BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            CAROLYN COHOON,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 879729
 
            BOSSELMAN & HARTNER,          :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            FIREMAN'S FUND INSURANCE,     :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in review-reopening brought by 
 
            Carolyn Cohoon, claimant, against Bosselman & Hartner, 
 
            employer, and Fireman's Fund Insurance Company, insurance 
 
            carrier, defendants, for the recovery of further workers' 
 
            compensation benefits as the result of an injury on February 
 
            5, 1988.  A prior arbitration decision involving this injury 
 
            was filed on April 1, 1991.  This decision was not appealed.  
 
            On November 1, 1993, a hearing was held on this 
 
            review-reopening petition and the matter was considered 
 
            fully submitted at the close of this hearing. 
 
            
 
                 The parties have submitted a hearing report of 
 
            contested issues and stipulations which was approved and 
 
            accepted as a part of the record of this case at the time of 
 
            hearing.  The oral testimony and written exhibits received 
 
            during the hearing are set forth in the hearing transcript.
 
            
 
                                      ISSUES
 
            
 
                 The issues submitted are as follows:
 
            
 
                 1.  Whether claimant has established a change of 
 
            condition warranting a review of her disability; and,
 
            
 
                 2.  The extent, if any, of claimant's entitlement to 
 
            additional benefits.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 Having heard the testimony and considered all of the 
 
            evidence, the deputy industrial commissioner finds as 
 
            follows:
 
            
 
                 On January 19, 1991 an arbitration hearing was held for 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            this injury in which claimant established a compensable work 
 
            injury to her right foot.  Claimant was awarded permanent 
 
            partial disability benefits for a loss of use of that foot.  
 
            At this prior hearing there was evidence that claimant 
 
            suffered from back problems and routinely received 
 
            chiropractic care.  In a report from one of her treating 
 
            physicians at the time, dated October 31, 1989, Martin 
 
            Rosenfeld, D.O., noted that claimant felt that her back 
 
            problem was due to walking different after her foot injury.
 
            
 
                 A report from an A. L. McCormick, D.O., dated December 
 
            28, 1990 was excluded from the evidence at the January 9, 
 
            1991 hearing as it was obtained after the case preparation 
 
            completion date established by agreement of counsel at a 
 
            prehearing conference.  Although it is apparent from the 
 
            evidence in the prior hearing, that claimant felt her injury 
 
            was not limited to the foot but extended into the back, no 
 
            physician in the record so opined.  The report excluded by 
 
            the presiding deputy was not the result of any new 
 
            examination or any deterioration of condition after the 
 
            evidence cut-off date or case preparation completion date.
 
            
 
                 Claimant failed to show from the evidence presented 
 
            that she suffered a change of condition, physically or 
 
            economically, after the case completion date.  At hearing in 
 
            this case, claimant even admitted that her condition at the 
 
            time of the hearing in this case was the same as her 
 
            condition during the January 9, 1991 hearing.  Claimant 
 
            relies heavily on the views of William Boulden, M.D.  Dr. 
 
            Boulden opines that a fall a couple of weeks after the 
 
            February 5, 1988 injury in which she hurt her back was due 
 
            to the foot injury on February 5, 1988.  This opinion was 
 
            based upon facts and circumstances existing well before the 
 
            January 9, 1991 evidentiary hearing and the case preparation 
 
            completion date for that hearing.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 First, claimant makes it clear that she is not 
 
            asserting a claim based upon any injury other than the event 
 
            on February 5, 1988.  Citing DeShaw v. Energy Manufacturing 
 
            Co., 192 N.W.2d 777, 780 (Iowa 1971), claimant states that 
 
            the fall in which she injured her back on February 18, 1988 
 
            was the proximate result of the February 5, 1988 injury and 
 
            compensable event from that work injury.
 
            
 
                 However, the only way to reopen a prior disability 
 
            award based upon a final agency decision rendered for a 
 
            specific injury is to establish in a review-reopening 
 
            proceeding a change of condition or a failure to improve as 
 
            medically anticipated as a proximate result of his original 
 
            injury, subsequent to the date of the award or agreement for 
 
            compensation under review, which entitles him to additional 
 
            compensation.  Deaver v. Armstrong Rubber Co., 170 N.W.2d 
 
            455 (Iowa 1969).  Meyers v. Holiday Inn of Cedar Falls, 272 
 
            N.W.2d 24 (Iowa Ct. App. 1978).  Such a change of condition 
 
            is not limited to a physical change of condition.  A change 
 
            in earning capacity subsequent to the original award which 
 
            is proximately caused by the original injury also 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
            constitutes a change in condition under Iowa Code section 
 
            85.26(2) and 86.14(2).  See McSpadden v. Big Ben Coal Co., 
 
            288 N.W.2d 181, (Iowa 1980); Blacksmith v. All-American, 
 
            Inc., 290 N.W.2d 348 (Iowa 1980).
 
            
 
                 In previous cases before this agency, the undersigned 
 
            has held that a change of condition after any evidence 
 
            cut-off date or case completion date set forth in a hearing 
 
            assignment order is sufficient to warrant a 
 
            review-reopening.
 
            
 
                 However, it was found in the case sub judice that 
 
            claimant's condition was the same before and after the case 
 
            completion date.  The only thing different was a late 
 
            medical opinion from Dr McCormick analyzing prior existing 
 
            facts, these facts existed well before the hearing and the 
 
            cut-off date.  A redetermination of the condition as it was 
 
            adjudicated by a prior award is not a proper basis for 
 
            review-reopening.  Stice v. Indiana Coal Co., 228 Iowa 1031, 
 
            1038; 291 N.W. 452, 456 (1940); Sheriff v. Intercity 
 
            Express, 34 Biennial Rep., Iowa Industrial Comm'r 203 
 
            (Appeal Decision 1978).
 
            
 
                                      ORDER
 
            
 
                 1.  Claimant's petition is dismissed with prejudice.
 
            
 
                 2.  Claimant shall pay the costs of this action 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 Signed and filed this ____ day of February, 1994.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            
 
            Copies To:
 
            
 
            Mr. Joseph Bauer
 
            Attorney at Law
 
            100 Court Avenue  STE 203
 
            Des Moines, Iowa  50309
 
            
 
            Mr. Joseph A. Happe
 
            Attorney at Law
 
            500 Liberty Bldg.
 
            418 6th Avenue  Ste 500
 
            Des Moines, Iowa 50309-2421
 
            
 
                 
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            CAROLYN COHOON,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 879729
 
            BOSSELMAN & HARTNER,          :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            FIREMEN'S FUND INSURANCE CO., :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                 
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration for benefits, 
 
            brought by Carolyn Cohoon, claimant, against Bosselman and 
 
            Hartner, employer, and Fireman's Fund Insurance Company, 
 
            insurance carrier, defendants, as a result of an alleged 
 
            injury which occurred February 5, 1988.  A hearing was held 
 
            on January 9, 1991 at Des Moines, Iowa, and the case was 
 
            fully submitted at the close of the hearing.  Leave was 
 
            granted so that the parties could submit briefs.
 
            
 
                 In accordance with the hearing assignment order and 
 
            prehearing report, the following issues were submitted for 
 
            resolution:
 
            
 
                 1.  Whether there is a causal relationship between the 
 
            alleged injury and the disability;
 
            
 
                 2.  Whether claimant is entitled to temporary total, 
 
            healing period benefits or permanent partial disability 
 
            benefits;
 
            
 
                 3.  Whether claimant is entitled to medical benefits 
 
            pursuant to Iowa Code section 85.27.
 
            
 
                 The record consist of the testimony of the claimant; 
 
            joint exhibits 1-10; and claimant's exhibits A, B and C.  
 
            Claimant's exhibit D, dated December 28, 1990, was excluded 
 
            based on untimeliness of service as it was produced after 
 
            the December 21, 1990 discovery deadline had passed.
 
            
 
                                 findings of fact
 
            
 
                 Claimant was 52 years old at the time of the hearing.  
 
            She is married, and does not have any dependant children 
 
            living with her.
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                 Claimant began working as a waitress for defendant 
 
            employer on February 1, 1988.  On February 5, 1988, while 
 
            performing her job duties, claimant apparently stubbed the 
 
            second toe on her right foot.  As she continued working, she 
 
            encountered a great deal of pain.
 
            
 
                 Claimant first sought medical treatment from C. H. 
 
            Lundahl, a chiropractor, who took x-rays of her back and 
 
            right leg.  (Joint Exhibit 1, Page 1).
 
            
 
                 The next day, she went to Des Moines General Hospital 
 
            Emergency Room, and was treated by Dennis A. Kesler, D.P.M., 
 
            for several weeks.  She received several cortisone 
 
            injections, which provided little relief.
 
            
 
                 On March 28, 1988, claimant began treatment with Robert 
 
            J. Weatherwax, M.D., a Des Moines orthopaedic specialist.  
 
            He ordered a bone scan to rule out a stress fracture, and 
 
            provided conservative treatment until September 7, 1988. 
 
            
 
                 Claimant underwent surgery on October 13, 1988:
 
            
 
                 OPERATIVE REPORT:
 
            
 
                    DIAGNOSIS:  1.   Morton's neuroma, 3rd and 4th                          
 
                    interspace, right.
 
            
 
                                2.   Flexible claw toe deformities, 
 
                    2nd                   toes bilateral.
 
            
 
                                3.   Hallux valgus metatarsus 
 
                    primus                          varis 
 
                    symptomatic bunion, right                      
 
                    great toe.
 
            
 
                    PROCEDURE:  1.   Morton's neurectomy, 3rd and 
 
                    4th                        interspace, right 
 
                    foot.
 
            
 
                                2.   Flexor to extensor tendon 
 
                    transfer,                  right 2nd toe 
 
                    (workman's [sic]                     
 
                    compensation related).
 
            
 
                                3.   Chevron osteotomy, 
 
                    bunionectomy,                        right 
 
                    great toe, flexor to extensor                  
 
                    tendon transfer, left 2nd toe (no                        
 
                    work related injury).
 
            
 
            (Jt. Ex. 2, P. 7)
 
            
 
                 Claimant was off work from February 5, 1988 until 
 
            February 3, 1989, when she was released from Dr. 
 
            Weatherwax's care without work restrictions, and without 
 
            permanent impairment.  (Jt. Ex. 3, P. 4).
 
            
 
                 Claimant remained unhappy with the outcome of the 
 
            surgery, and sought treatment from her family physician in 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            July of 1989.  On October 31, 1989, started to see Martin 
 
            Rosenfeld, D.O., an orthopaedist.  His notes indicate the 
 
            following information:
 
            
 
                 Dr. Weatherwax did hammertoe surgery on the second 
 
                 toe and apparently did bunion surgery at the same 
 
                 time and also a neuroma of the third web space 
 
                 through a volar approach at the same time.  
 
                 Apparently the hammertoe and the neuroma were 
 
                 considered as a result of the work comp injury and 
 
                 the bunion was placed on her regular insurance.  
 
                 She has had difficulty with her foot since that 
 
                 time.  She is unable to bear weight for prolonged 
 
                 periods of time and unable to wear shoes properly 
 
                 because of overriding of the second toe over the 
 
                 first.  And now because of protecting the foot is 
 
                 developing pain in the low back which radiates 
 
                 into the right thigh.  She denies any previous 
 
                 foot problems.
 
            
 
                 On examination patient has a residual hallux 
 
                 valgus deformity.  She has overriding of the 
 
                 second toe over the first with a fusion of the 
 
                 second toe and an extension deformity.  She also 
 
                 has painful callus under the third toe with 
 
                 tenderness at the scar from the volar approach to 
 
                 the neuroma.
 
            
 
            (Jt. Ex. 4, P. 1)
 
            
 
                 On January 9, 1990, Dr Rosenfeld performed surgery on 
 
            the right foot, consisting of a modified McBride 
 
            bunionectomy of the great toe with concentive basal 
 
            osteotomy with pin fixation; a partial proximal 
 
            phalangectomy of the second toe; third metatarsal osteotomy; 
 
            and, second and third surgical syndactylies.
 
            
 
                 Claimant was off of work from January 9, 1990 through 
 
            July 15, 1990, when she started a dog grooming business.
 
            
 
                 On October 9, 1990, claimant was given a second opinion 
 
            by Dr. Rosenfeld regarding the impairment to her right foot:
 
            
 
                 After evaluating her chart, I feel that she has a 
 
                 ten (10%) percent permanent physical impairment to 
 
                 the right foot as a result of her February 05, 
 
                 1988 work injury.  This impairment rating is due 
 
                 to lack of motion, discomfort, and the inability 
 
                 to walk without a shoe.
 
            
 
            (Jt. Ex. 4, P. 12)
 
            
 
                           applicable law and analysis
 
            
 
                 The first issue to be addressed is whether there is a 
 
            causal connection between claimant's work related injury and 
 
            her disability.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of February 5, 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            1988 is causally related to the disability on which she now 
 
            bases her claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
            N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 296, 18 
 
            N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903 (Iowa 1974).  However, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Id. at 907.  Further, the weight to be given to such 
 
            an opinion is for the finder of fact, and that may be 
 
            affected by the completeness of the premise given the expert 
 
            and other surrounding circumstances.  Bodish, 257 Iowa 516, 
 
            133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
            Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
            
 
                 Claimant has worked as a waitress periodically for the 
 
            past ten years.  Although she has what has been diagnosed as 
 
            a hammer toe on her left toe, she did not have the same 
 
            affliction on her right foot prior to February of 1988.  In 
 
            1982 or 1983, she also suffered an injury to her left foot, 
 
            but has had no type of medical treatment for her right foot 
 
            prior to this injury.
 
            
 
                 Dr. Weatherwax related various portions of claimant's 
 
            disability to her work-related accident.  His office notes 
 
            dated August 8, 1988, indicate the causal relationship:
 
            
 
                 I think the second toe problem is largely a result 
 
                 of the trauma associated with the injury to her 
 
                 toe back in February of 1988.  The Morton's 
 
                 neuroma symptoms in the third and fourth 
 
                 interspace also date to that injury.  Her bunion 
 
                 deformity however and the associated mild symptoms 
 
                 that she has had are completely unrelated to any 
 
                 work injury and are basically the result of a long 
 
                 period of time with this deformity.  Additionally, 
 
                 I do not feel that this patient has an 
 
                 inflammatory arthritis that is causing any of her 
 
                 forefoot symptoms in either foot and that these 
 
                 are more of a mechanical situation.  Her left foot 
 
                 which is also going to require surgery and 
 
                 apparently will be carried out simultaneously has 
 
                 no relationship to any work injury and is related 
 
                 to prior deformity and injury.
 
            
 
                 Dr. Rosenfeld, who performed the second surgery on 
 
            claimant's right foot, evaluated claimant as having a 10 
 
            percent permanent impairment to her right foot as the result 
 
            of her February 5, 1988 work injury.  (Joint Exhibit 4, P. 
 
            12).
 
            
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                 The evidence clearly shows the treatment rendered to 
 
            claimant by Dr. Weatherwax is causally related to the work 
 
            related injury.  She is awarded temporary total disability 
 
            benefits from February 6, 1988 through February 3, 1989.
 
            
 
                 Claimant also makes a claim for disability benefits 
 
            from April 10, 1989 through July 15, 1990.  She bases her 
 
            position of entitlement to further benefits on Dr. 
 
            Rosenfeld's subsequent surgery and impairment rating.
 
            
 
                 Claimant testified that she had continual problems with 
 
            her right toe and foot following the initial surgery.  Dr. 
 
            Weatherwax indicates that he had nothing further to offer 
 
            claimant by way of medical treatment to her right foot, and 
 
            refused further treatment.  In fact, he encouraged her to 
 
            secure a second opinion.  (Jt. Ex. 3, P. 4).
 
            
 
                 There is no evidence presented which indicates claimant 
 
            suffered any other type of trauma to her right foot and as a 
 
            result, the time off work due to the second surgery and 
 
            recovery time is found to be causally related to the 
 
            work-related injury.
 
            
 
                 The next issue to be determined is whether claimant is 
 
            entitled to temporary total, healing period, or permanent 
 
            partial disability benefits.
 
            
 
                 Iowa Code section 85.34(1) 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.
 
            
 
                 Dr. Weatherwax gave the claimant a zero percent 
 
            functional impairment, while Dr. Rosenfeld felt that 
 
            claimant had sustained a 10 percent permanent partial 
 
            impairment to her right foot.  Both physicians prescribed a 
 
            course of treatment for the claimant, and both physicians 
 
            performed surgical procedures to her right foot.
 
            
 
                 Dr. Weatherwax's treatment began after the injury and 
 
            continued for approximately one year.  It is well documented 
 
            in his notes that claimant had on-going complaints and 
 
            concerns about the condition of her foot.  It appears from 
 
            the record she was unhappy with the care provided by Dr. 
 
            Weatherwax, Dr. Weatherwax became frustrated with the 
 
            prolonged recovery time and complaints from claimant, and 
 
            encouraged her to seek a second opinion.  Claimant did so, 
 
            and came under the care of Dr. Rosenfeld.
 
            
 
                 Dr. Rosenfeld also provided treatment to repair the 
 
            damage to claimant's right foot as a result of the injury of 
 
            February 5, 1988.  At the end of his tenure as claimant's 
 
            treating physician, he did render an opinion regarding 
 
            permanency.
 
            
 
                 The undersigned finds Dr. Rosenfeld's opinion to be 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            well-founded upon the history, examination and treatment of 
 
            claimant.  He was aware of the prior surgery, and the 
 
            problems that both preceded and followed Dr. Weatherwax's 
 
            treatment.
 
            
 
                 Therefore, the undersigned finds that claimant has 
 
            sustained a ten percent permanent physical impairment to her 
 
            right foot as a result of the injury.  She is entitled to be 
 
            compensated pursuant to Iowa Code section 85.34(2)(n) for 
 
            fifteen weeks of permanent partial disability.
 
            
 
                 Claimant is also entitled to additional healing period 
 
            under Iowa Code section 85.34(1).
 
            
 
                 Although claimant argues that she is entitled to 
 
            compensation from April 10, 1989 through July 15, 1990, the 
 
            undersigned is not persuaded by her argument.  She feels 
 
            that she was released to return to work on April 10, 1989, 
 
            and did not begin to work again until July 15, 1990.
 
            
 
                 The undersigned that claimant is entitled to additional 
 
            healing period benefits from October 31, 1989 through 
 
            February 27, 1990.  Although claimant testified she did not 
 
            begin to work again until July 15, 1990, she testified at 
 
            the hearing she was released to return to work sometime in 
 
            June of 1990.  The record is silent as to an exact date she 
 
            was released to return to work, which makes it difficult to 
 
            find the timeframe for which claimant is entitled to healing 
 
            period benefits.  Her last appointment with Dr. Rosenfeld 
 
            was on February 6, 1990, although outpatient surgery for 
 
            removal of a pin from her right foot was performed on 
 
            February 27, 1990.  There is no evidence which shows that 
 
            claimant was under a doctor's care after February 27, 1990, 
 
            and the undersigned finds that her healing period ended on 
 
            this date.
 
            
 
                 The last issue to be determined is whether claimant is 
 
            entitled to medical benefits pursuant to Iowa Code section 
 
            85.27.
 
            
 
                 Iowa Code section 85.27 provides, in part:
 
            
 
                    For purposes of this section, the employer is 
 
                 obliged to furnish reasonable services and 
 
                 supplies to treat an injured employee, and has the 
 
                 right to choose the care.  The treatment must be 
 
                 offered promptly and be reasonably suited to treat 
 
                 the injury without undue inconvenience to the 
 
                 employee.  If the employee has reason to be 
 
                 dissatisfied with the care offered, the employee 
 
                 should communicate the basis of such 
 
                 dissatisfaction to the employer, in writing if 
 
                 requested, following which the employer and the 
 
                 employee may agree to alternate care reasonably 
 
                 suited to treat the injury.  If the employer and 
 
                 employee cannot agree on such alternate care, the 
 
                 commissioner may, upon application and reasonable 
 
                 proofs of the necessity therefor, allow and order 
 
                 other care.  In an emergency, the employee may 
 
                 choose the employee's care at the employer's 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
                 expense, provided the employer or the employer's 
 
                 agent cannot be reached immediately.
 
            
 
                 Defendants have refused to pay for medical treatment 
 
            rendered after claimant was released by Dr. Weatherwax.  
 
            Yet, the medical evidence, and other evidence submitted at 
 
            the hearing (particularly claimant's exhibit B) shows that 
 
            claimant continued to have problems with the second toe on 
 
            her right foot.  As previously discussed, defendants are 
 
            liable for payment of healing period benefits and the 
 
            permanent impairment to claimant's foot.
 
            
 
                 A review of the agency file reveals that defendants 
 
            denied liability in their answer to claimant's petition.  As 
 
            a result, even though claimant's care was technically 
 
            unauthorized, defendants are responsible for unauthorized 
 
            medical care from the date of their answer in which they 
 
            deny liability.  See, Mason v. Thermo-Gas, (Appeal Decision, 
 
            July 28, 1989).
 
            
 
                 Claimant is entitled to medical benefits for the 
 
            treatment of the right toe and the Morton's neuroma which 
 
            resulted from the injury on February 5, 1988.  She is not 
 
            entitled to medical benefits for the treatment of her 
 
            bunions on either her right foot, or any treatment to her 
 
            left foot.
 
            
 
                 Claimant is also entitled to medical benefits in the 
 
            form of Dr. Rosenfeld's treatment.  Again, she is entitled 
 
            to these benefits as they pertain to treatment of the 
 
            Morton's neuroma and treatment to the right second toe.
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That claimant is entitled to fifteen (15) weeks of 
 
            permanent partial disability payments at the stipulated rate 
 
            of one hundred twenty-seven and 70/100 dollars ($127.70) per 
 
            week.
 
            
 
                 That claimant is entitled to medical benefits pursuant 
 
            to Iowa Code section 85.27.
 
            
 
                 That claimant is entitled to healing period benefits 
 
            from October 31, 1989 through February 27, 1990.
 
            
 
                 That defendants shall pay the accrued weekly benefits 
 
            in a lump sum, and shall receive credit against the same.
 
            
 
                 That defendants shall pay interest on the benefits 
 
            awarded herein as set forth in Iowa Code section 85.30.
 
            
 
                 That defendants shall pay the costs of this action 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 That defendants shall file an activity report upon 
 
            payment of this award as required by this agency pursuant to 
 
            rule 343 IAC 3.1.
 
            
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
                 Signed and filed this ____ day of April, 1991.
 
            
 
            
 
            
 
            
 
                                          
 
            ________________________________
 
                                          PATRICIA J. LANTZ
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr Joseph M Bauer
 
            Attorney at Law
 
            309 Court Avenue, Ste 500
 
            Des Moines Iowa 50309
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            
 
            Mr Joseph A Happe
 
            Attorney at Law
 
            500 Liberty Bldg
 
            Des Moines Iowa 50309
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            5-1803
 
                                            Filed February 2, 1994
 
                                            LARRY P. WALSHIRE
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            CAROLYN COHOON,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 879729
 
            BOSSELMAN & HARTNER,          :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            FIREMAN'S FUND INSURANCE,     :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            
 
            5-1803
 
            Non-precedential, extent of disability case.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      1802; 2507; 2505
 
                      Filed April 1, 1991
 
                      PATRICIA J. LANTZ
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            CAROLYN COHOON,     :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :      File No. 879729
 
            BOSSELMAN & HARTNER,     :
 
                      :    A R B I T R A T I O N
 
                 Employer, :
 
                      :      D E C I S I O N
 
            and       :
 
                      :
 
            FIREMEN'S FUND INSURANCE CO., :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            1802
 
            Claimant awarded healing period benefits during the time she 
 
            was off of work to recouperate from a second surgery 
 
            necessary to treat a work-related injury.
 
            
 
            2507; 2505
 
            Claimant had toe surgery performed by Dr. Weatherwax 
 
            (employer's doctor).  The surgery clearly rendered a bad 
 
            result, and claimant had continuous problems.  She was 
 
            denied further treatment.
 
            Claimant awarded further medical treatment, healing period 
 
            and permanent partial disability benefits.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            WINFRED EARL DALE, II,        :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 879768
 
            PRECISION PULLEY, INC.,       :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INSURANCE CO., :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration upon the petition 
 
            of claimant, Winfred C. Dale, II, against his employer, 
 
            Precision Pulley, Inc., and its insurance carrier, Liberty 
 
            Mutual Insurance Company, defendants.  The case was heard on 
 
            March 23, 1992, at the office of the Industrial Commissioner 
 
            in Des Moines, Iowa.  The record consists of the testimony 
 
            of claimant.  The record also consists of the testimony of 
 
            claimant's spouse, Rebecca Dale; the testimony of Dennis W. 
 
            Brass, Director of Human Resources; and the testimony of 
 
            Jeff Johnson, vocational consultant.  The record also 
 
            consists of joint exhibits 1-13.
 
            
 
                                      ISSUES
 
            
 
                 The parties have stipulated:
 
            
 
                 (1)  That claimant suffered an injury to his left 
 
                 foot on 3/17/88 that arose out of and in 
 
                 the course ofhis employment.
 
            
 
                 (2)  That said 3/17/88 injury resulted in his 
 
                 having to undergo an operation on the left 
 
                 foot by Dr. Mercier on 3/31/89.
 
            
 
                 (3)  That said 3/17/88 injury resulted in a 
 
                    healing period that ended on 9/24/89.
 
            
 
                 (4)  That said 3/17/88 injury resulted in a 25% 
 
                      permanent partial disability to his left 
 
                      foot.
 
            
 
                 (5)  That his workmen's compensation rate for all             
 
                 benefits herein is $159.14.
 
            
 
                 The real issue in this matter is whether claimant's 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            scheduled injury has resulted in an injury and an impairment 
 
            to parts of his body not included on the schedule, and if 
 
            so, the nature and extent of that injury.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The deputy, having heard the testimony and considered 
 
            all the evidence, finds:
 
            
 
                 Claimant is 34-years-old.  He is married and he has two 
 
            children.  Currently claimant lives in Bunker Hill, 
 
            Illinois, although during the course of his employment with 
 
            defendant, employer claimant resided in Corning, Iowa.
 
            
 
                 Claimant commenced his employment with defendant 
 
            employer on June 1, 1987.  He held a variety of positions 
 
            within the plant.  All of the positions involved prolonged 
 
            standing.
 
            
 
                 On March 17, 1988, claimant sustained a work-related 
 
            injury to his left foot.  Claimant testified that a 64 pound 
 
            sheet of steel fell onto the top portion of his arch on the 
 
            left foot.  He also testified he was thrown onto the 
 
            concrete and that he landed on his back.  Claimant managed 
 
            to extricate his left foot from underneath the sheeting 
 
            after 5 to 10 seconds.
 
            
 
                 Prior to the work injury in question, claimant had 
 
            sustained one injury to his low back when he was bouncing on 
 
            a trampoline.  An x-ray taken at that time revealed 
 
            sponsyloschisis [sic] of the fifth lumbar vertebral 
 
            bilateral (Exhibit 1, page 10).  Claimant testified at the 
 
            hearing that he had sustained no injuries to his back 
 
            subsequent to March 17, 1988.  Claimant alleged he had back 
 
            pain due to the manner with which he walked after the left 
 
            foot injury.
 
            
 
                 In March of 1989, Lonnie R. Mercier, M.D., P.C., 
 
            performed an arthrodesis of the left foot.  Claimant was 
 
            placed in a cast.  Dr. Mercier diagnosed claimant as 
 
            suffering from traumatic arthritis (Deposition p. 8, lines 
 
            7-13).
 
            
 
                 Claimant testified that subsequent to the surgery he 
 
            developed pain and swelling in his left foot.  As a 
 
            consequence, he walked with his left foot pointing to the 
 
            left and without putting weight on that foot.  Claimant 
 
            demonstrated in the hearing the manner in which he walked.  
 
            He testified that after four months, he experienced pain in 
 
            his low back near the belt line and down into the right hip.
 
            
 
                 There is no evidence of low back pain complaints until 
 
            late 1990.  On December 18, 1990, Stephen B. Gruba's, M.D., 
 
            office notes state that:
 
            
 
                 [H]e is frustrated about his constant aching low 
 
                 back pain and his left foot pain.  The back pain 
 
                 has been present for about eight months.  He has a 
 
                 corset type lumbar support that he has been 
 
                 wearing for about three months.
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
            (Ex. 3, p. 30)
 
            
 
                 Dr. Gruba, in his report of May 7, 1991, confirmed the 
 
            fact that claimant had "an unusual limping gait."  (Ex. 3, 
 
            p. 33)
 
            
 
                 Dr. Mercier also acknowledged "an abnormal gait pattern 
 
            as a result of his foot condition."  (Ex. 4, p. 43)  
 
            According to Dr. Mercier:  "This gait pattern very well 
 
            could have aggravated or contributed to his present low back 
 
            condition."  (Ex. 4, p. 43)
 
            
 
                 On January 2, 1991, claimant participated in testing 
 
            through the Iowa Department of Vocational Rehabilitation.  
 
            However, claimant did not complete the evaluation.  Rather, 
 
            claimant and his family moved to Illinois where claimant 
 
            secured part-time employment as a "gofer" in a relative's 
 
            business.  He testified he worked 15-20 hours per week at 
 
            the rate of $12.00 to $20.00 per trip made.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 The first issue to address is the issue of causation.  
 
            Claimant has proven that his back condition is causally 
 
            related to his foot injury of March 17, 1988.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury is a proximate 
 
            cause of the disability on which the claim is based.  A 
 
            cause is proximate if it is a substantial factor in bringing 
 
            about the result; it need not be the only cause.  A 
 
            preponderance of the evidence exists when the causal 
 
            connection is probable rather than merely possible.  
 
            Blacksmith v. All-American, Inc., 290 N.W.2d 348, 354 (Iowa 
 
            1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296, 
 
            297 (Iowa 1974).
 
            
 
                 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).
 
            
 
                 Apportionment of disability between a preexisting 
 
            condition and an injury is proper only when some 
 
            ascertainable portion of the ultimate industrial disability 
 
            existed independently before an employment-related 
 
            aggravation of disability occurred.  Bearce v. FMC Corp., 
 
            465 N.W.2d 531 (Iowa 1991); Varied Enterprises, Inc. v. 
 
            Sumner, 353 N.W.2d 407 (Iowa 1984).
 
            
 
                 The burden of showing that disability is attributable 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            to a preexisting condition is placed upon the defendant.  
 
            Where evidence to establish a proper apportionment is 
 
            absent, the defendant is responsible for the entire 
 
            disability that exists.  Bearce, 465 N.W.2d 531; Sumner, 353 
 
            N.W.2d 407.
 
            
 
                 An injury to a scheduled member may, because of after 
 
            effects or compensatory change, result in permanent 
 
            impairment of the body as a whole.  Such impairment may in 
 
            turn be the basis for a rating of industrial disability.  It 
 
            is the anatomical situs of the permanent injury or 
 
            impairment which determines whether the schedules in section 
 
            85.34(2)(a) - (t) are applied.  Lauhoff Grain v. McIntosh, 
 
            395 N.W.2d 834 (Iowa 1986); Blacksmith, 290 N.W.2d 348 (Iowa 
 
            1980); Dailey v. Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 
 
            569 (1943).  Soukup v. Shores Co., 222 Iowa 272, 268 N.W. 
 
            598 (1936).
 
            
 
                 Medical evidence supports claimant's contention.  Dr. 
 
            Gruba opined:  "I think it is common sense that his limping 
 
            gait either caused or aggravated his low back pain."  (Ex. 
 
            3, p. 33)
 
            
 
                 Dr. Mercier was in agreement with the above opinion.  
 
            He opined:  "This gait pattern very well could have 
 
            aggravated or contributed to his present low back 
 
            condition."  (Ex. 4, p. 43)
 
            
 
                 Charles Denhart, M.D., held a similar opinion:
 
            
 
                 This letter is in documentation of our 
 
                 conversation of 05/15/91.  Mr. Dale, as you know, 
 
                 is a 33 year-old man who had an accident in which 
 
                 he injured his left foot on 03/17/88.  Since that 
 
                 time he has had an arthrodesis of the left foot.  
 
                 He has had difficulty walking and uses a cane.  He 
 
                 has also developed low back pain and to a lesser 
 
                 extent also complains of neck and shoulder pain.  
 
                 He had not complained of either back or neck pain 
 
                 prior to his accident.  On x-ray, he does have 
 
                 evidence for a grade one spondylolisthesis.  I 
 
                 believe the back and neck pain are related to his 
 
                 injury in that he has had an unusual walk which 
 
                 would increase his muscular tension and might also 
 
                 exacerbate pain related to his spondylolisthesis.  
 
                 It is also reasonable that the neck and shoulder 
 
                 pain would be related to the unusual use of his 
 
                 muscles in using his cane.
 
            
 
            (Ex. 9, p. 72)
 
            
 
                 It is clear to the undersigned that claimant has met 
 
            his requisite burden of proof.  There is the necessary nexus 
 
            between the initial foot injury and the low back condition.
 
            
 
                 The next issue is whether claimant's back condition has 
 
            resulted in any permanent injury.  The treating orthopedic 
 
            surgeon, Dr. Mercier, opines there is no permanent injury to 
 
            the low back.  In support of his position, he testified in 
 
            his deposition that:
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
                    Q.  Doctor, would you have an opinion, based on 
 
                 your examination and treatment of Mr. Dale, and 
 
                 your background and experience as a physician as 
 
                 to whether Mr. Dale sustained any functional 
 
                 impairment to his back as a result of the work 
 
                 injury that injured his left foot?
 
            
 
                           MR. RACETTE:  And again, I'd have the 
 
                 same objection.
 
            
 
                    A.  Yes.
 
            
 
                    Q.  And what is that opinion?
 
            
 
                    A.  No.
 
            
 
                    Q.  And is that opinion stated with a 
 
                 reasonable degree of medical certainty?
 
            
 
                    A.  Yes.
 
            
 
            (Depo. p. 17, ll. 17-22)
 
            
 
                 Additionally, Dr. Mercier opined that:
 
            
 
                    A.  Painful gait patterns change the way we 
 
                 walk, we walk with a limp.  Sometimes it hurts to 
 
                 spend time on that foot so we remove the weight 
 
                 quickly and transfer the weight to the opposite 
 
                 side, so that's what's considered an abnormal gait 
 
                 pattern.
 
            
 
                    Q.  Does this abnormal gait pattern have any 
 
                 affect on the low back, or perhaps more precisely, 
 
                 can it have an affect on the lower back?
 
            
 
                    A.  That's kind of an area that's disputed, 
 
                 some people think it can, some don't.  There's 
 
                 really not any strong evidence one way or the 
 
                 other.  My feeling is that it probably does not 
 
                 but it could.
 
            
 
                    Q.  Okay.  If a person were to experience pain 
 
                 subsequent to developing an abnormal gait pattern, 
 
                 pain located in the low back, would that -- would 
 
                 that indicate to you as a treating physician that 
 
                 there was some functional impairment to the low 
 
                 back?
 
            
 
                    A.  Can I have that question again?
 
            
 
                    Q.  Let me just rephrase it.  Does pain in the 
 
                 low back necessarily indicate functional 
 
                 impairment to the low back?
 
            
 
                    A.  No.
 
            
 
            (Depo. p. 17. l. 11 - p. 18, l. 11)
 
            
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
                 Objective medical tests show no abnormalities.  An 
 
            x-ray was taken on January 29, 1991.  The results of the 
 
            x-ray were in the normal range.  An MRI was administered on 
 
            July 20, 1991.  It too demonstrated a normal exam.
 
            
 
                 Dr. Denhart, as of July 8, 1991, found that claimant's 
 
            strength was essentially normal.  (Ex. 8, p. 66)
 
            
 
                 The only result which Dr. Denhart noted was some 
 
            decrease in range of motion.  However, the tests he 
 
            administered were not completely objective tests but were 
 
            rather subjective in nature.  Dr. Denhart admitted in his 
 
            deposition that his functional impairment rating of eight 
 
            percent was not based on objective tests.  (Depo. p. 12, ll. 
 
            8-11)
 
            
 
                 As a result of the aforementioned evidence, it is the 
 
            determination of the undersigned that claimant has not 
 
            sustained any permanency to his body as a whole as a result 
 
            of his low back condition.  His back condition only rendered 
 
            him temporarily disabled.
 
            
 
                 It is the decision of the undersigned that claimant is 
 
            entitled to benefits for temporary total disability from 
 
            December 18, 1990, the date back pain is recorded in exhibit 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            3, page 30, until March 1, 1991, the date when claimant 
 
            moved to Illinois and became an employee of his father's 
 
            business.  This
 
            
 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            period comprises 10.571 weeks of temporary total disability 
 
            benefits at the stipulated rate of $159.14 per week.
 
            
 
                 Finally, claimant is entitled to medical benefits for 
 
            his low back condition pursuant to section 85.27.
 
            
 
                 The employer shall furnish reasonable surgical, 
 
            medical, dental, osteopathic, chiropractic, podiatric, 
 
            physical rehabilitation, nursing, ambulance and hospital 
 
            services and supplies for all conditions compensable under 
 
            the workers' compensation law.  The employer shall also 
 
            allow reasonable and necessary transportation expenses 
 
            incurred for those services.  The employer has the right to 
 
            choose the provider of care, except where the employer has 
 
            denied liability for the injury.  Section 85.27.; Holbert v. 
 
            Townsend Engineering Co., Thirty-second Biennial Report of 
 
            the Industrial Commissioner 78 (Review decision 1975).  
 
            Claimant has the burden of proving that the fees charged for 
 
            such services are reasonable.  Anderson v. High Rise Constr. 
 
            Specialists, Inc., file number 850096 (Appeal Decision 
 
            1990).  Claimant is not entitled to reimbursement for 
 
            medical bills unless claimant shows they were paid from 
 
            claimant's funds.  See Caylor v. Employers Mut. Casualty 
 
            Co., 337 N.W.2d 890 (Iowa App. 1983).
 
            
 
                 Defendants are liable for:
 
            
 
                 Rehabilitation Medicine Assoc...............$   39.00
 
                 
 
                 IMCC........................................$1,422.00
 
            
 
                 Radiology, P.C..............................$  369.00
 
            
 
                 Title XIX...................................$  627.50
 
            
 
                                          TOTAL              $2,457.50
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Defendants are to pay unto claimant ten point 
 
            five-seven-one (10.571) weeks of temporary total disability 
 
            benefits for the period from December 18, 1990 through March 
 
            1, 1991 at the stipulated rate of one hundred fifty-nine and 
 
            14/l00 dollars ($159.14) per week.
 
            
 
                 Accrued benefits are to be paid in a lump sum together 
 
            with statutory interest at the rate of ten percent (10%) per 
 
            year pursuant to section 85.30, Iowa Code, as amended.
 
            
 
                 Defendants shall also pay reasonable and necessary 
 
            medical expenses in the sum of two thousand four hundred 
 
            fifty-seven and 50/l00 dollars ($2,457.50) pursuant to 
 
            section 85.27 of the Iowa Code, including reimbursements to 
 
            the Iowa Department of Human Services for medicaid payments 
 
            in the amount of six hundred twenty-seven and 50/l00 dollars 
 
            ($627.50).
 
            
 
                 Costs of the action are assessed to defendants.
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            
 
                 Defendants shall file a claim activity report as 
 
            requested by this division and pursuant to rule 343 IAC 3.1.
 
            
 
            
 
            
 
                 Signed and filed this ____ day of June, 1992.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________               
 
                                          MICHELLE A. McGOVERN
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Dennis L. Hanssen
 
            Mr. Gregory T. Racette
 
            Attorneys at Law
 
            Terrace Center, STE 111
 
            2700 Grand Avenue
 
            Des Moines, Iowa  50312
 
            
 
            Mr. Joseph A. Happe
 
            Attorney at Law
 
            500 Liberty Building
 
            Des Moines, Iowa  50309
 
            
 
 
            
 
 
 
 
 
 
 
 
 
                        
 
                                                1801; 1803
 
                                                Filed June 5, 1992
 
                                                MICHELLE A. McGOVERN
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            WINFRED EARL DALE, II,        :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 879768
 
            PRECISION PULLEY, INC.,       :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INSURANCE CO., :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            1801; 1803
 
            
 
            Claimant was unable to prove he had a permanent low back 
 
            condition as a result of a left foot injury.  However, 
 
            claimant was able to prove that he had a temporary total 
 
            disability.  Claimant was awarded 10.571 weeks of temporary 
 
            total disability benefits.
 
            
 
 
         
 
         
 
         
 
         
 
         
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
                     
 
         JEAN SCHROPP,    
 
                     
 
              Claimant,   
 
                     
 
         vs.         
 
                                               File No. 879774
 
         XLM,        
 
                                                A P P E A L
 
              Employer,   
 
                                              D E C I S I O N
 
         and         
 
                     
 
         THE TRAVELERS INSURANCE CO.,    
 
                     
 
              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.  The issue raised on appeal is:  "The deputy erred in 
 
         finding the defendants had proven by a preponderance of the 
 
         evidence that defendants' [sic] injuries were not compensable 
 
         because they were caused by the willful act of a third party 
 
         directed against the claimant for reasons personal to the 
 
         claimant."
 
                             FINDINGS OF FACT
 
 
 
         The findings of fact contained in the proposed agency decision 
 
         filed February 12, 1991 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.
 
         *****
 
         
 
              Claimant was employed as a machine operator by defendant 
 
         [employer] beginning March 30, 1987.  Defendant manufactures 
 
         sheet metal for use in filing cabinets.
 
         
 
              Ms. Schropp began work at 5:00 a.m. on February 25, 1988.  
 
         She and three other employees operated grouped "wrapper" machines 
 
         in which individual parts went through each machine in order, all 
 
         acting as essentially a single unit.  Operating two other 
 
         machines that day were Tammy Jennings and Cheryl Polton.
 
         
 
              Claimant and Cheryl Polton are friends.  Claimant and Tammy 
 
         Jennings are not.  Cheryl Polton found it difficult to testify.  
 

 
         
 
         Page   2 
 
         
 
         
 
         
 
         
 
         Although claimant and Jennings had no relationships whatsoever 
 
         outside of work, Polton informed operations manager Larry Bucheit 
 
         that the two did not get along (although at hearing, Polton 
 
         professed uncertainty as to whether they did or not).  In any 
 
         event, claimant had twice complained to supervisors about 
 
         Jennings, once concerning the quality of her work and once for 
 
         having alcohol on her breath.  Based on the sequence of the 
 
         events, it is probable that Jennings knew of the first complaint, 
 
         which occurred several weeks before February 25.  The record does 
 
         not show that Jennings was aware that claimant complained of 
 
         smelling alcohol on her breath.
 
         
 
              Company policy known to claimant concerning the four 
 
         interrelated machines was, in part, that if the operator of 
 
         machine #3 (claimant) began completing work on parts faster than 
 
         the operator of machine #4 (Jennings), the #3 operator should 
 
         slow down a step to permit operator #4 to catch up.  In specific, 
 
         machine #3 operators are not to stack completed pieces of metal 
 
         on a side table for two reasons:  it is unduly labor intensive 
 
         and it risks scratching the painted sheet metal.
 
         
 
              Before the fight, claimant found herself operating her 
 
         machine faster than did Jennings.  Rather than slowing down, 
 
         claimant began stacking metal parts on a side table instead of 
 
         sending them down the conveyor, an action clearly in violation of 
 
         that company policy (as witness Polton agreed).  This made extra 
 
         work for Jennings, who had to get up from her seat to retrieve 
 
         the stacked pieces.
 
         
 
              As Polton described events, Jennings "nicely" asked claimant 
 
         at least twice to push parts down the conveyor belt.  Although 
 
         Jennings was visibly aggravated, claimant did not honor her 
 
         request.  Instead, she continued stacking parts until she was far 
 
         enough ahead that she had time to visit the rest room.  In doing 
 
         so, she walked past machine #4.  When she did, Jennings assaulted 
 
         her, causing certain injuries.
 
         *****
 
         
 
                                CONCLUSIONS OF LAW
 
 
 
         The conclusions of law contained in the proposed agency decision 
 
         filed February 12, 1991 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.
 
         *****
 
         
 
              Iowa Code section 85.16(3) provides as follows:
 
         
 
              No compensation under this chapter shall be allowed for 
 
              an injury caused:
 
         
 
              . . . .
 
         
 
              3.  By the willful act of a third party directed 
 
              against the employee for reasons personal to such 
 

 
         
 
         Page   3 
 
         
 
         
 
         
 
         
 
              employee.
 
         *****
 
         
 
              Defendants assert that claimant removed herself from the 
 
         course of employment through her intentional violation of a known 
 
         rule.  Violation of a statute or breaking of an employer's rule 
 
         may remove the employee from the course of employment.  Enfield 
 
         v. Certain-Teed Prod. Co., 211 Iowa 1004, 223 N.W. 141 (1930).  
 
         However, it was held in Pohler v. T. W. Snow Constr. Co., 239 
 
         Iowa 1018, 33 N.W.2d 416 (1948), that not every violation of rule 
 
         constitutes a defense, but only where the violation amounts from 
 
         a departure from the course of employment:
 
         
 
              Where an employee when injured is rendering a service 
 
              he is employed to do or is doing something incidental 
 
              thereto but does it in an unlawful or forbidden manner, 
 
              he does not thereby depart from his employment even 
 
              though the injury is a consequence of such violation.  
 
              It is only when the service the employee is performing 
 
              is itself prohibited, as distinguished from the manner 
 
              in which the service is performed, that the violation 
 
              of a statute or rule of the employer takes the employee 
 
              out of the course of his employment and constitutes a 
 
              defense.  When, and only when, the statute or rule 
 
              limits the scope of the employment and not merely the 
 
              manner of rending the service or doing the act which is 
 
              not prohibited does the violation of the statute or 
 
              rule constitute a departure from the course of 
 
              employment.  The test is whether the regulation was
 
         
 
         
 
         Page   4 
 
         
 
         
 
         
 
         
 
         calculated to limit the scope of employment or only to 
 
         govern the manner of performing a more comprehensive 
 
         task.
 
         
 
         Id. at 1029.
 
         
 
              In this case, it seems clear that defendants' rule was 
 
         calculated only to govern the manner of performing her more 
 
         comprehensive task of machine operation, as opposed to limiting 
 
         the scope of employment.
 
         
 
              In Cedar Rapids Community School v. Cady, 278 N.W.2d 298 
 
         (Iowa 1979), claimant's decedent was shot and killed by a 
 
         schizophrenic fellow employee who had decided that decedent was a 
 
         "hit man" out to avenge certain misconduct and because decedent 
 
         "looked bug-eyed" at him.  The court employed a positional risk 
 
         analysis, citing Anderson v. Security Bldg. Co., 100 Conn. 373, 
 
         123 A. 843 (1924).  The possibility that a fellow servant may be 
 
         or become insane and run amok is a condition under which one 
 
         employed with fellow servants is required to perform his work.  
 
         The Cady court also found generally that the commissioner had not 
 
         applied an incorrect principal of law and that defendants had not 
 
         satisfied their burden of proof on the defense as a matter of law 
 
         under section 85.16(3), but did not discuss the affirmative 
 
         defense in detail.
 
         *****
 
         
 
              As to the affirmative defense, it is clear that claimant was 
 
         injured by the willful act of a third party directed against her.  
 
         Therefore, the key question is whether the assault was "for 
 
         reasons personal to such employee."  Claimant cites an appeal 
 
         decision in 1980, Mai v. Olan Mills, Inc., I Iowa Industrial 
 
         Commissioner Report 222 (1980).  The case also involved an 
 
         assault by one employee against another, possibly related to a 
 
         soured romantic relationship.  In holding that the injury arose 
 
         out of and in the course of employment, it was noted that the 
 
         evidence showed claimant was somewhat loud or abusive in her 
 
         remarks and possibly intoxicated, although the defense of 
 
         intoxication would not apply to cases of injury caused by a third 
 
         party.  That claimant was "asking for it" was not a defense 
 
         pursuant to section 85.16(2), which relates to injuries caused by 
 
         the employee's intoxication.
 
         
 
              As to the 85.16(3) defense, the decision held:  "Nor can it 
 
         be said that Hawkins' act was for a reason personal to the 
 
         employee.  That is, the reason for the assault grew out of the 
 
         employment as discussed above."  *****
 
         
 
              But, in O'Callahan v. Dermedy, 197 Iowa 632, 196 N.W. 10, 
 
         197 N.W. 456 (1923), the court dealt with the case of a hotel 
 
         clerk injured by a registered guest following a dispute as to 
 
         whether the guest would be permitted to take friends up to his 
 
         room.  In discussing a predecessor statute employing nearly the 
 
         same language ("the words 'injury' and 'personal injury' shall 
 
         not include injury caused by the willful act of a third person 
 
         directed against an employee for reasons personal to such 
 

 
         
 
         Page   5 
 
         
 
         
 
         
 
         
 
         employee or because of his employment"), the court held:
 
         
 
              We are compelled to construe this language and to 
 
              determine, if possible, the legislative intent as 
 
              therein expressed.  At first blush, this section of the 
 
              statute does not appear to scintillate with lucidity.  
 
              The legislature evidently intended to place a 
 
              limitation upon the right of recovery, even though the 
 
              injury grew out of and was received in the course of 
 
              the employment.  What do these clauses of the statute 
 
              mean?  What kind of a case are they intended to cover?
 
         
 
              The first clause excludes recovery where the injury is 
 
              caused by the "willful act of a third person directed 
 
              against an employee for reasons personal to such 
 
              employee."  This clause was evidently intended to cover 
 
              a case where the injury was caused by the willful act 
 
              of a third person directed against the employee solely 
 
              because of personal reasons that attached to the 
 
              employee, that would not be applicable to some other 
 
              person in the same situation.  To illustrate, if the 
 
              injury resulted from the willful act of a third person 
 
              directed against the employee, solely because of some 
 
              spite or grudge or ill will that such third person 
 
              harbored against the employee personally, then the 
 
              employer would not be liable."
 
         
 
                                      * * *
 
         
 
              There might be a willful intent to injure, without the 
 
              instigation of the act by reasons personal to the 
 
              particular individual injured.  One might willfully 
 
              injure a pedestrian on the street, without any purpose 
 
              to do so because he was a particular person; and he 
 
              might willfully injure the same individual for reasons 
 
              personal to the injured party, and solely because he 
 
              was that particular individual.  The line of 
 
              demarcation is not always easily discernible nor 
 
              readily ascertained.  The legislature evidently 
 
              intended to make a distinction, and the one made is not 
 
              altogether chimerical.
 
         [The law of willful injury as a defense to workers' compensation 
 
         claims was also addressed in Miller v. Hallett Materials, 
 
         Arbitration Decision, July 31, 1991:
 
            The court stated that the injury must be a natural incident of 
 
         the work.  This means that it must be a rational consequence of a 
 
         hazard connected with the employment.  The court cited from 
 
         another case that the possibility that a fellow servant may be or 
 
         might become insane and run amok is a condition under which one 
 
         employed with fellow servants is required to perform his work.  
 
         The same can be said for the possibility that a co-employee might 
 
         lose his temper, become angry and impulsively injure another 
 
         employee.  Cady, 278 N.W.2d at 300.  There was no evidence in 
 
         this case that the assault resulted from an off-the-job quarrel 
 

 
         
 
         Page   6 
 
         
 
         
 
         
 
         
 
         which merely erupted at the place of employment.  Cady, 278 
 
         N.W.2d at 301.  The court concluded:
 
         An employee who associates with other employees is exposed to the 
 
         risk of injury arising from their acts or omissions.  No 
 
         difference in principle exists when the injury is caused by 
 
         conduct resulting from an insane delusion rather than negligence 
 
         or chance mishap.  The resulting injury is equally a rational 
 
         consequence of a hazard connected with the employment.
 
         Cady, 278 N.W.2d at 302-3.
 
            These same principles should apply when the injury arises out 
 
         of a fit of temper rather than an insane delusion.  The case of 
 
         Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986), in the 
 
         dissent, reiterated the holding in Cady, and stressed that it is 
 
         not required that the perpetrator be deranged in order for the 
 
         injury to be the rational consequence of a hazard connected with 
 
         the employment.  The court repeated that this view comports with 
 
         the broad reading of the workers' compensation statute demanded 
 
         by Caterpillar Tractor Co. v. Shook, 313 N.W.2d 503, 506 (Iowa 
 
         1981) and is supported by the observations of Professor Larson.
 
            "Assaults arise out of the employment either if the risk of 
 
         assault is increased because of the nature or setting of the 
 
         work, or if the reason for the assault was a quarrel having its 
 
         origin in the work."  1A Larson Workmen's Compensation Law, 
 
         section 11.00 at page 3-178.  Larson further comments that an 
 
         increasing number of jurisdictions accept the idea that the 
 
         strain of enforced close contact may in itself provide the 
 
         necessary work connection.
 
            ....
 
            Larson further provides:  "We have seen that an assault is 
 
         work connected if it grows out of a quarrel whose subject matter 
 
         is related to work."  1A Larson Workmen's Compensation Law, 
 
         section 11.16(a) entitled "Friction and strain as work 
 
         connection" at page 3-261.  Larson then cites a case which states 
 
         the general principle that the causal connection may be supplied 
 
         by a showing that the environment increased the likelihood of 
 
         assault.
 
            Larson relates that this rule draws heavily upon the 
 
         positional-risk doctrine which was adopted by the Iowa Supreme 
 
         Court in Cady.  1A Larson Workmen's Compensation Law, sections 
 
         11.16(a) and 11.16(c) at pages 3-261 and 3-270.  Larson states 
 
         that, under the positional-risk doctrine, assaults by co-workers 
 
         are compensable as long as they are not motivated by personal 
 
         vengeance stemming from contact with the employee outside of the 
 
         employment.  1A Larson Workmen's Compensation Law, section 
 
         11.16(c) at page 3-271....  
 
         Applying Iowa Code section 85.16(3) to the facts of this case, it 
 
         is apparent that the reason for the attack on claimant was the 
 
         stacking activity.  There is no evidence in the record to 
 
         indicate that any aspect of the personal lives of claimant or her 
 
         attacker in any way contributed to the assault.  Indeed, there is 
 
         evidence that claimant and her assailant did not interact outside 
 

 
         
 
         Page   7 
 
         
 
         
 
         
 
         
 
         of work.  The sole reason appearing in the record for the assault 
 
         upon claimant was claimant's activity of stacking.  
 
         It is not necessary that the attack upon claimant be completely 
 
         random or arbitrary to be compensable.  Certainly a random attack 
 
         by a berzerk individual where the claimant happens to be in the 
 
         wrong place at the wrong time and becomes the victim is the 
 
         clearest example of willful injury suffered for reasons purely 
 
         incidental to work and not related to personal reasons.  On the 
 
         other end of the spectrum is an assault upon a claimant growing 
 
         strictly out of personal reasons, such as a personal quarrel 
 
         between the two workers based on a romantic rivalry or some other 
 
         personal grudge bearing no relationship to the work environment 
 
         except that the workplace serves as the circumstantial site of 
 
         the assault.  The former injury would be compensable under 
 
         85.16(3), the latter would not.  In between these two extremes 
 
         are many factual situations that may or may not result in 
 
         compensability.
 
         In the case sub judice, claimant's assault did not grow out of 
 
         any off-work ill will between claimant and her co-worker.  They 
 
         did not interact outside of work.  The ill will that led to the 
 
         assault was based purely on work activity, the stacking up of 
 
         work projects.  Simply because the assailant harbored "some spite 
 
         or grudge or ill will that [she] harbored against [claimant]" 
 
         does not make the injury non-compensable.  Every assault except 
 
         random assaults involve some ill will or grudge or spite.  The 
 
         law does not say that only random assaults at work will be 
 
         compensable.  To be non-compensable, the ill will or spite or 
 
         grudge must grow out of non-work factors.  Here, the ill will or 
 
         spite or grudge grew not out of personal, non-work factors, but 
 
         instead grew out of work factors--the piling up of work for the 
 
         other employee.  The assault grew out of the work environment, 
 
         and is not barred by 85.16(3). 
 
         It has previously been determined that claimant's injury arose 
 
         out of and in the course of her employment.  This determination 
 
         was not raised on appeal, and is therefore adopted in this 
 
         decision.  Claimant's industrial disability as a result of her 
 
         injury must be assessed.  A remand is not necessary as industrial 
 
         disability was an issue at hearing and the record has been made 
 
         on this issue. 
 
         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, 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 disability.  This is so 
 
         as impairment and disability are not synonymous.  Degree of 
 
         industrial disability can in fact be much different than the 
 
         degree of impairment because in the first instance reference is 
 

 
         
 
         Page   8 
 
         
 
         
 
         
 
         
 
         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 disability 
 
         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 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 disability.   
 
         See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, 
 
         February 28, 1985); Christensen v. Hagen, Inc., (Appeal Decision, 
 
         March 26, 1985).
 
         Claimant is 38 years old.  Claimant completed the ninth grade.  
 
         Claimant has had no post-high school education or training.  
 
         Claimant was in good health prior to the injury.  Subsequent to 
 
         the injury, claimant has an impairment of her left shoulder and 
 
         neck.  Claimant has been given a permanent functional impairment 
 
         rating of five percent of the body as a whole, and a lifting 
 
         restriction of 25 pounds and no lifting above shoulder level.  
 
         Defendant employer did offer to rehire claimant at another job, 
 
         but claimant declined, stating that during a prior return to work 
 
         her restrictions were not honored and her condition was 
 
         aggravated.  Defendant employer states that the job offered was 
 
         within claimant's restrictions.  There is evidence in the record 
 
         that claimant's husband has encouraged her to remain at home 
 
         rather than return to work, both to take care of their children 
 
         and to avoid further injury.  Claimant has not sought other work.  
 
         Based on these and all other appropriate factors for determining 
 

 
         
 
         Page   9 
 
         
 
         
 
         
 
         
 
         industrial disability, claimant is determined to have an 
 
         industrial disability of 30 percent. 
 
         Claimant's healing period and rate will be ordered pursuant to 
 
         the stipulation of the parties.]
 
 
 
         WHEREFORE, the decision of the deputy is reversed.
 

 
         
 
         Page  10 
 
         
 
         
 
         
 
                                   ORDER
 
 
 
         THEREFORE, it is ordered:
 
 
 
         That defendants are to pay unto claimant healing period benefits 
 
         from February 26, 1988 until November 17, 1988, at the rate of 
 
         one hundred ninety four and 26/100 dollars ($194.26) per week.
 
 
 
         That defendants are to pay unto claimant 150 weeks of permanent 
 
         partial disability benefits at the rate of one hundred ninety 
 
         four and 26/100 dollars ($194.26) per week from November 18, 
 
         1988.
 
 
 
         That defendants shall pay accrued weekly benefits in a lump sum.
 
 
 
         That defendants shall pay interest on unpaid weekly benefits 
 
         awarded herein as set forth in Iowa Code section 85.30.
 
 
 
         That defendants are to be given credit for benefits previously 
 
         paid.
 
         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 November, 1992.
 
         
 
         
 
         
 
                                   ________________________________
 
                                           BYRON K. ORTON
 
                                      INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. William Bauer
 
         Attorney at Law
 
         P.O. Box 517
 
         Burlington, Iowa 52601
 
         
 
         Ms. Vicki L. Seeck
 
         Attorney at Law
 
         600 Union Arcade Bldg.
 
         111 E. Third St.
 
         Davenport, Iowa 52801
 
         
 
 
            
 
 
 
 
 
 
 
 
 
                                           1602
 
                                           Filed November 25, 1992
 
                                           Byron K. Orton
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            JEAN SCHROPP,    
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                                File No. 879774
 
            XLM,        
 
                                                 A P P E A L
 
                 Employer,   
 
                                               D E C I S I O N
 
            and         
 
                        
 
            THE TRAVELERS INSURANCE CO.,    
 
                        
 
                 Insurance Carrier,    
 
                 Defendants.      
 
            ____________________________________________________________
 
            
 
            1602
 
            Claimant was assaulted by a co-worker, at work and during 
 
            work hours, after claimant stacked up work for the co-worker 
 
            to do.  Held that section 85.16(3) willful injury 
 
            affirmative defense not proven by defendants.  Although the 
 
            assault was not a random attack and was directed at claimant 
 
            out of hostility, it was not motivated by "reasons personal 
 
            to such employee."  Claimant and her assailant had no 
 
            contact outside of work, and the assailant's anger that led 
 
            to the assault grew completely out of work conditions.  
 
            Deputy's finding of no compensability reversed, and award of 
 
            30 percent industrial disability given.
 
            
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            JEAN SCHROPP,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 879774
 
            XLM,                          :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            THE TRAVELERS INSURANCE CO.,  :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration upon claimant's 
 
            petition filed July 28, 1989.  Claimant sustained injuries 
 
            when assaulted by a coemployee on February 25, 1988, and now 
 
            seeks benefits under the Iowa Workers' Compensation Act from 
 
            her employer, XLM, and its insurance carrier, The Travelers 
 
            Insurance Company.
 
            
 
                 Hearing on the arbitration petition was had in 
 
            Burlington, Iowa, on August 2, 1990.  The record consists of 
 
            claimant's exhibits 1 and 2, defendants' exhibits A through 
 
            G and the testimony of the following witnesses:  claimant, 
 
            Gerald Schropp, Larry Bucheit, Cheryl Polton and Douglas 
 
            McQuiggin.
 
            
 
                                      issues
 
            
 
                 Pursuant to the prehearing report, the parties have 
 
            stipulated:  that an employment relationship existed between 
 
            claimant and employer at the time of the alleged injury; 
 
            that if claimant has compensable healing period or temporary 
 
            total disability, it is from February 26, 1988 to November 
 
            17, 1988; that if claimant has sustained work-related 
 
            permanent disability, it is an industrial disability to the 
 
            body as a whole and the commencement date is November 18, 
 
            1988; that the appropriate rate of weekly benefits is 
 
            $194.26; that all requested medical benefits have been or 
 
            will be paid by defendants; that defendants voluntarily paid 
 
            certain benefits prior to hearing.
 
            
 
                 Issues presented for resolution include:  whether 
 
            claimant sustained an injury arising out of and in the 
 
            course of her employment on February 25, 1988; whether the 
 
            injury caused temporary or permanent disability and the 
 
            extent of the latter; taxation of costs.
 
            
 
                 Defendants also asserted an affirmative defense under 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            Iowa Code section 85.16(3).
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy industrial commissioner, having 
 
            heard the testimony and considered all of the evidence, 
 
            finds:
 
            
 
                 Claimant was employed as a machine operator by 
 
            defendant beginning March 30, 1987.  Defendant manufactures 
 
            sheet metal for use in filing cabinets.
 
            
 
                 Ms. Schropp began work at 5:00 a.m. on February 25, 
 
            1988.  She and three other employees operated grouped 
 
            "wrapper" machines in which individual parts went through 
 
            each machine in order, all acting as essentially a single 
 
            unit.  Operating two other machines that day were Tammy 
 
            Jennings and Cheryl Polton.
 
            
 
                 Claimant and Cheryl Polton are friends.  Claimant and 
 
            Tammy Jennings are not.  Cheryl Polton found it difficult to 
 
            testify.  Although claimant and Jennings had no 
 
            relationships whatsoever outside of work, Polton informed 
 
            operations manager Larry Bucheit that the two did not get 
 
            along (although at hearing, Polton professed uncertainty as 
 
            to whether they did or not).  In any event, claimant had 
 
            twice complained to supervisors about Jennings, once 
 
            concerning the quality of her work and once for having 
 
            alcohol on her breath.  Based on the sequence of the events, 
 
            it is probable that Jennings knew of the first complaint, 
 
            which occurred several weeks before February 25.  The record 
 
            does not show that Jennings was aware that claimant 
 
            complained of smelling alcohol on her breath.
 
            
 
                 Company policy known to claimant concerning the four 
 
            interrelated machines was, in part, that if the operator of 
 
            machine #3 (claimant) began completing work on parts faster 
 
            than the operator of machine #4 (Jennings), the #3 operator 
 
            should slow down a step to permit operator #4 to catch up.  
 
            In specific, machine #3 operators are not to stack completed 
 
            pieces of metal on a side table for two reasons:  it is 
 
            unduly labor intensive and it risks scratching the painted 
 
            sheet metal.
 
            
 
                 Before the fight, claimant found herself operating her 
 
            machine faster than did Jennings.  Rather than slowing down, 
 
            claimant began stacking metal parts on a side table instead 
 
            of sending them down the conveyor, an action clearly in 
 
            violation of that company policy (as witness Polton agreed).  
 
            This made extra work for Jennings, who had to get up from 
 
            her seat to retrieve the stacked pieces.
 
            
 
                 As Polton described events, Jennings "nicely" asked 
 
            claimant at least twice to push parts down the conveyor 
 
            belt.  Although Jennings was visibly aggravated, claimant 
 
            did not honor her request.  Instead, she continued stacking 
 
            parts until she was far enough ahead that she had time to 
 
            visit the restroom.  In doing so, she walked past machine 
 
            #4.  When she did, Jennings assaulted her, causing certain 
 
            injuries.
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
                 Claimant testified that she performed her job in 
 
            accordance with company procedures on the day of her fight 
 
            with Tammy Jennings.  That testimony lacks credibility in 
 
            light of Cheryl Polton's testimony.
 
            
 
                                conclusions of law
 
            
 
                 This case turns on two related issues:  whether the 
 
            injury arose out of and in the course of employment, and if 
 
            it did, whether the affirmative defense under section 
 
            85.16(3) defeats the claim.  Claimant bears the burden of 
 
            proof by a preponderance of the evidence to show that her 
 
            injury arose out of and in the course of employment.  
 
            Musselman v. Central Telephone Co., 261 Iowa 352, 154 
 
            N.W.2d 128 (1967).  Defendants, on the other hand, bear the 
 
            burden of establishing the affirmative defense.  Everts v. 
 
            Jorgensen, 227 Iowa 818, 289 N.W. 11 (1939).
 
            
 
                 Iowa Code section 85.16(3) provides as follows:
 
            
 
                 No compensation under this chapter shall be 
 
                 allowed for an injury caused:
 
            
 
                 . . . .
 
            
 
                 3.  By the willful act of a third party directed 
 
                 against the employee for reasons personal to such 
 
                 employee.
 
            
 
                 Claimant has established that she was assaulted by 
 
            Tammy Jennings at work.  She professes no understanding of 
 
            why the assault occurred.  However, the evidence establishes 
 
            that claimant intentionally violated a known rule against 
 
            stacking metal parts instead of slowing down her machine 
 
            operation to allow Jennings to keep up.  By doing so, she 
 
            required Jennings to get up from her place of work to 
 
            retrieve those parts.  She continued doing this despite 
 
            being at least twice asked to stop, and with Jennings 
 
            visibly showing agitation.  It is a fair inference that 
 
            claimant continued that course of conduct with the specific 
 
            intent to harass a fellow employee, whether only to irritate 
 
            Jennings or to humiliate her by showing her up.  No other 
 
            explanation for this course of conduct is readily apparent.
 
            
 
                 Defendants assert that claimant removed herself from 
 
            the course of employment through her intentional violation 
 
            of a known rule.  Violation of a statute or breaking of an 
 
            employer's rule may remove the employee from the course of 
 
            employment.  Enfield v. Certain-Teed Prod. Co., 211 Iowa 
 
            1004, 223 N.W. 141 (1930).  However, it was held in Pohler 
 
            v. T. W. Snow Constr. Co., 239 Iowa 1018, 33 N.W.2d 416 
 
            (1948), that not every violation of rule constitutes a 
 
            defense, but only where the violation amounts from a 
 
            departure from the course of employment:
 
            
 
                 Where an employee when injured is rendering a 
 
                 service he is employed to do or is doing something 
 
                 incidental thereto but does it in an unlawful or 
 
                 forbidden manner, he does not thereby depart from 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                 his employment even though the injury is a 
 
                 consequence of such violation.  It is only when 
 
                 the service the employee is performing is itself 
 
                 prohibited, as distinguished from the manner in 
 
                 which the service is performed, that the violation 
 
                 of a statute or rule of the employer takes the 
 
                 employee out of the course of his employment and 
 
                 constitutes a defense.  When, and only when, the 
 
                 statute or rule limits the scope of the employment 
 
                 and not merely the manner of rending the service 
 
                 or doing the act which is not prohibited does the 
 
                 violation of the statute or rule constitute a 
 
                 departure from the course of employment.  The test 
 
                 is whether the regulation was calculated to limit 
 
                 the scope of employment or only to govern the 
 
                 manner of performing a more comprehensive task.
 
            
 
            Id. at 1029.
 
            
 
                 In this case, it seems clear that defendants' rule was 
 
            calculated only to govern the manner of performing her more 
 
            comprehensive task of machine operation, as opposed to 
 
            limiting the scope of employment.
 
            
 
                 In Cedar Rapids Community School v. Cady, 278 N.W.2d 
 
            298 (Iowa 1979), claimant's decedent was shot and killed by 
 
            a schizophrenic fellow employee who had decided that 
 
            decedent was a "hit man" out to avenge certain misconduct 
 
            and because decedent "looked bug-eyed" at him.  The court 
 
            employed a positional risk analysis, citing Anderson v. 
 
            Security Bldg. Co., 100 Conn. 373, 123 A. 843 (1924).  The 
 
            possibility that a fellow servant may be or become insane 
 
            and run amok is a condition under which one employed with 
 
            fellow servants is required to perform his work.  The Cady 
 
            court also found generally that the commissioner had not 
 
            applied an incorrect principal of law and that defendants 
 
            had not satisfied their burden of proof on the defense as a 
 
            matter of law under section 85.16(3), but did not discuss 
 
            the affirmative defense in detail.
 
            
 
                 It is accordingly held that claimant has met her burden 
 
            of proof in establishing that her injury arose out of and in 
 
            the course of her employment with defendant XLM 
 
            Manufacturing.
 
            
 
                 As to the affirmative defense, it is clear that 
 
            claimant was injured by the willful act of a third party 
 
            directed against her.  Therefore, the key question is 
 
            whether the assault was "for reasons personal to such 
 
            employee."  Claimant cites an appeal decision in 1980, Mai 
 
            v. Olan Mills, Inc., I Iowa Industrial Commissioner Report 
 
            222 (1980).  The case also involved an assault by one 
 
            employee against another, possibly related to a soured 
 
            romantic relationship.  In holding that the injury arose out 
 
            of and in the course of employment, it was noted that the 
 
            evidence showed claimant was somewhat loud or abusive in her 
 
            remarks and possibly intoxicated, although the defense of 
 
            intoxication would not apply to cases of injury caused by a 
 
            third party.  That claimant was "asking for it" was not a 
 
            defense pursuant to section 85.16(2), which relates to 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            injuries caused by the employee's intoxication.
 
            
 
                 As to the 85.16(3) defense, the decision held:  "Nor 
 
            can it be said that Hawkins' act was for a reason personal 
 
            to the employee.  That is, the reason for the assault grew 
 
            out of the employment as discussed above."  Thus, the deputy 
 
            assigned to author Mai apparently held that the 
 
            determination on "arising out of" was determinative on the 
 
            issue of the 85.16(3) affirmative defense.
 
            
 
                 But, in O'Callahan v. Dermedy, 197 Iowa 632, 196 N.W. 
 
            10, 197 N.W. 456 (1923), the court dealt with the case of a 
 
            hotel clerk injured by a registered guest following a 
 
            dispute as to whether the guest would be permitted to take 
 
            friends up to his room.  In discussing a predecessor statute 
 
            employing nearly the same language ("the words 'injury' and 
 
            'personal injury' shall not include injury caused by the 
 
            willful act of a third person directed against an employee 
 
            for reasons personal to such employee or because of his 
 
            employment"), the court held:
 
            
 
                 We are compelled to construe this language and to 
 
                 determine, if possible, the legislative intent as 
 
                 therein expressed.  At first blush, this section 
 
                 of the statute does not appear to scintillate with 
 
                 lucidity.  The legislature evidently intended to 
 
                 place a limitation upon the right of recovery, 
 
                 even though the injury grew out of and was 
 
                 received in the course of the employment.  What do 
 
                 these clauses of the statute mean?  What kind of a 
 
                 case are they intended to cover?
 
            
 
                 The first clause excludes recovery where the 
 
                 injury is caused by the "willful act of a third 
 
                 person directed against an employee for reasons 
 
                 personal to such employee."  This clause was 
 
                 evidently intended to cover a case where the 
 
                 injury was caused by the willful act of a third 
 
                 person directed against the employee solely 
 
                 because of personal reasons that attached to the 
 
                 employee, that would not be applicable to some 
 
                 other person in the same situation.  To 
 
                 illustrate, if the injury resulted from the 
 
                 willful act of a third person directed against the 
 
                 employee, solely because of some spite or grudge 
 
                 or ill will that such third person harbored 
 
                 against the employee personally, then the employer 
 
                 would not be liable."
 
            
 
                                      * * *
 
            
 
                 There might be a willful intent to injure, without 
 
                 the instigation of the act by reasons personal to 
 
                 the particular individual injured.  One might 
 
                 willfully injure a pedestrian on the street, 
 
                 without any purpose to do so because he was a 
 
                 particular person; and he might willfully injure 
 
                 the same individual for reasons personal to the 
 
                 injured party, and solely because he was that 
 
                 particular individual.  The line of demarcation is 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
                 not always easily discernible nor readily 
 
                 ascertained.  The legislature evidently intended 
 
                 to make a distinction, and the one made is not 
 
                 altogether chimerical.
 
            
 
                 This writer finds the distinction drawn by the court 
 
            dispositive of the issue.  The fair inferences drawn from 
 
            the evidence show that this was no random attack upon 
 
            claimant.  The assault was in retaliation, excessive though 
 
            it may have been, for claimant's spiteful conduct in 
 
            stacking up parts and refusing to slow down and let Jennings 
 
            catch up.  Even though the dispute occurred in the work 
 
            milieu and claimant's tools of aggression were in fact work 
 
            products, Jennings' hostility showed "some spite or grudge 
 
            or ill will that [she] harbored against [claimant] 
 
            personally."  Where there is ill will between individuals, 
 
            it may be manifested in any number of ways, depending on 
 
            where the individuals may be located and what they are doing 
 
            at the time.  The fact that this spat and resulting injuries 
 
            occurred in a work environment does not make the 
 
            disagreement any less "personal" within the meaning of 
 
            85.16(3).  Accordingly, the affirmative defense bars this 
 
            claim.  Other issues are rendered moot.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Claimant shall take nothing from this proceeding.
 
            
 
                 The costs of this action shall be assessed to claimant 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 Signed and filed this ______ day of ____________, 1991.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          DAVID RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. William Bauer
 
            Attorney at Law
 
            100 Valley Street
 
            P.O. Box 517
 
            Burlington, Iowa  52601
 
            
 
            Ms. Vicki L. Seeck
 
            Attorney at Law
 
            600 Union Arcade Building
 
            111 East Third Street
 
            Davenport, Iowa  52801
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           1105; 1603
 
                           Filed February 12, 1991
 
                           DAVID RASEY
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            JEAN SCHROPP,  :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :         File No. 879774
 
            XLM,      :
 
                      :      A R B I T R A T I O N
 
                 Employer, :
 
                      :         D E C I S I O N
 
            and       :
 
                      :
 
            THE TRAVELERS INSURANCE CO.,  :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ____________________________________________________________
 
            
 
            1105; 1603
 
            Claimant violated known rule with intent to harass a fellow 
 
            employee.  This resulted in an assault causing injuries.
 
            As defendant's rule was calculated only to govern the manner 
 
            of performing this operation as opposed to limiting the 
 
            scope of employment, this conduct was in the course of 
 
            employment.
 
            But, since the assault was personal to claimant due to 
 
            "spite or grudge or ill will," the claim was barred under 
 
            85.16(3).
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DENNIS ROSS SMITH,            :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 879898
 
            CEDAR VALLEY ASPHALT CO.,     :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            UNITED FIRE & CASUALTY CO.,   :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Dennis 
 
            Ross Smith against his former employer Cedar Valley Asphalt 
 
            Company.  It was stipulated that Smith sustained an injury 
 
            which arose out of and in the course of his employment on 
 
            May 19, 1988.  The disputed issues involve the extent of 
 
            Smith's entitlement to compensation for temporary total 
 
            disability or healing period, for permanent partial 
 
            disability, the rate of compensation and claimant's claim 
 
            for additional compensation as a penalty under the fourth 
 
            paragraph of Code section 86.13.
 
            
 
                 The case was heard at Cedar Rapids, Iowa on January 8, 
 
            1991.  The record in the proceeding consists of testimony 
 
            from Dennis Ross Smith, Michael Heintz, Marianne Wainwright, 
 
            Steve Rgnonti, Norman Moon and Donald Carr.  The testimony 
 
            of Rebecca Parkins was made part of the record through a 
 
            deposition taken February 7, 1991.  The record also contains 
 
            jointly offered exhibits 1 through 20 and defendants' 
 
            exhibits 2 and 3.
 
            
 
                                 findings of fact
 
            
 
                 Having considered all the evidence received, together 
 
            with the appearance and demeanor of the witnesses, the 
 
            following findings of fact are made.
 
            
 
                 Dennis Ross Smith is a 51-year-old man who lives at 
 
            Belle Plaine, Iowa.  At the time of the May 19, 1988 injury, 
 
            Smith was married.  His testimony at hearing was that he had 
 
            four dependent children at that time for whom he sometimes 
 
            provided support.  His 1987 and 1988 income tax returns use 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            the status of married, filing separately with no dependents 
 
            being claimed.  His personnel records with the employer 
 
            (joint exhibit 14, page 8) show him to be married with five 
 
            exemptions.  It is found that on May 19, 1988 Dennis Ross 
 
            Smith was married and that he had four dependent children.
 
            
 
                 Smith did not complete high school, but subsequently 
 
            obtained a high school diploma while he was confined at the 
 
            Iowa Men's Reformatory in Anamosa.  Smith took a 
 
            refrigeration course in 1976, but has not worked in that 
 
            field.  He has performed work as a general construction 
 
            laborer.  He worked for approximately six years as a meat 
 
            cutter.  He has been an over-the-road truck driver, and part 
 
            of the time he was an owner-operator.
 
            
 
                 In 1980, Smith was struck in the head by a piece of 
 
            aluminum pipe which was under pressure.  He was hospitalized 
 
            for a time and underwent an extended period of recovery 
 
            running until February or March, 1984.  He received a 
 
            substantial settlement from that accident.  X-rays of his 
 
            spine and other parts of his body were taken.  The final 
 
            diagnosis made by his treating orthopaedic surgeon, Winthrop 
 
            S. Risk, M.D., was post-traumatic syndrome.  The initial 
 
            diagnosis had been musculoskeletal strain (joint exhibit 3).
 
            
 
                 Smith worked for L. L. Pelling Company, an asphalt 
 
            contractor, commencing in the summer of 1985.  The work he 
 
            performed was primarily truck driving.  He related that the 
 
            physically demanding part of the work was the rough ride 
 
            given by the trucks and removing asphalt which stuck in the 
 
            box of the truck.  He then served approximately two years at 
 
            the Iowa Men's Reformatory at Anamosa.  After his 
 
            incarceration, he obtained work in approximately May 1987 
 
            with Cedar Valley Asphalt Company.  He again performed 
 
            varied work, the primary part of which was truck driving.  
 
            Later in 1987, he was again incarcerated at Anamosa until 
 
            his release in late March 1988.  Thereafter, Smith 
 
            immediately resumed employment at Cedar Valley Asphalt 
 
            Company.
 
            
 
                 In 1988, Smith worked 7.714 weeks during which time he 
 
            earned a total of $2,904.75, with all overtime pay being 
 
            considered at the regular hourly rate which was in effect at 
 
            the time the overtime work was performed.  Th
 
            specifically found that the higher hourly rates were paid as 
 
            a result of either a requirement under federal law or county 
 
            ordinance, or both, for payment at the prevailing wage rate.  
 
            Smith's average gross weekly earnings therefore compute to 
 
            $376.56.  It is further found that asphalt paving and road 
 
            construction work are predominantly, though not exclusively, 
 
            seasonal.
 
            
 
                 Smith has not resumed regular employment since the May 
 
            1988 injury.  He initially was under a course of treatment 
 
            under the direction of Hugh MacMenamin, M.D.  An epidural 
 
            steroid injection performed May 30, 1988 provided no relief 
 
            (joint exhibit 1, page 1).  EMG tests conducted July 25, 
 
            1988 showed no objective evidence of neuropathy (joint 
 
            exhibit 6, page 1).  An MRI scan conducted June 13, 1988 was 
 
            interpreted as showing a herniated disc at the L3-4 level of 
 
            claimant's spine (joint exhibit 1, page 6; joint exhibit 7, 
 
            page 2).  Smith was admitted to Mercy Hospital on August 8, 
 
            1988 for traction, but was discharged August 11, 1988 (joint 
 
            exhibit 7, page 6).
 
            
 
                 Smith was again hospitalized for the purpose of surgery 
 
            in accordance with Dr. MacMenamin's recommendations, but an 
 
            abnormality was identified in one of his lungs.  He then 
 
            obtained treatment at the University of Iowa Hospitals and 
 
            Clinics.  Broncoscopy brush biopsy was negative for any 
 
            malignancy (joint exhibit 2, pages 7 and 8).  On October 7, 
 
            1988, resection of claimant's right lung was performed.  The 
 
            body removed was shown by pathology report to be a granuloma 
 
            (joint exhibit 2, page 11).
 
            
 
                 Smith's back was also evaluated at University 
 
            Hospitals.  He was found to be quite deconditioned.  The 
 
            records also note than an old x-ray report from 1980 was 
 
            compared with an x-ray taken November 17, 1988.  The 1988 
 
            x-ray was termed as being "stable" in comparison to the 1980 
 
            x-ray (joint exhibit 2, pages 9, 10, 12 and 13).
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                 Smith was evaluated by John R. Walker, M.D., on July 
 
            27, 1988.  Dr. Walker felt that claimant had an L4 nerve 
 
            root lesion.  He recommended conservative treatment in the 
 
            nature of traction and physical therapy which, if 
 
            unsuccessful, should then be followed by a myelogram and 
 
            surgery (joint exhibit 11).
 
            
 
                 Smith was evaluated by Richard F. Neiman, M.D., on 
 
            November 14, 1990.  Dr. Neiman felt that the MRI tests did 
 
            show a herniated disc at the L3-4 level.  Dr. Neiman also 
 
            expressed the opinion that claimant was not maximally healed 
 
            and that he was a surgical candidate.  He agreed, however, 
 
            that weight reduction and conditioning would be as helpful 
 
            to Smith as surgery.  Dr. Neiman felt that claimant could 
 
            not return to truck driving.  He imposed activity 
 
            restrictions in the nature of a 25-pound weight limit for 
 
            repetitive lifting and a 50-pound maximum lifting limit.  He 
 
            also recommended that claimant avoid prolonged standing or 
 
            sitting and that he avoid excessive flexion, extension and 
 
            rotation of his back.  Dr. Neiman assigned a 20 percent 
 
            permanent impairment rating (joint exhibit 10).
 
            
 
                 After Smith recovered from his lung surgery, he 
 
            returned to Dr. MacMenamin, but at that time Dr. MacMenamin 
 
            was reluctant to proceed with surgery.  An MRI scan 
 
            conducted February 23, 1989 showed no significant change in 
 
            comparison to the June 1988 scan.  On July 24, 1989, Dr. 
 
            MacMenamin reported that he had nothing further to add in 
 
            regard to claimant's treatment, but that surgery was not a 
 
            good option (joint exhibit 1, page 8).
 
            
 
                 Claimant was provided a functional capacity assessment 
 
            in August 1990.  The results showed markedly restricted 
 
            physical capacity (joint exhibit 1, pages 10-18).  At that 
 
            time, Dr. MacMenamin proceeded to provide an impairment 
 
            rating of 23 percent and activity restrictions consistent 
 
            with the results of the functional capacity assessment 
 
            (joint exhibit 1, page 20).  Dr. MacMenamin expressed the 
 
            opinion that claimant's back problems were connected to the 
 
            May 19, 1988 injury (joint exhibit 1, page 19).
 
            
 
                 During the course of claimant's treatment, the 
 
            insurance carrier arranged to have consultants from 
 
            Intracorp become involved in the case.  When the first 
 
            consultant initially contacted Smith, he was reluctant to 
 
            work with them and sought to consult with his attorney as he 
 
            was unfamiliar with the consultant and the consultant's 
 
            role.  Smith was criticized for doing so.  Thereafter, Smith 
 
            cooperated with the vocational consultants, albeit 
 
            reluctantly.  He developed considerable distrust for the 
 
            vocational consultants and the insurance carrier.  On one 
 
            occasion, he indicated that he would not continue to meet 
 
            with the vocational consultant, but he did in fact continue 
 
            to meet with the consultant (Parkins deposition, pages 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            14-17).
 
            
 
                 In a letter dated September 8, 1988, a representative 
 
            of the insurance carrier threatened to terminate claimant's 
 
            weekly benefits for failing to cooperate with Intracorp 
 
            (joint exhibit 16).  In a letter dated February 17, 1989, 
 
            claimant was given notice of termination of benefits for the 
 
            alleged refusal to cooperate with rehabilitation efforts and 
 
            to continue treating with the authorized physician (joint 
 
            exhibit 18).  Claimant's benefits were in fact terminated 
 
            and have not been resumed since that date.  Benefits were 
 
            not reinstated, despite attempts from claimant and his 
 
            counsel to demonstrate that he was cooperating (joint 
 
            exhibit 16).  It is noted that Rebecca Parkins was the third 
 
            consultant from Intracorp to become involved in this case.  
 
            She received the file on October 26, 1988 and was directed 
 
            to provide medical case management and vocational 
 
            rehabilitation services (Parkins deposition, page 5).  On 
 
            one occasion, Smith missed an appointment because he did not 
 
            receive the written notice of the appointment until the time 
 
            for the appointment had already passed.  On another 
 
            occasion, he discussed the time for an appointment and 
 
            rescheduled one from the date which had initially been set 
 
            by Parkins, apparently without any objection from Parkins.  
 
            The rescheduling appears to have been viewed unfavorably by 
 
            the insurance carrier.
 
            
 
                 Smith became dissatisfied with the physician selected 
 
            by the employer.  His attorney made request to the insurance 
 
            carrier to obtain a different physician.  Dr. MacMenamin, in 
 
            a report dated March 1, 1989, stated that a second opinion 
 
            would be advisable.  An appointment was made for claimant to 
 
            obtain a second opinion from Dr. Walker, but that was 
 
            cancelled (joint exhibit 13).  After that, no further 
 
            efforts at obtaining a second opinion were made.  The 
 
            insurance carrier did not authorize any alternate treatment 
 
            or a second opinion.  At one point, Smith indicated he would 
 
            seek his own medical care, but he did not do so.  Smith then 
 
            relented and continued to treat with Dr. MacMenamin.  Dr. 
 
            MacMenamin's recommendations were, essentially, that no 
 
            further treatment was warranted.
 
            
 
                 When questioned during the deposition, Parkins 
 
            indicated that Smith did not trust her because he felt that 
 
            she was acting on behalf of the insurance carrier.  She 
 
            stated that her role was to assist Smith in obtaining 
 
            medical treatment at the maximum level to help him return to 
 
            work.  Parkins stated that she felt what she did is to the 
 
            benefit of the injured worker in the event there were a 
 
            difference in goals between that of the worker and the 
 
            insurance carrier (Parkins deposition, page 18).  It was 
 
            also indicated, however, in a letter from defense counsel, 
 
            that the vocational consultant would not be paid for any 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            time she spent communicating with the injured worker's legal 
 
            counsel (joint exhibit 17).
 
            
 
                 It is found that the assessment made in this case by 
 
            Dr. MacMenamin is correct where it differs from that of Dr. 
 
            Walker or Dr. Neiman.  Dr. MacMenamin is the most familiar 
 
            with this case.  The decision regarding whether or not 
 
            further surgery is advisable is apparently quite close since 
 
            even Dr. Neiman states that claimant could probably benefit 
 
            as much by weight reduction and conditioning as he could by 
 
            surgery.  In the other regards, the three physicians do not 
 
            appear to be at material variance.
 
            
 
                 Claimant has engaged in various activities though he 
 
            has not resumed regular gainful employment.  He has repaired 
 
            and sold some automobiles.  The record does not show the 
 
            amount of such activity in which he has engaged or the 
 
            degree of regularity in which he engages in it.  There is no 
 
            indication in the record with regard to the amount of 
 
            effort, time or difficulty that was involved in setting out 
 
            the boards which mark where the garage was to be constructed 
 
            as seen in the videotape.  In the videotape, it is noted 
 
            that the claimant appears to move fairly normally, although 
 
            an orthopaedic surgeon would be better capable of 
 
            determining whether or not claimant's movements as shown in 
 
            the videotape give any indication of whether or not the 
 
            claimant is having back problems.
 
            
 
                 Dennis Smith is a convicted felon and his credibility 
 
            is impaired by that fact.  It is found that he has not made 
 
            bona fide efforts to find employment.  The assessment of his 
 
            employability as made by Roger Marquardt is found to be 
 
            correct (joint exhibit 12).  It is noted that Marquardt 
 
            based his assessment that having Smith restricted to entry 
 
            level unskilled employment would pay 50-60 percent less than 
 
            his pre-injury earnings was based upon pre-injury earnings 
 
            of approximately $12.00 per hour, the norm or average for 
 
            truck drivers according to the data relied upon by 
 
            Marquardt.  This would place Smith's actual earnings in the 
 
            $5-$6 per hour range.  The percentages arrived at by 
 
            Marquardt should not be based upon a $7.00 per hour level of 
 
            earnings.  Marquardt's assessment is interpreted to mean 
 
            that Smith still has residual capacity sufficient to enable 
 
            him to earn $5.00 or $6.00 per hour.  If the 50-60 percent 
 
            reduction were applied to $7.00 per hour, the result would 
 
            be less than the minimum wage provided by state and federal 
 
            law.
 
            
 
                                conclusions of law
 
            
 
                 The healing period ends at the earlier of the three 
 
            events specified in Code section 85.34(1).  As asserted in 
 
            the statement of issues presented by the employer, the 
 
            claimant's healing period ended September 19, 1990 
 
            consistent with the assignment of an impairment rating and 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            activity restrictions by Dr. MacMenamin.  The fact that a 
 
            large amount of time had elapsed and that he assigned the 
 
            rating and activity restrictions indicates that the doctor 
 
            felt further significant improvement was not anticipated.  
 
            The total healing period entitlement is one hundred 
 
            twenty-two (122) weeks.
 
            
 
                 Section 85.34 of The Code specifies the reasons for 
 
            which healing period is terminated.  Code section 85.39 
 
            permits weekly benefits to be interrupted for failing to 
 
            attend an independent medical evaluation, but only for the 
 
            period of the refusal to attend.  It has been previously 
 
            determined by the commissioner that failing to attend 
 
            treatment with the authorized physician does not warrant a 
 
            suspension or interruption of weekly payments.  Assman v. 
 
            Blue Star Foods, file number 866389 (Declaratory Ruling, May 
 
            18, 1988).  The remedy for failing to treat with an 
 
            authorized physician is that, under most circumstances, the 
 
            employer is not obligated to pay the cost of the treatment 
 
            obtained from a different source.  In this case, Smith did 
 
            not actually obtain treatment from any other source.  
 
            Further, the treatment offered by Dr. MacMenamin following 
 
            his determination that surgery was not warranted was 
 
            essentially no treatment as indicated in his note dated July 
 
            24, 1989.  He had nothing further to offer at that time.  
 
            Even if claimant were somehow to be penalized for his 
 
            alleged refusal to obtain treatment from the treating 
 
            physician, it is apparent that the treating physician had no 
 
            treatment in mind.  The statute likewise does not permit 
 
            suspension or interruption of benefits for failing to 
 
            cooperate with a vocational consultant.  Refusal to 
 
            cooperate with a vocational consultant is a matter to be 
 
            considered when determining the extent of industrial 
 
            disability.  In particular, it is important when determining 
 
            whether or not the current employment situation fairly 
 
            represents the employee's actual capability.  There is no 
 
            record of any effort by the vocational consultants in this 
 
            case to engage in any type of job placement activity.  They 
 
            simply acted as a go-between between the insurance carrier, 
 
            the claimant and the medical service providers.  The 
 
            evidence in this case does not show that Smith's alleged 
 
            failure to cooperate with the authorized treating physician 
 
            in any manner impaired the success of his recovery from the 
 
            injury.  Vorthman v. Keith E. Myers Enterprises, 296 N.W.2d 
 
            772, 14 A.L.R.4th 1085 (Iowa 1980); Stufflebeam v. City of 
 
            Fort Dodge, 233 Iowa 438, 9 N.W.2d 281 (1943).  Where there 
 
            is a claimed unreasonable refusal to cooperate with 
 
            recommended medical treatment, the employer has the burden 
 
            of proving the extent to which the refusal increased the 
 
            degree of incapacity or disability in comparison to what it 
 
            would have been had there been cooperation.  Republic Steel 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            Corp. v. Workmen's Comp App. Bd., 82 Pa. Commw. 596, 476 
 
            A.2d 989 (1984); 1 Larson Workmen's Compensation Law, 
 
            section 13.22(f).  It is specifically found that, in this 
 
            case, the claimant's final degree of impairment would be no 
 
            different if he had enthusiastically cooperated with Dr. 
 
            MacMenamin than what it actually is.  Though he was at some 
 
            times recalcitrant, he did in fact comply with all of Dr. 
 
            MacMenamin's significant recommendations.  There was no 
 
            basis at law or in fact for terminating Smith's weekly 
 
            benefits on March 19, 1989.  There had not actually been a 
 
            refusal to cooperate and, more importantly, even if there 
 
            had been such a refusal, that fact does not authorize 
 
            termination of weekly compensation.  Accordingly, claimant 
 
            is entitled to recover a penalty for the unreasonable 
 
            termination of benefits.
 
            
 
                 The claimant's healing period extends from the date of 
 
            injury through September 19, 1990.  Benefits were terminated 
 
            on March 19, 1989.  From March 20, 1989 through September 
 
            19, 1990 is a span of 78 and 4/7 weeks.  As and for a 
 
            penalty for the unpaid healing period compensation, which 
 
            lack of payment is determined to have been unreasonable, an 
 
            additional 35 weeks of compensation is appropriate.
 
            
 
                 Dennis Smith likely had some preexisting problems with 
 
            his low back.  The 1980 x-rays showed an abnormality at the 
 
            same level of his spine as the one which is now responsible 
 
            for his symptoms.
 
            
 
                 An employer takes an employee subject to any active or 
 
            dormant health impairments, and a work connected injury 
 
            which more than slightly aggravates the condition is 
 
            considered to be a personal injury.  Ziegler v. United 
 
            States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591 (1960), 
 
            and cases cited.
 
            
 
                 The rule is well settled that when some preexisting 
 
            disability is alleged to exist, the employer has the burden 
 
            of establishing its existence and the degree of its 
 
            severity.  Tussing v. George A. Hormel & Co., 461 N.W.2d 450 
 
            (Iowa 1990); Bearce v. FMC Corp., 465 N.W.2d 531 (Iowa App. 
 
            1991); Varied Enterprises, Inc. v. Sumner, 353 N.W.2d 407 
 
            (Iowa 1984); Becker v. D & E Distrib. Co., 247 N.W.2d 727, 
 
            731 (Iowa 1976).  In this case, the evidence that this 
 
            claimant had worked for L. L. Pelling for one summer and for 
 
            Cedar Valley Asphalt Company for another refutes any claim 
 
            that the earlier 1980 injury, or any other prior injury or 
 
            incident, had reduced his earning capacity beyond the 
 
            capacity that is reflected by the earnings that he actually 
 
            earned with Cedar Valley Asphalt Company.  His earning 
 
            capacity at some prior point in time might have been 
 
            greater, but the capacity he possessed while working for 
 
            Cedar Valley Asphalt is well established.  At this point, it 
 
            should be noted that the earning capacity of most 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            individuals changes throughout their lifetime due to a 
 
            combination of changes that occur in their age, expertise, 
 
            educational level, physical capacity and various other 
 
            factors.  Even without an injury, it is quite common for 
 
            earning capacity to change.  When measuring loss of earning 
 
            capacity which results from an industrial injury, the proper 
 
            method of analysis is to use the earning capacity of the 
 
            individual as it existed immediately prior to the injury as 
 
            the basis for comparison or computation.  In most cases, the 
 
            impact of earning capacity losses from prior injuries will 
 
            be reflected in the actual earnings at the time of the most 
 
            recent injury.
 
            
 
                 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.  DeWall v. Prentice, 224 N.W.2d 428, 
 
            435 (Iowa 1974); 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. Harrison 
 
            County, Thirty-fourth Biennial Report of the Industrial 
 
            Commissioner 218 (1979); 2 Larson Workmen's Compensation 
 
            Law, sections 57.21 and 57.31.
 
            
 
                 Smith's current state of lack of employment is not an 
 
            accurate indicator of his earning capacity.  He is not 
 
            totally disabled.  His employability is limited, however, as 
 
            indicated by Marquardt.  He has lost the ability to work as 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            a truck driver, meat cutter or construction laborer, all 
 
            jobs which he has previously held.  He does not have much in 
 
            the way of identifiable, marketable skills.  When all 
 
            pertinent factors of industrial disability are considered, 
 
            it is determined that Dennis Ross Smith sustained a 30 
 
            percent permanent partial disability as a result of the May 
 
            19, 1988 injury.
 
            
 
                 Claimant also seeks a penalty for unpaid permanent 
 
            partial disability compensation.  As previously stated, the 
 
            standard is reasonableness.  Conduct is unreasonable where 
 
            there is no rational basis for the denial of benefits.  
 
            Kimberly-Clark Corp. v. Labor & Indus. Review Comm'n, 405 
 
            N.W.2d 684 (Wisc. 1987); Coleman v. Am. Universal Ins. Co., 
 
            273 N.W.2d 220 (Wisc. 1979); Anderson v. Continental Ins. 
 
            Co., 271 N.W.2d 368 (Wisc. 1978).  The claim for permanent 
 
            partial disability compensation was not fairly debatable 
 
            since this claimant had been rated by the employer's 
 
            authorized physician as having a 23 percent impairment as a 
 
            result of the injury.  Even with the assistance of a 
 
            vocational consultant, the claimant had not resumed gainful 
 
            employment.  While the extent of permanent partial 
 
            disability was debatable, the fact that some had occurred is 
 
            not debatable.  This is one of those cases where the lack of 
 
            return to employment together with a fairly significant 
 
            impairment rating, medically imposed activity restrictions, 
 
            limited education and lack of ability to perform any of the 
 
            jobs that claimant had previously performed in his lifetime 
 
            present a situation in which it is patently clear that a 
 
            significant degree of permanent partial disability 
 
            compensation was due.  Even when this claimant's impaired 
 
            credibility and the possibility of preexisting problems are 
 
            considered, it was and remains unreasonable for the employer 
 
            and its insurance carrier to not have made an assessment of 
 
            industrial disability and to not have paid an amount of 
 
            permanent partial disability compensation which was in the 
 
            range of the impairment rating rendered by the authorized 
 
            physician.  It is specifically determined that even an 
 
            extremely conservative assessment of the case would have 
 
            resulted in a determination that the degree of permanent 
 
            partial disability was at least 20 percent.  The failure to 
 
            pay less than 100 weeks of compensation, representing a 20 
 
            percent permanent partial disability, is determined to have 
 
            been unreasonable.  The claimant is therefore entitled to 
 
            recover an additional 50 weeks of compensation as and for a 
 
            penalty under the fourth unnumbered paragraph of Code 
 
            section 86.13 for the failure of the insurance carrier to 
 
            pay any permanent partial disability compensation.
 
            
 
                 The rate of compensation in this case is to be 
 
            determined under Code section 85.36(7) since Smith was 
 
            employed for less than 13 calendar weeks immediately 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            preceding the injury.  The record does not contain any 
 
            evidence of what the employee would have earned had he been 
 
            employed during the full 13 calendar weeks immediately 
 
            preceding the injury if he had worked when work was 
 
            available.  Therefore, the proper method of determining the 
 
            average weekly earnings is to simply divide the total 
 
            earnings by the number of weeks actually worked.  Barker v. 
 
            City Wide Cartage, I Iowa Industrial Commissioner Report 12, 
 
            15 (App. Decn. 1980).  Receiving pay at the prevailing rate 
 
            is not premium pay as defined in section 85.61(12).  The 
 
            commissioner has previously held that holiday pay is not 
 
            premium pay.  Stevens v. John Morrell & Co., I-1 Iowa 
 
            Industrial Commissioner Reports 236 (1984).  Premium pay 
 
            refers to things such as night shift differentials.  The 
 
            characterization by an employer of the higher rate of pay as 
 
            being "premium" does not make it so for purposes of 
 
            statutory interpretation.  The underlying facts are 
 
            controlling.  In this case, the higher wages appear to have 
 
            been paid pursuant to the Davis-Bacon Act or some similar 
 
            county ordinance, or perhaps both.  The facts presented in 
 
            the case are certainly consistent with the projects being 
 
            ones to which Davis-Bacon would apply.  The record suggests 
 
            no other reason for paying at the higher rate.  It is 
 
            therefore concluded that, in cases such as this where 
 
            differing hourly rates are paid (excluding overtime) 
 
            pursuant to federal law, such does not make the higher pay, 
 
            or any part thereof, premium pay within the definition 
 
            contemplated by Code section 85.61(12).  The commissioner 
 
            has previously determined that, whenever the employee is 
 
            responsible for supporting dependent children, they are to 
 
            be included as exemptions when determining the rate, even if 
 
            the employee was not actually supporting them.  Biggs v. 
 
            Donner, II Iowa Industrial Commissioner Report 34 (App. 
 
            Decn. 1982).  All parents are legally required to support 
 
            their children.  In this case, Smith's gross average weekly 
 
            wages are therefore determined to have been $376.56 based 
 
            upon total earnings of $2,904.75 over a period of seven and 
 
            six-sevenths weeks.  The records show him to have been 
 
            married with four dependent children.  This entitles him to 
 
            six exemptions.  The weekly rate of compensation is 
 
            therefore $255.91.
 
            
 
                                      order
 
            
 
                 IT IS THEREFORE ORDERED that defendants pay Dennis Ross 
 
            Smith one hundred twenty-two (122) weeks of compensation for 
 
            healing period at the rate of two hundred fifty-five and 
 
            91/100 dollars ($255.91) per week commencing May 19, 1988.
 
            
 
                 IT IS FURTHER ORDERED that defendants pay Dennis Ross 
 
            Smith one hundred fifty (150) weeks of compensation for 
 
            permanent partial disability at the rate of two hundred 
 
            fifty-five and 91/100 dollars ($255.91) per week payable 
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            commencing September 20, 1990.
 
            
 
                 IT IS FURTHER ORDERED that defendants pay Dennis Ross 
 
            Smith the sum of twenty-one thousand seven hundred fifty-two 
 
            and 35/100 dollars ($21,752.35) as and for a penalty 
 
            pursuant to section 86.13(4) [eighty-five (85) weeks at the 
 
            rate of two hundred fifty-five and 91/100 dollars ($255.91) 
 
            per week].  This entire amount shall be paid in a lump sum 
 
            payable on the date of this decision.
 
            
 
                 IT IS FURTHER ORDERED that defendants pay the costs of 
 
            this action pursuant to rule 343 IAC 4.33 as follows:
 
            
 
                 Filing Fee                         $  65.00
 
                 Certified Mailing                      4.00
 
                 John R. Walker, M.D. report           67.90
 
                 Report of Dr. MacMenamin              42.00
 
                 Total                              $ 178.90
 
            
 
                 IT IS FURTHER ORDERED that defendants file claim 
 
            activity reports as requested by this agency pursuant to 
 
            rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ______ day of ____________, 1991.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Donald L. Carr II
 
            Attorney at Law
 
            1630 42nd Street NE
 
            Suite E
 
            Cedar Rapids, Iowa  52402
 
            
 
            Mr. Thomas M. Wertz
 
            Attorney at Law
 
            4089 21st Avenue SW
 
            Suite 114
 
            Cedar Rapids, Iowa  52404
 
            
 
            Mr. John M. Bickel
 
            Attorney at Law
 
            500 MNB Building
 
            P.O. Box 2107
 
            Cedar Rapids, Iowa  52406-2107
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
                           1403.30; 1803; 3001
 
                           4000.2
 
                           Filed April 15, 1991
 
                           MICHAEL G. TRIER
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DENNIS ROSS SMITH,            :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 879898
 
            CEDAR VALLEY ASPHALT CO.,     :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            UNITED FIRE & CASUALTY CO.,   :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
            1403.30
 
            
 
                 Employer had burden of proving extent of preexisting 
 
            disability in order to qualify for any apportionment.
 
            
 
                 Employer had burden of proving that failing to treat 
 
            with authorized physician impaired recovery from the injury 
 
            if it sought to avoid payment of weekly compensation.
 
            
 
            4000.2
 
            
 
                 Failing to treat with the authorized physician and 
 
            failing to cooperate with a vocational rehabilitation 
 
            consultant are not situations which permit termination of 
 
            weekly compensation benefits.  A penalty equal to nearly 50 
 
            percent of the healing period which was denied was awarded.  
 
            A penalty was also awarded in the amount of 50 weeks of 
 
            benefits based upon the employer's failure to have paid for 
 
            at least a 20 percent permanent partial disability.  It was 
 
            held that failing to have paid at least 20 percent under the 
 
            circumstances present was unreasonable.
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            1803
 
            
 
                 It was held that the percentage of lost earning 
 
            capacity should be measured from the earning capacity that 
 
            existed immediately prior to the injury, rather than what 
 
            earning capacity might have been at some previous point in 
 
            the employee's life or what it might have been had some 
 
            prior event not occurred.  Fifty-one-year-old convicted 
 
            felon whose credibility was impaired and who had not made 
 
            bona fide efforts to resume employment was awarded 30 
 
            percent permanent partial disability where all physicians in 
 
            the case imposed severe activity restrictions which, if 
 
            followed, would eliminate him from any occupation which he 
 
            had previously performed.  By the time of hearing, he had 
 
            not resumed employment.  The impairment ratings ranged from 
 
            20-23 percent.
 
            
 
            3001
 
            
 
                 Where the employer pays at a higher hourly rate for a 
 
            federally-funded public works project in order to comply 
 
            with the Davis-Bacon Act, the higher pay does not constitute 
 
            premium pay in accordance with section 85.61(12).