ave
 
         Des Moines IA  50312
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                         5-1108; 1803.1
 
                                         Filed May 23, 1990
 
                                         Bernard J. O'Malley
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         ROBERT JOHNSON,
 
         
 
              Claimant,
 
                                                 File No. 871107
 
         VS.
 
         
 
         FIRESTONE TIRE & RUBBER             A R B I T R A T I 0 N
 
         CO.,
 
                                                 D E C I S I 0 N
 
              Employer,
 
         
 
         and
 
         
 
         CIGNA,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1803.1
 
         
 
              Found claimant incurred an injury to his right foot 
 
         resulting in a sympathetic reflex dystrophy.  Award of benefits 
 
         based on a scheduled member injury and not a body as a whole, 
 
         notwithstanding the doctor opining a 15-20% body as a whole 
 
         impairment.  Claimant found to have a 45% permanent partial
 
         impairment to his right foot.
 
         
 
         5-1108
 
         
 
              Claimant's psychological problems not causally connected to 
 
         his injury, but if so found, they would be included in the 
 
         scheduled injury benefits anyway and not in addition thereto.