Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            TED COX,                      :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 896106
 
            GRAIN PROCESSING CORPORATION, :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            EMPLOYERS INSURANCE OF WAUSAU,:
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Ted Cox, 
 
            claimant, against Grain Processing Corporation, employer, 
 
            and Employers Insurance of Wausau, insurance carrier, to 
 
            recover benefits under the Iowa Workers' Compensation Act as 
 
            a result of an injury sustained on September 6, 1988.  This 
 
            matter came on for hearing before the undersigned deputy 
 
            industrial commissioner on September 23, 1991, in Davenport, 
 
            Iowa.  The record was considered fully submitted at the 
 
            close of the hearing.  The record in this case consists of 
 
            joint exhibits 1-6, claimant's testimony and testimony from 
 
            Mr. Jack Ramser.
 
            
 
                                      issues
 
            
 
                 Pursuant to the prehearing report and order dated 
 
            September 23, 1991, the parties have stipulated that an 
 
            employer-employee relationship exists between claimant and 
 
            employer; that claimant sustained a neck injury on September 
 
            6, 1988, which arose out of and in the course of employment 
 
            with employer; that the alleged injury is a cause of 
 
            temporary disability; that claimant was off work as a result 
 
            of this injury from September 7, 1988 through March 7, 1989; 
 
            that the type of permanent disability, if the injury is 
 
            found to be a cause of permanent disability, is industrial 
 
            disability to the body as a whole; that the commencement 
 
            date for permanent partial disability, in the event such 
 
            benefits are awarded, is March 8, 1989; that the amount of 
 
            claimant's gross weekly earnings is $485.56; that claimant 
 
            is single and entitled to one exemption; and there is no 
 
            dispute as to entitlement to medical benefits under Iowa 
 
            Code section 85.27 and/or medical evaluation under 85.39.
 
            
 
                 The issues remaining to be decided are:
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                 1.  Whether the work injury is a cause of permanent 
 
            disability; and,
 
            
 
                 2.  The extent of entitlement to weekly compensation 
 
            for permanent disability, if defendants are liable for the 
 
            injury.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned has carefully considered all the 
 
            testimony given at the hearing, the arguments made, the 
 
            evidence contained in the exhibits herein, and makes the 
 
            following findings:
 
            
 
                 The parties do not dispute that on September 6, 1988, 
 
            while palletizing 55 pound bags of feed off a conveyor belt, 
 
            claimant injured his neck and back.  Claimant conferred with 
 
            William Catalona, M.D.  He referred claimant to Byron 
 
            Rovine, M.D., a neurologist, for evaluation.  Dr. Rovine saw 
 
            claimant on September 14, 1988.  Clinically, Dr. Rovine 
 
            indicated that there were some soft neurological signs 
 
            indicating a C6 radiculopathy.  He believed claimant to have 
 
            a herniated intervertebral disc at C5-6 on the right side.  
 
            Conservative treatment was undertaken at this time.
 
            
 
                 Claimant returned to Dr. Rovine for a reevaluation on 
 
            October 5, 1988.  Claimant reported no significant 
 
            improvement with conservative therapy.  At this time, Dr. 
 
            Rovine found some weakness of the right biceps and possibly 
 
            left biceps.  A pattern suggesting sensory deficit involving 
 
            the thumb and index finger on both sides was also noted.  
 
            Additional testing was pursued.
 
            
 
                 On October 31, 1988, claimant was admitted to St. 
 
            Luke's Hospital in Davenport, Iowa where he underwent a 
 
            cervical myelogram.  This showed possible herniation of the 
 
            nucleus pulposus.  On November 1, 1988, claimant underwent 
 
            cervical discectomy and interbody fusion at C5-6 (Exhibit 1, 
 
            page 36).  A discharge summary prepared by Dr. Rovine on 
 
            November 3, 1988, states that postoperatively Mr. Cox was 
 
            relieved of all his pain (Ex. l, pp. 13-25).
 
            
 
                 Claimant was off work until March 9, 1989, when he was 
 
            released by Dr. Rovine for full time duty.  He was given a 
 
            40 pound lifting limitation (Ex. 1, p. 45).  
 
            
 
                 On October 25, 1989, claimant was reevaluated by Dr. 
 
            Rovine to determine permanent partial disability.  He 
 
            reported that "[h]e suffered a temporary set-back as the 
 
            result of being involved in an automobile accident on 
 
            November 28, 1988, only several weeks after his surgery.  
 
            His recovery has, however, proceeded to completion 
 
            satisfactorily." (Ex. 1, p. 36)  He stated that "Mr. Cox's 
 
            activities are limited only by personal preference.  He does 
 
            have some difficulty with stiffness in his neck, especially 
 
            in relation to sleeping."  He also noted some tingling and 
 
            pins and needles in his fingers.  Dr. Rovine indicated that 
 
            because of claimant's restricted cervical spine motion, he 
 
            has a permanent partial impairment of seven percent and 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            because of the residual sensory deficit involving the thumb 
 
            and index finger of the right hand, another three percent is 
 
            added (Ex. 1, pp. 36-37).
 
            
 
                 On April 2, 1991, claimant was seen by F. Dale Wilson, 
 
            M.D., for an independent medical evaluation.  Dr. Wilson 
 
            reported that all motions of the neck were restricted.  In 
 
            addition, he noted bilateral ulnar and median nerve 
 
            neuropathy.  Based on these findings, Dr. Wilson gave 
 
            claimant a 39 percent permanent impairment rating (Ex. l, 
 
            pp. 6-9).
 
            
 
                 Claimant also was examined independently by Eugene 
 
            Collins, M.D., on June 28, 1991, for purposes of a permanent 
 
            impairment rating.  An examination revealed some limitation 
 
            of motion, especially in flexion and extension.  Also noted 
 
            was weakness of grip, arm fatigue and decrease in sensation 
 
            consistent with a C6 radiculopathy.  Dr. Collins gave 
 
            claimant an 8 percent impairment rating for his neck and 
 
            another 10 percent for right arm symptoms (Ex. 1, pp. 2-3).
 
            
 
                 Claimant was then sent by the insurance company to 
 
            Peter Wirtz, M.D., orthopedist, for evaluation on August 28, 
 
            1991.  A telephonic deposition was also taken of Dr. Wirtz 
 
            on September 5, 1991.  Based upon his examination, Dr. Wirtz 
 
            concluded that claimant was postoperative cervical disc 
 
            fusion at the C5-6 level without neurologic residuals.  He 
 
            opined that claimant's disc fusion translates to a 10 
 
            percent impairment to the body as a whole.  Based on 
 
            clinical findings, absence of neurologic residuals and 
 
            minimal restriction of motion, Dr. Wirtz testified that he 
 
            would not place any restrictions on claimant's physical 
 
            abilities (Ex. 5, p. 11, lines 2-5).
 
            
 
                                conclusions of law
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of September 
 
            6, 1988, is causally related to the disability on which he 
 
            now bases his claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 
 
            133 N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 
 
            296, 18 N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 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 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
            
 
                 At the hearing, claimant's complaints were referable to 
 
            loss of neck motion and loss of feeling in his fingers with 
 
            minimal grip strength.  There is a difference of medical 
 
            opinion in the record between Dr. Rovine, claimant's 
 
            treating surgeon, and Dr. Wirtz, an independent medical 
 
            examiner.  When Dr. Rovine last examined claimant on October 
 
            25, 1989, he noted a "residual mild sensory deficit in the 
 
            C6 distribution on the right side, involving the thumb and 
 
            index finger."  Dr. Rovine rated this impairment of fine 
 
            tactile discrimination at three percent.  Dr. Wirtz 
 
            testified that his sensory examination did not reveal the 
 
            bone abnormality found by Dr. Rovine on claimant's right 
 
            hand and a sensory deficit in the fourth and fifth fingers.  
 
            He concluded that claimant's problem resolved since he last 
 
            saw Dr. Rovine in October 1989.  In any event, both 
 
            physicians gave claimant a permanent functional impairment 
 
            rating of 10 percent.
 
            
 
                 Dr. Rovine reported on May 1, 1991, that "[a] review of 
 
            my history reveals no information concerning any "series of 
 
            incidents to his neck" other than the injury he sustained at 
 
            work on September 5, 1988, prior to the operation I 
 
            performed."  Dr. Rovine causally connects claimant's neck 
 
            impairment to his injury of September 6, 1988.  Although a 
 
            treating physician's testimony is not entitled to greater 
 
            weight as a matter of law than that of a physician who later 
 
            examines claimant in anticipation of litigation, Dr. Wirtz's 
 
            examination was a one-time examination containing a paucity 
 
            of clinical and laboratory findings and therefore not 
 
            entitled to significant weight and consideration.  Rockwell 
 
            Graphics Systems, Inc. v. Prince, 366 N.W.2d 187, 192 (Iowa 
 
            1985).
 
            
 
                 Claimant was asymptomatic prior to this injury and Dr. 
 
            Rovine causally connects the injury to his symptoms and 
 
            surgery.  Therefore, claimant has demonstrated by a 
 
            preponderance of the evidence that the disability on which 
 
            he now bases his claim is causally related to his September 
 
            6, 1988 injury.  The parties stipulate that if permanency is 
 
            found, than the type of permanent disability is industrial 
 
            disability to the body as a whole.
 
            
 
                 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 disabil
 
            ity.  This is so as impairment and disability are not syn
 
            onymous.  Degree of industrial disability can in fact be 
 
            much different than the degree of impairment because in the 
 
            first instance reference is to loss of earning capacity and 
 
            in the latter to anatomical or functional abnormality or 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            loss.  Although loss of function is to be considered and 
 
            disability can rarely be found without it, it is not so that 
 
            a degree of industrial disability is proportionally related 
 
            to a degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  These are matters which the 
 
            finder of fact considers collectively in arriving at the 
 
            determination of the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  There are no 
 
            guidelines which give, for example, age a weighted value of 
 
            ten percent of the total value, education a value of fifteen 
 
            percent of total, motivation - five percent; work experience 
 
            - thirty percent, etc.  Neither does a rating of functional 
 
            impairment directly correlate to a degree of industrial 
 
            disability to the body as a whole.  In other words, there 
 
            are no formulae which can be applied and then added up to 
 
            determine the degree of industrial disability.  It therefore 
 
            becomes necessary for the deputy or commissioner to draw 
 
            upon prior experience, general and specialized knowledge to 
 
            make the finding with regard to degree of industrial dis
 
            ability.  See Peterson v. Truck Haven Cafe, Inc., (Appeal 
 
            Decision, February 28, 1985);  Christensen v. Hagen, Inc., 
 
            (Appeal Decision, March 26, l985).
 
            
 
                 Claimant is 34 years old and a high school graduate.  
 
            He has worked at various times as a counter sales clerk, 
 
            gravel truck driver and bagger.  Although he has been given 
 
            a 40 pound lifting restriction, Jack Ramser, his supervisor 
 
            at Grain Processing Corporation, testified that claimant has 
 
            worked satisfactorily with his restriction and employer has 
 
            not needed to accommodate him in any way.  Claimant has 
 
            never reported that he is unable to do the work expected of 
 
            him.  At the time of his injury, claimant was earning $13.20 
 
            per hour.  At the present time he earns $14.66 per hour.  
 
            Claimant receives annual pay raises and was recently pro
 
            moted to loading coordinator.  He has not required medical 
 
            care since being released to return to work on March 8, 
 
            1989.  He takes no prescribed pain medication.  Claimant is 
 
            highly motivated and was described by his supervisor as a 
 
            good worker.  Although claimant has no loss of earnings, he 
 
            does have a loss of earning capacity as a result of neck 
 
            surgery and some neurological deficits.  Overall, Dr. Rovine 
 
            was pleased with the results of claimant's surgery and as 
 
            early as November 18, 1988, reported that claimant had no 
 
            shoulder, neck or arm pain (Ex. 1, p. 50).
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
                 Therefore, considering all of the elements of 
 
            industrial disability, it is determined that claimant has 
 
            sustained a permanent partial disability of 15 percent for 
 
            industrial purposes entitling him to 75 weeks of permanent 
 
            partial disability benefits.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 That defendants pay claimant seventy-five (75) weeks of 
 
            permanent partial disability benefits at the rate of two 
 
            hundred eighty-one and 53/l00 dollars ($281.53) per week 
 
            commencing March 8, 1989.
 
            
 
                 That defendants receive credit for any benefits 
 
            previously paid.
 
            
 
                 That defendants pay accrued amount in a lump sum.
 
            
 
                 That defendants pay interest pursuant to Iowa Code 
 
            section 85.30.
 
            
 
                 That defendants file claim activity reports as required 
 
            by this agency.
 
            
 
                 That defendants pay the cost of this action pursuant to 
 
            rule 343 IAC 4.33.
 
            
 
            
 
            
 
            
 
            
 
                 Signed and filed this ____ day of October, 1991.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________               
 
            JEAN M. INGRASSIA
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Douglas E. Johnston
 
            Attorney at Law
 
            323 E Second St
 
            P O Box 175
 
            Muscatine  IA  52761
 
            
 
            Mr. E. J. Kelly
 
            Attorney at Law
 
            Terrace Center  STE 111
 
            2700 Grand
 
            Des Moines  IA  50312
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           5-1803
 
                           Filed October 3, 1991
 
                           JEAN M. INGRASSIA
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            TED COX,                      :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 896106
 
            GRAIN PROCESSING CORPORATION, :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            EMPLOYERS INSURANCE OF WAUSAU,:
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            5-1803
 
            The issues to be determined include whether claimant's 
 
            injury is causally connected to the disability on which he 
 
            now bases his claim and if so, the extent of permanent 
 
            partial disability, if any.
 
            Claimant was asymptomatic prior to his injury on September 
 
            6, 1988, and his treating surgeon made the causal 
 
            connection.  Therefore, causation established.  The parties 
 
            stipulated that if permanency found, than the type of 
 
            permanent disability is industrial disability to the body as 
 
            a whole.
 
            Claimant is 34 years old and a high school graduate.  He 
 
            underwent a cervical discectomy and interbody fusion.  He 
 
            returned to work with a 40 pound lifting restriction.  
 
            Employer accommodated his restrictions.  At the time of his 
 
            injury, he was earning $13.20 per hour.  At the present 
 
            time, he earns $14.66 per hour.  He has not required medical 
 
            care since he was released to return to work on March 9, 
 
            1989.  Claimant has a loss of earning capacity.  Claimant 
 
            awarded 15 percent permanent partial disability benefits.
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         ALBERT RUBY,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                                 File No. 896176
 
         CBP, INC.,
 
                                               A R B I T R A T I 0 N
 
               Employer,
 
                                               D E C I S I 0 N
 
          and
 
          
 
          EMPLOYERS MUTUAL CASUALTY
 
          COMPANIES,
 
          
 
               Insurance Carrier,
 
               Defendants.
 
          
 
          
 
                                   INTRODUCTION
 
         
 
              This is an arbitration proceeding brought by Albert Ruby, 
 
         claimant, against CBP, Inc., employer, and Employers Mutual 
 
         Casualty Companies, defendants.  The case was heard by the 
 
         undersigned in Council Bluffs, Iowa on March 26, 1989.
 
         
 
              The record consists of the testimony of claimant.  The 
 
         record also consists of the testimonies of Cindy Ruby, wife of 
 
         claimant, and Linda Skinner, manager of the Council Bluffs Best 
 
         Western Motel.  Additionally, the record is comprised of joint 
 
         exhibits 1-31.
 
         
 
                                      ISSUES
 
         
 
              As a result of the prehearing report and order submitted 
 
         and approved on March 26, 1989, the issues presented by the 
 
         parties are:
 
         
 
              1. Whether there is a casual relationship between the 
 
         alleged injury and the disability;
 
         
 
              2. Whether claimant is entitled to temporary disability/ 
 
         healing period benefits or permanent partial disability benefits; 
 
         and,
 
         
 
              3. Whether claimant is entitled to medical benefits 
 
         pursuant to section 85.27 benefits.
 
         
 
         
 
         
 
         RUBY V. CBP, INC.
 
         Page 2
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
                                   STIPULATIONS
 
         
 
              Pursuant to the aforementioned prehearing report, the 
 
         parties entered into a number of stipulations.  The stipulations 
 
         are as follows:
 
         
 
              1. The existence of an employer-employee relationship 
 
         between claimant and employer at the time of the alleged injury 
 
         is stipulated;
 
         
 
              2. That claimant sustained an injury on August 19, 1988 
 
         which arose out of and in the course of employment with employer;
 
         
 
              3. That the alleged injury is a cause of temporary 
 
         disability during a period of recovery;
 
         
 
              4. In the event of an award of weekly benefits, the rate of 
 
         weekly compensation is stipulated to be $161.48 per week; and,
 
         
 
              5. Defendants paid claimant 15 weeks of compensation at the 
 
         rate of $161.48 per week prior to hearing.
 
         
 
                                 FACTS PRESENTED
 
         
 
              Claimant is 29 years old.  He is married and has three 
 
         children.  Claimant completed the eleventh grade but he has a 
 
         GED.
 
         
 
              Claimant was hired by defendant as a mechanic and as an 
 
         over-the-road truck driver.  Claimant testified that on August 
 
         19, 1988, he was engaged as a truck driver delivering pallets to 
 
         IBP.  He stated he was attempting to make a right hand turn from 
 
         the interstate when the truck shifted and the truck and trailer 
 
         capsized.  Claimant testified he had his window open so that when 
 
         the truck overturned, claimant hit his left shoulder on the 
 
         center median.  Claimant also testified that 15 wench and tie 
 
         down straps fell upon him, striking his head, neck and the back 
 
         of his shoulder blade.
 
         
 
              Claimant testified he was transferred to the emergency room 
 
         where he received medical attention.  Claimant reported he was 
 
         initially treated by his family physician, James L. Whalen, M.D., 
 
         but that later claimant was referred to Daniel J. Larose, M.D. 
 
         Claimant testified that he was also examined by Michael J. 
 
         Morrison, M.D., pursuant to a request by defendant-insurance 
 
         carrier and that the carrier also sent claimant to a 
 
         rheumatologist, Steven J. Wees, M.D. Claimant indicated he was 
 
         also referred to James R. Rochelle, M.D., by the treating 
 
         physician, Dr. Whalen.  According to claimant's testimony, he 
 
         last saw Dr. Rochelle on August 25, 1989.
 
         
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         RUBY V. CBP, INC.
 
         Page 3
 
         
 
         
 
              On direct-examination, claimant testified that he currently 
 
         has pain in his neck and left shoulder and that he often has 
 
         headaches.
 
         
 
              Cindy Ruby testified for claimant.  She described 
 
         claimant's current condition as constant pain, headaches, many 
 
         sleepless nights and inability to engage in activities with the 
 
         children.
 
         
 
              Linda Skinner testified for defendants.  She stated she is 
 
         the manager of the Council Bluffs Best Western Motel.  Ms. 
 
         Skinner indicated claimant was employed by the motel from May of 
 
         1988 through February of 1989 as a part-time security guard.  The 
 
         manager testified claimant was terminated from the security guard 
 
         position because he failed to follow company procedures.
 
         
 
                                  APPLICABLE LAW
 
         
 
              An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
         employment.  Section 85.3(l).
 
         
 
              Claimant has the burden of proving by a preponderance of 
 
         the evidence that he received an injury on August 19, 1988 which 
 
         arose out of and in the course of his employment.  McDowell v. 
 
         Town of.Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. 
 
         Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              The opinions of experts need not be couched in definite, 
 
         positive or unequivocal language.  Sondag v. Ferris 
 
         Hardware, 220 N.W.2d 903 (Iowa 1974).  An opinion of an expert 
 
         based upon an incomplete history is not binding upon the 
 
         commissioner, but must be weighed together with the other 
 
         disclosed facts and circumstances.  Bodish v. Fischer, Inc., 257 
 
         Iowa 516, 133 N.W.2d 867 (1965).  The expert medical evidence 
 
         must be considered with all other evidence introduced bearing on 
 
         the casual connection between the injury and the disability.  
 
         Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 
 
         N.W.2d 732 (1955). In regard to medical testimony, the 
 
         commissioner is required to state the reasons on which testimony 
 
         is accepted or rejected. Sondag, 220 N.W.2d 903 (1974).
 
         
 
              The claimant has the burden of proving by a preponderance 
 
         of the evidence that the injury of August 19, 1988 is casually 
 
         related to the disability on which he now bases his claim.  
 
         Bodish, 257 Iowa 516, 133 N.W.2d 867 (1965).   Lindahl v. L. 0. 
 
         Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A possibility is 
 
         insufficient; a probability is necessary.  Burt, 247 Iowa 691, 73 
 
         N.W.2d 732 (1955).  The question of casual connection is 
 
         essentially within the domain of expert testimony.  Bradshaw v. 
 
         Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         RUBY V. CBP, INC.
 
         Page 4
 
         
 
         
 
              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 
 
         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).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         RUBY V. CBP, INC.
 
         Page 5
 
         
 
         
 
              For example, a defendant employer's refusal to give any 
 
         sort of work to a claimant after he suffers his affliction may 
 
         justify an award of disability.  McSpadden v. Big Ben Coal Co., 
 
         288 N.W.2d 181 (Iowa 1980).
 
         
 
                                     ANALYSIS
 
         
 
              Claimant has proven by a preponderance of the evidence the 
 
         requisite casual connection between claimant's injury and his 
 
         alleged disability.  Claimant testified that prior to August 19, 
 
         1988, claimant had sustained no other injuries to his left 
 
         shoulder or neck.  Claimant also testified he fell on his left 
 
         shoulder during the accident and that some tie down straps fell 
 
         upon claimant's neck and left shoulder.  Additionally, there is 
 
         medical evidence to establish the requisite casual connection.  
 
         Dr. Whalen, the initial treating physician, determined claimant's 
 
         condition is work related.  In his office notes for August 22, 
 
         1988, Dr. Whalen writes:
 
         
 
              Patient sustained multiple injuries in a MVA on 8-19-88 when 
 
              he rolled a semi truck.  His injuries are predominately left 
 
              shoulder, sprain type injury, having difficulty at the 
 
              moment abducting and rotating shoulder.  He also has a 
 
              contusion and sprain to the left posterior rib cage and 
 
              flank area.  He complains also of a lot of pain and 
 
              discomfort bilaterally in the abductor area of his thighs.
 
         
 
              Claimant has sustained his burden relative to casuality.
 
         
 
              The second issue to address is whether claimant is entitled 
 
         to temporary disability/healing period benefits or permanent 
 
         partial disability benefits.  The opinions of the medical experts 
 
         involved in this case are varied.
 
         
 
              The initial treating physician, Dr. Whalen, did not provide 
 
         a functional impairment rating.  He, however, referred claimant 
 
         to Ronald K. Miller, M.D., and his partner, Daniel J. Larose, 
 
         M.D., both orthopedic surgeons.  Dr. Miller, in his office notes 
 
         of October 19, 1988, writes:
 
         
 
              Has pain which he says, even after his last exam, with Dr. 
 
              Larose was quite excruciating, even for 2-3 days after the 
 
              exam.  He has abduction to 90 degrees certainly is quite 
 
              normal.  He has full elevation, full internal and external 
 
              rotation.  I do not pick up any clicking or snapping.  He is 
 
              somewhat tender on palpation over his biceps.  His biceps 
 
              strength testing, I did not get the impression that this 
 
              gentleman was totally cooperating and when we suddenly let 
 
              go of his hand there was no rebound phenomenon.  The same 
 
              thing
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         RUBY V. CBP, INC.
 
         Page 6
 
         
 
         
 
              was noted with testing and abduction at 90 degrees.  This 
 
              gentleman certainly does not show any numbness or tingling.  
 
              He shows no evidence of neurological deficit.  He does not 
 
              show any atrophy.  His films basically are unremarkable.  I 
 
              am not sure what is going on with this gentleman, seems to 
 
              be having a lot of severe pain; 2 months after an accident, 
 
              which did not involve a fracture.  Does not seem to be 
 
              getting better as normally expected...
 
         
 
              In his deposition of December 7, 1989, Dr. Larose testified 
 
         claimant has a zero percent functional impairment rating.  Dr. 
 
         Larose did not find anything wrong with claimant.  Dr. Larose 
 
         stated there was no impingement syndrome of the left shoulder.  
 
         On December 15, 1988, the date of his last exam of claimant, Dr. 
 
         Larose writes:
 
         
 
              He is still complaining of headaches, especially when he 
 
              lifts weight.  Also complaining of numbness and tingling in 
 
              his fingers.
 
              
 
              EXAM:
 
              
 
              Exam today is repeated, there is no evidence of muscle 
 
              atrophy of either arm or scapular muscle.  Range of motion 
 
              is good.  He has good abduction and external rotation 
 
              strength.  Neurological exam repeated including reflexes and 
 
              motor strength and I do not see any evidence of shoulder 
 
              problem.
 
         
 
              Another treating physician, Dr. Rochelle, diagnosed 
 
         claimant's condition in his letter of August 25, 1989.  Dr. 
 
         Rochelle opines:
 
         
 
              Al Ruby has continued to have fairly significant neck and 
 
              left shoulder pain.  His symptoms and findings have been 
 
              very little changed for the past several months.  He 
 
              continues to have pain in the anterior aspect of the left 
 
              shoulder.  The pain is aggravated by the impingement test.  
 
              He has relative weakness, 4/5 on the left, compared to 
 
              normal strength on the right shoulder for abduction.  
 
              Likewise, there is weakness on internal and external 
 
              rotation of the left shoulder, due to apparent pain.
 
              
 
              He continues to have pain in the peri-cervical muscles of 
 
              the neck.  He has normal range of motion there, albeit with 
 
              moderate pain apparent in the terminal range of motion.  No 
 
              muscle spasm.  Motor status, reflexes and sensation are 
 
              normal.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         RUBY V. CBP, INC.
 
         Page 7
 
         
 
         
 
              Diagnosis:  Impingement syndrome of the left shoulder, 
 
              unchanged since last report; Cervical strain, very little 
 
              change.
 
              
 
              Disability Rating:  12% permanent medical impairment of the 
 
              body as a whole.
 
              
 
              Prognosis:  I feel he will have to live with a certain 
 
              amount of pain on an ongoing basis.  Due to his chronic 
 
              pain, I feel it would be very difficult for him to pursue 
 
              the kind of occupation he had at the time of his injury.  He 
 
              obviously has significant disability for occupations 
 
              requiring repetitive overhead work and heavy lifting of more 
 
              than 25 pounds on a repetitive basis.
 
         
 
              Dr. Morrison conducted a 30 minute independent medical exam 
 
         of claimant on May 2, 1989.  Dr. Morrison opined claimant's neck 
 
         revealed no evidence of spasm or listing.  He also opined there 
 
         was no evidence of any weakness of the rotator cuff muscles.  
 
         Likewise, Dr. Morrison determined claimant did not manifest an 
 
         impingement syndrome of the left shoulder, and that further 
 
         testing was unnecessary.  The physician found no objective 
 
         evidence of a permanent functional impairment.  However, Dr. 
 
         Morrison, in his deposition, testified: "If impairment was to be 
 
         based on his subjective pain, I felt it would be in the range of 
 
         2 to 5 percent."
 
         
 
              Finally, there is the opinion of a rheumatologist, Dr. 
 
         Wees.  He writes in his letter of January 12, 1989:
 
         
 
              At that time I told Mr. Ruby I thought he had a capsulitis 
 
              of the left shoulder, possibly a subacromial bursitis of the 
 
              left shoulder, and epicondylitis of the left elbow....
 
              
 
              The only care rendered to Mr. Ruby was on January 3, 1989, 
 
              as described above.  At that time I did not feel that Mr. 
 
              Ruby was totally disabled.
 
         
 
              After reviewing all of the above, the undersigned 
 
         determines claimant has a zero percent functional impairment.  
 
         This determination is based upon the fact claimant has normal 
 
         range of motion of the neck and shoulders.  All tests conducted 
 
         reveal normal results.  There are no objective findings which 
 
         establish any abnormalities.  Dr. Miller found less than full 
 
         cooperation by his patient.  There are only subjective complaints 
 
         of.pain. Therefore, it is the decision of this deputy that 
 
         claimant has no functional impairment and no permanent partial 
 
         disability.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         RUBY V. CBP, INC.
 
         Page 8
 
         
 
         
 
              However, it is the decision of the undersigned that 
 
         claimant was temporarily and totally disabled from the date of 
 
         his work injury, August 19, 1988,to April 25, 1989.  Dr. 
 
         Rochelle, a treating physician who is an orthopedic surgeon, 
 
         determined that as of April 25, 1989, claimant had reached 
 
         maximum benefit of medical treatment.  On that date, Dr. Rochelle 
 
         determined physical therapy was no longer necessary.  Dr. 
 
         Rochelle also determined claimant was able to pursue employment 
 
         in fields in which he felt comfortable.  The fields included 
 
         positions such as a security guard, but not fields such as an 
 
         auto mechanic.  While it is true, claimant engaged in part-time 
 
         work as a motel security guard from May of 1988 through February 
 
         of 1989, this does not affect his period of temporary total 
 
         disability because during this period, claimant was not medically 
 
         capable of returning to employment substantially similar to 
 
         positions like a full time auto mechanic with a part-time truck 
 
         driver position.  Also, from the date of his injury through April 
 
         25, 1989, claimant was receiving intense physical therapy three 
 
         times per week.  He was not medically capable of engaging in 
 
         repetitive work such as using tools.  Therefore, it is the 
 
         determination of the undersigned that claimant is entitled to 
 
         35.714 weeks of temporary total disability benefits.
 
         
 
              The final issue to address is whether claimant is entitled 
 
         to medical benefits under section 85.27.  Claimant seeks payment 
 
         of the following medical expenses:
 
         
 
         Emergency Care Division
 
          (8/19/88)                            $  180.00
 
          
 
          Jennie Edmundson Memorial Hospital
 
          (8/23/88)                               350.65
 
          (12/19/88)                               77.45
 
          
 
          Midlands Family Medicine
 
          (9/2/88)                                 24.00
 
          (9/27/88)                                22.00
 
          
 
          Internal Medicine Associates, P.C.
 
          (11/9/88)                               165.00
 
          
 
          Mercy Hospital
 
          (1/14/89)                               491.95
 
          
 
          James Rochelle, M.D.
 
          (1/10/89 - 4/25/89)                     353.00
 
          
 
          TOTAL                                $1,664.05
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              The expenses listed are reasonable and necessary.  
 
         Defendants argue the expenses of Dr. Rochelle are for unautho-
 
         
 
         
 
         
 
         RUBY V. CBP, INC.
 
         Page 9
 
         
 
         
 
         rized treatment.  Such is not the case here.  Dr. Whalen was an 
 
         authorized treating physician.  Defendants acquiesced to his 
 
         treatment of claimant.  Dr. Whalen referred claimant not only to 
 
         Dr. Miller/Dr. Larose, but also to Dr. Rochelle as well.  It is 
 
         not the duty of defendants to question the preferred treatment of 
 
         the treating physician.  Therefore, defendants are liable for 
 
         medical expenses in,the amount of $1,664.05.
 
         
 
                     FINDINGS OF FACT AND CONCLUSIONS OF LAW
 
         
 
              Based upon the evidence presented, the testimony given and 
 
         the stipulations of the parties, the following are the findings 
 
         of fact and conclusions of law:
 
         
 
              Finding 1. Claimant sustained an injury to his left 
 
         shoulder, neck and head as a result of a work injury on August 
 
         19, 1988.
 
         
 
              Finding 2. claimant received medical treatment. for his 
 
         left shoulder, neck and head.
 
         
 
              Finding 3. Claimant's initial treating physician was Dr. 
 
         Whalen who in turn referred claimant to Dr. Miller, Dr. Larose 
 
         and Dr. Rochelle.
 
         
 
              Finding 4. claimant was medically incapable of working as a 
 
         full time mechanic and a part-time truck driver from August 19, 
 
         1988 through April 25, 1989.
 
         
 
              Finding 5. Claimant worked as a part-time security guard 
 
         from May 1, 1988 to February 29, 1989.
 
         
 
              Finding 6. As a result of his work injury on August 19, 
 
         1988, claimant incurred medical expenses in the sum of $1,664.05.
 
         
 
              Finding 7. Claimant did not sustain any permanent 
 
         functional impairment as a result of his work injury on August 
 
         19, 1988.
 
         
 
              Conclusion A. Claimant has proven by a preponderance of the 
 
         evidence that he is entitled to temporary total disability 
 
         benefits form August 19, 1988 to April 25, 1989.
 
         
 
              Conclusion B. Claimant has incurred medical expenses in the 
 
         sum of $1,664.05 for which defendants are liable.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                                      ORDER
 
         
 
              THEREFORE, defendants are liable to claimant for 
 
         thirty-five point seven-one-four (35.714) weeks of temporary 
 
         total disability
 
         
 
         
 
         
 
         RUBY V. CBP, INC.
 
         Page 10
 
         
 
         
 
         benefits at the stipulated rate of one hundred sixty-one and 
 
         48/100 dollars ($161.48) per week.
 
         
 
              Defendants are also.liable for medical expenses in the sum 
 
         of one thousand six hundred sixty-four and 05/100 dollars 
 
         ($1,664.05).
 
         
 
              Accrued benefits are to be paid in a lump sum together with 
 
         the statutory interest rate allowable.
 
         
 
              Defendants are to be given credit for all benefits 
 
         previously paid to claimant.
 
         
 
              Costs are assessed to defendants.
 
         
 
              Defendants are to file a claim activity report upon payment 
 
         of all benefits.
 
         
 
         
 
         
 
              Signed and filed this 12th day of April, 1990.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                               MICHELLE A. McGOVERN
 
                                               DEPUTY INDUSTRIAL 
 
         COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Sheldon M. Gallner
 
         Attorney at Law
 
         803 3rd Ave, P 0 Box 1588
 
         Council Bluffs IA 51502
 
         
 
         Mr. Frank T. Harrison
 
         Attorney at Law
 
         Suite 111, Terrace Center
 
         2700 Grand Ave
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         Des Moines IA 50312
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                               5-1801
 
                                               Filed April 12, 1990
 
                                               MICHELLE A. McGOVERN
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         ALBERT RUBY,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                               File No. 896176
 
         
 
         CBP, INC.,
 
                                               A R B I T R A T I 0 N
 
         
 
              Employer,
 
                                                D E C I S I 0 N
 
         and
 
         
 
         EMPLOYERS MUTUAL CASUALTY
 
         COMPANIES,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         
 
         5-1801
 
         
 
              Claimant was held to be temporarily totally disabled after 
 
         he was engaged in an accident as an over-the-road trucker.  There 
 
         were no objective findings of any permanent functional 
 
         impairment.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           5-2905
 
                           Filed April 23, 1991
 
                           JEAN M. INGRASSIA
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DON SANTEE,                   :
 
                                          :         File Nos. 800648
 
                 Claimant,                :                   896196
 
                                          :
 
            vs.                           :      A R B I T R A T I O N
 
                                          :
 
            MAYTAG COMPANY,               :              A N D
 
                                          :
 
                 Employer,                :          R E V I E W -
 
                                          :
 
            and                           :        R E O P E N I N G
 
                                          :
 
            CONTINENTAL INSURANCE COMPANY,:         D E C I S I O N
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
            5-2905
 
            Claimant did not demonstrate by a preponderance of the 
 
            evidence a change in his physical condition, not 
 
            contemplated at the time of the agreement for settlement, to 
 
            warrant a change in the original award.  Other than 
 
            claimant's testimony that his condition had worsened, there 
 
            was no objective medical to support his claim.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            BARBARA A. SUTTON,    
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                               File No. 896346
 
            GLENWOOD STATE HOSPITAL SCHOOL, 
 
                                                 A P P E A L
 
                 Employer,   
 
                                                D E C I S I O N
 
            and         
 
                        
 
            STATE OF IOWA,   
 
                        
 
                 Insurance Carrier,    
 
                 Defendants.      
 
            ____________________________________________________________
 
            The record, including the transcript of the hearing before 
 
            the deputy and all exhibits admitted into the record, has 
 
            been reviewed de novo on appeal.  The decision of the deputy 
 
            filed June 11, 1993 is affirmed and is adopted as the final 
 
            agency action in this case.
 
            
 
            Claimant shall pay the costs of the appeal, including the 
 
            preparation of the hearing transcript.
 
            
 
            Signed and filed this ____ day of September, 1993.
 
            
 
            
 
            
 
                                    ________________________________
 
                                            BYRON K. ORTON
 
                                       INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Sheldon M. Gallner
 
            Attorney at Law
 
            803 3rd Avenue
 
            P O Box 1588
 
            Council Bluffs, Iowa  51502
 
            
 
            Ms. Joanne Moeller
 
            Assistant Attorney General
 
            Hoover State Office Building
 
            Des Moines, Iowa  50319
 
            
 
 
         
 
         Page   1
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         before the iowa industrial commissioner
 
         _________________________________________________________________
 
                                       :
 
         BARBARA A SUTTON,             :
 
                                       :
 
              Claimant,                :
 
                                       :
 
         vs.                           :
 
                                       :      File No. 896346
 
         GLENWOOD STATE HOSPITAL       :
 
         SCHOOL,                       :        A P P E A L
 
                                       :         
 
              Employer,                :      D E C I S I O N
 
                                       :
 
         and                           :
 
                                       :
 
         STATE OF IOWA,                :
 
                                       :
 
              Insurance Carrier,       :
 
              Defendants.              :
 
         _________________________________________________________________
 
         The record, including the transcript of the hearing before the 
 
         deputy and all exhibits admitted into the record, has been 
 
         reviewed de novo on appeal.  The decision of the deputy filed 
 
         Janaury 25, 1991, is affirmed and is adopted as the final agency 
 
         action in this case.
 
         Claimant shall pay the costs of the appeal, including the 
 
         preparation of the hearing transcript.
 
         Signed and filed this ____ day of December, 1991.
 
         
 
         
 
         
 
         
 
                   ________________________________
 
                            BYRON K. ORTON
 
                       INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Sheldon M. Gallner
 
         Attorney at Law
 
         P.O. Box 1588
 
         Council Bluffs, Iowa 51502
 
         
 
         Ms. Joanne Moeller
 
         Assistant Attorney General
 
         Tort Claims Division
 
         Hoover State Office Bldg.
 
         Des Moines, Iowa 50319
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            9998
 
            Filed December 27, 1991
 
            Byron K. Orton
 
            MDM
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
            _____
 
                                          :
 
            BARBARA A SUTTON,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 896346
 
            GLENWOOD STATE HOSPITAL       :
 
            SCHOOL,                       :        A P P E A L
 
                                          :         
 
                 Employer,                :      D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            STATE OF IOWA,                :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            _____
 
            
 
            9998
 
            
 
                 Summary affirmance of deputy's decision filed January 
 
            25, 1991.
 
            
 
 
            
 
 
 
             
 
 
 
 
 
                                            2503; 2509
 
                                            Filed September 28, 1993
 
                                            BYRON K. ORTON 
 
                         
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            
 
            BARBARA A. SUTTON,    
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                               File No. 896346
 
            GLENWOOD STATE HOSPITAL SCHOOL, 
 
                                                 A P P E A L
 
                 Employer,   
 
                                               D E C I S I O N
 
            and         
 
                        
 
            STATE OF IOWA,   
 
                        
 
                 Insurance Carrier,    
 
                 Defendants.      
 
            ____________________________________________________________
 
            
 
            
 
            2503 2905
 
            Review-reopening proceedings are an exception to the normal 
 
            rules of res judicata and issue preclusion.  An award can be 
 
            reviewed only upon a showing of a substantial change of 
 
            circumstances proximately caused by the original injury.  It 
 
            was held that claimant failed to make the required showing.  
 
            Claimant was not allowed to recover medical expenses which 
 
            had been incurred prior to the time of the original 
 
            arbitration hearing.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            9998
 
            Filed December 27, 1991
 
            Byron K. Orton
 
            MDM
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
            _____
 
                                          :
 
            BARBARA A SUTTON,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 896346
 
            GLENWOOD STATE HOSPITAL       :
 
            SCHOOL,                       :        A P P E A L
 
                                          :         
 
                 Employer,                :      D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            STATE OF IOWA,                :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            _____
 
            
 
            9998
 
            
 
                 Summary affirmance of deputy's decision filed January 
 
            25, 1991.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            BARBARA A. SUTTON,            :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 896346
 
            GLENWOOD STATE HOSPITAL       :
 
            SCHOOL,                       :    A R B I T R A T I O N
 
                                          :
 
                 Employer,                :      D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            STATE OF IOWA,                :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                 This is a proceeding in arbitration brought by Barbara 
 
            A. Sutton as a result of injuries to her neck and back which 
 
            occurred on September 10, 1988.  Defendants accepted 
 
            compensability for the injury, paid weekly benefits and some 
 
            medical expenses.
 
            
 
                 The case was heard and fully submitted at Council 
 
            Bluffs, Iowa on January 11, 1991.  The record in the 
 
            proceeding consists of claimant's exhibits 1 through 21, 23 
 
            through 46, and 48 through 67; defendants' exhibits A 
 
            through J; testimony from claimant, Ruth Maxwell, Clifford 
 
            Sutton and Shelia McCollum.
 
            
 
                 At hearing, defendants objected to claimant's exhibits 
 
            1, 12, 39, 47, 54 and 63 on the grounds that these exhibits 
 
            were not timely served 15 days prior to trial.  Claimant 
 
            supplied proof of service and notice of intent to introduce 
 
            into evidence for all exhibits with the exception of Exhibit 
 
            47.  Defendants' motion to exclude is overruled with respect 
 
            to Exhibits 1, 12, 39, 54 and 63.  Defendants' motion to 
 
            exclude Exhibit 47 is sustained as no showing has been made 
 
            by claimant that the document was served upon the opposing 
 
            party 15 days prior to hearing.
 
            
 
                                      issues
 
            
 
                 The issues for determination are as follows:
 
            
 
                 1.  Entitlement to temporary total disability or 
 
            healing period benefits.
 
            
 
                 2.  Entitlement to Iowa Code section 85.27 benefits and 
 
            defendants' authorization defense.
 
            
 
                 3.  Odd-lot doctrine.
 
            
 
                 4.  Entitlement to permanent partial disability and 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            causal connection.
 
            
 
                 5.  Commencement date for permanent partial disability.
 
            
 
                                 findings of fact
 
            
 
                 Having considered all the evidence received the 
 
            following findings of fact are made.
 
            
 
                 Claimant, age 55 at the time of injury, is a resident 
 
            of Tabor, Iowa.  She finished the ninth grade of high school 
 
            and later obtained her GED.  Claimant has post high school 
 
            training which qualifies her as a licensed practical nurse.  
 
            Claimant's prior work experience consisted of waitressing 
 
            and factory work.
 
            
 
                 Claimant began employment at the Glenwood State 
 
            Hospital School in September of 1985.  In order to obtain 
 
            employment, claimant submitted to a physical examination 
 
            which found her back to be normal.
 
            
 
                 Claimant worked for employer as a residential treatment 
 
            worker-certified medical aide.  In this capacity, she was 
 
            required to assist wheelchair confined handicap residents 
 
            with their daily activities.  Claimant was required to lift 
 
            and turn residents so as to feed and clean.  She described 
 
            her job as doing everything necessary to care for the 
 
            wheelchair bound residents.  The position required heavy 
 
            lifting.  However, employer had a rule which required two 
 
            workers when lifting exceeded 50 pounds.  Claimant was also 
 
            required to deal with behavior problems in residents.  This 
 
            often required physical intervention by claimant.
 
            
 
                 Claimant testified that she was earning $10.00 per hour 
 
            as a full-time employee on September 10, 1988.  It is noted 
 
            that the stipulated average weekly wage amounts to $9.07 per 
 
            hour based upon a 40 hour work week.
 
            
 
                 On September 10, 1988 claimant, while at work, was 
 
            taking a patient with an electric wheelchair across a narrow 
 
            pathway when the chair turned and rolled down an embankment.  
 
            Claimant also fell down the embankment and injured her low 
 
            back and neck in the process.  The patient did not incur 
 
            serious injuries.
 
            
 
                 Claimant stated that after the injury she had pain from 
 
            the top of her head to the tips of her toes.  She went to 
 
            Lacy Hospital where she was told to go see her own doctor.  
 
            Claimant then went to Immanuel Hospital for treatment by 
 
            Charles E. McMinn, M.D., a General Practitioner.  Claimant 
 
            was admitted to the hospital on September 11, 1988 and 
 
            discharged on September 18, 1988.  The diagnosis on 
 
            discharge was multiple contusions, lumbar strain, sprain 
 
            right shoulder, cervical strain and sprained right ankle.  
 
            She was taken off work indefinitely upon discharge.
 
            
 
                 Claimant saw numerous doctors on referral of Dr. McMinn 
 
            without apparent objection from employer until February 20, 
 
            1989.  On that date, a representative of the State of Iowa 
 
            called claimant's attorney and informed him that no further 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            payment would be made to Omaha Family Practice and that 
 
            claimant would be sent to Iowa City for treatment, exhibit 
 
            B, Page 2.
 
            
 
                 Claimant at the direction of employer did attend the 
 
            March 30, 1989 appointment at the University of Iowa Spine 
 
            Diagnostic and Treatment Center.  She was evaluated by 
 
            Ernest M. Found, Jr., M.D., spine surgeon, assistant medical 
 
            director; Colin Munn, physical therapist; Deb Nowak, 
 
            physical therapist; Eugene F. Gauron, PH.D., psychologist; 
 
            Ted Wernimont, medical social worker and director of the 
 
            rehabilitation programs and Tom Lanes, vocational 
 
            consultant.  After the evaluation, claimant was scheduled to 
 
            return to the Clinic on May 11, 1989.  She failed to attend 
 
            or cancel that appointment.  It wasn't until March 6, 1990, 
 
            that claimant finally returned to the Spine Diagnostic and 
 
            Treatment Center.  Her return was precipitated by numerous 
 
            written requests made by defendants' attorney, exhibit J.  
 
            Claimant was directed by the Spine Center to undergo a six 
 
            week exercise program at home and to return April 17, 1990 
 
            for consideration of inpatient treatment.
 
            
 
                 Claimant returned to the University on April 17, 1990.  
 
            She complained that the drive to Iowa City from her home 
 
            caused significant pain.  Dr. Found was of the opinion that 
 
            claimant was suffering primarily from severe deconditioning 
 
            and muscle spasm and that an exercise program would provide 
 
            significant gains in functioning, exhibit C, Page 1.
 
            
 
                 Claimant continued to treat with numerous other doctors 
 
            subsequent to February 20, 1989, notwithstanding warnings 
 
            which stated that the treatment was not authorized.  It is 
 
            found that claimant was not motivated to return to the 
 
            University of Iowa Spine Diagnostic and Treatment Center for 
 
            treatment.  Claimant's failure to attend her May 11, 1989 
 
            appointment or to reschedule further appointments indicates 
 
            an attempt to sabotage the treatment regimen.
 
            
 
                 It is also found that on and after February 20, 1989, 
 
            the University of Iowa Spine Diagnostic and Treatment Center 
 
            was the only medical facility authorized to render treatment 
 
            to claimant for the September 10, 1988 injury.  This fact is 
 
            well documented in correspondence offered as exhibit B.  Any 
 
            other medical care incurred subsequent to February 20, 1989 
 
            was not authorized by employer pursuant to Iowa Code section 
 
            85.27.
 
            
 
                 Claimant was seen and treated by numerous medical 
 
            professionals during 1989 and 1990 with little improvement 
 
            in her condition.  At the time of hearing, claimant 
 
            testified that she could not perform the duties required of 
 
            a residential treatment worker.  She also stated that she 
 
            could not work as a waitress or factory worker.
 
            
 
                 Claimant stated that she can only walk two blocks at a 
 
            time and sit for no more than 15 minutes.  It was observed, 
 
            at the time of hearing, that claimant stood up repeatedly.  
 
            She would raise from her chair after sitting for several 
 
            minutes, stand for a minute and sit down again.  The 
 
            standing and sitting sequence was so frequent that it made 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            claimant appear to have good leg and back strength.
 
            
 
                 Claimant stated that she did not inform the defendants 
 
            of her dissatisfaction with the University of Iowa.  She 
 
            also stated that she was unaware of the designation of the 
 
            University as the authorized medical provider.
 
            
 
                 Claimant is no longer a state employee.  Her employment 
 
            with the state was terminated after she applied for and 
 
            received long term disability benefits.  The termination of 
 
            employment was the result of state policy which requires 
 
            termination of employment after a state employee receives 
 
            long term disability for a specified period.
 
            
 
                 Claimant did apply for a teachers aide position with 
 
            employer but as a long term disability recipient she was not 
 
            eligible.  Claimant thought she might be retrainable as a 
 
            teacher's aide.  Claimant made no other job search.  It is 
 
            found that claimant was not motivated to return to work.
 
            
 
                 An interview was conducted with a state vocational 
 
            rehabilitation counselor, Ray Macrander, exhibit 21.  The 
 
            opinion of Macrander is given no weight as he did not have a 
 
            complete medical history.  He stated in his report that: 
 
            "Her doctors do not feel she would ever be able to return to 
 
            work,"  exhibit 21. This statement is in direct conflict 
 
            with the medical records from the University of Iowa.
 
            
 
                 During testimony at hearing, claimant made numerous 
 
            statements that conflict with evidence presented in the 
 
            exhibits.  It is found that where such conflict exists, the 
 
            exhibits are more credible.  The documents created 
 
            contemporaneously with the event are inherently more 
 
            reliable than an individuals memory.
 
            
 
                 Clifford Sutton testified that he has been married to 
 
            claimant for 15 years.  He stated that claimant can no 
 
            longer perform household chores as a result of the September 
 
            10, 1988 injury.  He now does most of the housework.
 
            
 
                 Shelia McCullom, now age 38, testified that she is a 
 
            residential treatment worker for employer and that she also 
 
            acts as a union steward.  She testified that the job 
 
            performed by claimant is physically demanding and claimant, 
 
            in her current physical condition is not able to perform 
 
            such work.  She also stated that subsequent to the accident 
 
            she has seen claimant around town.  McCullom stated that 
 
            claimant's condition had evidently deterioriated based upon 
 
            her observation of claimant's activities in the court room.  
 
            
 
                 McCullom's observations are in conflict with claimant's 
 
            testimony.  Claimant testified that recent physical therapy 
 
            had improved her condition.  McCullom was of the opinion 
 
            that claimant is in worse condition at the present time than 
 
            when observed around town.
 
            
 
                 Ruth Maxwell testified that she is a residential 
 
            treatment worker at Glenwood State Hospital School  She 
 
            stated that the duties of her job are physically demanding.  
 
            She stated that based upon her experience as a residential 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            treatment worker and her observations of claimant that 
 
            claimant can no longer perform that job.
 
            
 
                 Maxwell testified that she has been claimant's friend 
 
            for ten years.  Maxwell lived with claimant for one year.
 
            
 
                 Having reviewed and considered all of the evidence 
 
            presented, it is found that as a result of the September 10, 
 
            1988 injury, claimant is no longer physically able to 
 
            perform work as a residential treatment worker-certified 
 
            nurse's aide.  Claimant did state that she might be 
 
            retrainable as a teacher's aide.
 
            
 
                 The opinions of the medical providers varied greatly.  
 
            A brief review of the various opinions is in order. 
 
            
 
                 Charles E. McMinn, M.D., is claimant's family doctor.  
 
            He is the general practitioner who provided claimant with 
 
            most of the treatment.  Dr. McMinn opined that claimant 
 
            sustained 45 percent permanent partial impairment as a 
 
            result of the September 10, 1988 injury.  Dr. McMinn did not 
 
            provide any explanation for his impairment rating.  It 
 
            appears that Dr. McMinn was adopting Dr. Parsow's rating as 
 
            opposed to providing his own opinion of impairment, exhibit 
 
            1.  Dr. McMinn also stated on June 19, 1990 that claimant is 
 
            100 percent disabled, exhibit 8.
 
            
 
                 Jay J. Parsow, M.D., is a specialist in physical 
 
            medicine and rehabilitation.  He provided treatment upon 
 
            referral of Dr. McMinn.  He opined on July 5, 1989, that 
 
            claimant sustained 45 percent permanent partial impairment 
 
            based upon the use of the Third Edition of the AMA Guides to 
 
            the Evaluation of Permanent Impairment.
 
            
 
                 R. C. Pitner, M.D., is a specialist in orthopaedic 
 
            medicine.  He provided treatment upon referral of Dr. 
 
            McMinn.  On November 1, 1989, he opined that claimant 
 
            sustained ten percent permanent partial impairment of the 
 
            body secondary to her injury.  He found claimant to have 
 
            achieved maximum medical improvement on that date.
 
            
 
                 Leslie C. Hellbusch, M.D., is a neurosurgeon who 
 
            provided treatment upon referral by Dr. McMinn.  It should 
 
            be noted that said referral was made at the request and 
 
            advice of claimant's attorney, exhibit G, page 2.  Dr. 
 
            Hellbusch could not confirm any nerve root injury and found 
 
            no permanent partial impairment on January 20, 1989, exhibit 
 
            D.  Claimant's attorney wrote to Dr. Hellbusch numerous 
 
            times suggesting that he change his opinion on impairment.  
 
            Dr. Hellbusch refused.
 
            
 
                 Dr. Ernest Found, Jr., is a spine surgeon and assistant 
 
            professor at the University of Iowa Spine Diagnostic and 
 
            Treatment Center in the Department of Orthopaedic Surgery.  
 
            Dr. Found opined that as a result of the September 10, 1988 
 
            work injury, claimant sustained a four percent body as a 
 
            whole impairment.  He also stated that her healing period 
 
            ended on June 1, 1989, exhibit C, page 21.  Dr. Found's 
 
            reports and opinions were the result of a series of 
 
            evaluations conducted by members of the Spine Diagnostic and 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            Treatment Center spine team.
 
            
 
                 It is found that the opinions of the Spine Diagnostic 
 
            and Treatment Center are more credible than the opinions of 
 
            the other doctors.  The opinions are based upon six 
 
            evaluations of claimant conducted by professionals from 
 
            various disciplines.  The objective testing performed by 
 
            this center combined with the team effort provided detailed 
 
            insight into claimant's physical problem.  The team effort 
 
            provided a better analysis of the problem when compared to 
 
            the other doctors working alone.
 
            
 
                 It is found that claimant sustained a four percent 
 
            permanent partial impairment to the whole body as a result 
 
            of the September 10, 1988 injury.  It is found that 
 
            claimant's healing period ended on June 1, 1989.
 
            
 
                 The work restriction imposed by the doctors varied 
 
            widely.  The University of Iowa was of the opinion that with 
 
            appropriate effort claimant could go back to work for 
 
            employer.  Dr. McMinn on November 28, 1989, suggested light 
 
            work with no lifting over ten pounds, exhibit 16.  John C. 
 
            Goldner, M.D., stated on December 12, 1989 that claimant is 
 
            capable of functioning in a job that would not require any 
 
            significant bending or lifting and would not require her to 
 
            stay in any one position for more than 30 to 60 minutes, 
 
            exhibit 15.
 
            
 
                 Dr. Goldner's restrictions appear to be the most 
 
            appropriate evaluation of claimant's current abilities.  
 
            However, if claimant had made a good faith effort to 
 
            cooperate with the University of Iowa treatment plan she 
 
            would probably be able to do more.  Thus, to a certain 
 
            extent claimant's work restrictions are self imposed.
 
            
 
                 The first issue to be decided concerns claimant's 
 
            entitlement to healing period benefits.  Claimant left work 
 
            on September 11, 1988 and has never returned.  Having 
 
            accepted the Spine Diagnostic and Treatment Center's 
 
            evidence as correct, her release to return to work 
 
            establishes that further significant improvement from the 
 
            injury was not anticipated to occur subsequent to June 1, 
 
            1989.  Claimant is entitled to healing period benefits 
 
            beginning September 11, 1988 through June 1, 1989.
 
            
 
                 The next issue to be resolved concerns claimant's 
 
            entitlement to Iowa Code section 85.27 benefits.  Prior to 
 
            February 20, 1989, claimant was allowed to treat with her 
 
            own doctor.  Absent designation of a treating physician by 
 
            employer, claimant may incur compensable medical expenses 
 
            with any medical provider she may choose.  Therefore, prior 
 
            to February 20, 1989 claimant is entitled to be compensated 
 
            for any medical and mileage expenses incurred as a result of 
 
            the September 10, 1988 injury.
 
            
 
                 Starting on February 20, 1989, employer designated the 
 
            Spine Diagnostic and Treatment Center as the only authorized 
 
            provider as is its right under Iowa Code section 85.27.  
 
            Medical and mileage expenses incurred with other medical 
 
            providers subsequent to February 20, 1989 are not authorized 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            and not compensable pursuant to Iowa Code section 85.27.  
 
            Claimant has proven entitlement to payment for medical and 
 
            mileage expenses incurred with the University of Iowa Spine 
 
            Diagnostic and Treatment Center with respect to treatment 
 
            received subsequent to February 20, 1989.  All other 
 
            treatment received subsequent to February 20, 1989 is not 
 
            compensable as it was not authorized by employer.
 
            
 
                 Claimant alleged odd-lot doctrine as an issue.  The 
 
            odd-lot doctrine requires a showing by claimant that she is 
 
            incapable of obtaining employment in any well-known branch 
 
            of the labor market.  Having found the vocational 
 
            rehabilitation opinions entitled to no weight, claimant must 
 
            now show that she made a job search that resulted in no work 
 
            as a result of the September 10, 1988 injury.  Claimant did 
 
            not make any such effort to locate employment after 
 
            achieving maximum medical improvement.  She has, therefore, 
 
            failed to carry her burden in proving that she is not 
 
            employable, so as to invoke the odd-lot doctrine.
 
            
 
                 The next issue concerns claimant's entitlement to 
 
            permanent partial disability.  The causal connection of 
 
            permanent partial disability to the September 10, 1988 
 
            injury was established by Dr. Found.  Claimant's statement 
 
            that she had no back problems prior to the September 10, 
 
            1988 injury support the finding of causal connection.
 
            
 
                 Claimant's age, education, experience, work 
 
            restrictions and motivation to work must be considered when 
 
            assessing industrial disability.
 
            
 
                 Claimant at age 55 has about ten or eleven years left 
 
            in her work life.  She has experience and training in manual 
 
            labor.  Her work restrictions prevent her from pursuing her 
 
            former avocation.  These facts tend to increase industrial 
 
            disability.
 
            
 
                 Claimant's impairment is four percent.  She 
 
            demonstrated little motivation to return to work as 
 
            demonstrated by her failure to seek employment.  Claimant 
 
            has training as a licensed practical nurse and she is able 
 
            to perform work as a teacher's aide.  These facts tend to 
 
            lower industrial disability.
 
            
 
                 Having considered all of the evidence presented it is 
 
            found that claimant sustained 25 percent industrial 
 
            disability as a result of the September 10, 1988 injury to 
 
            her neck and back.
 
            
 
                 The commencement date for payment of permanent partial 
 
            disability is found to be June 2, 1989 as that date 
 
            coincides with the end of the healing period.
 
            
 
                                conclusions of law
 
            
 
                 Section 85.34(1), Code of Iowa, provides that healing 
 
            period benefits are payable to an injured worker who has 
 
            suffered permanent partial disability until (1) he has 
 
            returned to work; (2) is medically capable of returning to 
 
            substantially similar employment; or (3) has achieved 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            maximum medical recovery.  The industrial commissioner has 
 
            recognized that healing period benefits can be interrupted 
 
            or intermittent.  Willis v. Lehigh Portland Cement Company, 
 
            Vol. 2-1, State of Iowa Industrial Commissioner Decisions, 
 
            485 (1984).
 
            
 
                 Claimant has established, by a preponderance of the 
 
            evidence, entitlement to healing period benefits beginning 
 
            September 11, 1988 through June 1, 1989.
 
            
 
                 The employer, for all injuries compensable under 
 
            chapter 85 or chapter 85A, shall furnish reasonable 
 
            surgical, medical, dental, osteopathic, chiropractic, 
 
            podiatric, physical rehabilitation, nursing, ambulance and 
 
            hospital services and supplies; therefore, and shall allow 
 
            reasonable necessary transportation expenses incurred for 
 
            such services.  The employer has the right to choose the 
 
            provider of care.  Iowa Code section 85.27.
 
            
 
                 Claimant has proven entitlement to reimbursement for 
 
            all medical and mileage expenses related to the September 
 
            10, 1988 injury which were incurred prior to February 20, 
 
            1989.  Claimant has proven entitlement to reimbursement for 
 
            all medical and mileage expenses incurred with the Spine 
 
            Diagnostic and Treatment Center.  Claimant has failed to 
 
            prove entitlement to reimbursement for medical and mileage 
 
            expenses incurred subsequent to February 20, 1989 with 
 
            medical providers other than the Spine Diagnostic and 
 
            Treatment Center.
 
            
 
                 Under the odd-lot doctrine, which was formally adopted 
 
            by the Iowa Supreme Court in Guyton, supra, a worker becomes 
 
            an odd-lot employee when an injury makes the worker 
 
            incapable of obtaining employment in any well-known branch 
 
            of the labor market.  An odd-lot worker is thus totally 
 
            disabled if the only services the worker can perform are so 
 
            limited in quality, dependability, or quantity that a 
 
            reasonably stable market for them does not exist.  Id., 
 
            citing Lee v. Minneapolis Street Railway Company, 230 
 
            Minn.315, 320, 41 N.W.2d 433, 436 (1950).  The rule of odd-
 
            lot allocates the burden of production of evidence.  If the 
 
            evidence of degree of obvious physical impairment, coupled 
 
            with other facts such as claimant's mental capacity, 
 
            education, training or age, places claimant prima facie in 
 
            the odd-lot category, the burden should be on the employer 
 
            to show that some kind of suitable work is regularly and 
 
            continuously available to the claimant.  Certainly in such 
 
            cases it should not be enough to show that claimant is 
 
            physically capable of performing light work and then round 
 
            out the case for noncompensable by adding a presumption that 
 
            light work is available.  Guyton, 373 N.W.2d at 105.
 
            
 
                 When a worker makes a prima facie case of total 
 
            disability by producing substantial evidence that the worker 
 
            is not employable in the competitive labor market, the 
 
            burden to produce evidence of suitable employment shifts to 
 
            the employer.  If the employer fails to produce such 
 
            evidence and the trier of fact finds the worker falls in the 
 
            odd-lot category, the worker is entitled to a finding of 
 
            total disability.  Even under the odd-lot doctrine, the 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            trier of fact is free to determine the weight and 
 
            credibility of the evidence in determining whether the 
 
            worker's burden of persuasion has been carried.  Only in an 
 
            exceptional case would evidence be sufficiently strong to 
 
            compel a finding of total disability as a matter of law.  
 
            Guyton, 373 N.W.2d at 106.  The court went on to state:
 
            
 
                    The commissioner did not in his analysis 
 
                 address any of the other factors to be considered 
 
                 in determining industrial disability.  Industrial 
 
                 disability means reduced earning capacity.  Bodily 
 
                 impairment is merely one factor in a gauging 
 
                 industrial disability.  Other factors include the 
 
                 worker's age, intelligence, education, 
 
                 qualifications, experience, and the effect of the 
 
                 injury on the worker's ability to obtain suitable 
 
                 work.  See Doerfer Division of CCA v. Nicol, 359 
 
                 N.W.2d 428, 438 (Iowa 1984).  When the combination 
 
                 of factors precludes the worker from obtaining 
 
                 regular employment to earn a living, the worker 
 
                 with only a partial functional disability has a 
 
                 total disability.  See McSpadden v. Big Ben Coal 
 
                 Co, 288 N.W.2d 181, 192 (Iowa 1980).
 
            
 
                 If a claimant has made no attempt to find work, then he 
 
            cannot be determined to be an odd-lot employee.  Emshoff v. 
 
            Petroleum Transportation Services, file no. 753723 (Appeal 
 
            Decision March 31, 1987); Collins v. Friendship Village, 
 
            Inc., file no. 679258 (Appeal Decision October 31, 1988).
 
            
 
                 Claimant has failed to make out a prima facie case 
 
            under the odd-lot doctrine by proving that she is not 
 
            employable in the competitive labor market.
 
            
 
                 The opinions of experts need not be couched in 
 
            definite, positive or unequivocal language.  Sondag v. 
 
            Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  An opinion of 
 
            an expert based upon an incomplete history is not binding 
 
            upon the commissioner, but must be weighed together with the 
 
            other disclosed facts and circumstances.  Bodish, 257 Iowa 
 
            516, 133 N.W.2d 867 (1965).  The expert medical evidence 
 
            must be considered with all other evidence introduced 
 
            bearing on the causal connection between the injury and the 
 
            disability.  Burt, 247 Iowa 691, 73 N.W.2d 732 (1955).  In 
 
            regard to medical testimony, the commissioner is required to 
 
            state the reasons on which testimony is accepted or 
 
            rejected.  Sondag, 220 N.W.2d 903 (1974).
 
            
 
                 A treating physician's testimony is not entitled to 
 
            greater weight as a matter of law than that of a physician 
 
            who later examines claimant in anticipation of litigation.  
 
            Weight to be given testimony of physician is a fact issue to 
 
            be decided by the industrial commissioner in light of the 
 
            record the parties develop.  In this regard, both parties 
 
            may develop facts as to the physician's employment in 
 
            connection with litigation, if so; the physician's 
 
            examination at a later date and not when the injuries were 
 
            fresh; his arrangement as to compensation, the extent and 
 
            nature of the physician's examination; the physician's 
 
            education, experience, training, and practice; and all other 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            factors which bear upon the weight and value of the 
 
            physician's testimony.  Both parties may bring all this 
 
            information to the attention of the factfinder as either 
 
            supporting or weakening the physician's testimony and 
 
            opinion.  All factors go to the value of the physician's 
 
            testimony and opinion.  All factors go to the value of the 
 
            physician's testimony as a matter of fact not as a matter of 
 
            law.  Rockwell Graphics Systems, Inc. v. Prince, 366 N.W.2d 
 
            187, 192 (Iowa 1985).
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, expe
 
            rience and inability to engage in employment for which he is 
 
            fitted.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 
            125 N.W.2d 251 (1963).  Barton v. Nevada Poultry, 253 Iowa 
 
            285, 110 N.W.2d 660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial disabil
 
            ity.  This is so as impairment and disability are not syn
 
            onymous.  Degree of industrial disability can in fact be 
 
            much different than the degree of impairment because in the 
 
            first instance reference is to loss of earning capacity and 
 
            in the latter to anatomical or functional abnormality or 
 
            loss.  Although loss of function is to be considered and 
 
            disability can rarely be found without it, it is not so that 
 
            a degree of industrial disability is proportionally related 
 
            to a degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  These are matters which the 
 
            finder of fact considers collectively in arriving at the 
 
            determination of the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  There are no 
 
            guidelines which give, for example, age a weighted value of 
 
            ten percent of the total value, education a value of fifteen 
 
            percent of total, motivation - five percent; work experience 
 
            - thirty percent, etc.  Neither does a rating of functional 
 
            impairment directly correlate to a degree of industrial 
 
            disability to the body as a whole.  In other words, there 
 
            are no formulae which can be applied and then added up to 
 
            determine the degree of industrial disability.  It therefore 
 
            becomes necessary for the deputy or commissioner to draw 
 
            upon prior experience, general and specialized knowledge to 
 
            make the finding with regard to degree of industrial dis
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            ability.  See Peterson v. Truck Haven Cafe, Inc., (Appeal 
 
            Decision, February 28, 1985); Christensen v. Hagen, Inc., 
 
            (Appeal Decision, March 26, l985).
 
            
 
                 Also to be considered is the following decision of this 
 
            agency:
 
            
 
                    Although the Iowa Supreme Court has indicated 
 
                 that age is a factor to be considered in 
 
                 determining industrial disability, it does not 
 
                 indicate what the effect of young age, middle age 
 
                 or older age is supposed to be.  Obviously, it is 
 
                 a factor that cannot be considered separately but 
 
                 must be considered in conjunction with the other 
 
                 factors.  For example, the effects of a minor back 
 
                 injury upon a young person with extensive formal 
 
                 education would limit the scope of his potential 
 
                 employment-less than that of a middle-aged person 
 
                 with no formal education.
 
            
 
                    How to apply age as a factor when a person is 
 
                 nearing the end of his normal working life is a 
 
                 dilemma.  When considering the age factor, it is 
 
                 apparent that the scope of employment for which 
 
                 claimant is fitted is narrowed simply because of 
 
                 the reluctance of employers to initially employ 
 
                 persons of advanced years.  Therefore, the 
 
                 advanced age alone without the combination of an 
 
                 injury is limiting.  Lack of education or at least 
 
                 a showing of diminished educability is in and of 
 
                 itself also a limiting factor for entry into many 
 
                 fields of employment . . .
 
            
 
                    The Michigan Supreme Court has stated regarding 
 
                 retirement:
 
            
 
                    Compensation benefits are geared to weekly 
 
                    wage loss.  It is consistent with the 
 
                    concept of tying weekly compensation 
 
                    benefits to weekly wage loss to factor into 
 
                    the benefit program the statistically 
 
                    established generalization that workers, 
 
                    even if not disabled, retire between 60 and 
 
                    75 and no longer earn weekly wages.  There 
 
                    is no discrimination against disabled 
 
                    workers over 65 in taking into account the 
 
                    wage loss they would "presumptively" suffer 
 
                    due to normal retirement.  Cruz v. Chevrolet 
 
                    Grey Iron Div. of Gen. Motors, 247 N.W.2d 
 
                    764, 775 (Mich. 1976).
 
            
 
                 It is held that the approaching of later years 
 
                 when it can be anticipated that under normal 
 
                 circumstances a worker would be retiring is, 
 
                 without some clear indication to the contrary, a 
 
                 factor which can be considered in determining the 
 
                 loss of earning capacity or industrial disability 
 
                 which is causally related to the injury.
 
            
 
                 Christoper B. Becke vs. Turner-Busch, Inc., and 
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
                 American Mutual Liability Insurance Company, 
 
                 Thirty-fourth Biennial Report 34, 36.
 
            
 
                 Upon considering all the material factors, it is found 
 
            that the evidence in this case supports an award of 25 
 
            percent permanent partial disability which entitles the 
 
            claimant to recover 125 weeks of benefits under Iowa Code 
 
            section 85.34(2)(u).
 
            
 
                 All costs incurred in the hearing before the deputy 
 
            commissioner shall be taxed in the discretion of the deputy 
 
            commissioner unless otherwise required by the rules of civil 
 
            procedure governing discovery.  Iowa Code section 86.40, 
 
            Rule 343 IAC 4.33.
 
            
 
                 Witnesses called to testify only to an expert opinion 
 
            shall receive compensation to be fixed by the deputy 
 
            commissioner not to exceed $150 per day while so employed.  
 
            Iowa Code section 622.72.
 
            
 
                 Claimant alleged $200 as taxable costs for a July 26, 
 
            1989 medical report written by Dr. Jay Parsow.  Claimant is 
 
            entitled to $150 reimbursement for said report pursuant to 
 
            Iowa Code section 622.72.  All other costs are assessed 
 
            against defendants.
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendants pay to claimant forty-two point one 
 
            four three (42.143) weeks of healing period benefits at the 
 
            rate of two hundred thirty-nine and 41/100 dollars ($239.41) 
 
            per week for the periods of September 11, 1988 through June 
 
            1, 1989.
 
            
 
                 That defendants pay to claimant one hundred twenty-five 
 
            (125) weeks of permanent partial disability benefits at the 
 
            rate of two hundred thirty-nine and 41/100 dollars ($239.41) 
 
            per week commencing June 2, 1989.
 
            
 
                 That defendants pay for all medical and mileage 
 
            expenses incurred prior to February 20, 1989 as a result of 
 
            the injury of September 10, 1988.
 
            
 
                 That defendants pay for all medical and mileage 
 
            incurred with the Spine Diagnostic and Treatment Center 
 
            subsequent to February 20, 1989 as a result of the injury of 
 
            September 10, 1988.
 
            
 
                 That defendants receive credit under Iowa Code section 
 
            85.38(2) for previous payments made under a non-occupational 
 
            group plan.
 
            
 
                 That defendants pay to claimant one hundred fifty 
 
            dollars ($150) as costs for Dr. Parsow's report dated July 
 
            26, 1989.
 
            
 
                 That defendants pay all other costs pursuant to rule 
 
            343 IAC 4.33.
 

 
            
 
            Page  13
 
            
 
            
 
            
 
            
 
            
 
                 That defendants receive credit for any benefits 
 
            previously paid.
 
            
 
                 That defendants pay accrued amounts in a lump sum.
 
            
 
                 That defendants pay interest pursuant to Iowa Code 
 
            section 85.30.
 
            
 
                 That defendants file claim activity reports as required 
 
            by the agency.
 
            
 
                 Signed and filed this ____ day of January, 1991.
 
            
 
            
 
            
 
            
 
                                          
 
            ________________________________
 
                                          MARLON D. MORMANN
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr Sheldon M Gallner
 
            Attorney at Law
 
            803 Third Avenue
 
            PO Box 1588
 
            Council Bluffs Iowa 51502
 
            
 
            Ms Joanne Moeller
 
            Assistant Attorney General
 
            Tort Claims Division
 
            Hoover State Office Bldg
 
            Des Moines Iowa 50319
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      5-1802;5-2500;5-4100;5-1803
 
                      FILED JANUARY 25, 1991
 
                      MARLON D. MORMANN
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            BARBARA A. SUTTON,  :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :        File No. 896346
 
            GLENWOOD STATE HOSPITAL  :
 
            SCHOOL,   :     A R B I T R A T I O N
 
                      :
 
                 Employer, :        D E C I S I O N
 
                      :
 
            and       :
 
                      :
 
            STATE OF IOWA, :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            5-1802
 
            Entitlement to healing period benefits established.
 
            
 
            5-2500
 
            Medical benefits from doctor of claimant's choosing allowed 
 
            in absence of employer's designation of treating doctor.
 
            
 
            5-4100
 
            Claimant failed to prove odd-lot when she did not apply for 
 
            work after achieving maximum medical improvement.
 
            
 
            5-1803
 
            Claimant, age 55 at injury, awarded 25 percent industrial 
 
            disability as a result of a low back soft tissue injury with 
 
            five ratings ranging zero percent to 45 percent.  Medical 
 
            opinion of 4 percent permanent partial impairment accepted.  
 
            Claimant not motivated.
 
            
 
 
            
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            BARBARA A. SUTTON,            :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 896346
 
            GLENWOOD STATE HOSP. SCHOOL,  :
 
                                          : R E V I E W - R E O P E N I N G                           
 
                Employer,                 :
 
                                          :        D E C I S I O N
 
            and                           :
 
                                          :
 
            STATE OF IOWA,                :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in which Barbara Sutton seeks 
 
            review-reopening from the arbitration decision entered 
 
            January 25, 1991.  That decision was affirmed by the 
 
            industrial commissioner in an appeal decision entered 
 
            December 27, 1991.  Claimant filed her petition for 
 
            review-reopening on May 13, 1991, prior to the time that the 
 
            appeal decision was entered and when the arbitration 
 
            decision was only a proposed decision.  The pertinent 
 
            allegation of the review-reopening petition states that 
 
            there has been a substantial change in claimant's economic 
 
            condition and claimant is an odd-lot employee due to a 
 
            deterioration in her back condition.  It asserts that 
 
            claimant has an economic inability to secure employment. 
 
            
 
                 The review-reopening hearing was conducted at Des 
 
            Moines, Iowa, on March 18, 1993.  The witnesses who 
 
            testified were claimant and Clifford Sutton.  The record 
 
            consists of joint exhibits 1 through 18 and claimant's 
 
            exhibits A through N.  
 
            
 
                 The issues to be determined are whether there has been 
 
            a substantial change in circumstances that would permit 
 
            review-reopening and reconsideration of the 25 percent 
 
            permanent partial disability award previously made.  If a 
 
            sufficient change of condition is shown, the extent of 
 
            permanent disability is then to be determined anew.  
 
            Claimant also seeks to recover the medical expenses set 
 
            forth in exhibit N.  Both parties filed statements showing 
 
            the costs that they wish to recover.  Claimant did not 
 
            request alternate medical care or a change of physician in 
 
            her petition and alternate care was not an issue identified 
 
            on the hearing report.  Claimant, who resides at Tabor, 
 
            Iowa, has expressed dissatisfaction with the Iowa City, 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            Iowa, location of the authorized physicians, but is not 
 
            seeking a ruling from this agency for any particular change.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 Barbara Sutton is a 59-year-old married woman who was 
 
            injured on September 10, 1988, when she fell over an 
 
            embankment while tending clients of the Glenwood State 
 
            Hospital School.  Barbara has not resumed employment since 
 
            that incident.  She has had extensive medical care and 
 
            diagnostic testing.  Though she exhibits severe pain 
 
            behavior and demonstrates almost no functional capacity to 
 
            perform any activities whatsoever, the testing has not found 
 
            any organic cause for her symptoms and, as reported by 
 
            Behrouz Rassekh, M.D., on September 17, 1992, from a 
 
            neurological basis, there is no reason she can't return to 
 
            work (exhibit 5a).  Perhaps the most accurate assessment of 
 
            her condition was made by family practitioner Stephen C. 
 
            Smith, M.D., in his September 17, 1992, report wherein he 
 
            states that she is disabled by chronic pain syndrome and 
 
            that the etiology or cause of the syndrome is most likely 
 
            arthritis and osteoporosis (ex. 4a).  Orthopedic surgeon 
 
            Patrick W. Bowman, M.D., and Dr. Rassekh have both 
 
            recommended that investigation be made into the possibility 
 
            of a psychological basis for claimant's pain behavior and 
 
            symptomatology [exs. 3b(1) & (2) & 5a].  Psychiatrist Lilly 
 
            Stoller, M.D., reported that claimant has been suffering 
 
            from depression as a result of the accident that occurred on 
 
            September 10, 1988 (ex. 1a).  Claimant had treated with Dr. 
 
            Stoller since July 31, 1989 up to January 18, 1991 (ex. 1c).  
 
            The arbitration decision denied claimant any recovery for 
 
            the expenses she had incurred with Dr. Stoller and claimant 
 
            has not resumed treatment under the direction of Dr. 
 
            Stoller.  Claimant has not sought or received psychological 
 
            treatment from any other source since January 1991.
 
            
 
                 At the time of the arbitration hearing, the deputy who 
 
            heard the case determined that the assessment of this case 
 
            made by the University of Iowa Hospitals and Clinics was the 
 
            most accurate.  At that time the assessment was that with 
 
            appropriate effort, claimant could go back to work.  The 
 
            more recent tests have showed claimant to basically have no 
 
            functional capacity [ex. 8b(1)].  The concluding remarks in 
 
            the October 15, 1992, report state, "At this point in time 
 
            it is difficult to rationalize why she would need to 
 
            continue to come here for any further testing unless she 
 
            feels it is in her best interest medically."  Claimant was 
 
            also made aware of the National Chronic Pain Outreach 
 
            Association with offices in Bethesda, Maryland.  
 
            
 
                 Since the arbitration hearing, claimant has made 
 
            efforts to find employment.  It is found that she did 
 
            actually inquire or apply at the locations which she listed 
 
            and that the responses obtained by counsel for the employer 
 
            are, for the most part, inaccurate.  In any event, claimant 
 
            was not successful at finding employment.  If she presented 
 
            herself displaying the same pain behavior that she displayed 
 
            at hearing, it would be quite extraordinary if any one would 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            hire her to do anything.  She presents herself as a person 
 
            who is unable to do anything.  At hearing she stated that 
 
            she could not even wear clothing other than sweat clothes.  
 
            The undersigned, in his nearly 10 years as a deputy 
 
            industrial commissioner, cannot recall seeing any claimant 
 
            at a hearing who exhibited as little functional capacity as 
 
            did claimant in her most recent tests at the University of 
 
            Iowa Hospitals and Clinics, or who claimed such severe 
 
            physical limitations as the claimant in this case.  At the 
 
            same time, the only things found in the medical records 
 
            which would provide a basis for any symptoms whatsoever are 
 
            arthritis and osteoporosis, conditions which are not shown 
 
            to be related to the September 10, 1988 injury.  The record 
 
            of this case fails to identify any particular change or 
 
            damage to claimant's body as having resulted from the 
 
            September 10, 1988 injury.
 
            
 
                 When the record is viewed as a whole, there is no 
 
            showing that the claimant's physical condition has changed 
 
            appreciably since this case was heard in 1991.  There is no 
 
            showing that the claimant's employability has changed from 
 
            what it was when this case was originally heard in January 
 
            1991.  The record fails to make any showing of any real 
 
            change of any nature.  
 
            
 
                 When reviewing the medical expenses, it is noted that 
 
            claimant seeks $85 for payment to the University of Iowa 
 
            Hospitals and Clinics and $84.40 for her transportation 
 
            expenses.  In view of the employer's choice of sending the 
 
            claimant to Iowa City for care they, of course, consent to 
 
            paying all costs associated with her transportation to and 
 
            from that facility.  This includes the cost of meals and 
 
            overnight lodging.  It is noted that travel time from Taber, 
 
            Iowa to Iowa City, Iowa, would be in the range of five hours 
 
            if driving were performed nonstop.  If normal breaks and 
 
            rest periods were taken, the travel time would likely exceed 
 
            six hours.  It would not be practical to travel to Iowa 
 
            City, be evaluated and return all in one day without 
 
            stopping overnight.  It is noted that no claim has been made 
 
            for the value of the services of claimant's husband in 
 
            driving her to and from Iowa City.  He is, of course, not 
 
            under any obligation to do so gratuitously.  The charge of 
 
            $84.40 is, therefore, found to be quite reasonable.  
 
            
 
                 The charges with Drs. Gross, Iwersen, et. al., were not 
 
            authorized by the employer and are not shown to fit within 
 
            any exception.  The same is true of the charges at Omaha 
 
            Family Practice, Neurosurgical Associates of Council Bluffs, 
 
            Cogley Medical Associates, Jennie Edmundson Hospital, 
 
            Midlands Radiology Associates, Immanuel Medical Center, 
 
            Bluffs Psychiatric Associates, Dr. Jay J. Parsow, 
 
            Rehab-Plus, and Work Plus.  It is also noted that some of 
 
            the charges with Dr. Parsow, Rehab-Plus, Immanuel Medical 
 
            Center (Dr. Stoller), and Omaha Family Practice were 
 
            incurred prior to the time of the first hearing, should have 
 
            been determined at the time of the first hearing, and cannot 
 
            now be again submitted for payment.  
 

 
            
 
            Page   4
 
            
 
              
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 Upon review-reopening, claimant has the burden to show 
 
            a change in condition related to the original injury since 
 
            the original award or settlement was made.  The change may 
 
            be either economic or physical.  Blacksmith v. All-American, 
 
            Inc., 290 N.W.2d 348 (Iowa 1980); Henderson v. Iles, 250 
 
            Iowa 787, 96 N.W.2d 321 (1959).  A mere difference of 
 
            opinion of experts as to the percentage of disability 
 
            arising from an original injury is not sufficient to justify 
 
            a different determination on a petition for 
 
            review-reopening.  Rather, claimant's condition must have 
 
            worsened or deteriorated in a manner not contemplated at the 
 
            time of the initial award or settlement before an award on 
 
            review-reopening is appropriate.  Bousfield v. Sisters of 
 
            Mercy, 249 Iowa 64, 86 N.W.2d 109 (1957).  A failure of a 
 
            condition to improve to the extent anticipated originally 
 
            may also constitute a change of condition. Meyers v. Holiday 
 
            Inn of Cedar Falls, Iowa, 272 N.W.2d 24 (Iowa Ct. App. 
 
            1978).
 
            
 
                 It is also necessary for any change of condition to 
 
            have been proximately caused by the original injury.  
 
            
 
                 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 (Iowa 
 
            1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 
 
            (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).
 
            
 
                 Review-reopening is an exception to the normal rules of 
 
            res judicata and issue preclusion.  It is not a proceeding 
 
            in which one can resubmit medical bills for which payment 
 
            was denied in an earlier proceeding.  It is not an 
 
            opportunity for a second trial of the case.  In order to be 
 
            able to have a case reopened, it is necessary to show a 
 
            material change in circumstances which was not anticipated 
 
            or contemplated at the time the original decision was 
 
            issued.  The record of this case fails to contain any 
 
            showing of any change of condition, physical, economic or 
 
            otherwise.  In fact, it appears as though nothing has 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            changed.  The claimant continues to be subjectively disabled 
 
            with a scarcity of objective corroboration for her stated 
 
            level of disability.  The assessments of the physicians who 
 
            have seen her vary widely.  Their only agreements are that 
 
            she is not a good surgical candidate and that there might be 
 
            some psychological component to her symptomatology.  All 
 
            those things were recognized at the time the first hearing 
 
            was conducted in January 1991.  Claimant's action in going 
 
            through the motions of applying for jobs has produced 
 
            nothing different than what would be expected under the 
 
            facts known at the time the initial hearing was held in 
 
            January 1991.  With her severe pain behavior it would be 
 
            quite remarkable if anyone would hire her for anything.
 
            
 
                 In view of all of the foregoing, it is readily apparent 
 
            there has not been any substantial change in circumstances 
 
            which was not anticipated at the time of the original 
 
            hearing.  It is therefore not appropriate to reconsider the 
 
            extent of the claimant's permanent disability.
 
            
 
                 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-reopen 1975).  An 
 
            employer is obligated to pay for the services it selects.
 
            
 
                 Defendants shall pay claimant's charges in the amount 
 
            of $85 owed to the University of Iowa Hospitals and Clinics.  
 
            The employer shall also pay to claimant the sum of $84.40 
 
            for transportation expenses associated with her most recent 
 
            visit to the University of Iowa Hospitals and Clinics.
 
            
 
                 Both parties have requested to recover costs of the 
 
            proceeding.  It is determined, pursuant to rule 343 IAC 4.33 
 
            that claimant is entitled to recover costs since she 
 
            prevailed in her claim for medical and transportation 
 
            expenses.  
 
            
 
                                      ORDER
 
            
 
                 IT IS THEREFORE ORDERED that defendants pay claimant's 
 
            charges at the University of Iowa Hospitals and Clinics in 
 
            the amount of eighty-five dollars ($85) and that defendants 
 
            pay to claimant the sum of eighty-four and 40/100 dollars 
 
            ($84.40) representing transportation expenses incurred in 
 
            obtaining her last treatment from the authorized physicians 
 
            at the University of Iowa Hospitals and Clinics.
 
            
 
                 It is further ordered that the costs of this proceeding 
 
            are assessed against the employer. 
 
            
 
                 It is further ordered that the employer file claim 
 
            activity reports as requested by this agency pursuant to 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of June, 1993.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Sheldon Gallner
 
            Attorney at Law
 
            803 3rd Ave 
 
            PO Box 1588
 
            Council Bluffs, Iowa  51502
 
            
 
            Ms. Joanne Moeller
 
            Assistant Attorney General
 
            Hoover State Office Bldg
 
            Des Moines, Iowa  50319
 
            
 
                 
 
            
 
 
            
 
           
 
            
 
                   
 
            
 
                                                  2503, 2509
 
                                                  Filed June 11, 1993
 
                                                  Michael G. Trier
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            BARBARA A. SUTTON,  
 
                     
 
                 Claimant, 
 
                      
 
            vs.       
 
                                                  File No. 896346
 
            GLENWOOD STATE HOSP. SCHOOL,  
 
                                         R E V I E W - R E O P E N I N G       
 
                  Employer, 
 
            
 
                                                 D E C I S I O N
 
            and       
 
                      
 
            STATE OF IOWA, 
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            
 
            2503 2905
 
            Review-reopening proceedings are an exception to the normal 
 
            rules of res judicata and issue preclusion.  An award can be 
 
            reviewed only upon a showing of a substantial change of 
 
            circumstances proximately caused by the original injury.  It 
 
            was held that claimant failed to make the required showing.  
 
            Claimant was not allowed to recover medical expenses which 
 
            had been incurred prior to the time of the original 
 
            arbitration hearing.