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                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            TIMOTHY L. MALLOY,            :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 900375
 
            EBASCO CONSTRUCTORS, INC.,    :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            EMPLOYER'S CASUALTY OF TEXAS, :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Timothy 
 
            L. Malloy, claimant, against Ebasco Constructors, Inc., 
 
            employer (hereinafter referred to as Ebasco), and Employer's 
 
            Casualty of Texas, insurance carrier, defendants, for 
 
            workers' compensation benefits as a result of an alleged 
 
            injury on October 29, 1988.  On September 5, 1991, a hearing 
 
            was held on claimant's petition and the matter was consid
 
            ered fully submitted at the close of this hearing.
 
            
 
                 The parties have submitted a prehearing report of con
 
            tested issues and stipulations which was approved and 
 
            accepted as a part of the record of this case at the time of 
 
            hearing.  The oral testimony and written exhibits received 
 
            during the hearing are set forth in the hearing transcript.
 
            
 
                 According to the prehearing report, the parties have 
 
            stipulated to the following matters:
 
            
 
                 1.  On October 29, 1988, claimant received an injury 
 
            which arose out of and in the course of his employment with 
 
            Ebasco.
 
            
 
                 2.  The injury is a cause of permanent industrial dis
 
            ability to the body as a whole.
 
            
 
                 3.  With reference to the computation of claimant's 
 
            rate of weekly compensation, claimant is entitled to marital 
 
            status and three exemptions.
 
            
 
                 4.  All requested medical benefits have been or will be 
 
            paid by defendants except that claimant now seeks alternate 
 
            care from a chiropractor.
 
            
 
                                      issues
 
            
 

 
            
 
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                 The parties submitted the following issues for determi
 
            nation in this proceeding in the prehearing report:
 
            
 
                   I.  The extent of claimant's entitlement to permanent 
 
            disability benefits;
 
            
 
                  II.  Claimant's rate of compensation;
 
            
 
                 III.  Claimant's entitlement to penalty benefits, if 
 
            any; and,
 
            
 
                  IV.  The extent of claimant's entitlement to alternate 
 
            chiropractic care.
 
            
 
                                 findings of fact
 
            
 
                 Having heard the testimony and considered all the evi
 
            dence, the deputy industrial commissioner finds as follows:
 
            
 
                 A credibility finding is necessary to this decision as 
 
            defendants placed claimant's credibility at issue during 
 
            cross-examination as to the extent of his disability.  From 
 
            his demeanor while testifying, claimant is found credible.  
 
            Claimant's personal assessment of his disability was veri
 
            fied by the credible testimony of claimant's wife and his 
 
            two children.
 
            
 
                 At the time of the injury, claimant was a boiler maker 
 
            working out of the union hall.  Claimant was employed by 
 
            Ebasco in the construction and remodeling of power plants.  
 
            Claimant had worked for Ebasco off and on for six years 
 
            prior to the injury.  Claimant last worked for Ebasco on 
 
            January 6, 1989.  He has been unemployed since.  Claimant's 
 
            boiler maker work was similar to the work of an iron worker 
 
            in that a boiler maker works with large steel construction 
 
            material such as girders and beams and the work is usually 
 
            above ground and involves heavy lifting from 50 to 200 
 
            pounds.  However, boiler makers perform work within the 
 
            existing or recently constructed structures previously 
 
            erected by iron workers.  During 1988, claimant's normal 
 
            rate as a boiler maker was $18.00 an hour but at the time of 
 
            the injury, he was under a special union pay arrangement 
 
            with Ebasco in which he was earning $15.45 per hour.  In 
 
            addition, Ebasco paid $1.25 per hour for each hour worked 
 
            into a health and welfare fund and $l.30 per hour for each 
 
            hour worked into a pension fund on behalf of claimant.
 
            
 
                 Claimant's work injury consisted of a herniated disc of 
 
            the lower spine which occurred while attempting to manually 
 
            lift, along with fellow employees, a very heavy circular 
 
            steel beam.  Claimant said that at the time of the injury it 
 
            felt as if someone had stabbed him in the back with a knife.  
 
            Claimant was initially treated conservatively with work 
 
            restrictions and medications over the next few months by a 
 
            family practice physician, John N. Redwine, D.O..  When this 
 
            treatment failed to alleviate claimant's complaints of low 
 
            back pain and right leg pain, Dr. Redwine referred claimant 
 
            in February 1989, to an orthopedic surgeon, William O. 
 
            Samuelson, M.D.  Claimant continued to work as a boiler 
 
            maker following the injury despite his pain and physician 
 

 
            
 
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            imposed work restrictions due to accommodations made by fel
 
            low employees.  However, claimant left work on January 6, 
 
            1989, because continuing to work was not possible.  Claimant 
 
            explained that his right leg was "giving out" and that he 
 
            experienced increased low back and leg pain.  Claimant has 
 
            not returned to work in any capacity since that time.
 
            
 
                 After several months of additional conservative care, 
 
            Dr. Samuelson performed surgery on claimant's lower spine in 
 
            September 1989.  Intensive treatment after this surgery con
 
            tinued for approximately one year.  This treatment consisted 
 
            of medication, rest, exercise, a back brace, prescribed 
 
            activity, physical therapy and other modalities.  Unfortu
 
            nately, this treatment, in large part, failed to alleviate 
 
            much of claimant's pain problems.  Claimant stated that the 
 
            surgery was at least partially successful in that the 
 
            "giving out" of this right leg ended and the numbness and 
 
            coldness of his right foot also was alleviated.  However, 
 
            his severe low back pain radiating into his leg continued 
 
            and was still present at the time of hearing.
 
            
 
                 As a result of the work injury of October 29, 1988, 
 
            claimant has a 20 percent permanent partial impairment to 
 
            the body as a whole.  More importantly, from an industrial 
 
            disability  standpoint, claimant is permanently restricted 
 
            by the work injury from frequent lifting over 10 pounds and 
 
            he cannot lift, even occasionally, more than 25 pounds.  
 
            Claimant is severely limited in twisting and bending activi
 
            ties.  He cannot stand or sit for over one hour without 
 
            intensive pain.  These findings are based upon the views of 
 
            claimant's primary treating physician, Dr. Samuelson, as set 
 
            forth by Jim Coyle, M.S., a vocational consultant, in let
 
            ters authored by Coyle dated June 26 and July 22, 1991, to 
 
            the defendant insurance carrier, a part of joint exhibit B.  
 
            These letters appear to be the most recent of Dr. 
 
            Samuelson's views.  Dr. Samuelson's views are consistent 
 
            with the opinions of another orthopedic surgeon, John J. 
 
            Dougherty, M.D., who evaluated claimant in October 1990, 
 
            and, for the most part, is consistent with the views of a 
 
            neurosurgeon, Charles Taylon, M.D., who evaluated claimant 
 
            in June 1991.  The findings are also consistent with the 
 
            views of an evaluating chiropractor, Mark A. Kruse, D.C., 
 
            who also evaluated claimant in June 1991.
 
            
 
                 In addition, claimant has constant pain ranging from 
 
            four to five on a ten point scale on a day-to-day bases.  
 
            This pain increases to a level seven on bad days.  It is 
 
            further found that if claimant sits for more than one hour, 
 
            he experiences severe pain which requires his change of 
 
            position or the taking of medication.  A prolonged period of 
 
            sitting and standing must be followed by a period of rest 
 
            while lying down between 15 to 30 minutes and this rest 
 
            while laying down must occur approximately twice a day.  
 
            Claimant can walk only 12 to 14 blocks at one time.  
 
            Claimant cannot remain in one position for prolonged periods 
 
            of time.  Claimant can only sleep two to three hours at one 
 
            time after which he usually awakens, moves about, takes med
 
            ication or seeks back rubs from his wife.  These back rubs 
 
            also involve use of an analogic balm type of substance.  
 
            These findings are all based upon the credible testimony of 
 

 
            
 
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            claimant and his family during the hearing and from the 
 
            undersigned's personal observations of claimant while testi
 
            fying.
 
            
 
                 Claimant has a significant amount of permanent partial 
 
            impairment as a result of two prior work injuries.  In 1979, 
 
            claimant received a blow to the head which caused signifi
 
            cant neck strain and continuing problems in both of his 
 
            shoulders.  In 1982, claimant suffered a left A/C shoulder 
 
            joint separation and impingement syndrome in the left shoul
 
            der.  Claimant lost time from this work as a result of these 
 
            conditions and continued to have pain subsequent to his 
 
            release from medical care.  Treating and evaluating physi
 
            cians at the time opined that claimant suffered approxi
 
            mately a five percent permanent partial impairment to the 
 
            body as a whole from the 1979 injury and a seven to eight 
 
            percent permanent partial impairment to the left arm from 
 
            the 1982 injury.  Claimant stated that he had occasional 
 
            pain at work from these injuries but that he "bit the 
 
            bullet."  Claimant said that he treated the problems himself 
 
            with nonprescription medication and neck and shoulder rubs 
 
            from his wife.
 
            
 
                 Despite the prior physical impairment, claimant fully 
 
            returned to work after each injury and worked uninterrupted 
 
            from eight to ten years prior to the injury in this case.  
 
            Consequently, it is found that claimant lost no earning 
 
            capacity from either of these injuries or prior existing 
 
            permanent partial impairment.  In any event, both of the 
 
            prior injuries and disability were related to his employ
 
            ment.  Consequently, as will be explained in the conclusions 
 
            of law section in this decision, any apportionment of dis
 
            ability based upon these prior injuries would be improper.
 
            
 
                 As a result of the work injury of October 29, 1988, 
 
            claimant has suffered a total loss of earning capacity.  
 
            Claimant is unemployable due to his severely restricted 
 
            physical capacities and his severe learning disabilities.  
 
            Claimant does not appear to be able to function even in  
 
            regular part-time sedentary jobs given the need for periodic 
 
            bed rest and medications.  Claimant is also functionally 
 
            illiterate.  Claimant has an eighth grade education but had 
 
            to go to school for ten years to achieve this.  Despite his 
 
            attendance at grade school testing of claimant, subsequent 
 
            to this work injury, has found that he can only read at the 
 
            second grade level and cannot write at all.  Although he is 
 
            in the process of taking special reading courses at a local 
 
            community college, and this training has improved his read
 
            ing abilities to some extent, he still cannot read a newspa
 
            per or even simple notes given to him by his wife.  Claimant 
 
            is dyslectic according to testing of claimant at the Univer
 
            sity of Iowa Hospitals and Clinics after the injury.  
 
            Claimant's testimony at hearing demonstrated his difficul
 
            ties in articulating clearly.  Claimant is no longer able to 
 
            return to boiler maker work and can no longer perform in any 
 
            of the jobs that he has held in the past.  Claimant has pre
 
            viously worked unloading trucks and box cars, in meat pack
 
            ing plants, as a semi truck driver requiring heavy lifting 
 
            to unload trucks and also as an iron worker for a period of 
 
            time.  Again, all these jobs required work involving lifting 
 

 
            
 
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            over 50 pounds and repeated bending, stooping and lifting.  
 
            This is the work that claimant can no longer perform.
 
            
 
                 If claimant is to return to the work force, there must 
 
            be retraining and vocational rehabilitation.  However, this 
 
            is not likely.  With the possible exception of a good work 
 
            record, claimant has virtually no transferable skills which 
 
            could be applied to an effort of vocational rehabilitation.  
 
            There has been two attempts to evaluate claimant's potential 
 
            for vocational rehabilitation.  At the Spinal Center at the 
 
            University of Iowa Hospitals and Clinics, claimant was 
 
            rejected from the program twice in 1990.  Evaluators in this 
 
            program rejected claimant because of claimant's pessimistic 
 
            view of their potential to help him.  Claimant testified 
 
            that they had asked him to promise that he would improve and 
 
            he said that he could not do that.  There appears to be 
 
            somewhat of a lack of communication between claimant and the 
 
            evaluators with reference to any such promise but, in any 
 
            event, the Spinal Center physicians and evaluators never 
 
            questioned, at anytime, claimant's motivation or sincerity 
 
            in his efforts to return to the labor market.
 
            
 
                 An attempt to measure claimant's functional abilities 
 
            was made at the State Vocational Rehabilitation Facility in 
 
            Des Moines, Iowa.  This program normally takes approximately 
 
            three weeks.  Claimant was compelled by his low back pain 
 
            and leg pain to leave this program after only a short time.  
 
            Again, counselors at this facility never questioned 
 
            claimant's motivation.  These counselors only question 
 
            claimant's physical ability to continue in the evaluating 
 
            process due to his severe pain.
 
            
 
                 Vocational rehabilitation counselors have been retained 
 
            by defendants, but these efforts have not identified any job 
 
            available to claimant.  A labor market survey was conducted 
 
            showing some possible openings in the future in the welding 
 
            area but there does not appear to be any assessment of the 
 
            physical requirements of any such work.  Claimant did 
 
            express an interest in becoming a safety inspector on con
 
            struction sites but this was rejected by counselors as 
 
            claimant does not have the requisite abilities or education.  
 
            Claimant's interest in such work is viewed by his counselors 
 
            as unrealistic.  
 
            
 
                 Claimant is 41 years of age.  Claimant should be in the 
 
            most productive time of his working career.  His disability 
 
            is more than would be the case for a younger or an older 
 
            individual.
 
            
 
                 Claimant has contacted Job Service to seek suitable 
 
            employment in the area of his residence.  He has also made a 
 
            reasonable effort to secure suitable employment by seeking 
 
            retraining at a local community college to improve his 
 
            reading.  Defendants have failed to show that there is any 
 
            employment available to claimant.
 
            
 
                 With reference to claimant's rate of compensation, it 
 
            is found from exhibit D that claimant worked a total of 
 
            620.75 hours over a 12 week period covered by the exhibit.  
 
            Given claimant's testimony as to his hourly rate at Ebasco 
 

 
            
 
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            at the time of the injury, claimant's gross earnings for the 
 
            period was $9,590.59 and his gross weekly earnings were 
 
            $799.22.
 
            
 
                 With reference to claimant's claim for penalty bene
 
            fits, claimant complained that many of his workers' compen
 
            sation weekly payments were delayed for a long period of 
 
            time.  However, he was not specific as to when this occurred 
 
            or the length of the delay.  He also testified that many of 
 
            the late payments were eventually paid along with some 
 
            advanced payments.  Claimant's own testimony fails to show 
 
            unreasonable conduct by the defendant insurance carrier.
 
            
 
                 With reference to claimant's desire to receive treat
 
            ment from Dr. Kruse, a chiropractor, in the only report sub
 
            mitted into the evidence from Dr. Kruse, the doctor fails to 
 
            suggest any treatment alternative by him that would be bene
 
            ficial to claimant.  Therefore, claimant has failed to show 
 
            that any such alternative care would be necessary or in the 
 
            best interest of claimant.
 
            
 
                    
 
            
 
            
 
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            conclusions of law
 
            
 
                   I.  Claimant must establish by a preponderance of the 
 
            evidence the extent of weekly benefits for permanent dis
 
            ability to which claimant is entitled.  As the claimant has 
 
            shown that the work injury was a cause of a permanent physi
 
            cal impairment or limitation upon activity involving the 
 
            body as a whole, the degree of permanent disability must be 
 
            measured pursuant to Iowa Code section 85.34(2)(u).  How
 
            ever, unlike scheduled member disabilities, the degree of 
 
            disability under this provision is not measured solely by 
 
            the extent of a functional impairment or loss of use of a 
 
            body member.  A disability to the body as a whole or an 
 
            "industrial disability" is a loss of earning capacity 
 
            resulting from the work injury.  Diederich v. Tri-City 
 
            Railway Co., 219 Iowa 587, 593, 258 N.W. 899 (1935).  A 
 
            physical impairment or restriction on work activity may or 
 
            may not result in such a loss of earning capacity.  The 
 
            extent to which a work injury and a resulting medical condi
 
            tion has resulted in an industrial disability is determined 
 
            from examination of several factors.  These factors include 
 
            the employee's medical condition prior to the injury, imme
 
            diately 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.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 
            1121, 125 N.W.2d 251, 257 (1963).  See Peterson v. Truck 
 
            Haven Cafe, Inc., (Appeal Decision, February 28, l985).
 
            
 
                 Apportionment of disability between a preexisting con
 
            dition and an injury is proper only in those situations 
 
            where a prior injury or illness, unrelated to employment, 
 
            independently produces some ascertainable portion of the 
 
            ultimate disability.  Tussing v. George A. Hormel & Co., 461 
 
            N.W.2d 450 (Iowa 1990); Varied Enterprises, Inc. v. Sumner, 
 
            353 N.W.2d 407 (Iowa 1984).  Prior existing impairment does 
 
            not mandate a finding of a loss of earning capacity when 
 
            there has been no interruptions in earnings or employment.  
 
            See Bearce v. FMC Corp., 465 N.W.2d 531 (Iowa 1991).  Based 
 
            upon the finding that claimant suffered no prior loss of 
 
            earning capacity before the work injury, no apportionment 
 
            will be made.  Further more, any such apportionment would be 
 
            improper as it was also found that the prior impairment and 
 
            injuries were related to his employment.
 
            
 
                 Although it was shown that claimant may be physically 
 
            capable of performing some limited types of light duty or 
 
            sedentary work, it was found that such work is likewise not 
 
            available to him due to his mental impairments.  Claimant 
 
            requests an award of permanent total disability under the 
 

 
            
 
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            application of the so-called "odd-lot" doctrine.  This doc
 
            trine is a procedure device designed to shift the burden of 
 
            proof, with respect to employability, to the employer in a 
 
            certain factual situation.  Klein v. Furnas Elec. Co., 384 
 
            N.W.2d 370, 375 (Iowa 1986).  A worker becomes an odd-lot 
 
            employee when injury makes the worker incapable of obtaining 
 
            employment at any well known branch in the labor market.  
 
            Guyton v. Irving Jensen Co., 373 N.W.2d 101, 105 (Iowa 
 
            1985).  In Guyton, the Supreme Court held that 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 
 
            shifts to the employer.  If the employer fails to produce 
 
            such evidence and if the trier of fact finds that the worker 
 
            does fall in the odd-lot category, the worker is entitled to 
 
            a finding of total disability.  Id. at 106.
 
            
 
                 In the case sub judice, the application of the odd-lot 
 
            doctrine would be appropriate as claimant made a reasonable 
 
            effort to find suitable work.  He also has made an attempt 
 
            to return to work by attending retraining classes to improve 
 
            his reading skills.  An effort at retraining is viewed at by 
 
            this agency as constituting a reasonable effort to find 
 
            employment sufficient to invoke the odd-lot doctrine.  Pyle 
 
            v. Carstensen Freight Lines, Inc., Appeal Decision filed 
 
            July 24, 1987.  However, it is unnecessary to apply such an 
 
            automatic rule to arrive at the conclusion that claimant is 
 
            unemployable and entitled to permanent total disability.  
 
            Claimant clearly is unable to work due to his severe physi
 
            cal and mental impairments.
 
            
 
                 Based upon a factual finding of a total loss of earning 
 
            capacity, claimant is entitled as a matter of law to perma
 
            nent total disability benefits under Iowa Code section 
 
            85.34(3) which consists of weekly benefits for an indefinite 
 
            period of time during the period of his disability.  If 
 
            claimant's disability remains unchanged in the future, these 
 
            benefits will continue for the rest of his life.
 
            
 
                  II.  With reference to the dispute over claimant's 
 
            rate of weekly compensation, at hearing the parties indi
 
            cated that they agreed that exhibit D should be used to cal
 
            culate the rate.  Exhibit D shows the total number of hours 
 
            worked over a 12 week period prior to the injury.  The dis
 
            pute is two-fold.  First, claimant contends that the amount 
 
            Ebasco paid into the pension fund should be calculated in 
 
            computing claimant's rate.  Secondly, although the parties 
 
            agreed that overtime should be calculated using the straight 
 
            rate of $15.45 per hour, there was a difference in each par
 
            ties' mathematical calculations.
 
            
 
                 With reference to the inclusion of the pension fund 
 
            contribution, the undersigned finds in favor of defendants.  
 
            Iowa Code section 85.37 states that an injured worker's 
 
            weekly benefit amount shall be upon the basis of 80 percent 
 
            of the worker's weekly spendable earnings.  Iowa Code sec
 
            tion 85.61(ll) defines weekly spendable earnings as that 
 
            amount remaining after payroll taxes are deducted from gross 
 

 
            
 
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            weekly earnings.  Iowa Code section 85.61(12) defines gross 
 
            weekly earnings as reoccurring payments before any autho
 
            rized or lawfully required deduction or withholding of funds 
 
            by the employer, excluding irregular bonuses, retroactive 
 
            pay, overtime, penalty pay, reimbursement of expenses, 
 
            expense allowances and employer's contribution for welfare 
 
            benefits.  Claimant cites no authority for its position and 
 
            the undersigned can find no appeal decision or supreme court 
 
            decision on this precise point.
 
            
 
                 Usually, employer contributions to fringe benefit pro
 
            grams are not included.  However, it is also the current 
 
            policy of this agency to include in gross earnings the 
 
            amounts an employer pays pursuant to a deferred compensation 
 
            program.  The issue is essentially whether the contribution 
 
            is simply a diversion of earnings which remain the property 
 
            of claimant and will eventually be received by claimant in 
 
            full or a payment to a program which will provide benefits 
 
            conditioned upon the occurrence of certain events such as an 
 
            insurance program.  In this case, claimant's vesting and 
 
            control over the employer's contribution on his behalf to 
 
            the Boiler Maker--Blacksmith National Pension Trust pursuant 
 
            to Article 17 of the union contract exhibit G, is unknown.  
 
            Particulars of the pension plan are contained in Appendix C 
 
            which was not placed into the evidence.  Therefore, 
 
            claimant's assertions cannot be fully examined and the con
 
            tributions will not be included in computing claimant's rate 
 
            of compensation in this case.
 
            
 
                 As set forth in the findings of fact, according to 
 
            exhibit D, claimant's gross weekly earnings are $799.22 per 
 
            week.  According to the commissioner's rate booklet for an 
 
            injury in October 1988 and given the stipulations in the 
 
            prehearing report as to claimant's martial status and enti
 
            tlement to exemptions, claimant's proper rate of weekly com
 
            pensation is $473.21.
 
            
 
                 III.  Claimant seeks additional benefits for an unrea
 
            sonable delay in paying benefits under the unnumbered para
 
            graph four of Iowa Code section 86.13.  This code provision 
 
            allows the undersigned to award additional benefits for 
 
            unreasonable conduct in handling the claim by the employer 
 
            or the employer's insurance representative.  Although delays 
 
            in paying of weekly benefits is certainly a very serious 
 
            matter, claimant failed to be specific as to when the events 
 
            occurred or the duration of the delays.  Claimant also tes
 
            tified at the hearing that whenever there was a delay in the 
 
            making of the payments, the back payments also including 
 
            advance payments.  Claimant did not appear to be too upset 
 
            with such practices.  Therefore, claimant, by his own testi
 
            mony, has failed to show unreasonable conduct sufficient to 
 
            warrant the imposition of penalty benefits in this case.
 
            
 
                  IV.  Claimant seeks chiropractic care from Dr. Kruse.  
 
            Alternate care is available under Iowa Code section 85.27 
 
            when an injured worker is dissatisfied with the treatment 
 
            provided by an employer.  In such event, claimant is to com
 
            municate his dissatisfaction to the employer and request 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            alternate care.  If such a request is denied, claimant can 
 
            apply to this agency for an order to secure such care.
 
            
 
                 In the case sub judice, apart from the lack of a show
 
            ing of any actual request for this care prior to hearing, 
 
            there is no medical opinion offered to show the necessity of 
 
            any such care.  Dr. Kruse, in his lengthy medical report, 
 
            only evaluated claimant's disability and potential for reha
 
            bilitation.  At no time did Dr. Kruse suggest any treatment 
 
            of claimant by himself.  Absent such a showing, the request 
 
            for alternative care from Dr. Kruse must be and is denied.
 
            
 
                 However, as claimant's condition is ongoing, this 
 
            denial of alternate care does not preclude a future request 
 
            and proper showing at a later date.  The undersigned should 
 
            not have to advise defendants that it is in their best 
 
            interest to provide any reasonable treatment alternative in 
 
            an attempt to improve claimant's condition.  If it is true 
 
            as suggested by claimant's attorney at hearing that Dr. 
 
            Kruse has been successful with other injured workers in the 
 
            past, such care, if suggested by Dr. Kruse, should be seri
 
            ously considered by the defendants.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED THAT:
 
            
 
                 1.  Defendants shall pay to claimant permanent total 
 
            disability benefits at the rate of four hundred 
 
            seventy-three and 21/l00 dollars ($473.21) per week from 
 
            January 6, 1989, for an indefinite period of time during his 
 
            period of disability.
 
            
 
                 2.  The claims for penalty benefits under Iowa Code 
 
            section 86.13 and for alternate care under Iowa Code section 
 
            85.27 by Dr. Kruse are denied.
 
            
 
                 3.  Defendants shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against this award for all 
 
            benefits previously paid.
 
            
 
                 4.  Defendants shall pay interest on weekly benefits 
 
            awarded herein as set forth in Iowa Code section 85.30.
 
            
 
                 5.  Defendants shall pay the costs of this action pur
 
            suant to rule 343 IAC 4.33, including reimbursement to 
 
            claimant for any filing fee paid in this matter.
 
            
 
                 6.  Defendants shall file activity reports on the pay
 
            ment of this award as requested by this agency pursuant to 
 
            rule 343 IAC 3.l.
 
            
 
            
 
            
 
                 Signed and filed this ____ day of September, 1991.
 
            
 
            
 
            
 
            
 
            
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Thomas M. Plaza
 
            Attorney at Law
 
            701 Pierce St  STE 200
 
            P O Box 3086
 
            Sioux City  IA  51102
 
            
 
            Mr. Duane E. Hoffmeyer
 
            Attorney at Law
 
            1721 Jackson
 
            P O Box 2051
 
            Sioux City  IA  51104
 
            
 
 
            
 
 
 
 
 
                           1804; 3001; 4000.2; 4300
 
                           Filed September 19, 1991
 
                           LARRY P. WALSHIRE
 
                 before the iowa industrial commissioner
 
            ____________________________________________________________
 
		                      :
 
            TIMOTHY L. MALLOY,	      :
 
		                      :
 
                 Claimant, 	      :
 
 		                      :
 
            		vs. 	      :
 
		                      :       File No. 900375
 
            EBASCO CONSTRUCTORS, INC.,:
 
		                      :    A R B I T R A T I O N
 
                 Employer, 	      :
 
		                      :       D E C I S I O N
 
            		and 	      :
 
		                      :
 
            EMPLOYER'S CASUALTY       :
 
			OF TEXAS,     :
 
                      		      :
 
                 Insurance Carrier,   :
 
                 Defendants.          :
 
            ___________________________________________________________
 
            
 
            
 
            
 
            1804
 
            Permanent total disability benefits awarded to unemployed 
 
            and functionally illiterate boiler maker.
 
            
 
            
 
            3001
 
            Claimant requested inclusion in gross earnings his 
 
            employer's contribution to a pension fund.  This request was 
 
            denied but it was recognized that such a contribution could 
 
            be included upon a showing that the contribution to the 
 
            pension plan is the property of the employee which will, in 
 
            any event, revert to claimant at some future date.  This was 
 
            based upon the same rationale for the agency policy to 
 
            include an employer contribution under a deferred 
 
            compensation program.
 
            
 
            
 
            4000.2
 
            A claim for penalty benefits was denied as there was no 
 
            showing of unreasonable conduct.
 
            
 
            
 
            4300
 
            An application of an odd-lot doctrine was argued but use of 
 
            this doctrine was unnecessary to arrive at an award of 
 
            permanent total disability.
 
            
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER 
 
       _________________________________________________________________
 
               
 
       THOMAS J. PRICE, 
 
               
 
          Claimant,                      File No. 900497
 
               
 
       vs.                            A R B I T R A T I O N
 
               
 
       THE CITY OF DES MOINES,           D E C I S I O N
 
                
 
          Employer, 
 
          Self-Insured,   
 
          Defendant.     
 
       ________________________________________________________________
 
                                INTRODUCTION
 
            
 
            This is a proceeding in arbitration brought by Thomas J. 
 
       Price, claimant, against The City of Des Moines, employer and 
 
       self-insured defendant, for benefits as the result of an injury 
 
       which occurred on November 4, 1988.  A hearing was held at ?Des 
 
       Moines, Iowa, on April 5, 1994, and the case was fully submitted 
 
       at the close of the hearing.  Claimant was represented by Robert 
 
       W. Pratt.  Defendant was represented by Mary G. Hellweg.  The 
 
       record consists of the testimony of Thomas J. Price, claimant, 
 
       Cynthia L. Price, claimant's common law wife, claimant's exhibits 
 
       1 through 52 (Transcript page 11) and Defendant's exhibit A, 
 
       pages 17, 18, 22, 23, 44, 45, 46 and 49 through 53 (Tran. p. 62).  
 
       The deputy ordered a transcript of the hearing.  Both attorneys 
 
       filed excellent post-hearing briefs. 
 
       
 
                              STIPULATIONS
 
            
 
            The parties stipulated that claimant sustained an injury on 
 
       November 4, 1988, to his left knee that arose out of and in the 
 
       course of his employment and that the injury was the cause of 
 
       both temporary and permanent disability.
 
       
 
                                   ISSUES
 
            
 
            The parties submitted the following issues for determination 
 
       at the time of the hearing.
 
            
 
            Whether claimant is entitled to certain medical benefits for 
 
       an extended hospital stay for treatment for endocarditis (Tran. 
 
       p. 8; Defendant's Brief, page 2).  
 
            
 
            Whether claimant is entitled to temporary or permanent 
 
       disability benefits, to include whether claimant is entitled to 
 
       scheduled member benefits for an injury to the left leg or 
 
       whether claimant is entitled to industrial disability benefits 
 
       for an injury to the body as a whole (Tran. p. 8).
 
            
 
            What is the proper rate of compensation to include whether 
 
       claimant is entitled to a rate based on the single status or the 
 
       married status, as well as a determination of claimant's gross 
 
       weekly wage (Tran. pp. 9 & 10).
 
       
 

 
 
 
 
 
 
 
 
 
                             FINDINGS OF FACT
 
            
 
            It is determined that claimant is entitled to the entire 
 
       medical expense at Mercy Hospital Medical Center for the period 
 
       from November 7, 1988 to December 8, 1988 in the total amount of 
 
       $29,685.45 (Claimant's Exhibit 52, pages 104 & 109-137).
 
            
 
            Claimant, born December 31, 1952, was 35 years old at the 
 
       time of the injury on November 4, 1988 and 41 years old at the 
 
       time of the hearing on April 5, 1994 (Tran. p. 12).  Claimant's 
 
       past employments include instrument man on a survey crew, 
 
       maintenance and security employee, machinist and machine operator 
 
       (Clm. Ex. 47, pp. 84, 87 & 88; Tran. pp. 21 & 22).
 
            
 
            Claimant's employment application for this employer is dated 
 
       May 1, 1987 (Ex. 47, p. 84; Tran. p. 21).  Claimant was employed 
 
       by employer as a construction inspector trainee taking samples 
 
       and running tests on sand and gravel to insure that it met city 
 
       paving specifications.  This was a seasonal job during the 
 
       construction period.  At the time of this injury it was 
 
       claimant's second year performing this job (Tran. pp. 13 & 14).  
 
       Claimant testified that he earned $6.75 per hour and worked a lot 
 
       of overtime because this was a busy period of time for this job 
 
       (Tran. p. 15).  Employer agreed that claimant's hourly rate of 
 
       pay was $6.75 per hour (Ex. A, p. 46).
 
            
 
            Claimant testified that he had lived in a common law 
 
       marriage with his common law wife for many years, that they held 
 
       themselves out as man and wife and that they filed joint tax 
 
       returns (Tran. pp. 16 & 17).  Cynthia L. Price testified that her 
 
       name is Cynthia L. Price and that she is the spouse of Thomas J. 
 
       Price.  She testified that they have cohabited for 17 years 
 
       together.  She related that they have held themselves out to 
 
       others as husband and wife for approximately 13 or 14 years and 
 
       that they have filed joint tax returns for the same period of 
 
       time, 13 or 14 years (Tran. pp. 53 & 54).  Several physicians 
 
       referred to Cynthia as claimant's wife, as well as the social 
 
       security administrative law judge.
 
            
 
            Claimant testified that he was in relatively good health 
 
       when he began work for the city (Tran. p. 20).  His employment 
 
       application denied any physical limitations that would preclude 
 
       him from performing the work for which he was being considered 
 
       (Clm. Ex. 47, p. 85).
 
            
 
            Claimant denied any personal or family history of 
 
       endocarditis (Tran. p. 27).  Claimant further denied any previous 
 
       problems with his heart or aorta before this injury on November 
 
       4, 1988.  There is no evidence of treatment for endocarditis 
 
       prior to this injury.  Claimant did admit that he had a heart 
 
       murmur but he added that it had never required any treatment 
 
       before November 4, 1988, the date of this injury (Tran. p. 34).  
 
            
 
            Claimant testified that on Friday, November 4, 1988, he 
 
       stumbled on a metal sewer pipe that extended about eight inches 
 
       up from the floor right in the middle of the room.  Claimant 
 
       related that he twisted his left knee, he 
 
       heard a loud popping sound in his knee and then he fell to the 
 
       floor.  Claimant stated that he knew he had done something 
 
       serious to his knee at that time (Tran. p. 17).  
 
            
 
            Claimant testified that he reported the injury to his 
 
       supervisor and that he was sent to see James L. Blessman, M.D., 
 
       at the city Employee Health Clinic (Tran. p. 18).  The clinic 
 
       records show that on Friday, November 4, 1988, claimant was 
 
       diagnosed as having left knee strain.  Crutches, ice and 
 

 
 
 
 
 
 
 
 
 
       medications were prescribed (Clm. Ex. 1, p. 1).  
 
            
 
            Claimant testified that he was taken off work at that time 
 
       and that he has not been able to return to work since the day of 
 
       the injury (Tran. p. 18).  Claimant related that he did attempt 
 
       to perform some light duty, basically sitting in a chair, but 
 
       that he did not perform any real work.  Claimant testified that 
 
       this lasted for about a month and then he was fired without any 
 
       reason given (Tran. pp. 19 & 20).
 
            
 
            On Saturday, November 5, 1988, Dr. Blessman referred 
 
       claimant to Robert Breedlove, M.D., an orthopedic surgeon (Clm. 
 
       Ex. 1, p. 1).  Likewise, on Saturday, November 5, 1988, at the 
 
       Mercy hospital emergency room, Dr. Breedlove diagnosed an 
 
       anterior cruciate ligament rupture, acute.  The left knee was 
 
       aspirated and claimant was given an injection.  He was also 
 
       instructed to report for surgery on Monday, November 7, 1988 (Ex. 
 
       2, p. 7).  Claimant was admitted to Mercy Hospital on Monday, 
 
       November 7, 1988 for a left anterior cruciate rupture and 
 
       possible meniscus pathology.  The admission form shows that 
 
       claimant reported a systolic murmur, believed to be congenital 
 
       which Dr. Breedlove reported at that time (Clm. Ex. 3, pp. 8 & 
 
       9).  A diagnostic arthroscopy of the left knee was planned to see 
 
       if the tear was repairable and to irrigate the wound.  Dr. 
 
       Breedlove wrote that he explained the risks to both claimant and 
 
       his "wife." (Clm. Ex. 3, p. 9).  
 
            
 
            Dr. Breedlove determined during the arthroscopy that there 
 
       was a complete tear of the anterior cruciate ligament so severe 
 
       that a repair would not be of any value.  He reported that the 
 
       medial and lateral meniscus appeared to be normal (Ex. 6, p. 13).  
 
            
 
            Mark Collison, M.D., reported on November 7, 1988, that 
 
       during the arthroscopy ". . . it was noted that the patient had a 
 
       cool left foot and lower left leg with minimal pulses.  
 
       Therefore, surgery was put on hold until this problem could be 
 
       evaluated." (Ex. 4, p. 10)  He said there was slow capillary 
 
       refill to the toes and normal coloration did not appear for 20 
 
       minutes (Ex. 6, p. 13).  Dr. Collison further reported that 
 
       claimant had no past circulatory problems until after this injury 
 
       to the knee and two days prior to this arthroscopic surgery (Ex. 
 
       4, p. 10).  Dr. Collison suspected a number of reasons for this 
 
       arterial insufficiency of the left leg.  He mentioned thrombus, 
 
       embolus, inflammatory arteritis and ". . . and with pathologic 
 
       heart murmur must certainly consider cardiac source, and with his 
 
       drug history SBE [subacute bacterial endocarditis] is a 
 
       possibility." (Clm. Ex. 4, p. 11).  The bracketed words were 
 
       supplied by the deputy.
 
            
 
            Dr. Collison then constructed this plan:  1. vascular 
 
       surgery consult, 2. noninvasive Doppler studies of the lower 
 
       extremities, 3. an echocardiogram regarding his heart disease and 
 
       4. labs to rule out diabetes or inflammatory disease of the 
 
       arteries (Clm. Ex. 4, p. 11).
 
            
 
            Claimant testified that a local anesthetic was applied at 
 
       the time of the surgery and that he was awake during the 
 
       procedure (Tran. pp. 23 & 24).  He related that a tourniquet was 
 
       applied high up on his left leg almost into his groin (Tran. p. 
 
       24).  Claimant explained that three incisions were made in his 
 
       left knee.  He related that an arthroscope was inserted, which is 
 
       like a miniature television camera, and the inside of his knee 
 
       appeared on a television screen.  Claimant said that he could see 
 
       that a part of the knee was completely torn apart, wasn't there 
 
       anymore, just shredded.  He said Dr. Breedlove also cleaned out 
 
       the area.  
 

 
 
 
 
 
 
 
 
 
            
 
            Claimant then testified that Dr. Breedlove became panicky 
 
       and worried because there wasn't a normal blood flow into his 
 
       left leg (Tran. p. 25).  Claimant said that they could not find a 
 
       pulse in his left foot.  He related that he was then taken into 
 
       another room and some dye was shot into him and they found a 
 
       large clot in his groin where the tourniquet had been (Tran. p. 
 
       26).  
 
            
 
            Claimant testified that from what he observed he believed 
 
       that they had placed the tourniquet too tight because when they 
 
       tried to loosen it they could not get the blood to flow (Tran. p. 
 
       36).  Claimant further testified that Charles R. Cagin, D.O., 
 
       came to the same conclusion (Tran. pp. 36 & 37).  
 
            
 
            Also on November 7, 1988, Anson Yeager, M.D., concluded that 
 
       claimant may have suffered an acute arterial injury at the time 
 
       he twisted his knee at work.  Dr. Yeager also ruled out prior 
 
       vascular problems.  Dr. Yeager stated, 
 
            
 
               This 35-year-old white male status post acute 
 
            orthopedic left knee injury due to twisting and falling 
 
            which occurred Friday, 3 days ago.  No prior history of 
 
            major arterial problems though there is a history of IV 
 
            drug abuse and a systolic heart murmur.  Upon 
 
            questioning, the patient describes numbness and 
 
            coolness in the foot which he noticed Friday evening 
 
            following the injury.  This has persisted to some 
 
            degree.  Today after spinal anesthesia and arthroscopy, 
 
            the foot took approximately 15 minutes to return to 
 
            capillary refill following deflation of the tourniquet.  
 
            He has prior to the injury no history suggestive of 
 
            claudication or arterial problems.
 
            
 
               . . .
 
            
 
               History and findings suggest acute arterial injury 
 
            at the time of his injury Friday.   . . . Based on exam 
 
            and mechanism of injury, popliteal artery injury would 
 
            be suspected, likely an intimal tear due to stretch 
 
            injury.  At present this will require arterial 
 
            reconstruction at an early date.
 
       
 
       (Ex. 5, p. 12)
 
            
 
            The following day, Tuesday, November 8, 1988, a femoral 
 
       arteriogram disclosed a total occlusion of the left femoral 
 
       artery.  Also, on Tuesday, November 8, 1988, a follow-up 
 
       urokinase infusion lasting two and one-half hours and a follow-up 
 
       angiogram demonstrated no lysis of the clot.  Therefore, the 
 
       patient was prepared for embolectomy surgery (Ex. 7, p. 14).
 
            
 
            Thus, on Tuesday, November 8, 1988, David Stubbs, M.D., 
 
       performed a left femoral thrombectomy with operative arteriogram.  
 
       Dr. Stubbs causally links the left femoral artery problem to this 
 
       injury (Ex. 9, p. 16).  Dr. Stubbs stated,
 
            
 
               This 35-year-old male who sustained an injury to his 
 
            left knee last Friday.  By that evening he noticed 
 
            numbness and some coolness with purple discoloration of 
 
            the left foot.  He ultimately sought medical attention 
 
            and was identified  as having probable a cruciate 
 
            ligament damage to the knee and was also noted to have 
 
            diminished pulses in the left foot.  Arthroscopy 
 
            revealed an anterior cruciate tear and an arteriogram 
 
            revealed occlusion secondary to thrombus of the left 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
            superficial femoral artery.  Attempts at Urokinase 
 
            dissolution of the clot were unsuccessful and the 
 
            patient presents now for definitive thrombectomy. 
 
       
 
       (Ex. 9, p. 16)
 
            
 
            Also on Tuesday, November 8, 1988, at the request of Dr. 
 
       Breedlove, the authorized treating orthopedic surgeon, an 
 
       echocardiogram was performed by Dr. Cagin, which disclosed 
 
       concentric left ventricular hypertrophy with associated aortic 
 
       stenosis and aortic insufficiency.  The report further showed 
 
       vegetation of the aortic valve leaflets was strongly suggested 
 
       (Ex. 8, p. 15).
 
            
 
            On November 10, 1988, a consultation report authored by Dr. 
 
       Cagin states that based upon the medical records and his physical 
 
       examination the following impression was formed.  (Again, this 
 
       consultation was requested by Dr. Breedlove who was the 
 
       authorized treating physician and orthopedic surgeon).  
 
       "IMPRESSION:  1. Vegetative endocarditis of the aortic valve, 
 
       possible secondary to (a) intravenous drug use, (b) poor oral 
 
       hygiene and lack of adequate dental prophylaxis. 2. Congenitally 
 
       bicuspid aortic valve. 3. Combined aortic stenosis with aortic 
 
       insufficiency. 4.  Peripheral embolization documented of the left 
 
       superficial femoral artery, status post embolectomy. 5. Torn 
 
       anterior cruciate ligament." (Ex. 11, p. 18). 
 
            
 
            In this same report Dr. Cagin recommended to Dr. Breedlove 
 
       that claimant receive the endocarditis coverage recommended by 
 
       Dr. Collison.  Dr. Breedlove is the authorized treating physician 
 
       and he is the orthopedic surgeon selected by Dr. Blessman of the 
 
       city Employee Health Clinic.  Dr. Collison and Dr. Cagin are 
 
       physicians selected by Dr. Breedlove.  More specifically, Dr. 
 
       Cagin stated to Dr. Breedlove on November 10, 1988:
 
            
 
               PLAN:  Agree with endocarditis coverage as outlined 
 
            per Dr. Collison.  I would however, recommend 
 
            continuing full anticoagulation.  I will follow along 
 
            and advise accordingly.  I would recommend transferring 
 
            to Telemetry floor to monitor for development of heart 
 
            block which would not be an unexpected complication in 
 
            a patient such as this.  I would also recommend drawing 
 
            antistreptolysin 0 titers as well as teichoic acid 
 
            antibody titers.
 
            
 
               Thank you for referring this patient to me and 
 
            allowing me to share in his care and management.  If 
 
            you have any questions, please do not hesitate to 
 
            contact me.
 
       
 
       (Ex. 11, p. 19).
 
            
 
            Thus, it should be emphasized that Dr. Cagin stated that the 
 
       endocarditis coverage outlined by Dr. Collison should be carried 
 
       out.  Therefore, it can be seen that the extended hospitalization 
 
       for endocarditis was not requested by claimant, but rather was 
 
       ordered by physicians who were authorized treating physicians.  
 
       Furthermore, it is a well known fact that a patient in a hospital 
 
       (in particular one in critical condition) is not in a position to 
 
       controvert what the doctors order and does not have the knowledge 
 
       or expertise to interfere with the care that the doctors order.
 
            
 
            During claimant's extended hospitalization until December 8, 
 
       1988, claimant continued to be examined and treated for his left 
 
       leg as well as for endocarditis.  His left femur was x-rayed on 
 
       November 20, 1988 (Ex. 14, p. 22).  An MRI was performed on his 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
       left knee on November 25, 1988, which disclosed (1) rupture of 
 
       the anterior cruciate ligament, (2) meniscal tear, posterior horn 
 
       of medial meniscus, and (3) joint effusion (Ex. 15, p. 23).  
 
       Therefore, not all of claimant's treatment up until December 8, 
 
       1988 was for endocarditis but some of it was for the left leg 
 
       injury itself.
 
            
 
            The discharge summary from the hospital of December 8, 1988,  
 
       signed by Dr. Breedlove, states that the admitting diagnosis was 
 
       left anterior cruciate ligament rupture, possible medial meniscus 
 
       injury.  Then, Dr. Breedlove shows that the principal diagnosis 
 
       (which is defined as "that condition which, after study, is 
 
       determined to have occasioned the admission of the patient to the 
 
       hospital") was a peripheral embolization of the left superficial 
 
       femoral artery.  Therefore, the authorized treating physician and 
 
       orthopedic surgeon attributes this hospitalization to the 
 
       cruciate ligament rupture and the embolization of the superficial 
 
       femoral artery (Ex. 17, p. 25).  Claimant's heart condition is 
 
       only shown as a secondary diagnosis which according to the report 
 
       is defined as complications or comorbities.  These related 
 
       complications or comorbities are shown as bicuspid aortic valve, 
 
       vegetative endocarditis of the aortic valve, history of 
 
       intravenous drug abuse and aortic stenosis with aortic 
 
       insufficiency.
 
            
 
            Claimant testified that the clot prolonged his hospital stay 
 
       and that he spent approximately 31 days in the hospital (Tran. 
 
       pp. 27 & 28).
 
            
 
            By way of summary, claimant sustained a traumatic injury to 
 
       his left knee.  It was diagnosed as a complete tear of the 
 
       anterior cruciate ligament.  During arthroscopy surgery an 
 
       embolization was discovered and an embolectomy was subsequently 
 
       performed on the following day.  Three sources or causes of the 
 
       embolization have been suggested.  (1) It has been suggested that 
 
       the knee injury itself was the cause of the embolization, (2) it 
 
       has been suggested that the tourniquet used during the 
 
       arthroscopy was the source or cause of the embolization and (3) 
 
       it was also suggested that claimant's preexisting heart condition 
 
       was the cause of the embolization.  In any event, defendant-
 
       employer eventually accepted liability for the treatment of the 
 
       embolization but denied treatment for an extended hospital stay 
 
       to complete the treatment which was ordered by the authorized 
 
       treating physicians for all three (1) left knee, (2) the embolus 
 
       and (3) claimant's heart problems.  
 
            
 
            Defendant-employer submitted the hospital bill to Intracorp 
 
       which retained a board certified cardiologist (who was never 
 
       personally identified) to give Intracorp a medical opinion.  This 
 
       "Advisor" made the following determination:
 
            
 
               . . . I cannot absolutely rule out the possibility 
 
            that pre-existing endocarditis lead to peripheral 
 
            embolization, but it is extremely unlikely that 
 
            embolization from an aortic vegetation would be large 
 
            enough to occlude the superficial femoral artery.  It 
 
            is likely that the clot was directly related to the 
 
            knee injury, either resulting from inflammation in the 
 
            artery from the injury itself, or from the application 
 
            of the tourniquet required for arthroscopic surgery.
 
            
 
               If the question of endocarditis had not been raised 
 
            and treatment had not been initiated it seems likely to 
 
            me that the patient would have been able to be 
 
            discharged about one week after his arthroscopic 
 
            surgery.  I believe that this is about the amount of 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
            time it would have taken to achieve adequate 
 
            anticoagulation with an oral agent and to have physical 
 
            therapy initiated. 
 
       
 
       (Ex. 40, pp. 65 & 66)
 
            
 
            Therefore, the report of the "Advisor" discounts claimant's 
 
       heart condition as the source or cause of the occlusion of the 
 
       superficial femoral artery occlusion and attributes it to the 
 
       knee injury or the arthroscopy surgery.
 
            
 
            It should be noted at this point that the Advisor answered 
 
       the question of whether the embolus was caused by the knee or the 
 
       endocarditis.  However, that is not the issue in this case.  The 
 
       issue is whether the treatment for endocarditis was necessitated 
 
       by the knee injury and its sequela.
 
            
 
            Iowa Code section 85.27 provides, "The employer for all 
 
       injuries compensable under this chapter or chapter 85A, shall 
 
       furnish reasonable surgical, medical, dental, osteopathic, 
 
       chiropractic, podiatric, physical rehabilitation, nursing, 
 
       ambulance and hospital services and supplies therefore and shall 
 
       allow reasonably necessary transportation expenses incurred for 
 
       such services." Section 85.27, first unnumbered paragraph.
 
            
 
            It is determined in this case that even though the anterior 
 
       cruciate ligament tear and the embolus did not cause claimant's 
 
       preexisting heart condition, it nevertheless, necessitated the 
 
       first treatment that he had ever received for his heart 
 
       condition, as a complication of the knee injury and the 
 
       subsequent embolus.
 
            
 
            Based on the information provided by the "Advisor," Linda 
 
       Mosby, R.N., BSN, auditing specialist, for Intracorp concluded:
 
            
 
               Based on the report of the Advisor, it appears that 
 
            the femoral artery clot is likely related to the knee 
 
            injury.
 
            
 
               Mr. Price received intravenous Heparin therapy until 
 
            11/19/88 for this.  He was maintained on an oral 
 
            anticoagulants after that date.
 
            
 
               Hospitalization after that date appears related to 
 
            the suspected endocarditis.  Since it appears that the 
 
            endocarditis is not related to the knee injury, payment 
 
            of those charges is not recommended.  An itemization of 
 
            these charges follows:
 
       
 
       (Ex. 40, p. 66)
 
            
 
            After itemizing the charges for which the employer is not 
 
       liable in her opinion, Ms. Mosby concluded her evaluation as 
 
       follows:
 
       
 
       AUDIT RESULTS:
 
       
 
       Total hospital bill                   $29,685.45
 
         Less
 
          Personal items                        0
 
          Undocumented items                    0
 
          Charges more than fair & reasonable   0
 
          Charges unrelated to carrier's 
 
               responsibility                 12,926.95
 
          Not medically necessary days/services 0
 
          Mathematical errors                   0
 

 
 
 
 
 
 
 
 
 
 
 
 
 
          Other                                 0
 
         Plus
 
          Undercharges                         +0
 
       Savings                               $12,926.95
 
       
 
       Total recommended payment             $16,758.50
 
          Less previous payment              unknown
 
       
 
       Total due                             $16,758.50
 
       
 
            
 
            Several observations are made about Ms. Mosby's evaluation.  
 
            
 
            First, she gives no meaningful, definitive, logical or 
 
       convincing reason for cutting off claimant's hospital charges on 
 
       November 19, 1988.  No reason is given why the end of intravenous 
 
       Heparin therapy and the beginning of oral anticoagulants is a 
 
       justification for her determination.  The authorized physicians 
 
       determined that additional treatment was needed.  Dr. Cagin 
 
       recommended "full anticoagulation" (Ex. 11, p. 9).  Ms. Mosby's 
 
       decision is particularly curious when the hospital records show 
 
       that claimant continued to receive diagnostic testing for his 
 
       left knee after November 19, 1988 -- (1) an x-ray on November 20, 
 
       1988 and (2) an MRI on November 25, 1988.  Thus, this date 
 
       appears to be an arbitrary decision on her part.  
 
            
 
            Second, Ms. Mosby is not a physician, nor is she one of the 
 
       treating physicians in this case.  There is no evidence that she 
 
       was acting under the supervision of a physician.  If the hospital 
 
       bill was to be divided why was it not done by the board certified 
 
       cardiologist medical "Advisor" rather than an auditing nurse?  
 
            
 
            Third, the fact that Ms. Mosby shows "Savings," rather than 
 
       "nonrelated medical expenses" for the $12,926.95 that she 
 
       excluded from payment, indicates that she was paid a fee to 
 
       effect "Savings" rather than to determine "nonrelated medical 
 
       charges."  Thus, her determination was not independent and it was 
 
       not impartial.
 
            
 
            Fourth, and the most objectionable reason for not accepting 
 
       Ms. Mosby's opinion is that she gave a legal opinion on causal 
 
       connection concerning the liability of the employer in this case 
 
       and there is no indication that she has any qualifications to 
 
       give a legal opinion on any area of the law, save the area of 
 
       workers compensation law.  
 
            
 
            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).  
 
            
 
            As defendant-employer's brief points out "A cause is 
 
       proximate if it is a substantial factor in bringing about a 
 
       result; it need not be the only cause."  Blacksmith v. All-
 
       American, Inc., 290 N.W.2d 348, (Iowa 1980).  
 
            
 
            Dr. Cagin, an authorized treating physician for the heart 
 
       condition, supplies this causal connection.  On January 9, 1993, 
 
       Dr. Cagin wrote, "Because of his superficial femoral artery 
 
       occlusion, this finding prompted an echocardiogram which resulted 
 
       in his diagnosis of endocarditis, thus prolonging his hospital 
 
       stay." (Ex. 44, p. 80).  Thus, claimant's hospital treatment 
 
       cannot be cut up into separate pieces and selectively paid and 
 
       denied.  It is determined that the entire treatment was all 
 
       precipitated by the severe knee injury, which in turn caused a 
 
       femoral artery occlusion, which in turn medically mandated 
 
       treatment for endocarditis by the authorized treating physicians.
 

 
 
 
 
 
 
 
 
 
            
 
            The fact that claimant developed an embolus compelled the 
 
       physicians treating claimant to determine whether it was caused 
 
       by the knee injury, the tourniquet at the time of the arthroscopy 
 
       or from his heart condition.  As it turned out the embolus was 
 
       caused by the knee injury or the tourniquet at the time of the 
 
       arthroscopy, and therefore the work-related injury, and the 
 
       sequela of the knee injury and knee surgery, compelled the 
 
       physicians to evaluate and treat the complication of claimant's 
 
       preexisting heart condition.  Thus, the work injury and its 
 
       sequela compelled the physicians to diagnose and treat the heart 
 
       problem which was previously unknown and undiagnosed.  This was 
 
       confirmed by the Intracorp Advisor who wrote, 
 
            
 
               Post operatively the patient was noted to have 
 
            fever.  Evaluation was directed towards his heart 
 
            because of the possibility of a cardiac source 
 
            embolism.  An echocardiogram revealed evidence of left 
 
            ventricular hypertrophy, significant aortic valve 
 
            disease with aortic stenosis, cardiac Doppler evidence 
 
            of aortic insufficiency, and abnormal echoes on the 
 
            aortic valve suggesting the possibility of vegetations.  
 
            The patient had received one dose of intravenous 
 
            antibiotic prior to arthroscopy.  Several blood 
 
            cultures were subsequently obtained but none were 
 
            abnormal.  Because of the possibility of bacterial 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
            endocarditis he was treated with a course of 
 
            intravenous antibiotics. 
 
       
 
       (Ex. 40, p. 64; Deft. Brief, p. 7)
 
            
 
            Thus, it is found and determined that the knee injury and 
 
       its sequela did not cause the heart condition but necessitated 
 
       the treatment for it at this time and therefore the knee injury 
 
       was the cause of the treatment for the heart condition.
 
            
 
            The employer takes the employee in as is condition and 
 
       therefore takes the employee subject to any active or dormant 
 
       health impairment.  A preexisting condition which is aggravated 
 
       or accelerated or lighted up by employment activity is deemed a 
 
       personal injury under the Act.  The aggravation may be temporary 
 
       or permanent.  Lawyer and Higgs, Iowa Workers' Compensation--
 
       Law and Practice, (2d ed. section 4-2) at page 23 & 24.  
 
       Likewise, when a work injury necessitates medical treatment of a 
 
       preexisting health condition, that was previously dormant, then 
 
       the employer is liable.
 
            
 
               Fairly early in Iowa workers' compensation law, the 
 
            supreme court decided that "where an accident occurs to 
 
            an employee in the usual course of his employment, the 
 
            employer is liable for all consequences that naturally 
 
            and proximately flow from the accident."
 
       
 
       Lawyer and Higgs, Iowa Workers' Compensation section 4-4, page 26
 
            
 
            An incident in the bathtub did not break the chain of 
 
       causation when claimant was in the bathtub because of a work-
 
       related injury.  West v. Quaker Oats, Volume 2, Number 1 Iowa 
 
       Industrial Comm'r Decisions 475 (1984).
 
            
 
            Dr. Cagin believed that the tourniquet used during the 
 
       arthroscopy caused the embolus.  A defendant-employer is liable 
 
       when treatment increases or aggravates an injury.  Lindekin v. 
 
       Lowden, 229 Iowa 645, 295 N.W. 112 (1940).  Concomitantly, when 
 
       the injury necessitates treatment for a preexisting health 
 
       condition that was previously dormant then employer is liable for 
 
       that treatment.
 
            
 
            Defendant is not allowed to pick and choose what medical 
 
       expenses it will or will not pay when all of them were triggered 
 
       by the original work injury.  Butcher v. Valley Sheet Metal, 4 
 
       Iowa Industrial Comm'r Reports 49 (Appeal 1983).  
 
            
 
            A defendant-employer is allowed to determine the authorized 
 
       treating physician or physicians but they are not permitted to 
 
       pick and choose what care the physicians may or may not 
 
       administer.  The right to choose the care means the right to 
 
       choose the medical providers but that does not give the employer 
 
       the right to interfere with the judgment of the medical 
 
       professionals in determining how an injured worker should be 
 
       evaluated and treated.  Pote v. Mickow Corp., File No. 694 639 
 
       (Review-reopening Decn. June 17, 1986).  
 
            
 
            The right to choose the care is the right to choose the 
 
       provider of the care.  Under most circumstances an employer is 
 
       not entitled to deny or refuse to provide medical care which is 
 
       recommended by the authorized treating physician.  Shiflett v. 
 
       Clearfield Veterinary Clinic, II Iowa Industrial Comm'r Report 
 
       344 (1982).  
 
            
 
            Dr. Cagin was the authorized treating physician for the 
 
       heart condition.  On February 25, 1993, he wrote:
 

 
 
 
 
 
 
 
 
 
            
 
               . . . it is my opinion, based on the review of Mr. 
 
            Price's medical history, treatment notes, and operative 
 
            report, that his superficial femoral occlusion was the 
 
            cause of additional hospital stay and subsequent 
 
            medical bills.  As a direct result of his acquired 
 
            superficial femoral occlusion, further evaluation and 
 
            treatment was indicated and the resultant care 
 
            (thrombolytics and antibiotics) prolonged his 
 
            hospitalization according [ly].
 
       
 
       (Ex. 45, p. 81)
 
            
 
            In this case the statement of Dr. Cagin, the authorized 
 
       treating physician for the heart condition, is preferred over the 
 
       statement of Ms. Mosby, the auditing nurse for Intracorp.  
 
       Rockwell Graphics Systems, Inc. v. Prince, 366 N.W.2d 187, 
 
       192 (Iowa 1985).  
 
            
 
            Dr. Blessman stated that the endocarditis was a separate, 
 
       preexisting medical condition and he agreed with Intracorp that 
 
       $12,926.95 should be deducted from the total hospital bill (Ex. 
 
       26, pp. 36 & 37).  Dr. Blessman is correct in that the 
 
       endocarditis was a separate, preexisting medical condition.  This 
 
       is a medical decision within his area of expertise.  However, 
 
       when Dr. Blessman presumed to determine the liability for the 
 
       hospital bill he entered the area of law and more specifically 
 
       workers' compensation law.  This is not his area of expertise.  
 
            
 
            Furthermore, as a physician regularly employed by the city 
 
       Employee Health Clinic, Dr. Blessman is a representative of the 
 
       employer and his earlier opinions show a bias in favor of the 
 
       employer and against the injured employee.  For instance, on 
 
       March 10, 1989, Dr. Blessman said the arterial embolus was 
 
       primarily due to the endocarditis (Ex. 1, p. 4).  On March 17, 
 
       1989, Dr. Blessman said that, "In fact, his leg discomfort may 
 
       have entirely been caused by the embolus and the damage to his 
 
       anterior cruciate may have been long standing." (Ex. 1, p. 4).  
 
       On April 21, 1989, Dr. Blessman said that after reviewing the 
 
       Intracorp report, which stated that the arthroscopy most likely 
 
       caused the femoral artery occlusion, nevertheless, Dr. Blessman 
 
       said his opinion remained the same and that the anterior embolus 
 
       was most likely caused from the endocarditis and not from the 
 
       trauma to his leg (Ex. 1, p. 5).  However, on May 11, 1989, Dr. 
 
       Blessman recanted and stated that after a review of the 
 
       literature and medical records in this case, that the timing of 
 
       events certainly would favor the superficial femoral artery 
 
       thrombosis occurring as a result of the tourniquet, rather than 
 
       the endocarditis (Ex. 26, p. 36).  Thus, Dr. Blessman's medical 
 
       opinions must be discounted for the reason that they are not 
 
       impartial and by his own admission sometimes incorrect.
 
            
 
            Dr. Martin S. Rosenfeld, D.O., said on August 3, 1993, "I 
 
       would think after careful review of the chart, that the 
 
       endocarditis or possible endocarditis is not related to the 
 
       injury, but that the arterial thrombus and embolectomy are." (Ex. 
 
       46, p. 83).  This does not mean that the employer is not liable 
 
       for the treatment.  Dr. Rosenfeld's opinion must also be 
 
       discounted for the reason that he is a one-time examiner and 
 
       there is no way to know how much of the medical records were 
 
       available to him when he formed this opinion.  Furthermore, even 
 
       though the endocarditis was not caused by the knee injury or the 
 
       arthroscopy, nevertheless, the treatment for it was a 
 
       complication of the knee injury and arthroscopy which 
 
       necessitated the treatment for the endocarditis.  
 
            
 

 
 
 
 
 
 
 
 
 
 
 
 
 
            Dr. Blessman stated on April 21, 1989, "At this point, our 
 
       primary decisions are weather [sic] or not his horrendous medical 
 
       complications were work related or not."  Thus, he acknowledges 
 
       that the endocarditis was a complication of the knee injury and 
 
       the arthroscopy.  This was also the opinion of Dr. Breedlove at 
 
       the time he signed the discharge summary and acknowledged that 
 
       the bicuspid aortic valve, vegetative endocarditis of the aortic 
 
       valve, and the aortic stenosis with aortic insufficiency was a 
 
       secondary diagnosis which was defined as a complication or 
 
       comorbity of the principal diagnosis of peripheral embolization 
 
       of the left superficial femoral artery (Ex. 17, p. 25).
 
            
 
            Peter D. Wirtz, M.D., examined claimant and reported on June 
 
       26, 1989.  In his report he made no direct comment and gave no 
 
       clear discussion or indication of any kind as to the relationship 
 
       between the knee injury, the arthroscopy, and the endocarditis.  
 
       Dr. Wirtz did say, "Following the arthroscopy examination, there 
 
       was a blood clot in the femoral artery which required removal.  
 
       He was in the hospital approximately 32 days." (Ex. 27, p. 41).  
 
       It could be concluded from what Dr. Wirtz did say that the 
 
       arthroscopy and blood clot was the reason for the 32 days of 
 
       hospitalization.
 
            
 
            Claimant testified that a law suit was filed against him by 
 
       Mercy Hospital Medical Center in the amount of $12,926.95 for the 
 
       portion of the hospital bill that the employer refused to pay.  
 
       Claimant also testified that he was required to attend another 
 
       legal proceeding which was called a debtor/creditor examination 
 
       where an attorney examined him to see if he had any assets to 
 
       satisfy the judgment against him in the amount of $12,926.95.  
 
       Claimant further testified that he is still liable to pay this 
 
       judgment (Tran. pp. 29 & 30).
 
            
 
            Claimant's common law wife, who also uses his last name, 
 
       Cynthia L. Price, testified that claimant had no history of 
 
       endocarditis and that he had never been treated for it prior to 
 
       the time of the left knee injury and the arthroscopy for it after 
 
       which the embolus appeared (Tran. p. 58).
 
            
 
            Wherefore, it is the determination of this deputy that 
 
       defendant-employer is liable for the entire Mercy Hospital 
 
       Medical Center bill for the hospitalization of claimant from 
 
       November 7, 1988 until December 8, 1988 in the total amount of 
 
       $29,685.45.  
 

 
 
 
 
 
 
 
 
 
 
 
 
 
       
 
       entitlement to temporary disability
 
            
 
            It is determined that claimant is entitled to 27.429 weeks 
 
       of healing period benefits for the period from the date of the 
 
       injury on November 4, 1988 until claimant was released to return 
 
       to work to his former job as an inspector on May 15, 1989 (Iowa 
 
       Code section 85.34(1)).
 
            
 
            Claimant testified that he was taken off work on the date of 
 
       the injury.  The medical records support the fact that he was not 
 
       able to work until he was released to return to work by Dr. 
 
       Breedlove on May 15, 1989 (Ex. 1, pp. 1-6, Ex. 2, p. 7, Exs. 3-
 
       21, Ex. 22, p. 32, Ex. 23, p. 33, Ex. 24, p. 34 & Ex. 25, p. 35).
 
            
 
            Wherefore, it is determined that claimant is entitled to 
 
       27.429 weeks of healing period benefits for the period from 
 
       November 4, 1988 to May 15, 1989.
 
       
 
                  ENTITLEMENT TO PERMANENT DISABILITY 
 
            
 
            It is determined that claimant has sustained a permanent 
 
       scheduled member disability to his left leg and is entitled to 
 
       70.4 weeks of permanent partial disability benefits based upon 
 
       Dr. Breedlove's permanent impairment rating of 32 percent of the 
 
       left leg (220 weeks x .32 = 70.4 weeks).  This rating was given 
 
       on May 24, 1989.  Although Dr. Breedlove did not impose any 
 
       permanent work restrictions he did find that claimant's knee 
 
       flexion was limited to 115 degrees and he added, "He still has 
 
       significant anterior laxity present as well." (Ex. 25, p. 35).
 
            
 
            Dr. Rosenfeld, claimant's independent medical examiner, 
 
       determined that claimant sustained a 21 percent impairment to the 
 
       left leg.  He restricted claimant from heavy lifting and carrying 
 
       and added no stair climbing, no ladder climbing, and no running.  
 
       Dr. Rosenfeld said claimant was limited to a job where he can 
 
       wear a brace and that would fit into the medium to sedentary 
 
       range (Ex. 46, pp. 82 & 83).  Although, Dr. Rosenfeld's numerical 
 
       rating is lower than Dr. Breedlove, his permanent restrictions 
 
       are much greater.
 
            
 
            Dr. Wirtz, employer's independent medical evaluator, 
 
       determined that claimant had sustained a 27 percent permanent 
 
       impairment of the left leg.  He further found that independent 
 
       weight bearing and activities such as stair climbing and ladder 
 
       climbing would be limited.  He said that claimant will have to 
 
       use a Lenox Hill brace periodically (Ex. 27, pp. 41 & 42; Tran. 
 
       pp. 31 & 32).  Likewise, even though Dr. Wirtz gave a lower 
 
       numerical rating than Dr. Breedlove, he found that claimant would 
 
       suffer some permanent limitations which Dr. Breedlove failed to 
 
       do.  Dr. Wirtz's opinion does not state that it is based upon the 
 
       AMA Guides whereas the impairment rating of Dr. Breedlove states 
 
       his rating is based upon the Guides to the Evaluation of 
 
       Permanent Impairment.  Dr. Rosenfeld states that he used the 
 
       AMA Guides but in this case the opinion of the treating 
 
       orthopedic surgeon is preferred over the independent evaluator.
 
            
 
            Dr. Blessman did not give an impairment rating.
 
            
 
            Dr. Breedlove's permanent impairment rating is preferred for 
 
       the reason that he was the treating physician and he had the 
 
       greatest opportunity to evaluate the most correct percentage of 
 
       permanent impairment.  Dr. Wirtz and Dr. Rosenfeld were only one-
 
       time examiners.
 
            
 
            It is further determined that claimant has not sustained an 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
       injury to the body as a whole caused by this left leg anterior 
 
       cruciate ligament rupture and the ensuing arthroscopy.  There is 
 
       no medical evidence or other evidence to support the fact that 
 
       claimant sustained any permanent disability to his vascular 
 
       system or to his heart caused by either the knee injury or the 
 
       subsequent arthroscopy.  There is no medical evidence or other 
 
       evidence that the knee injury or embolus worsened claimant's 
 
       preexisting heart condition.
 
            
 
            Claimant has applied for and been granted social security 
 
       disability income benefits, however, this determination was based 
 
       upon numerous other serious health problems in addition to the 
 
       left knee injury (Tran. pp. 38 & 39; Ex. 42, pp. 77 & 78, Ex. 43, 
 
       p. 79, Ex. 50, pp. 91-101).  The social security administration 
 
       law judge also referred to testimony given by "his wife" (Ex. 50, 
 
       p. 95).
 
            
 
            Claimant testified that he has constant pain in his left 
 
       knee and that Dr. Breedlove has prescribed medication for the 
 
       pain (Tran. pp. 38 & 40).
 
            
 
            Wherefore, it is determined that claimant has sustained a 32 
 
       percent permanent impairment to his left leg and is entitled to 
 
       70.4 weeks of permanent partial disability benefits.
 
       
 
       rate of compensation
 
            
 
            It is determined that the proper rate of compensation is 
 
       $221.21 per week.  This is based on claimant's calculation of a 
 
       gross weekly wage of $347.34 for a married person and two 
 
       exemptions (Ex. 49, p. 90).
 
            
 
            Defendant-employer's counsel stated that they disputed 
 
       claimant's marital status (Tran. p. 71).  Betty J. Rogers, 
 
       workers' compensation specialist for the City of Des Moines, 
 
       wrote to claimant on November 29, 1988, "In checking with our 
 
       Legal Department staff, it has been determined that a 'common-
 
       law' marriage would need to be proven in a court of law before we 
 
       are able to accept the spouse as a dependent on your claim." (Ex. 
 
       A, p. 17).  
 
            
 
            The rate of compensation is based upon gross weekly earnings 
 
       after the deduction payroll taxes.  Rule 343 IAC 8.8.  Thus, 
 
       martial status effects the rate of compensation.
 
            
 
            A person may be a spouse through a common law marriage.  The 
 
       elements of common law marriage were reviewed by the Iowa Supreme 
 
       Court in In re Marriage of Winegard, 278 N.W.2d 505 (Iowa 
 
       1979).  The court found the elements of a common law marriage 
 
       were as follows (1) intent and agreement in praesenti to be 
 
       married by both parties; (2) continuous cohabitation; and (3) 
 
       public declaration that the parties are husband and wife.  
 
            
 
            Claimant has established by a preponderance of the evidence 
 
       that a common law marriage existed at the time of the injury on 
 
       November 4, 1988.  Balwin v. Sullivan, 201 Iowa, 955, 204 N.W. 
 
       420 (Iowa 1925).  Claimant testified that he and Cynthia L. Price 
 
       were a common law man and wife for many years and that they held 
 
       themselves out as man and wife and that they file joint tax 
 
       returns (Tran. pp. 16 & 17).  
 
            
 
            Cynthia L. Price testified that she uses the name Cynthia L. 
 
       Price, the same last name as claimant, and that she is the spouse 
 
       of Thomas J. Price.  She testified that they have cohabited for 
 
       17 years together.  She stated they have held themselves out to 
 
       others as husband and wife for 13 or 14 years.  She testified 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
       that they have filed joint tax returns for 13 or 14 years (Tran. 
 
       pp. 53 & 54).  
 
            
 
            Dr. Breedlove said he explained the risk of surgery to the 
 
       patient and "his wife" (Ex. 3, p. 9).  Dr. Kevin Smith, M.D., of 
 
       the City Health Clinic stated that he discussed reconstruction of 
 
       the anterior cruciate ligament with the patient and "his wife" 
 
       (Ex. 21, p. 31).  Hooshang Soltanzadeh, M.D., said that the 
 
       patient and "his wife" understand the procedure and agreed to the 
 
       plan which he had recommended (Ex. 30, p. 47).  The office notes 
 
       of J. Opoien, M.D., and K. Quinn, M.D., show that the name of 
 
       claimant's spouse is "Cindy Price" (Ex. 41, pp. 75 & 76).
 
            
 
            Claimant has established a prima facie case of a common law 
 
       marriage.  Claimant's evidence was not controverted, 
 
       contradicted, rebutted or refuted with any evidence on the part 
 
       of defendant-employer.  Therefore, it is determined that claimant 
 
       is entitled to a rate based upon a married person with two 
 
       exemptions.  Therefore, defendant-employer's calculation of the 
 
       rate based upon a single person with one exemption is not 
 
       correct.  
 
            
 
            Defendant bases the gross weekly earnings on the 13 weeks 
 
       prior to the injury (Ex. A, p. 46).  However, claimant normally 
 
       worked several hours of overtime at the time of this injury 
 
       (Tran. pp. 14 & 15).  The employer's records show that normally 
 
       claimant worked an excess of 40 hours per week and quite 
 
       frequently worked an excess of 50 hours per week (Ex. A, p. 46, 
 
       Ex. 49, p. 90).  In the 13 weeks used by defendant-employer, the 
 
       week of October 1, 1988, shows that claimant only worked 31 
 
       hours.  This is the only week that claimant worked less than 40 
 
       hours.  Defendant's calculation of 13 weeks includes this 31 hour 
 
       week (Ex. A, p. 46).  Claimant's calculation of the gross weekly 
 
       wage eliminates the week of October 1, 1988 and uses the other 12 
 
       weeks to determine the gross weekly wage (Ex. 49, p. 90).
 
            
 
            Overtime hours are to be included in the rate calculation at 
 
       the straight time rate.  Rule 343 IAC 8.2.  Both parties did 
 
       include the overtime at the straight time rate of $6.75 per hour.  
 
            
 
            It has been the policy of the agency for several years to 
 
       eliminate non-representative weeks.  Instead the short weeks are 
 
       skipped and only representative weeks are used.  Lewis v. 
 
       Aalf's Mfg. Co., I Iowa Industrial Comm'r Report 206, 207 
 
       (Appeal Decn. 1980).   The rational for this method of 
 
       determining the weekly earnings is based upon the mandate of the 
 
       first unnumbered paragraph of Iowa Code section 85.36 which 
 
       required the determination of earnings to which the employee 
 
       "would have been 
 
       entitled had he worked the customary hours for the full pay 
 
       period in which he was injured.  Schotanus v. Command 
 
       Hydraulics, Inc., I Iowa Industrial Comm'r Rep. 294, 298-99 
 
       (1981); Thilges v. Snap-on Tools, Iowa Supreme Court Decn. 
 
       March 29, 1995.
 
            
 
            The 31 hour week of October 1, 1988 is not representative 
 
       and should be dropped.  In such cases it is proper to divide the 
 
       total amount earned by the number of weeks worked.  Barker v. 
 
       City Wide Cartage, I Iowa Industrial Commissioner Report 49 
 
       (Appeal Decision 1980)
 
            
 
            Wherefore, it is determined that claimant's calculation is 
 
       the most correct calculation of claimant's gross weekly earnings 
 
       based on the evidence available to the deputy with no evidence 
 
       from employer to rebut the presumption that these were not 
 
       representative wages on the date of injury.  Oscar Mayer Foods 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
       Corp. v Tasler, 483 N.W.2d 824, 830 (Iowa 1992) (Ex. 49, p. 
 
       90).  
 
            
 
            During the period of available known customary wages 
 
       claimant earned $4,168.12 over a 12 week period which results in 
 
       a gross weekly wage of $347.34.  Using the appropriate Guide to 
 
       Iowa Workers' Compensation Claim Handling for the period 
 
       commencing on July 1, 1988, the rate for a married person with 
 
       two exemptions with gross weekly earnings of $347 per week is 
 
       $221.21.  
 
       
 
                            CONCLUSIONS OF LAW
 
            
 
            Wherefore, based upon the foregoing and following principles 
 
       of law, these conclusions of law are made.
 
            
 
            That the traumatic injury to claimant's left knee of 
 
       anterior cruciate ligament rupture and the subsequent superficial 
 
       femoral artery embolus occlusion were the cause of complications 
 
       to claimant's preexisting endocarditis and they were the cause of 
 
       the entire hospitalization for the period from November 7, 1988 
 
       to December 8, 1988 and that defendant-employer is liable for the 
 
       entire hospital bill in the amount of $29,685.45.  Iowa Code 
 
       section 85.27; Bradshaw v. Iowa Methodist Hospital, 251 Iowa 
 
       375, 101 N.W.2d 167 (1960); Bodish v. Fischer, Inc., 257 Iowa 
 
       516, 133 N.W.2d 867 (1965); Lindahl v. L.O. Boggs Co., 236 
 
       Iowa 296 18 N.W.2d 607 (1945).
 
            
 
            That claimant is entitled to 27.429 weeks of healing period 
 
       benefits for the period from November 4, 1988, the date of the 
 
       injury, until he was released to return to his former job as an 
 
       inspector on May 15, 1989.  Iowa Code section 85.34(1). 
 
            
 
            That claimant is entitled to 70.4 weeks of permanent partial 
 
       disability benefits based upon a 32 percent permanent impairment 
 
       to his left leg.  Iowa Code section 85.34(2)(o).
 
            
 
            That the proper rate of compensation is $221.21 per week.  
 
       Iowa Code section 86.36 first unnumbered paragraph and 86.36(6); 
 
       rule 343 IAC 8.2 and 8.8; Lewis v. Aalf's Mfg. Co., I Iowa 
 
       Industrial Comm'r Report 206, 207 (Appeal Decn. 1980); Schotanus 
 
       v. Command Hydraulics, Inc., I Iowa Industrial Comm'r Rep. 
 
       294, 298-99 (1981); Thilges v. Snap-on Tools, Iowa 
 
       Supreme Court Decn. March 29, 1995; Barker v. City Wide 
 
       Cartage, I Iowa Industrial Commissioner Report 49 (Appeal 
 
       Decision 1980).
 
       
 
                                ORDER
 
            
 
            THEREFORE, IT IS ORDERED:
 
            
 
            That defendant-employer pay to claimant twenty-seven point 
 
       four-two-nine (27.429) weeks of healing period temporary 
 
       disability benefits at the rate of two hundred twenty-one and 
 
       21/100 dollars ($221.21) per week in the total amount of six 
 
       thousand sixty-seven and 57/100 dollars ($6,067.57) commencing on 
 
       November 4, 1988.  
 
            
 
            That defendant-employer is entitled to a credit in the 
 
       amount of five thousand five hundred seventy-one and 92/100 
 
       dollars ($5,571.92) paid to claimant prior to hearing (Deft. Ex. 
 
       A, p. 52).
 
            
 
            That defendant-employer pay to claimant seventy point four 
 
       (70.4) weeks of permanent partial disability benefits at the rate 
 
       of two hundred twenty-one and 21/100 ($221.21) dollars per week 
 
       in the total amount of fifteen thousand five hundred seventy-
 

 
 
 
 
 
 
 
 
 
 
 
 
 
       three and 18/100 dollars ($15,573.18) commencing on May 15, 1989.  
 
            
 
            That defendant-employer is entitled to a credit in the 
 
       amount of twelve thousand one hundred ninety-three and 63/100 
 
       dollars ($12,193.63) for benefits paid to claimant prior to 
 
       hearing (Deft. Ex. A, pp. 49-51).
 
            
 
            That all accrued benefits are to be paid in a lump sum.
 
            
 
            That interest will accrue pursuant to Iowa Code section 
 
       85.30.
 
            
 
            That defendant pay to claimant or the provider of medical 
 
       services twelve thousand nine hundred twenty-six and 95/100 
 
       dollars ($12,926.95) for the unpaid medical charges of Mercy 
 
       Hospital Medical Center and obtain a release of the judgment lien 
 
       of Mercy Hospital against claimant and pay all costs associated 
 
       with the release of this lien and hold claimant harmless from any 
 
       future liability thereon. 
 
            
 
            That the costs of this action are charged to defendant 
 
       pursuant to rule 343 IAC 4.33 and Iowa Code sections 86.19(1) and 
 
       86.40.
 
            
 
            That defendant-employer file claim activity reports as 
 
       requested by this agency pursuant to rule 343 IAC 3.1.
 
            
 
            Signed and filed this ____ day of May, 1995.
 
       
 
       
 
       
 
       
 
                                   ______________________________
 
                                   WALTER R. McMANUS, JR.
 
                                   DEPUTY INDUSTRIAL COMMISSIONER    
 
       
 
       
 
       Copies to:
 
       
 
       Mr. Robert W. Pratt
 
       Attorney at Law
 
       6959 University Ave.
 
       Des Moines, IA  50311
 
       
 
       Ms. Mary G. Hellweg
 
       Asst. City Attorney
 
       City Hall
 
       400 East First Street
 
       Des Moines, IA  50309
 
       
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                             1108.50, 1401, 1402.30, 1402.60,             
 
                             1403.10, 1403.20, 2206, 2501, 2505, 
 
                             2602, 2700, 2902, 1802, 1803.1, 
 
                             1803, 3002, 3003 
 
                             Filed May 10, 1995
 
                             Walter R. McManus, Jr.
 
         
 
                 BEFORE THE IOWA INDUSTRIAL COMMISSIONER 
 
         ____________________________________________________________
 
         THOMAS J. PRICE,    
 
               
 
          Claimant,                           File No. 900497
 
               
 
         vs.                               A R B I T R A T I O N
 
               
 
         THE CITY OF DES MOINES,              D E C I S I O N
 
                
 
          Employer, 
 
          Self-Insured,   
 
          Defendant.     
 
         ____________________________________________________________
 
         
 
         1108.50, 1401, 1402.30, 1402.60, 1403.10, 1403.20, 2206, 
 
         2501, 2505, 2602, 2700, 2902
 
           
 
           Claimant tripped and injured his left knee at work.  
 
         During arthroscopic surgery a superficial femoral artery 
 
         occlusion was discovered in his left leg.  This necessitated 
 
         not only treatment for the embolus but also for a 
 
         preexisting condition of endocarditis, which had previously 
 
         been dormant and unknown.
 
           
 
           Defendant submitted the hospital bill to Intracorp who 
 
         retained a board certified cardiologist (who was not 
 
         identified) to give certain opinions.  Based on one of his 
 
         opinions an auditing nurse of Intracorp determined that 
 
         $12,926.95 of the $29,685.45 hospital bill was due to 
 
         endocarditis and recommended that it was not the 
 
         responsibility of the employer.  The defendant refused to 
 
         pay it.  The hospital sued claimant and obtained a judgment 
 
         against claimant in the amount of the unpaid portion of 
 
         their bill, $12,926.95.
 
           
 
           All of the denied medical treatment was ordered by the 
 
         authorized treating physicians.  One of them, a 
 
         cardiologist, specifically determined on two separate 
 
         occasions that these charges were caused by the knee injury 
 
         and the embolus.  During the period of extended treatment 
 
         for the endocarditis claimant also received treatment for 
 
         his knee, not just the endocarditis.  
 
           
 
           The discharge summary stated that the endocarditis 
 
         treatment was a complication of the knee injury and the 
 
         embolus.  
 
           
 
           It was further found that it is a well known fact that 
 
         a hospitalized patient, particularly one in critical 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
         condition, is in no position to controvert what the doctor 
 
         orders for treatment, nor does the patient normally have the 
 
         knowledge or expertise to interfere with the care of the 
 
         doctor.  Claimant in this case did not order or request the 
 
         disputed care, but rather it was all ordered by authorized 
 
         treating physicians.
 
           
 
           It was determined that the Intracorp cardiologist 
 
         Advisor did not answer the question of whether the knee 
 
         injury and embolus caused the care for the endocarditis.  It 
 
         was the auditing nurse who decided that the endocarditis 
 
         care was not caused by the knee injury or the embolus and 
 
         that employer was not liable for it.
 
           
 
           The deputy found the determination of the auditing 
 
         nurse (1) was arbitrary, (2) that she was not a physician, 
 
         did not act under the supervision of a physician, and the 
 
         deputy questioned why the cardiologist Advisor did not make 
 
         the determination of the charges that were not allowed, (3) 
 
         that her opinion was not impartial nor independent because 
 
         she was hired by employer, and the result of her work was 
 
         characterized by her as "savings" and (4) the nurse made a 
 
         legal determination and no qualifications for her to make a 
 
         legal opinion of liability were established.  The opinion of 
 
         the treating heart physician was preferred over the opinion 
 
         of the auditing nurse.
 
           
 
           It was determined that the denied medical expenses were 
 
         reasonable medical expenses within the purview of first 
 
         sentence in section 85.27.
 
           
 
           The deputy drew on legal references that the employer 
 
         takes the employee in as is condition and that employers are 
 
         responsible for all of the consequences that flow from the 
 
         work injury.  Several case cites are given.
 
           
 
           It was also determined that employers can choose the 
 
         physician but are not entitled to deny or refuse the care 
 
         recommended by the physicians.  Several case cites are 
 
         given.
 
           
 
           Even though there was no evidence that the work injury, 
 
         or its sequela, aggravated or worsened his heart condition, 
 
         it was determined that the work injury and its sequela did 
 
         cause a medical complication to claimant's preexisting but 
 
         dormant and unknown heart condition, which necessitated 
 
         medical treatment, in the opinion of the authorized treating 
 
         physicians.  Therefore, employer was liable for all of the 
 
         medical treatment the doctors directed and ordered, 
 
         including the treatment for the endocarditis.
 
           
 
           In brief, employer was liable for medical treatment of 
 
         a medical complication caused by the work injury.  
 
           
 
           It was further ordered that defendant obtain a release 
 
         of the judgment lien against claimant and all expenses 
 
         connected with it and hold claimant harmless for any future 
 
         liability from it.
 
         
 
         1803.1
 
           
 
           This was determined to be a scheduled member injury to 
 
         the left leg.  There was no evidence that the endocarditis 
 
         was worsened by the knee 
 
         injury.  Nor was there any evidence of any permanent 
 
         vascular injury or impairment.
 

 
 
 
 
 
 
 
 
 
 
 
 
 
         
 
         1802
 
           
 
           Claimant was awarded healing period benefits from the 
 
         date of the injury until the treating physician released him 
 
         to return to his former job.
 
         
 
         1803
 
           
 
           Impairment ratings ran 21 percent, 27 percent and 32 
 
         percent.  Claimant was awarded 32 percent permanent 
 
         impairment of his left leg based on the impairment rating of 
 
         the authorized treating orthopedic surgeon.  Claimant also 
 
         had some permanent restrictions.
 
         
 
         3001
 
           
 
           Claimant's gross earnings were based on overtime at the 
 
         straight time rate.  All but one week was over 40 hours and 
 
         most weeks were over 50 hours.  A 31 hour week was dropped 
 
         from the calculation.  The remaining 12 weeks were averaged 
 
         to determine the rate based on claimant's customary 
 
         earnings.  Section 85.36 first unnumbered paragraph and 
 
         subparagraph 6.  Lewis v. Aalf's Mfg. Co., I Iowa 
 
         Industrial Comm'r Report 206, 207 (Appeal Decn. 1980); 
 
         Schotanus v. Command Hydraulics, Inc., I Iowa Industrial 
 
         Comm'r Rep. 294, 298-99 (1981); Oscar Mayer Foods Corp. v 
 
         Tasler, 483 N.W.2d 824, 830 (Iowa 1992); Barker v. City 
 
         Wide Cartage, I Iowa Industrial Commissioner Report, 12, 15 
 
         (Appeal Decn. 1980); Thilges v. Snap-on Tools, Iowa 
 
         Supreme Court Decn. March 29, 1955; Rules 343 IAC 8.2 and 
 
         8.8.
 
         
 
         3002
 
           
 
           Claimant proved that he was entitled to the married 
 
         rate because he proved that he had lived in a common law 
 
         marriage for 17 years.  In re Winegard.  Claimant's 
 
         evidence was unrebutted.