BEFORE THE IOWA INDUSTRIAL COMMISSIONER         
 
         _________________________________________________________________
 
                                         :
 
         LAWRENCE LeROY MURREN,          :
 
                                         :
 
              Claimant,                  :
 
                                         :
 
         vs.                             :
 
                                         :       File No. 903477
 
         WASTE MANAGEMENT, INC. a/k/a    :
 
         SOLID WASTE SERVICES/CONTAINER  :    A R B I T R A T I O N
 
         HAULAWAY,                       :
 
                                         :       D E C I S I O N
 
              Employer,                  :
 
                                         :
 
         and                             :
 
                                         :
 
         CNA INSURANCE COMPANIES,        :
 
                                         :
 
              Insurance Carrier,         :
 
                                         :
 
         and                             :
 
                                         :
 
         SECOND INJURY FUND OF IOWA,     :
 
                                         :
 
              Defendants.                :
 
         _________________________________________________________________
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration upon the petition of 
 
         claimant, Lawrence Murren, against his employer, Waste Manage
 
         ment, Inc., and its insurance carrier, CNA Insurance Companies, 
 
         and against the Second Injury Fund of Iowa, defendants.  The case 
 
         was heard on July 13, 1992 in Sioux City, Iowa at the Woodbury 
 
         County courthouse.  The record consists of the testimony of 
 
         claimant.  The record also consists of the testimony of Roxanne 
 
         Murren.  Finally, the record is comprised of claimant's exhibits 
 
         1-35 and joint exhibit 1.
 
         
 
                                      ISSUES
 
         
 
              The issues to be determined are:  1) whether claimant is 
 
         entitled to any healing period or permanent partial disability 
 
         benefits; 2) whether claimant is entitled to any medical benefits 
 
         pursuant to section 85.27; 3) whether claimant is entitled to any 
 
         vocational rehabilitation benefits pursuant to section 85.70; 4) 
 
         whether claimant is entitled to any benefits pursuant to the 
 
         Second Injury Fund of Iowa; and 5) whether claimant is entitled 
 
         to any benefits pursuant to section 86.13.
 
         
 
              At the hearing, but prior to the testimony of the claimant, 
 
         defendants' attorney stipulated that his clients would tender 
 
         $520.00 in vocational rehabilitation benefits pursuant to section 
 
         85.70.  Defendants' attorney also agreed to reimburse claimant 
 
         for medical mileage as follows:  488.4 miles at $.21 per mile and 
 
         for $9.71 in food for a total of $112.27.  Said reimbursement was 
 
         made pursuant to section 85.27.  Likewise, defendants agreed to 
 

 
         
 
         Page   2
 
         
 
         
 
         
 
         
 
         pay outstanding medical bills for Timothy C. Fitzgibbons, M.D., 
 
         pursuant to section 85.27.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              The deputy, having heard the testimony and considered all 
 
         the evidence, finds:
 
         
 
              Claimant is 39-years-old.  He was born on February 13, 1953.  
 
         At the time of the hearing, claimant was 5 feet 11 inches and he 
 
         weighed 280 pounds.  Claimant was clearly overweight.
 
         
 
              He completed his junior year in high school but he did not 
 
         graduate from high school.  Claimant was drafted at age 18.  He 
 
         served in the United States Navy where he obtained his GED.
 
         
 
              Claimant was honorably discharged from the Navy in May of 
 
         1975.  At discharge, he was classified as a E-4 Third Class.
 
         
 
              However, while he was still in active duty, claimant sus
 
         tained an injury to his left ankle when an officer dropped a 555 
 
         pound drum on his left ankle.  Claimant received medical treat
 
         ment for his left ankle.  He was treated by the Veterans Adminis
 
         tration.  The agency determined he had a 10 percent disability 
 
         which resulted in compensation at the sum of $82.00 per month 
 
         from the date of the injury on May 3, 1975.
 
         
 
              Claimant described his current problems with the left ankle.  
 
         He testified that his ankle throbs and that it "gives out" at 
 
         various times.  He testified that his foot buckles when he walks 
 
         on uneven ground and that he has taken pain medication for the 
 
         left ankle.  Claimant also testified that the left ankle injury 
 
         did not affect claimant's choice of employment prior to December 
 
         16, 1988 because claimant had learned to compensate with the 
 
         right ankle and foot.  Claimant testified that as of the day of 
 
         the hearing, he cannot control the side to side motion of the 
 
         left foot.  Since 1975 he has sought intermittent treatment 
 
         through the VA.
 
         
 
              On December 6, 1988 claimant was employed by 
 
         defendant-employer as a solid waste worker/"hopper."  Claimant 
 
         was required to pick up solid waste from a customer and to dump 
 
         the waste into a "garbage truck."  The job necessitated numerous 
 
         "hops" onto and off the garbage truck.
 
         
 
              Claimant testified that on the date in question, he jumped 
 
         from a garbage truck, then slipped off the side of a curb and 
 
         injured his right ankle.
 
         
 
              Claimant sought treatment from his family physician, Joe 
 
         Bingham, M.D.  Dr. Bingham diagnosed claimant's condition as 
 
         "Severe Ankle Ssprain."  (Joint Exhibit 1, page B-1)  The physi
 
         cian later modified his diagnosis to:  "He's got a severe sprain 
 
         of the lateral malleolus area too....Avulsed fracture off the 
 
         very distal tip of tibia (that was medial malleolus.  Then a 
 
         severe sprain of the lateral ankle."  (Jt. Ex. 1, p. B-5)  
 
         Claimant was precluded from walking or lifting.  (Jt. Ex. 1, 
 
         p. B-10)
 
         
 
              Later claimant was referred by Dr. Bingham to Kevin J. 
 

 
         
 
         Page   3
 
         
 
         
 
         
 
         
 
         Liudahl, M.D., an orthopedist.  Dr. Liudahl diagnosed claimant's 
 
         condition as:  "Residual synovitis, postankle sprain."  Dr. 
 
         Liudahl placed claimant in a gelcast ankle brace.  The orthope
 
         dist later modified his diagnosis to:
 
         
 
              Residual mechanical symptoms, right ankle with antero
 
              lateral osteochondritis dissecans fragment.  I suspect 
 
              that this is loose and is actually causing the mechani
 
              cal symptoms.
 
         
 
         (Jt. Ex. 1, p. F-1)
 
         
 
              Dr. Liudahl performed arthroscopic surgery on the right 
 
         ankle and placed claimant in a short walking cast.  Later 
 
         claimant was provided with an ankle brace.  The orthopedist rated 
 
         claimant as having a 15 percent functional impairment.
 
         
 
              At a later point in time, claimant was referred to a foot 
 
         specialist, Timothy Fitzgibbons.  The foot specialist diagnosed 
 
         claimant's condition as:  "[I]nversion injury of the right ankle, 
 
         in December of 1988, with osteochondral talar dome fracture of 
 
         the lateral talar dome of the right ankle."  (Jt. Ex. 1, p. C-2)
 
         Dr. Fitzgibbons performed an "[a]rthroscopy joint debridement 
 
         with debridement of old osteochondral fracture, debridement of 
 
         distal tibial fibular joint and tibial fibular gutter, removal of 
 
         meniscoid type of lesion, posteriorlaterally, synovial resection, 
 
         extensive irritation."  (Jt. Ex. 1, p. C-17)
 
         
 
              Dr. Fitzgibbons treated claimant.  The last surgical proce
 
         dure was in June of 1990.  He also rated claimant as having a 15 
 
         percent permanent partial impairment to the right lower extrem
 
         ity.  In his deposition, Dr. Fitzgibbons testified that "if the 
 
         patient wants to still do something and put up with the pain, I 
 
         wouldn't hold him back."  (Claimant's Ex. 24, p. 37, lines 8-10)
 
         
 
              Claimant testified that as of the hearing date, the right 
 
         ankle bothers him more than the left ankle, but that his right 
 
         ankle is better if he sits and elevates his foot.  He also testi
 
         fied that his foot turns in and that he falls 1-2 times per week.  
 
         His spouse testified that he falls once or twice a month.
 
         
 
              Claimant indicated during direct examination that he can 
 
         stand in one spot for 30 minutes, walk 6 to 8 blocks, but he 
 
         cannot walk on uneven ground with his left foot, climb stairs 
 
         with his right foot, bend from the waist, or stand on his toes 
 
         and reach.
 
         
 
              As part of the preparation for hearing claimant had an inde
 
         pendent medical exam from Michael T. O'Neil, M.D.  Dr. O'Neil 
 
         opined that:
 
         
 
              AP, lateral and oblique x-rays of the right ankle taken 
 
              in our office at the time of this examination demon
 
              stated [sic] minimal degenerative changes along the 
 
              articular surface of the medial malleolus with early 
 
              hypertrophic spurring.  Early spurring was also noted 
 
              anteriorly along the lip of the articular edge of the 
 
              distal tibia in the ankle joint.  No loose bodies were 
 
              noted.  In general, the ankle mortise is well preserved 
 
              with no irregularity.
 

 
         
 
         Page   4
 
         
 
         
 
         
 
         
 
         
 
              I believe with reasonable medical certainty that Mr. 
 
              Murren has sustained an osteochondral injury of the 
 
              dome of the talus of his right ankle as a result of a 
 
              work-related injury of 12/16/88, while under the 
 
              employment of Waste Management, Inc.  Since that time, 
 
              he has continued to experience pain, swelling and 
 
              stiffness in his ankle despite two operative proce
 
              dures.  I do not feel that any further medical treat
 
              ment would be of benefit at this time.  Mr. Murren's 
 
              weight is an aggravating factor, but did not in any way 
 
              cause the injury.  A weight reduction program would be 
 
              helpful.  I believe that Mr. Murren will continue to 
 
              experience difficulty standing and walking for an 
 
              extended period of time because of his ankle condition 
 
              which will probably worsen with time because of activ
 
              ity and because of his weight.
 
         
 
         (Joint Exhibit 1, p. D-3)
 
         
 
              Claimant had another examination from a foot specialist in 
 
         anticipation of the hearing.  Randall P. Bergen, DPM, PC, opined 
 
         that:
 
         
 
              However, just from his symptoms, physical examination 
 
              and history it appears that this gentleman has had 
 
              severe ankle trauma that has lead to some progressive 
 
              post-traumatic arthritic involvement of both ankles.  
 
              Prognosis is one that is rather guarded.  I would 
 
              anticipate that this gentleman will probably have to 
 
              have further intervals of possible surgical interven
 
              tion injection therapy and/or nonsteroidal anti-inflam
 
              matory therapy.  Possibly even some type of ankle brac
 
              ing.  He may eventually even go on to have an ankle 
 
              fusion if there is more deterioration within the ankle 
 
              that cannot be managed conservatively.  At this stage 
 
              of the game this gentleman is limited from an employ
 
              ment arena to a job that would require him to do a min
 
              imal amount of standing and walking.  Probably much 
 
              more of a sitting type of occupation.  As far as a dis
 
              ability rating on this gentleman I would say probably 
 
              at this time he is about 60% disabled.  However, this 
 
              may increase in time if his ankle progressively deteri
 
              orates, which probably more likely than not will reoc
 
              cur due to the fact that the post-traumatic usually is 
 
              progressive in nature.  It would also behove this 
 
              patient to lose some weight and we have discussed this 
 
              at length.  Due to the fact that he has so much discom
 
              fort in walking and doing any type of exercise in the 
 
              regard I recommended he possibly try bicycling per 
 
              stationary bike or regular bike and/or swimming thus 
 
              avoiding any undue stress and strain on his ankle com
 
              plex.  With weight loss I am sure that will produce 
 
              less stress and strain on the ankle conditions.  If you 
 
              have any further questions in regards to this patients 
 
              [sic] condition feel free to contact me.
 
         
 
         (Claimant's Ex. 23)
 
         
 
              Claimant was paid benefits from:
 

 
         
 
         Page   5
 
         
 
         
 
         
 
         
 
         
 
              12-17-88   through   02-06-89       7.429  weeks
 
              03-26-89   through   08-03-89      14.0    weeks
 
              08-12-89   through   05-04-90      38.0    weeks
 
              06-04-90   through   09-26-91      72.571  weeks
 
                                                132      weeks
 
         
 
              Subsequent to his work injury, claimant worked intermit
 
         tently for various employers.  His employment was part-time, tem
 
         porary or on an occasional basis from September of 1989 through 
 
         the date of the hearing.  Claimant intended additional training 
 
         at the Iowa Western Community College for computer drafting.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              The first issue to address is the nature and extent of any 
 
         permanent partial disability benefits.  The parties have stipu
 
         lated that claimant has sustained a permanent partial disability 
 
         to the right leg.  The right of an employee to receive compensa
 
         tion for injuries sustained is statutory.  The statute conferring 
 
         this right can also fix the amount of compensation payable for 
 
         different specific injuries.  The employee is not entitled to 
 
         compensation except as the statute provides.  Soukup v. Shores 
 
         Co., 222 Iowa 272, 268 N.W. 598 (1936).
 
         
 
              Compensation for permanent partial disability begins at 
 
         termination of the healing period.  Iowa Code section 85.34(2).  
 
         Permanent partial disabilities are classified as either scheduled 
 
         or unscheduled.  A specific scheduled disability is evaluated by 
 
         the functional method; the industrial method is used to evaluate 
 
         an unscheduled disability.  Simbro v. Delong's Sportswear, 332 
 
         N.W.2d 886 (Iowa 1983); Graves v. Eagle Iron Works, 331 N.W.2d 
 
         116 (Iowa 1983); Martin v. Skelly Oil Co., 252 Iowa 128, 106 
 
         N.W.2d 95 (1960).
 
         
 
              Both Dr. Liudahl and a foot specialist, Dr. Fitzgibbons, 
 
         rate claimant as having a 15 percent functional impairment.  
 
         Another foot specialist, a podiatrist, Dr. Bergen, rates claimant 
 
         as having a 60 percent functional impairment.  The practitioners 
 
         are recognized in their field of expertise.  Their opinions are 
 
         given nearly equal weight although claimant has seen Dr. 
 
         Fitzgibbons on numerous occasions but he has seen Dr. Bergen only 
 
         once.  Three surgical procedures have been conducted.  Dr. 
 
         Fitzgibbons has not placed restrictions on claimant.  He is able 
 
         to engage in activities as he can tolerate them.  The most recent 
 
         CT scan of the right ankle shows that:
 
         
 
              ON THE RIGHT SIDE THE SUBTALAR JOINT APPEARS NORMAL.  
 
              MILD DEGENERATIVE CHANGE IS SEEN AT THE FIBULAR/TALAR 
 
              ARTICULATION.  THERE IS MILD IRREGULARITY OF THE 
 
              LATERAL ASPECT OF THE TALAR DOME POSTERIORLY WITH SOME 
 
              MILD SUBARTICULAR CYST FORMATION.  TYPICAL FINDINGS OF 
 
              OSTEOCHONDRITIS DISSECANS ARE NO LONGER EVIDENT IN THIS 
 
              AREA.  NO INTRA-ARTICULAR LOOSE BODY IS EVIDENT.
 
         
 
              IMPRESSION:  1.  LEFT ANKLE AND HINDFOOT APPEAR NORMAL.
 
                    2.  ON THE RIGHT SIDE THERE IS MILD                          
 
                        DEGENERATIVE CHANGE SEEN AT THE                               
 
                        FIBULAR/TALAR ARTICULATION.
 
                      3.  ON THE RIGHT SIDE THERE IS                                  
 

 
         
 
         Page   6
 
         
 
         
 
         
 
         
 
         IRREGULARITY OF THE LATERAL POSTERIOR                    
 
         ASPECT OF THE TALAR DOME WITH SOME                            
 
         MILD SUBARTICULAR CYST FORMATION AND                          
 
         SCLEROSIS.  TYPICAL FINDINGS OF                               
 
         OSTEOCHONDRITIS DISSECANS ARE NO                         
 
         LONGER APPRECIATED.
 
                      4.  NO ABNORMALITY NOTED IN SUBTALAR JOINT                      
 
         RIGHT HINDFOOT.
 
         
 
         (Cl. Ex. 34, deposition Ex. 1, p. 7)
 
         
 
              Most of claimant's complaints are in the range of subjective 
 
         pain complaints.  No other surgery is scheduled.  It is the 
 
         determination of the undersigned that claimant is entitled to a 
 
         30 percent permanent partial disability to the right leg.  
 
         Claimant is entitled to 66 weeks of benefits at the stipulated 
 
         rate of $175.83 per week.
 
         
 
              The next issue to address is the issue of healing period 
 
         benefits.
 
         
 
              Iowa Code section 85.34(1) provides that healing period 
 
         benefits are payable to an injured worker who has suffered perma
 
         nent partial disability until (1) the worker has returned to 
 
         work; (2) the worker is medically capable of returning to sub
 
         stantially similar employment; or (3) the worker has achieved 
 
         maximum medical recovery.  The healing period can be considered 
 
         the period during which there is a reasonable expectation of 
 
         improvement from the disabling condition.  See Armstrong Tire & 
 
         Rubber Co. v. Kubli, 312 N.W.2d 60 (Iowa App. 1981).  Healing 
 
         period benefits can be interrupted or intermittent.  Teel v. 
 
         McCord, 394 N.W.2d 405 (Iowa 1986).
 
         
 
              Claimant is requesting healing period benefits from December 
 
         17, 1988 to July 13, 1992, the date of the hearing.  He is alleg
 
         ing he is owed for 186.429 weeks of healing period benefits.  
 
         Claimant has not met his burden of proof that he is owed for 
 
         186.429 weeks of healing period benefits.
 
         
 
              The evidence is sketchy relative to healing period benefits.  
 
         Claimant is entitled to benefits for the following periods:
 
         
 
         
 
         12-17-88  through  02-06-89      (date claimant voluntarily quit)
 
         05-26-89  through  07-03-89      (Jt. Ex. 1, p. H-1)
 
         08-12-89  through  09-01-89      (Jt. Ex. 1, p. F-5)
 
         04-19-90  through  12-21-90      (Jt. Ex. 1, p. C-8)  (date Dr.                
 
         Fitzgibbons wrote, "...he has                    gone as far as 
 
         he should.")
 
         
 
              On December 21, 1990, claimant reached maximum medical 
 
         improvement.  As a result, his permanent partial disability 
 
         benefits commenced on December 22, 1990.
 
         
 
              The next issue to address is whether claimant is entitled to 
 
         medical benefits pursuant to section 85.27.
 
         
 
              The employer shall furnish reasonable surgical, medical, 
 
         dental, osteopathic, chiropractic, podiatric, physical rehabili
 
         tation, nursing, ambulance and hospital services and supplies for 
 

 
         
 
         Page   7
 
         
 
         
 
         
 
         
 
         all conditions compensable under the workers' compensation law.  
 
         The employer shall also allow reasonable and necessary trans
 
         portation expenses incurred for those services.  The employer has 
 
         the right to choose the provider of care, except where the 
 
         employer has denied liability for the injury.  Iowa Code section 
 
         85.27.  Holbert v. Townsend Engineering Co., Thirty-second 
 
         Biennial Report of the Industrial Commissioner 78 (Review-reopen 
 
         1975).  Claimant has the burden of proving that the fees charged 
 
         for such services are reasonable.  Anderson v. High Rise Constr. 
 
         Specialists, Inc., File No. 850096 (App. 1990).
 
         
 
              Claimant is requesting benefits in the form of a weight loss 
 
         program.  Claimant weighs in excess of 280 pounds.  He has been 
 
         overweight for most of his adult years despite his claim that it 
 
         has been only since his work injury that his weight has soared.  
 
         Dr. Fitzgibbons has recommended a weight loss program for 
 
         claimant.  Dr. Fitzgibbons testified as follows:
 
         
 
                 A.  As a general rule -- I'm looking at my treatment 
 
              protocol for something like this -- weight loss isn't 
 
              necessarily one that's mandatory.  I have individual
 
              ized that.  On February the 7th, 1991, I notice from my 
 
              notes here that we did, I believe, send a letter to 
 
              encouraging, I believe even recommending, that he go 
 
              through this.  It's something he proposed to us.  I 
 
              never ever discourage weight loss, and would encourage 
 
              it.  In this case certainly with a weight-bearing 
 
     
 
         
 
         
 
         Page   8
 
         
 
         
 
         
 
         
 
              joint, and the problems that he's had, and the surgery 
 
              and everything, I think it would be helpful.
 
         
 
                 Q.  Is there a particular weight loss program you 
 
              endorse or recommend?
 
         
 
                 A.  Absolutely not.
 
         
 
                 Q.  Okay.  Is there -- let me ask you this.  Can you 
 
              predict, with a reasonable degree of certainty, that 
 
              his participation in a weight loss program would result 
 
              in weight loss?
 
         
 
                 A.  No.
 
         
 
                 Q.  And can you predict, with any certainty, that 
 
              his participation in a weight loss program would dimin
 
              ish his impairment?
 
         
 
                 A.  I do not feel that you can, with any reasonable 
 
              degree of medical certainty, predict that he's going to 
 
              lose weight just because he goes through it.  And if he 
 
              loses weight, I do not think it's going to signifi
 
              cantly affect his impairment rating.  I think it may 
 
              affect his ability to cope with his problem and to 
 
              handle his problem.  That's the way I would put it.
 
         
 
                 Q.  Does that answer assume that he loses weight and 
 
              keeps the weight off for a significant period of time?
 
         
 
                 A.  And keeps physically fit, which is usually part 
 
              of the program.
 
         
 
         (Cl. Ex. 24, p. 13, l. 21 through p. 15, l. 3)
 
         
 
              A weight reduction program has been considered a reasonable 
 
         medical treatment where all doctors have opined that excess 
 
         weight contributed to claimant's back problem.  Shilling v. Eby 
 
         Construction Co., II Iowa Indus. Comm'r Rep. 462-463 (Appeal Dec. 
 
         1982).
 
         
 
              In Shilling, supra, the Industrial Commissioner wrote:
 
         
 
                Each physician who examined claimant noted that 
 
              claimant's obesity definitely aggravated his back prob
 
              lems.  Dr. Boulden suggested that weight loss, in com
 
              bination with an exercise program, could protentially 
 
              [sic] restore claimant's back mobility.  Dr. Neiman 
 
              testified that, prior to any back surgery, claimant 
 
              must lose a considerable amount of weight.  Further
 
              more, even if back surgery could be performed at 
 
              claimant's present weight, Dr. Neiman stated that such 
 
              surgery would not benefit claimant unless claimant's 
 
              excess poundage was lost.  According to Dr. Neiman and 
 
              Dr. Boulden, excess weight places a strain on the back, 
 
              thereby aggravating any existing back problems.
 
         
 
                Clearly, any treatment of claimant's back problems 
 
              requires prior treatment of his obesity, regardless of 
 
              whether the diagnosis of claimant's problem is back 
 

 
         
 
         Page   9
 
         
 
         
 
         
 
         
 
              strain or a herniated disc.  It is possible that weight 
 
              loss alone in conjunction with physical therapy will 
 
              alleviate claimant's back problems.  But, in the event 
 
              that weight loss together with physical therapy do not 
 
              relieve claimant's back symptoms, and surgical inter
 
              vention is necessary, claimant must still shed his 
 
              excess weight.
 
         
 
                Both claimant and his wife testified that he had 
 
              attempted to reduce his weight and was unable to do so.  
 
              The necessity for claimant to lose a considerable 
 
              amount of weight in order to relieve his back problems 
 
              which are causally related to the injury of May 23, 
 
              1978 is clear from the record.  This agency strongly 
 
              urges claimant, in a cooperative effort with his physi
 
              cians, to exhaust all conventional means of weight loss 
 
              before any drastic measures are undertaken to effect 
 
              this weight reduction.  Only as a last resort should 
 
              surgical intervention be utilized as a means of allevi
 
              ating claimant's obesity.  However, should surgery 
 
              become necessary in order to force claimant to reduce 
 
              so that his injury-related back problems can be 
 
              resolved, such a remedy will be considered reasonable 
 
              and necessary medical treatment in the course of reme
 
              dying claimant's back problems.  See, e.g., Henry v. 
 
              Lit Brothers, 193 Pa. Super. 543, 165 A2d 406 (1060); 
 
              Decks, Inc. of Florida v. Wright, 389 So.2d 1074, 1076 
 
              (Fla. App 1981).
 
         
 
                This agency, however, does not want to go on record 
 
              as ordering a specific surgical weight loss procedure.  
 
              In light of continual advancements in modern medical 
 
              science, some previously acceptable surgical procedures 
 
              become less attractive as alternatives than they once 
 
              were.  As a result, if it becomes absolutely necessary 
 
              to surgically intervene in order to facilitate 
 
              claimant's weight loss, the procedure utilized must be 
 
              chosen by claimant's physician in light of the then 
 
              current medical knowledge.
 
         
 
              In the case at hand, Dr. Fitzgibbons testified a weight loss 
 
         program would be helpful.  He, however, declined to state that 
 
         claimant would lose weight if he attempted a weight loss program.  
 
         Nevertheless, a weight loss program was recommended.  (Cl. Ex. 
 
         34, p. 39, ll. 9-16)  Dr. Fitzgibbons opined that such a program 
 
         would not affect claimant's impairment rating.  (Cl. Ex. 34, p. 
 
         14)  It is the determination of the undersigned that a weight 
 
         loss program is a reasonable request but it is not necessary 
 
         treatment.  Claimant is encouraged to participate in a weight 
 
         loss and/or exercise program.  However, defendants are not man
 
         dated to provide such a program.  Since claimant has previously 
 
         consulted a dietician through the Veterans' Administration, he is 
 
         not without available resources.  Claimant should avail himself 
 
         of all resources offered to him at the VA Hospital.  He is urged 
 
         to commence such a program and to follow through with the dieti
 
         cian's instructions.  While weight loss is a monumental task, 
 
         claimant is encouraged to participate in a program.
 
         
 
              The next issue to address is whether claimant is entitled to 
 
         penalty benefits pursuant to section 86.13.  Section 86.13 per
 

 
         
 
         Page  10
 
         
 
         
 
         
 
         
 
         mits an award of up to 50 percent of the amount of benefits 
 
         delayed or denied if a delay in commencement or termination of 
 
         benefits occurs without reasonable or probable cause or excuse.  
 
         The standard for evaluating the reasonableness of defendants' 
 
         delay in commencement or termination is whether the claim is 
 
         fairly debatable.  Where a claim is shown to be fairly debatable, 
 
         defendants do not act unreasonably in denying payment.  See 
 
         Stanley v. Wilson Foods Corp., File No. 753405 (App. August 23, 
 
         1990); Seydel v. Univ. of Iowa Physical Plant, File No. 818849 
 
         (App. November 1, 1989).
 
         
 
              Section 86.13 provides in relevant part that:
 
         
 
                If an employer or insurance carrier fails to file the 
 
              notice required by this section, the failure stops the 
 
              running of the time periods in section 85.26 as of the 
 
              date of the first payment.  If commenced, the payments 
 
              shall be terminated only when the employee has returned 
 
              to work, or upon thirty days' notice stating the reason 
 
              for the termination and advising the employee of the 
 
              right to file a claim with the industrial commissioner.
 
         
 
              In the case before this deputy, defendants have issued only 
 
         one notice as provided in Auxier, supra.  The date of that notice 
 
         is September 26, 1991.  In the notice, the defendants write:
 
         
 
              By means of this letter, please consider this a 30 day 
 
              notice under Section 86.13 of termination of benefits.  
 
              We will be proceeding to pay benefits through 30 days 
 
              from the date of this letter.
 
         
 
              However, there are several other occasions where defendants 
 
         have terminated claimant's benefits without notice.  These peri
 
         ods are February 6, 1989, August 3, 1989 and May 4, 1990.  With 
 
         respect to the February 6, 1989 date, claimant informed his 
 
         employer that he had other employment.  In that case, a 30 day 
 
         notice was unnecessary.
 
         
 
              With respect to August 3, 1989, evidence was presented that 
 
         claimant was working at Western.  Therefore, no notice is 
 
         required.  There was no evidence presented for the failure to 
 
         provide notice on May 4, 1990.  The termination of benefits was 
 
         unreasonable.  Defendants are liable for 4 weeks of benefits at 
 
         50 percent of the weekly benefit rate of $175.83, for a total of 
 
         4 x 87.92 = $351.68 in penalty benefits.
 
         
 
              The final issue before this deputy is whether claimant is 
 
         entitled to benefits from the Second Injury Fund of Iowa.
 
         
 
              Section 85.64 governs Second Injury Fund liability.  Before 
 
         liability of the Fund is triggered, three requirements must be 
 
         met.  First, the employee must have lost or lost the use of a 
 
         hand, arm, foot, leg or eye.  Second, the employee must sustain a 
 
         loss or loss of use of another specified member or organ through 
 
         a compensable injury.  Third, permanent disability must exist as 
 
         to both the initial injury and the second injury.
 
         
 
              The Second Injury Fund Act exists to encourage the hiring of 
 
         handicapped persons by making a current employer responsible only 
 
         for the amount of disability related to an injury occurring while 
 

 
         
 
         Page  11
 
         
 
         
 
         
 
         
 
         that employer employed the handicapped individual as if the 
 
         individual had had no preexisting disability.  See Anderson v. 
 
         Second Injury Fund, 262 N.W.2d 789 (Iowa 1978);  Lawyer and 
 
         Higgs, Iowa Workers' Compensation - Law and Practice, section 17-
 
         1.
 
         
 
              The Fund is responsible for the difference between total 
 
         disability and disability for which the employer at the time of 
 
         the second injury is responsible.  Section 85.64.  Second Injury 
 
         Fund v. Neelans, 436 N.W.2d 335 (Iowa 1989); Second Injury Fund 
 
         v. Mich. Coal Co., 274 N.W.2d 300 (Iowa 1970).
 
         
 
              Interest accrues on benefits the Fund pays commencing on the 
 
         date of the decision.  Second Injury Fund of Iowa v. Braden, 459 
 
         N.W.2d 467 (Iowa 1990).
 
         
 
              A deputy is entitled to determine the nature of claimant's 
 
         injury and entitlement to compensation from the evidence pre
 
         sented, regardless of particular theories pled.  Shank v. Mercy 
 
         Hospital Medical Center, File No. 719627 (Appeal Decision Filed 
 
         August 28, 1989).
 
         
 
              In the present case, the Second Injury Fund denies any lia
 
         bility on the basis that the first injury, the injury to the left 
 
         ankle, is not permanent.
 
         
 
              This deputy is not persuaded by the argument of the Fund.  
 
         The first injury has been rated by the Veteran's Administration 
 
         as a 10 percent disability and claimant has been paid monthly 
 
         benefits from the Veteran's Administration.  Claimant has sought 
 
         treatment for the left ankle since 1975.  Claimant's testimony 
 
         establishes that claimant cannot control the side to side motion 
 
         of the left ankle.  His testimony indicates his left ankle "gives 
 
         out" on occasion.  Claimant's first injury is permanent.  He has 
 
         a 10 percent permanent partial disability.
 
         
 
              Likewise, the second injury is permanent.  The reasons for 
 
         the permanency have been cited previously.  Claimant has a 30 
 
         percent permanent partial disability.
 
         
 
              As aforementioned, the deputy is entitled to determine the 
 
         nature of claimant's injury and his entitlement to compensation.  
 
         Here, claimant has always been underemployed, despite having com
 
         pleted two programs at the community college.  He has held many 
 
         jobs throughout his career.  Many of the positions have paid min
 
         imum wages up to $5.25 per hour.  Claimant's employment has 
 
         always been unskilled.  He is currently attending classes at the 
 
         local community college.  He is not engaged in steady employment.  
 
         It is the determination of the undersigned that claimant has a 30 
 
         percent permanent partial disability.
 
         
 
              The following formula is used to determine the Second Injury 
 
         Fund's liability:
 
         
 
              150 weeks - Industrial disability from all impairments
 
             -220 x .10 = 22 weeks preexisting disabilities
 
             -220 x .30 = 66 weeks amount of disability for which                          
 
         defendant employer is responsible
 
                  62 weeks for which the Fund is responsible
 
              The formula as aforementioned is computed as:
 

 
         
 
         Page  12
 
         
 
         
 
         
 
         
 
              150 weeks
 
             - 22 weeks
 
             - 66 weeks
 
               62 weeks of Fund benefits
 
         
 
              The Fund is liable for 62 weeks at the stipulated rate of 
 
         one hundred seventy-five and 83/100 ($175.83) per week and com
 
         mencing on the date following the final payment of permanent par
 
         tial disability benefits by defendant-employer.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Defendants, employer and insurance carrier, are to pay unto 
 
         claimant fifty-one point two-eight-six (51.286) weeks of healing 
 
         period benefits at the stipulated rate of one hundred 
 
         seventy-five and 83/l00 dollars ($175.83) per week for the 
 
         periods from:
 
         
 
                          12-17-88     through     02-06-89
 
                          05-26-89     through     07-03-89
 
                          08-12-89     through     09-01-89
 
                          04-19-90     through     12-21-90
 
         
 

 
         
 
         Page  13
 
         
 
         
 
         
 
         
 
         
 
              Defendants, employer and insurance carrier, are to pay unto 
 
         claimant sixty-six (66) weeks of permanent partial disability 
 
         benefits commencing on December 22, 1990 at the stipulated rate 
 
         of one hundred seventy-five and 83/l00 dollars ($175.83) per 
 
         week.
 
         
 
              Defendants, employer and insurance carrier, are to pay unto 
 
         claimant four (4) weeks of 86.13 penalty benefits at the fifty 
 
         percent (50%) rate of eighty-seven and 92/l00 dollars ($87.92) 
 
         per week.
 
         
 
              Defendants shall take credit for all benefits previously 
 
         paid.
 
         
 
              Accrued benefits are to be paid in a lump sum together with 
 
         statutory interest at the rate of ten percent (10%) per annum, 
 
         pursuant to section 85.30, Iowa Code.
 
         
 
              Defendant, Second Injury Fund, is liable for sixty-two (62) 
 
         weeks of Fund benefits commencing on the day after defendants pay 
 
         the final permanent partial disability benefits and at the stipu
 
         lated rate of one hundred seventy-five and 83/l00 dollars 
 
         ($175.83) per week.
 
         
 
              Accrued benefits are to be paid in a lump sum together with 
 
         statutory interest at the rate of ten percent (10%) per year pur
 
         suant to section 85.30, Iowa Code, as amended, and commencing on 
 
         the date of the filing of this decision.
 
         
 
              Costs are taxed to defendants.
 
         
 
              Defendants shall file a claim activity report as requested 
 
         by this division and pursuant to rule 343 IAC 3.1.
 
         
 
         
 
         
 
              Signed and filed this ____ day of October, 1992.
 
         
 
         
 
         
 
         
 
         
 
                                       ______________________________               
 
                                       MICHELLE A. McGOVERN
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Dennis J. Mahr
 
         Attorney at Law
 
         318 Insurance Centre
 
         507 7th Street
 
         Sioux City, Iowa  51101
 
         
 
         Mr. Michael P. Jacobs
 
         Attorney at Law
 
         300 Toy National Bank Building
 
         Sioux City, Iowa  51101
 
         
 

 
         
 
         Page  14
 
         
 
         
 
         
 
         
 
         Ms. Shirley Ann Steffe
 
         Assistant Attorney General
 
         Tort Claims Division
 
         Hoover State Office Building
 
         Des Moines, Iowa  50319
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                             1803.1; 2500; 2501; 3200
 
                                             Filed October 26, 1992
 
                                             MICHELLE A. McGOVERN
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
                                         :
 
         LAWRENCE LeROY MURREN,          :
 
                                         :
 
              Claimant,                  :
 
                                         :
 
         vs.                             :
 
                                         :       File No. 903477
 
         WASTE MANAGEMENT, INC. a/k/a    :
 
         SOLID WASTE SERVICES/CONTAINER  :    A R B I T R A T I O N
 
         HAULAWAY,                       :
 
                                         :       D E C I S I O N
 
              Employer,                  :
 
                                         :
 
         and                             :
 
                                         :
 
         CNA INSURANCE COMPANIES,        :
 
                                         :
 
              Insurance Carrier,         :
 
                                         :
 
         and                             :
 
                                         :
 
         SECOND INJURY FUND OF IOWA,     :
 
                                         :
 
              Defendants.                :
 
         _________________________________________________________________
 
         
 
         
 
         1803.1
 
         Claimant was awarded a 30% permanent partial disability to the 
 
         right lower extremity.  There were three functional impairment 
 
         ratings given to claimant.
 
         
 
         
 
         3200
 
         Claimant was awarded benefits from the Second Injury Fund.
 
         
 
         
 
         2500; 2501
 
         Claimant was not awarded medical benefits in the form of a weight 
 
         loss program where claimant's treating orthopedic surgeon could 
 
         not state with a reasonable degree of medical certainty that a 
 
         loss of weight would affect claimant's functional impairment 
 
         rating, nor could the physician determine whether claimant could 
 
         lose weight in the program.
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            JOSEPH K. HENNESSEY,          :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 903497
 
            MID STATE CONSTRUCTION,       :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            CINCINNATI INSURANCE COMPANY, :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Joseph 
 
            K. Hennessey, claimant, against Mid State Construction, 
 
            employer, and Cincinnati Insurance Company, insurance 
 
            carrier, defendants, to recover benefits under the Iowa 
 
            Workers' Compensation Act as a result of an injury sustained 
 
            on March 28, 1988.  This matter came on for hearing before 
 
            the undersigned deputy industrial commissioner on March 20, 
 
            1991.  The record was considered fully submitted at the 
 
            close of the hearing.  The claimant was present and 
 
            testified.  Also present and testifying at the hearing was 
 
            Doug Sedlacek and Harold Webber.  The record in this case 
 
            consists of joint exhibits 2, 3 and 5; claimant's exhibits 
 
            1, 4, 6-14; and defendants' exhibits A, D-I, and K-O.
 
            
 
                                      issues
 
            
 
                 Pursuant to the prehearing report and order dated March 
 
            20, 1991, the parties have stipulated as follows:
 
            
 
                 1.  That an employer-employee relationship existed 
 
            between claimant and employer at the time of the alleged 
 
            injury;
 
            
 
                 2.  That the time off work for which claimant now seeks 
 
            either temporary total disability or healing period benefits 
 
            is November 17, 1988 through February 17, 1989;
 
            
 
                 3.  That the type of permanent disability, if the 
 
            injury is found to be a cause of permanent disability, is a 
 
            scheduled member disability to the right knee; and,
 
            
 
                 4.  That, in the event of an award of weekly benefits, 
 
            the rate of weekly compensation is $232.95 per week.
 
            
 
                 The issues in dispute in this case include:
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                 1.  Whether claimant sustained an injury on March 28, 
 
            1988, which arose out of and in the course of his employment 
 
            with employer;
 
            
 
                 2.  Whether the alleged injury is the cause of 
 
            temporary and permanent disability and the extent thereof;
 
            
 
                 3.  Whether claimant's medical expenses were incurred 
 
            for reasonable and necessary medical treatment;
 
            
 
                 4.  Whether the medical expenses are causally related 
 
            to the work injury; and,
 
            
 
                 5.  Whether claimant gave proper notice of his injury 
 
            as required by Iowa Code section 85.23.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned has carefully considered all the 
 
            testimony given at the hearing, the arguments made, and the 
 
            evidence contained in the exhibits herein and makes the 
 
            following findings:
 
            
 
                 Claimant was born on January 19, 1957 and graduated 
 
            from high school in 1976.  His work history is primarily as 
 
            a construction laborer and heavy equipment operator.  
 
            Specifically, claimant worked for Mid State Construction 
 
            Company as a laborer and heavy equipment operator from 1984 
 
            through July 22, 1988 when he was laid off due to lack of 
 
            work.  Claimant then went to work for Borst Brothers laying 
 
            sewer, water and storm sewer pipes and operating heavy 
 
            equipment.  Claimant could not remember his start-up date 
 
            but testified that he worked there until he had surgery on 
 
            November 17, 1988 and for a few months in the spring of 
 
            1989.  In October 1989, he went to work for Petroleum 
 
            Equipment installing fuel tanks.  He worked there for about 
 
            nine months and quit because he was not making enough money 
 
            and had traveled extensively.  In the summer and fall of 
 
            1990, he worked for William Hennessey and Son as a heavy 
 
            equipment operator.  Claimant testified that he has not 
 
            worked since the fall of 1990 because he cannot find a job 
 
            which would accommodate his right leg problems.
 
            
 
                 Claimant testified to suffering a traumatic event on 
 
            March 28, 1988, when he slipped while climbing back into the 
 
            loader he was operating and fell on his front right knee.  
 
            He stated that he stepped on the track and slipped and his 
 
            knee hit the steel track.  His knee appeared bruised and 
 
            swollen.  He stated that he reported the incident to his 
 
            foreman, Doug Sedlacek.  However, he continued working the 
 
            rest of the day running the equipment.  He did not request 
 
            any medical treatment because he thought it was just 
 
            bruised.  Mr. Sedlacek corroborated the claimant's testimony 
 
            and testified that claimant notified him of the incident on 
 
            the day it happened.
 
            
 
                 Claimant testified that he experienced intermittent 
 
            pain, swelling, stiffness and discoloration in his knee but 
 
            required no time off from work because of the problem.  In 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            October 1988, he hit his knee on a plastic shower door and 
 
            irritated his condition.  At this time, he sought medical 
 
            treatment at Mercy North Clinic and they referred him to IMC 
 
            where he saw W. John Robb, M.D.  Dr. Robb prescribed some 
 
            medication and exercises.  Claimant testified that he was 
 
            not satisfied with Dr. Robb's treatment and sought a second 
 
            opinion from Martin Roach, M.D.  Dr. Roach performed surgery 
 
            on November 17, 1988.
 
            
 
                 A review of the evidence reveals that the claimant was 
 
            seen at Mercy Care North on October 5, 1988, with complaints 
 
            of right knee pain radiating to the thigh area.  He had 
 
            bumped the knee one week prior when getting out of the 
 
            shower.  An x-ray was taken and he was seen by Dr. Robb on 
 
            October 6, 1988.  He diagnosed right knee strain.  He 
 
            recommended a period of rest and exercises.  Dr. Robb 
 
            recommended that claimant stay off work until October 17.  
 
            However, claimant continued to work and aggravated his knee 
 
            problems.  On October 31, 1988, Dr. Robb diagnosed internal 
 
            derangement, with probable tear of the lateral meniscus 
 
            (Joint Exhibit 2).
 
            
 
                 Being dissatisfied with Dr. Robb's treatment, claimant 
 
            presented to Dr. Roach for evaluation on November 3, 1988.  
 
            He diagnosed internal derangement of the right knee and 
 
            recommended arthroscopy.  On November 17, 1988, claimant 
 
            entered Mercy Hospital and Dr. Roach performed an 
 
            arthroscopy of the right knee, arthroscopic shaving of the 
 
            right knee patella, arthroscopic of the shaving of the 
 
            tibial plateau and lateral retinacular release.  A 
 
            postoperative diagnosis of traumatic chondritis with 
 
            superficial chondral fracture of the patella, patellar sub
 
            luxation and superficial chondromalacia of the lateral 
 
            tibial plateau, right knee was made (Ex. 1).
 
            
 
                 Claimant was taken off work and placed on physical 
 
            therapy, a knee immobilizer and crutches.  On February 3, 
 
            1989, Dr. Roach released claimant to return to unlimited 
 
            work activity at full capacity on February 17, 1989 (Ex. 5).
 
            
 
                 On April 21, 1989, Dr. Roach reported, on examination:  
 
            "Knee is tight.  Does have some atrophy of the quad."  Dr. 
 
            Roach noted some permanent arthritic changes in his knee as 
 
            a result of his injury and recommended modification of his 
 
            lifestyle to put less strain on his knee (Jt. Ex. 2, page 
 
            3).
 
            
 
                                conclusions of law
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that he received an injury on March 28, 1988 
 
            which arose out of and in the course of his employment.  
 
            McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); 
 
            Musselman v. Central Telephone Co., 261 Iowa 352, 154 
 
            N.W.2d 128 (1967). 
 
            
 
                 Claimant appeared at the hearing and testified to a 
 
            traumatic event on March 28, 1988.  He made immediate 
 
            complaint and reported the incident to his supervisor, 
 
            Douglas Sedlacek.  Mr. Sedlacek appeared at the hearing and 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            testified that he was claimant's supervisor at the time of 
 
            the incident and stated that claimant told him that he 
 
            slipped on a loader and fell on his right knee.  He 
 
            testified that it was reported to him on the same day that 
 
            the incident occurred.  He indicated that although it is 
 
            company policy to take a hurt worker to the doctor, Mr. 
 
            Hennessey did not seek medical treatment because he was not 
 
            aware of the seriousness of his condition and thought that 
 
            he only occurred a bruise to his right knee.  The evidence 
 
            is uncontroverted in this regard and the undersigned 
 
            concludes that claimant did sustain an injury which arose 
 
            out of and in the course of his employment on March 28, 
 
            1988, in the manner which he described at the hearing.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of March 28, 
 
            1988 is causally related to the disability on which he now 
 
            bases his claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
            N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 296, 18 
 
            N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903 (Iowa 1974).  However, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Id. at 907.  Further, the weight to be given to such 
 
            an opinion is for the finder of fact, and that may be 
 
            affected by the completeness of the premise given the expert 
 
            and other surrounding circumstances.  Bodish, 257 Iowa 516, 
 
            133 N.W.2d 867.  See also Musselman, 261 Iowa 352, 154 
 
            N.W.2d 128 (1967).
 
            
 
                 The medical evidence clearly demonstrates that in 
 
            November 1988, claimant was diagnosed with a chondral 
 
            fracture of the patella.  An operative report by Dr. Roach 
 
            on November 17, 1988, states that "[t]he patient had 
 
            persistent pain in the right knee related to a work injury 
 
            back in March, not responding to conservative treatment.  He 
 
            had actually bumped his knee in March and this was probably 
 
            responsible for the findings, namely the chondral fracture 
 
            of the patella" (Ex. 1).  There is no medical evidence in 
 
            the record to the contrary.  Therefore, claimant has shown 
 
            by a preponderance of the evidence that the injury of March 
 
            28, 1988, is causally related to the disability on which he 
 
            now basis his claim.
 
            
 
                 The next issue to be determined is whether claimant's 
 
            injury has resulted in permanent disability.  The medical 
 
            evidence indicates that the claimant was released for 
 
            regular employment in full capacity with no limitations or 
 
            restrictions on February 17, 1989 (Ex. 5).  On April 21, 
 
            1989, Dr. Roach advised the claimant not to work two heavy 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            labor jobs so as not to put so much strain on his knee (Ex. 
 
            2, p 3).  A reexamination by Dr. Roach on February 9, 1990, 
 
            revealed stable ligaments to varus and valgus stress 
 
            testing.  No effusion and normal range of motion was noted.  
 
            Dr. Roach did not give claimant an impairment rating or 
 
            permanent physical restrictions (Ex. 2, p. 4).
 
            
 
                 Claimant bears the burden of proof.  Claimant has 
 
            failed to show by a preponderance of the evidence that he 
 
            has suffered an injury which has resulted in a permanent 
 
            physical impairment.  Futhermore, there is insufficient 
 
            evidence to demonstrate a causal connection between the work 
 
            incident and claimant's condition even if it was permanent.  
 
            Accordingly, claimant is entitled to 13.286 weeks of 
 
            temporary total disability benefits at the stipulated rate 
 
            of $232.95 per week for the period from November 17, 1988 
 
            through February 17, 1989.
 
            
 
                 The final issue to be determined is claimant's 
 
            entitlement to medical benefits under Iowa Code section 
 
            85.27.  Defendants contend that they did not authorize 
 
            claimant's medical treatment.  Section 85.27 states that 
 
            "the employer is obliged to furnish reasonable services and 
 
            supplies to treat an injured employee, and has the right to 
 
            choose the care."  However, defendants have denied that 
 
            claimant's injury arose out of and in the course of the 
 
            employment.  Defendants cannot deny liability on the one 
 
            hand and guide the course of treatment on the other.  In 
 
            Barnhart v. MAQ Incorporated, I Iowa Industrial 
 
            Commissioner Report 16, 17 (Appeal Decision 1981).  Where 
 
            the employer denies liability for a work-related injury, the 
 
            employer loses the right to select the care which the 
 
            injured worker receives.  Id.  Accordingly, claimant is 
 
            entitled to receive payment for all reasonable and necessary 
 
            care incurred to treat his right knee injury.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 That defendants pay to claimant thirteen point 
 
            two-eight-six (13.286) weeks of compensation for temporary 
 
            total disability at the stipulated rate of two hundred 
 
            thirty-two and 95/l00 dollars ($232.95) per week for the 
 
            period from November 17, 1988 through February 17, 1989.
 
            
 
                 That defendants pay for all medical and mileage 
 
            expenses incurred as a result of the injury on March 28, 
 
            1988.
 
            
 
                 That defendants pay accrued amounts in a lump sum.
 
            
 
                 That defendants pay interest pursuant to Iowa Code 
 
            section 85.30.
 
            
 
                 That defendants pay costs pursuant to rule 343 IAC 
 
            4.33.
 
            
 
                 That defendants file claim activity reports as required 
 
            by this agency pursuant to rule 343 IAC 3.l.
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                 Signed and filed this ____ day of April, 1991.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________               
 
            JEAN M. INGRASSIA
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Donald L. Carr, II
 
            Attorney at Law
 
            1630 42nd St NE
 
            Suite E
 
            Cedar Rapids  IA  52402
 
            
 
            Mr. J. Richard Johnson
 
            Attorney at Law
 
            P O Box 607
 
            1715 First Ave SE
 
            Cedar Rapids  IA  52406
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           1108.50; 1402.20;
 
                           1402.60; 1801
 
                           Filed April 12, 1991
 
                           JEAN M. INGRASSIA
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            JOSEPH K. HENNESSEY,          :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 903497
 
            MID STATE CONSTRUCTION,       :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            CINCINNATI INSURANCE COMPANY, :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            
 
            1108.50; 1402.20; 1402.60; 1801
 
            Claimant demonstrated causal connection between work injury 
 
            and chondral fracture of the patella.  No permanency 
 
            causally related to injury shown.  Claimant released for 
 
            regular employment with no limitations or restrictions.
 
            Claimant entitled to medical benefits under section 85.27.
 
            
 
 
            
 
            
 
            
 
            
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            BRIAN W. HANSON,    
 
                      
 
                 Claimant, 
 
                                                File No. 903578
 
            vs.       
 
                                             A R B I T R A T I O N
 
            GRIFFIN PIPE PRODUCTS CO.,    
 
                                                D E C I S I O N
 
                 Employer, 
 
                 Self-Insured,  
 
                 Defendant.     
 
            ___________________________________________________________
 
                                  INTRODUCTION
 
            
 
                 This is a proceeding in arbitration filed by Brian W. 
 
            Hanson, claimant, against Griffin Pipe Products Co., 
 
            employer, and self-insured defendant, for benefits as a 
 
            result of an injury which occurred on December 14, 1988.  A 
 
            hearing was held in Council Bluffs, Iowa, on October 19, 
 
            1992.  Claimant was represented by Christopher J. Tinley.  
 
            Defendant was represented by W. Curtis Hewett.  The record 
 
            consists of the testimony of Brian W. Hanson, claimant, 
 
            Thomas G. Leedy, plant personnel manager, and joint exhibits 
 
            A through ff.
 
            
 
                                PRELIMINARY MATTER
 
            
 
                 The hearing assignment order in this case at paragraph 
 
            10 provides as follows:  "All exhibits, especially medical 
 
            records and reports, shall be organized by author in 
 
            chronological form or in such other rational manner."  The 
 
            written exhibits in this case violated this directive.  The 
 
            exhibits were not arranged either in chronological form by 
 
            author or in any other rational manner.  The order of the 
 
            exhibits was scrambled and disorganized and impaired, 
 
            complicated and delayed the ability of the deputy to make a 
 
            determination of the issues in this case.
 
            
 
                             CLARIFICATION OF CREDIT
 
            
 
                 Immediately following this injury claimant lost some 
 
            time from work.  It is not clear how much time he lost.  
 
            Exhibit P, the absentee record, shows it was two days, 
 
            December 15 and 16 of 1988.  Claimant testified the safety 
 
            director gave him two weeks off (Transcript pages 46 & 47).  
 
            James P. O'Hara, M.D., reported that claimant returned to 
 
            work on January 6, 1989, which is 3.429 weeks after the date 
 
            of injury (Exhibit B).  Daniel L. McKinney, M.D., reported 
 
            that claimant lost 17 days from work which is 3.571 weeks 
 
            (Ex. F).  Dr. Behrouz Rassekh, M.D., reported that claimant 
 
            returned to work on January 7, 1989, which is 3.571 weeks 
 
            lost from work immediately after the injury (Ex. V).  
 
            However, the exact number of days or weeks is not material 
 
            because the hearing report specified that claimant is only 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            seeking temporary disability for the period from August 6, 
 
            1991 through November 22, 1991 (Hearing Report, page 1).  
 
            However, this may nullify any credit against the benefits 
 
            awarded in this decision for the reason that it would appear 
 
            that the 4.714 weeks of benefits that the parties stipulated 
 
            to on the hearing report were paid to claimant prior to 
 
            hearing were paid for this earlier period rather than the 
 
            period of from August 6, 1991 through November 22, 1991.
 
            
 
                                      ISSUES
 
            
 
                 The parties submitted the following issues for 
 
            determination at the time of the hearing.
 
            
 
                 Whether claimant is entitled to temporary or permanent 
 
            disability benefits, and if so, the extent of benefits to 
 
            which he is entitled.  
 
            
 
                 Whether claimant is entitled to medical benefits.
 
            
 
                                 FINDINGS OF FACT
 
            
 
              causal connection-entitlement-temporary and permanent 
 
                                     benefits
 
            
 
                 As stipulated to by the parties, it is determined that 
 
            the injury was the cause of both temporary and permanent 
 
            disability.  It is further determined that the injury was 
 
            the cause of the specific temporary and permanent disability 
 
            awarded in this decision.
 
            
 
                 It is determined that claimant is entitled to healing 
 
            period benefits from August 6, 1991 through November 22, 
 
            1991, a period of 15.571 weeks.  Dr. O'Hara took claimant 
 
            off work on August 6, 1991 (Ex. T).  Claimant first returned 
 
            to work on the first working day after November 22, 1991, 
 
            which is the first date on which employer could provide 
 
            accommodated work for claimant, after Dr. O'Hara returned 
 
            him to work with restrictions on November 8, 1991 (Ex. C).  
 
            Healing period does not end when an injured employee is 
 
            released to return to work with restrictions.  It did 
 
            terminate when claimant actually returned to work.  Iowa 
 
            Code section 85.34(1).
 
            
 
                 It is determined that claimant is entitled to 100 weeks 
 
            of permanent partial disability benefits based upon a 20 
 
            percent industrial disability to the body as a whole.  
 
            
 
                 The supporting evidence for these determinations of 
 
            causation and entitlement to temporary and permanent 
 
            disability is as follows.
 
            
 
                 Claimant, born April 12, 1961, was 27 years old at the 
 
            time of the injury, 31 years old at the time of the hearing 
 
            and 32 years old at the time of this decision.  Claimant 
 
            graduated from high school and completed one year of 
 
            college.  His employments include cleaning up campers and 
 
            trailers as well as making pickups and deliveries, 
 
            convenience store clerk and gas station attendant, carpenter 
 
            and mold reconditioner repairing dents in molds.  Claimant 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            started to work for employer on May 26, 1987.  His various 
 
            jobs for employer have been general laborer, material 
 
            handler, bundler and ductile iron treater (Exs. I & O).  
 
            Claimant continues to work for employer, who has 
 
            accommodated claimant's restrictions imposed by the 
 
            unauthorized, yet nevertheless, primary treating physician 
 
            and operating orthopedic surgeon.  
 
            
 
                 Claimant related that on December 14, 1988, another 
 
            employee signaled to him that he wanted to talk to claimant 
 
            from the other side of the 24-foot wide production line.  
 
            The plant is divided by the production line and is also very 
 
            noisy.  Therefore a common method of communication in order 
 
            to speak to another person is to talk into a piece of pipe 
 
            coming down the production line as a conduit for the sound 
 
            of one's voice.  Claimant bent down to a piece of pipe on 
 
            the production line to listen to the employee who wanted to 
 
            talk to him.  Just then a machine operator activated the 
 
            sound hood, which claimant testified weighed over 1,000 
 
            pounds.  Claimant related that the sound hood came down, 
 
            struck him in the back and pinned his neck, right shoulder 
 
            and chest between the upper and lower portions of the sound 
 
            hood device.  The normal function of the sound hood is to 
 
            insulate the noise of the saw cutting the pipe.  Claimant 
 
            testified that when the sound hood hit him on the back he 
 
            was knocked unconscious.  He said that he does not remember 
 
            anything until the next day when he awoke in the hospital.  
 
            Claimant stated that he was held in the hospital overnight 
 
            for observation.  
 
            
 
                 The records of Mercy Hospital in Council Bluffs, Iowa 
 
            for December 14, 1988, show that claimant was treated by M. 
 
            K. Zlomke, M.D., for a pinning injury at work (Ex. Q).  Dr. 
 
            Zlomke's physical examination found (1) full but deliberate 
 
            range of motion of the neck due to abrasions on the anterior 
 
            lower neck, (2) tenderness over the right acromial 
 
            clavicular joint, and (3) abrasions of the dorsal spine at C 
 
            6 to T 4.  X-rays disclosed an acromial clavicular 
 
            separation and a possible fracture of the second rib on the 
 
            right posteriorly.  At the time of claimant's admission to 
 
            the hospital his entire right arm was numb, but after 
 
            claimant worked with his arm in the hospital the doctor 
 
            noted on the following day, when claimant was discharged, 
 
            that he only had some distal paresthesia of the right upper 
 
            extremity in the distal fingertips dorsally (Ex. Q).  
 
            
 
                 Claimant denied and there is no evidence of any prior 
 
            problems with his neck, back or shoulders.  Claimant further 
 
            testified that he had a preemployment x-ray and that he was 
 
            not told that he had any preexisting problems (Tran., p. 
 
            55).  
 
            
 
                 Claimant testified that he was authorized to see 
 
            Behrouz Rassekh, M.D., a neurosurgeon, for one or two weeks 
 
            and then he was released (Tran., p. 48).  There are no 
 
            medical records or medical evidence of the treatment 
 
            received from Dr. Rassekh in 1988.  Claimant contended that 
 
            Dr. Rassekh did not provide any physical therapy or any 
 
            other kind of care (Tran., pp. 50 & 51).  However, the 
 
            record shows that claimant did receive physical therapy from 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            Dr. Rassekh for one week sometime later on September 25, 
 
            1990 (Ex. U).  
 
            
 
                 Claimant further contended that Dr. Rassekh told him 
 
            that it would take a long time maybe even a year for all of 
 
            the pain to dissipate because the bruises were very deep and 
 
            it would take a long time for them to heal (Tran., p. 47).  
 
            Dr. Rassekh did not impose any restrictions on claimant's 
 
            work (Tran., p. 48).  However, claimant testified that it 
 
            was necessary for him to change the way in which he did some 
 
            jobs (Tran., p. 48).  
 
            
 
                 Claimant told that he waited the allotted time of a 
 
            year or so for the pain to go away.  When it did not do so 
 
            he talked to the plant personnel manager at that time about 
 
            seeing a doctor.  Claimant testified that he was told that 
 
            his recent job change from material handler to general labor 
 
            was causing his problem because he was not sufficiently 
 
            conditioned for it (Tran., pp. 49 & 50).  Claimant related 
 
            that when he saw Dr. Rassekh again he was told there was 
 
            nothing wrong with him and Dr. Rassekh recommended full work 
 
            (Tran., p. 50).   Claimant further testified that the 
 
            personnel manager denied him any medical care other than the 
 
            care of Dr. Rassekh (Tran., pp. 53 & 54).
 
            
 
                 Claimant then contacted James P. O'Hara, M.D., an 
 
            orthopedic surgeon, on his own on July 2, 1990 for his 
 
            complaints about his neck, back and shoulder which according 
 
            to the doctor were caused by the sound hood falling on him 
 
            on December 14, 1988 (Ex. B).  Dr. O'Hara reported that 
 
            claimant was working as a bundler at the time of this 
 
            examination which involved stacking pipes on 4 x 4s and 
 
            banding them together.  This involved overhead work using 
 
            the banding machine.  Dr. O'Hara diagnosed that claimant had 
 
            sustained a concussion, multiple contusions and abrasions 
 
            and presently had a rotator cuff impingement syndrome.  He 
 
            ordered an MRI of the cervical spine and right shoulder (Ex. 
 
            B; Ex. ee, pp. 7 & 8).  On July 23, 1990, Dr. O'Hara 
 
            reported that the MRI's showed an increased uptake around 
 
            the bicepital tendon on the right side and in the right AC 
 
            joint compatible with chronic bicepital tendinitis.  
 
            
 
                 With respect to causal connection Dr. O'Hara stated 
 
            that the patient's problems are predominantly related to the 
 
            injury and were aggravated by his continued work.  He 
 
            recommended either a change of employment or a job 
 
            modification of claimant's work.  He specified that claimant 
 
            was to avoid overhead work (Ex. R, p. 1).
 
            
 
                 After claimant saw Dr. O'Hara on his own authority, he 
 
            was then directed by employer to see Daniel L. McKinney, 
 
            M.D., another neurosurgeon, as the authorized treating 
 
            physician (Tran., p. 57).  The new plant personnel manager 
 
            at this time, Thomas G. Leedy, wrote to claimant on August 
 
            27, 1990, that Dr. McKinney was the authorized treating 
 
            physician and that any other physician would be unauthorized 
 
            and would not be paid by employer (Ex. J).  
 
            
 
                 Claimant saw Dr. McKinney on September 7, 1990.  Dr. 
 
            McKinney proceeded to examine and recommend for claimant on 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            the basis of the history of the sound hood injury.  He found 
 
            that claimant had sustained a straining injury to his neck 
 
            and a direct injury to his right shoulder.  He commented 
 
            that the MRI ordered by Dr. O'Hara showed a slight bulging 
 
            of the disc at C-5.  Dr. McKinney made a report but rather 
 
            than send it to the plant personnel manager he addressed it 
 
            to Dr. O'Hara.  He recommended that claimant continue with 
 
            the conservative care of Dr. O'Hara.  
 
            
 
                 Dr. McKinney's report is dated September 13, 1990 (Ex. 
 
            F).  On this same date, September 13, 1990, Leedy, the new 
 
            plant personnel manager wrote three letters.  (1) He 
 
            informed claimant that Dr. O'Hara was not an authorized 
 
            physician and that employer would not pay for his care.  
 
            Instead he reauthorized, effective immediately, that Dr. 
 
            Rassekh was the authorized treating physician (Ex. K), (2) 
 
            the plant personnel manager also wrote to Dr. McKinney on 
 
            this date to express his dissatisfaction that Dr. McKinney 
 
            had authorized claimant to see Dr. O'Hara without any 
 
            authority from the employer.  He further told Dr. McKinney 
 
            that he referred claimant to him only as an evaluating 
 
            physician (Ex. L), (His letter of August 27, 1990 told 
 
            claimant Dr. McKinney was a treating physician Ex. J) and 
 
            (3) the personnel manager wrote to Dr. O'Hara to inform him 
 
            that he was not an authorized treating physician and that 
 
            employer would not pay for any of his charges (Ex. M).  
 
            
 
                 Claimant testified that he continued to see Dr. Rassekh 
 
            about getting surgery, but according to claimant, Dr. 
 
            Rassekh told him that there was nothing that he could do for 
 
            him and eventually told claimant that claimant's injury was 
 
            not in his field of expertise (Tran., p. 59).  The record 
 
            shows that on September 25, 1990, Dr. Rassekh confirmed that 
 
            the MRI of Dr. O'Hara showed some bulging disc at C 5-6 and 
 
            that claimant continued to complain of pain in the right 
 
            side of the neck and the right shoulder (Ex. V).  Later, on 
 
            June 17, 1991, Dr. Rassekh wrote that claimant had no 
 
            neurosurgical or neurological disability.  He said that 
 
            claimant's problems were of an orthopedic nature and 
 
            therefore any restrictions should be recommended by an 
 
            orthopedic surgeon (Ex. A).
 
            
 
                 Claimant returned to Dr. O'Hara again as a matter of 
 
            his own personal choice on June 20, 1991, approximately one 
 
            year after his first contact with Dr. O'Hara on July 2, 
 
            1990.  This time his complaint focused on his upper thoracic 
 
            spine.  Dr. O'Hara found no change on the new thoracic spine 
 
            films different from what was found in December of 1988, 
 
            when the injury occurred (Ex. R, p. 2).  
 
            
 
                 After claimant saw Dr. O'Hara a second time without 
 
            authority he was directed verbally by employer to see Ronald 
 
            K. Miller, M.D., an orthopedic surgeon (Tran., p. 60).  On 
 
            July 17, 1991, Dr. Miller reported that an MRI which he had 
 
            ordered was suspicious for a partial tear of the rotator 
 
            cuff.  Dr. Miller diagnosed AC separation, possible partial 
 
            right rotator cuff.  It should be noted that back on 
 
            December 14, 1988, Dr. Zlomke recorded an acromial 
 
            clavicular separation based on x-rays taken at the time (Ex. 
 
            Q).  Also, Dr. O'Hara diagnosed rotator cuff impingement on 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            July 2, 1990 (Ex. B).
 
            
 
                 Dr. Miller gave claimant a steroid injection and 
 
            prescribed medication for pain.  He found claimant to be in 
 
            full work status, but ordered a follow-up examination in six 
 
            weeks on August 28, 1991 (Ex. W & ee, p. 6).  He added that 
 
            if claimant continues to have trouble that he may need a 
 
            resection of the tip of the clavicle and probably should 
 
            have his rotator cuff explored at that time (Ex. W).  Even 
 
            though claimant was returned to full work (Ex. W), 
 
            nevertheless, at the same time, Dr. Miller also prescribed 
 
            light work on July 17, 1991, which he defined as lifting ten 
 
            pounds frequently and a maximum of twenty pounds at most 
 
            (Ex. X).  
 
            
 
                 Even though claimant had a return appointment with Dr. 
 
            Miller for August 28, 1991, he nevertheless returned to see 
 
            Dr. O'Hara on August 6, 1991, at which time the doctor noted 
 
            that MRIs had established cervical disc disease at C-5-6, 
 
            rotator cuff impingement syndrome and right 
 
            acromicolavicular degenerative joint disease.  He related 
 
            that claimant had snapping with abduction and external 
 
            rotation in the right A/C joint.  Dr. O'Hara further stated 
 
            that because of claimant's long-standing complaints he 
 
            recommended a resection of the A/C joint and acromioplasty 
 
            (Ex. R, p. 3; Ex. S).  He issued a prescription slip on 
 
            August 6, 1992 to the affect that claimant would be totally 
 
            disabled from that date for one month (Ex. T).  The plant 
 
            personnel manager wrote to claimant the following day, on 
 
            August 7, 1991, reinforming claimant that Dr. O'Hara was not 
 
            the authorized physician and that employer would not be 
 
            responsible for any bills submitted by Dr. O'Hara (Ex. N).  
 
            
 
                 Nevertheless, Dr. O'Hara performed a resection of the 
 
            lateral end of the clavicle and acromioclavicular joint and 
 
            Neer acromioplasty of the right shoulder on August 9, 1991 
 
            (Ex. R, p. 3; Ex. dd, Deposition Ex.; Ex. Z).  After the 
 
            surgery a normal EMG and nerve conduction test were reported 
 
            on September 23, 1991 (Ex. H; Ex. dd, pp. 22 & 23).
 
            
 
                 Claimant was released to return to work on November 8, 
 
            1993, with restrictions of no overhead work and no 
 
            repetitive lifting over thirty pounds (Ex. C).  The parties 
 
            agreed that claimant was unable to actually return to 
 
            accommodated work until after November 22, 1991.  The 
 
            parties stipulated that claimant was off work from August 6, 
 
            1991 through November 22, 1991 (Hearing Report, p. 1; Tran., 
 
            p. 4).  Thus, the only evidence of healing period is from 
 
            August 6, 1991 through November 22, 1991.  There is no 
 
            opposing evidence or argument to the contrary.  Therefore, 
 
            it is determined that claimant is entitled to healing period 
 
            benefits from August 6, 1991 through November 22, 1991.
 
            
 
                 On March 6, 1992, Dr. O'Hara reported that claimant was 
 
            having intermittent popping between the shoulder blades and 
 
            pain toward the end of the day.  Claimant was continued on 
 
            pain medication.  Dr. O'Hara renewed the previous 
 
            restrictions.  He reported that claimant had a complete 
 
            range of motion of the right shoulder with pain on extremes.  
 
            Some fine crepitus was palpable over the distal clavicle and 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            rotator cuff.  He said that claimant had attained maximum 
 
            medical improvement (Ex. D).
 
            
 
                 Even though claimant attained maximum medical 
 
            improvement on March 6, 1992, nevertheless, healing 
 
            terminated when claimant returned to work on the earlier 
 
            date which was the first working day after November 22, 1991 
 
            (Iowa Code section 85.34(1)).  
 
            
 
                 On April 16, 1992, Dr. O'Hara reported that claimant 
 
            had the same problems.  He assessed that claimant had 
 
            sustained a five percent permanent impairment to the 
 
            cervical spine and a ten percent impairment to the right 
 
            shoulder (Ex. E).  
 
            
 
                 On June 19, 1992, claimant was reexamined by Dr. Miller 
 
            who recorded shoulder pain as a diagnosis.  He found a full 
 
            range of motion and no crepitus.  He said that a physical 
 
            capacity examination (not in evidence in the record) showed 
 
            good strength.  Dr. Miller took claimant off light work and 
 
            returned him to full work at his regular job (Ex. G).  
 
            
 
                 Claimant contended that Dr. Miller's opinion about 
 
            returning to full work should be discounted because Dr. 
 
            Miller had no job description and no idea of what claimant's 
 
            job duties entailed (Tran. pp. 29 & 68).
 
            
 
                 Claimant testified that he knew Dr. Miller but that the 
 
            relationship was not friendly.  Claimant testified that when 
 
            he was a child the farm of his family was adjacent to Dr. 
 
            Miller's home and there were conflicts between his family 
 
            and Dr. Miller's children (Tran., pp. 52 & 53).  
 
            
 
                 Dr. O'Hara testified by deposition on October 15, 1992 
 
            that he is a board certified orthopedic surgeon (Ex. dd, pp. 
 
            6 & 7).  He described that the surgery disclosed that the 
 
            right A/C joint was essentially destroyed (Ex. dd, p. 20).  
 
            He said that claimant still had some crepitus and pain in 
 
            the neck and right shoulder but that he had done all that he 
 
            could do for him except to continue to prescribe nonsteriod 
 
            anti-inflammatory medications (Ex. dd, p. 27).
 
            
 
                 Dr. O'Hara testified that he had an opinion as to the 
 
            cause of claimant's neck and shoulder problems.  The 
 
            following quoted statement substantiates the determination 
 
            of this deputy that this injury was the cause of claimant's 
 
            temporary and permanent disability.  Dr. O'Hara testified,
 
            
 
                 "I believe that the cause of Mr. Hanson's neck and 
 
                 shoulder problem was the accident which occurred 
 
                 in December of 1988 and subsequent aggravation of 
 
                 this problem by the nature of his work." (Ex. dd, 
 
                 pp. 27 & 28).
 
            
 
                 This testimony is not controverted, contradicted, 
 
            rebutted or refuted by any other evidence.
 
            
 
                 Dr. O'Hara further supplied that claimant's injury was 
 
            permanent (Ex. dd, p. 28).  Dr. O'Hara testified,
 
            
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
                 "Q.  Could you explain to me what you mean by 
 
                 permanent?
 
            
 
                 "A.  Well, permanent because his shoulder has been 
 
                 changed.  It is not like it was before.  Both from 
 
                 his injury and the necessary treatment to his 
 
                 shoulder.  So he doesn't have an A/C joint.  He 
 
                 has a rotator cuff which will give him problems 
 
                 intermittently.  He has degenerative posttraumatic 
 
                 cervical disc disease which will give him a 
 
                 problem the rest of his life intermittently with 
 
                 neck pain, shoulder pain.  I guess that's what I 
 
                 mean by permanent." (Ex. dd, p. 36).
 
            
 
                 Dr. O'Hara explained that his impairment rating of five 
 
            percent to the neck and ten percent to the shoulder by 
 
            saying the percentages convert and combine to be a ten 
 
            permanent impairment to the body as a whole.  He 
 
            acknowledged that his ratings are based on the AMA Guides 
 
            and his own personal experience and judgment (Ex. dd, pp. 
 
            28, 29, 37 & 38).
 
            
 
                 There are no other impairment ratings in the record.
 
            
 
                 Dr. O'Hara did not anticipate any additional surgery 
 
            but did indicate that claimant would need intermittent 
 
            medications (Ex. dd, p. 30).  He said this impairment would 
 
            not decrease (Ex. dd, p. 50).  He added that his previous 
 
            restrictions were now considered to be permanent.  He said 
 
            that claimant should avoid overhead work.  He should not 
 
            lift more than 50 pounds one time.  He should avoid 
 
            repetitive lifting of more than 30 pounds and he defined 
 
            repetitive as five times in one hour (Ex. dd, p. 30 & 48).  
 
            He testified that claimant has potential to become 
 
            symptomatic again if he doesn't avoid these activities (Ex. 
 
            dd, p. 49).
 
            
 
                 The doctor testified that he requested a job 
 
            description from employer several times but never received 
 
            one (Ex. dd, p. 41).  The plant personnel manager, however, 
 
            testified that the company does not have job descriptions 
 
            but only classifications for contract negotiations with the 
 
            union (Ex. ff, Tran., pp. 128 & 129). 
 
            
 
                 Claimant testified that as of the time of the hearing 
 
            that his shoulder still gets sore and numb on the outer 
 
            edges (Tran., pp. 73 & 74).  His neck can range from feeling 
 
            fine to very, very tender.  He said he has a large loss of 
 
            rotation.  He said that he is not able to turn his head 
 
            nearly as far as if he had not been injured (Tran., p. 74).  
 
            Claimant said he was precluded from performing a lot of 
 
            personal activities such as changing oil in his car, 
 
            engaging in archery, pin shooting, home remodeling, auto 
 
            mechanics and carpentry (Tran., p. 89).  Claimant alleged 
 
            that the bulging disc in his neck causes headaches (Tran., 
 
            p. 90).
 
            
 
                 Claimant's personal complaints appear to be consistent 
 
            with the objective findings of injury in this case, Dr. 
 
            O'Hara's findings, and Dr. Miller's findings.  They do not 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            appear to be exaggerated or excessive.  
 
            
 
                 Claimant contended that he is a general laborer earning 
 
            $10.695 per hour (Ex. ff, Tran., p. 75).  He testified that 
 
            he could also be a material handler if the job was 
 
            accommodated by employer.  He said that his restrictions 
 
            preclude him from performing the work of a bundler and a 
 
            ductile iron treater because of the lifting restrictions.  
 
            General laborer is the lowest paying job (Ex. ff).  Claimant 
 
            testified that he is relegated to be a general laborer for 
 
            the rest of his career with employer (Tran., p. 96).  
 
            
 
                 At the same time claimant testified that his earnings 
 
            have never decreased but have always increased (Tran., p. 
 
            96; Ex. I).  Claimant further admitted that he did not feel 
 
            that he was in any danger of losing his job (Tran., p. 109).  
 
            He further testified that he wants to keep his job (Tran., 
 
            pp. 113 & 114).
 
            
 
                 One of claimant's major complaints was that his ability 
 
            to advance is severely limited (Tran., p. 114).  He 
 
            testified that 68 persons have been hired after him and all 
 
            of them, except one, have advanced to higher paying jobs 
 
            (Tran., pp. 110 & 111).  Claimant felt that he is stuck in 
 
            the lowest paying job with employer without any chance of 
 
            advancement.  
 
            
 
                 Leedy, the plant personnel manager, testified that jobs 
 
            are based on bidding and seniority and that claimant could 
 
            bid on anything which he felt qualified for and for which he 
 
            had seniority (Tran., p. 132).  He speculated that claimant 
 
            was a general laborer because that is what he wanted to do 
 
            (Tran., p. 132).  Leedy testified that claimant's job was 
 
            secure (Tran., p. 133).  Leedy testified that he did not 
 
            feel obligated to comply with Dr. O'Hara's restrictions but 
 
            that he had voluntarily done so in order to prevent any 
 
            further injury to claimant.
 
            
 
                 On the brighter side claimant is young enough, in his 
 
            early thirties, to change careers or find a different kind 
 
            of employment Beck v. Turner Bush, Inc., 34 Thirty-fourth 
 
            Biennial Report of the Industrial Commissioner 34 (App. Dec. 
 
            1979); Walton v. B & H Tank Corp., II Iowa Industrial 
 
            Commissioner Report 426 (1981); McCoy v. Donaldson Company, 
 
            Inc., file numbers 782670 & 805200 (App. Dec. 1989).  
 
            
 
                 With a high school education and one year of college it 
 
            would appear that claimant has the intellectual capacity for 
 
            either (1) academic training or (2) on-the-job training or 
 
            retraining for other employment endeavors Conrad v. 
 
            Marquette School, Inc., IV Iowa Industrial Commissioner 
 
            Report 74, 89 (1984).
 
            
 
                 Wherefore, based upon the following factors (1) that 
 
            claimant sustained a very severe traumatic injury when a 
 
            1,000 pound sound hood pinned his upper torso in the 
 
            machinery which caused chest, cervical spine, thoracic spine 
 
            and right shoulder injuries, (2) that claimant lost 
 
            consciousness due to the traumatic injury, required 
 
            hospitalization and eventually a resection of the 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            acromioclavicular joint and arcomioplasty for a shoulder 
 
            separation first diagnosed when claimant was hospitalized 
 
            immediately after the injury, (3) that the primary treating 
 
            physician and operating surgeon (Dr. O'Hara) determined that 
 
            claimant has sustained a ten percent permanent impairment to 
 
            the body as a whole, (4) that claimant is permanently 
 
            restricted from overhead work with his right upper 
 
            extremity, restricted from lifting more than 50 pounds one 
 
            time, and restricted from repetitively lifting more than 30 
 
            pounds, (4) that Dr. O'Hara said claimant would have 
 
            continuing problems and would require continued nonsteriod 
 
            anti-inflammatory medications intermittently for right neck 
 
            and right shoulder pains into the indefinite future, (5) 
 
            that Dr. O'Hara said that claimant's acromioclavicular joint 
 
            was essentially destroyed, that his shoulder is permanently 
 
            changed, that he no longer has an acromioclavicular joint, 
 
            that his rotator cuff will give him problems intermittently 
 
            and that degenerative posttraumatic cervical disc disease 
 
            will give him a problem the rest of his life intermittently 
 
            with neck pain and shoulder pain, (6) that claimant did not 
 
            have any preexisting problems of this nature prior to this 
 
            injury, (6) that claimant's chances for advancement in job 
 
            earnings are severely restricted even though he has never 
 
            suffered an actual loss of earnings since the injury, (7) 
 
            that employer has accommodated claimant's restrictions and 
 
            that his job is not in any jeopardy at this time and (8) 
 
            considering claimant's age, education and capacity for 
 
            retraining it is determined that claimant has sustained a 20 
 
            percent industrial disability to the body as a whole and is 
 
            entitled to 100 weeks of permanent partial disability 
 
            benefits.  
 
            
 
                 This award would be substantially higher except for the 
 
            fact that employer has attempted to accommodate claimant's 
 
            job restrictions and that his continued employment with 
 
            employer is not in jeopardy.  At the same time it must be 
 
            considered that the opportunity afforded by employer to 
 
            claimant to continue to work at accommodated tasks would not 
 
            transfer to other employers in the competitive employment 
 
            market if claimant was forced to seek work with a new 
 
            employer with no seniority and an unknown performance record 
 
            Hartwig v. Bishop Implement Company, IV Iowa Industrial 
 
            Commissioner Report, 159 (App. Dec. 1984).  Claimant would 
 
            not find the same careful accommodations of his restrictions 
 
            and limitations in his neck and shoulder with a new employer 
 
            Todd v. Department of General Services, Buildings and 
 
            Grounds, IV Industrial Commissioner Report 373 (1983).  
 
            
 
                 No claim was made for penalty benefits under Iowa Code 
 
            section 86.13(4).
 
            
 
                                 MEDICAL BENEFITS
 
            
 
                 It is clear from the foregoing summary of the evidence 
 
            that Dr. O'Hara was not an authorized physician.  On the 
 
            contrary, employer promptly notified claimant, in writing, 
 
            after each time that he saw Dr. O'Hara that Dr. O'Hara was 
 
            not an authorized treating physician and that they would not 
 
            honor his bills.  
 
            
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
                 Employer is entitled to the right to choose the care, 
 
            Iowa Code section 85.27 unnumbered paragraph 4.  At the same 
 
            time, employer did not provide effective orthopedic care 
 
            until after claimant engaged the services of Dr. O'Hara, his 
 
            own orthopedic surgeon, on two different occasions.  
 
            
 
                 The right to choose the care is not absolute.  It 
 
            depends on the facts and circumstances of any given case.  
 
            Santucci v. Air and Water Technologies Corp., File No. 
 
            967995, filed April 23, 1993; Morrison v. Excel Corp., 
 
            1037299, filed May 6, 1993.edic 
 
            problem.  Nevertheless, employer repeatedly authorized 
 
            claimant to see only a neurosurgeon, Dr. Rassekh.
 
            
 
                 Dr. Rassekh told claimant in the beginning that there 
 
            was nothing he could do for him according to claimant's 
 
            unrebutted testimony.  The medical records of Dr. Rassekh 
 
            for claimant's initial treatment by him were not introduced 
 
            into evidence.
 
            
 
                 Claimant testified that he waited a year or so as 
 
            recommended by Dr. Rassekh for the pain to dissipate simply 
 
            by the expiration of time and apparently the ability of the 
 
            body to heal itself over time.  After a year passed and 
 
            claimant still had problems with his neck, shoulder and 
 
            upper back he asked the former plant personnel manager at 
 
            that time if he could see a doctor.  According to claimant's 
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            unrebutted testimony he was denied this request.  Instead, 
 
            he was told that he simply wasn't properly conditioned for 
 
            the general laborer job after working as a material handler.
 
            
 
                 Claimant testified that when he saw Dr. Rassekh again 
 
            he was told that there was nothing wrong with him and Dr. 
 
            Rassekh recommended full work (Tran., p. 50).  Thus, in 
 
            order to obtain proper orthopaedic care claimant was forced 
 
            to see Dr. O'Hara at his own expense.
 
            
 
                 Dr. O'Hara unequivocally causally connected claimant's 
 
            complaints to this injury.  Dr. O'Hara ordered an MRI which 
 
            disclosed orthopaedic problems, to wit:  bicipital 
 
            tendinitis and acromical-clavicular joint problems.  
 
            Nevertheless, employer's response was to send claimant to 
 
            see another neurosurgeon, Dr. McKinney.  When Dr. McKinney 
 
            recognized that claimant had orthopaedic problems he told 
 
            claimant to continue with Dr. O'Hara, an orthopaedic 
 
            surgeon. 
 
            
 
                 Employer's response to Dr. McKinney's recommendation 
 
            was to refer claimant back to Dr. Rassekh, the neurosurgeon, 
 
            who had been unable to treat claimant effectively for a year 
 
            and a half and who had never ordered an MRI himself, or 
 
            requested any other advanced objective tests in the face of 
 
            claimant's continued complaints of pain.  Nor did Dr. 
 
            Rassekh take the initiative to refer claimant to an 
 
            orthopaedic surgeon where claimant could receive orthopaedic 
 
            care.  Typically, if a doctor is unable to help a patient, 
 
            and the patient still has complaints, then that doctor will 
 
            refer the patient to someone who he believes can help the 
 
            patient.  This is not only in the best interest of the 
 
            patient but also the doctor's exposure for potential 
 
            liability for ineffective treatment.
 
            
 
                 It wasn't until June 17, 1991, some two and one-half 
 
            years after the date of injury, that Dr. Rassekh, belatedly, 
 
            in a response to a letter from claimant's attorney admitted 
 
            (in writing) that claimant's problems were orthopaedic in 
 
            nature and that any restrictions should be recommended by an 
 
            orthopaedic surgeon (Ex. A).
 
            Iowa Code section 85.27, unnumbered paragraph four, 
 
            provides:  "The treatment must be offered promptly and be 
 
            reasonably suited to treat the injury without undue 
 
            inconvenience to the employee."
 
            
 
                 Employer violated the duty to promptly provide care 
 
            reasonably suited to treat the injury and caused the 
 
            employee the lengthy inconvenience of untreated pain by not 
 
            providing claimant with the effective care of an orthopaedic 
 
            surgeon.  By violating the duty to promptly offer medical 
 
            care reasonably suited to treat the injury employer 
 
            forfeited the right to choose the care until they did 
 
            provide the proper care and therefore are liable for the 
 
            medical expenses of Dr. O'Hara and the tests and medications 
 
            that he ordered up until defendant employer offered the 
 
            effective orthopedic care of Dr. Miller.
 
            
 
                 If Dr. Rassekh, the authorized treating physician by 
 
            employer for the entire period of time from the date of the 
 

 
            
 
            Page  13
 
            
 
            
 
            
 
            
 
            injury in December of 1988, until shortly before claimant's 
 
            surgery in 1991, was not able to provide the proper care 
 
            because he is a neurosurgeon and claimant's problem was 
 
            orthopedic in nature, then Dr. Rassekh should have said so 
 
            before June 17, 1991 (Ex. A).  True, Iowa Code section 
 
            85.27, unnumbered paragraph 4 provides  that the employer 
 
            has the right to choose the care but equal attention must be 
 
            given to the next sentence which states "The treatment must 
 
            be offered promptly and be reasonably suited to treat the 
 
            injury without undue inconvenience to the employee."
 
            
 
                 Thus, it cannot be said in this case that employer 
 
            acquiesced in the care of Dr. O'Hara because it is clear 
 
            that they did not, but on the contrary vehemently protested 
 
            the fact that claimant had sought his care.  There are 
 
            situations where it has been held that the employer 
 
            acquiesced in the care chosen by claimant but this is not 
 
            one of them.  Santucci, File No. 967995; Conte v. Heartland 
 
            Lysine, Inc., File No. 900546 (June 13, 1991); Coble v. 
 
            Metromedia, Inc., Thirty-fourth Biennial Report of the 
 
            Industrial Commissioner 71 (1979); Munden v. Iowa Steel and 
 
            Wire, Thirty-third Biennial Report of the Industrial 
 
            Commissioner 99 (1977).
 
            
 
                 Nor can it be said in this case that employer waived 
 
            the right to choose the care.  Santucci, File No. 967995; 
 
            Kelley v. Firestone Tire and Rubber Co., File No. 990797 
 
            (March 23, 1992); Worrell v. Griffen Wheel Co., File No. 
 
            702268 (Appeal Decision February 26, 1988); Richards v. 
 
            Dept. of General Services, Vol. 1, No. 3, State of Iowa 
 
            Industrial Commissioner Decisions 684 (Appeal decision 
 
            1985); Smith v. Carnation Company, II Iowa Industrial 
 
            Commissioner Report 366 (1981).
 
            
 
                 At the same time it cannot be said that employer 
 
            actively monitored the care or provided effective care 
 
            promptly offered and reasonably suited to treat the injured 
 
            employee without undue inconvenience to him.  Morrison v. 
 
            Excel Corp., File No. 1037299 (May 6, 1993).
 
            
 
                 Therefore, it is determined that employer is liable for 
 
            the charges of Dr. O'Hara and the tests and treatment that 
 
            he recommended up until the time that employer arranged for 
 
            claimant to receive the effective orthopaedic care of Dr. 
 
            Miller, an orthopaedic surgeon, on July 17, 1991.
 
            
 
                 These expenses are as follows:
 
            
 
                 James P. O'Hara, M.D., 6-20-90 through 7-02-90  $249.00            
 
            Ex. ee, p. 9 & 19-26
 
            
 
                 Walgreens, prescription, 8-28-90                  28.29            
 
            Ex. ee, p. 29
 
            
 
                 Nebraska Clinician's Group, MRIs, 7-06-90        290.00            
 
            Ex. ee, pp. 7 & 8                                   ________
 
            
 
                                                 Total           $567.29
 
            
 
                 Once employer referred claimant to Dr. Miller, claimant 
 

 
            
 
            Page  14
 
            
 
            
 
            
 
            
 
            then received effective orthopaedic treatment.  Dr. Miller 
 
            ordered his own MRI and in his reports had laid the typical 
 
            groundwork prior to recommending shoulder surgery on August 
 
            28, 1991.
 
            
 
                 Furthermore, employer timely protested the surgery of 
 
            Dr. O'Hara on August 9, 1991 and notified claimant in person 
 
            and in writing that they would not be liable for the charges 
 
            of Dr. O'Hara because he was not an authorized surgeon.  
 
            
 
                 Claimant submitted to the surgery of Dr. O'Hara, on 
 
            August 9, 1991, at his own peril, rather than wait for what 
 
            appeared to be the imminent upcoming surgery recommendation 
 
            of Dr. Miller which was to be forthcoming on August 28, 
 
            1991.  Therefore, the charges for the surgery performed by 
 
            Dr. O'Hara on August 9, 1991 and related expenses and 
 
            postsurgical expenses were not authorized and are not 
 
            allowed.  Nor was the office visit to Dr. O'Hara on August 
 
            6, 1991 authorized and it is not allowed. 
 
            
 
                 However, employer's failure to pay the bill of Dr. 
 
            Miller in the amount of $78.40 for his first examination on 
 
            July 17, 1991, when both claimant and employer through Leedy 
 
            acknowledged that he was designated as an authorized 
 
            physician is totally unexplainable (Ex. ee, p. 6).  
 
            Likewise, the x-rays ordered by Dr. Miller on July 12, 1991, 
 
            for claimant in the amount of $740 are also owed by employer 
 
            (Ex. ee, p. 2).  Leedy acknowledged that if these are Dr. 
 
            Miller's bills they should be paid (Tran., pp. 140 & 141).  
 
            There is no question that they are Dr. Miller's bills 
 
            because they both bear his name and the services were 
 
            performed in conjunction with the first examination that 
 
            employer authorized by Dr. Miller in July of 1991.  These 
 
            bills total $818.40.
 
            
 
                 It is the failure to pay medical expenses, which are 
 
            legitimately owed by employers and insurance carriers, which 
 
            bring financial pressure to bear on injured claimants who 
 
            are unable to work, which has prompted and promoted proposed 
 
            legislation for the imposition of interest and penalties on 
 
            medical bills which are denied payment without any 
 
            justification or excuse.
 
            
 
                 The "balance forward" bill from Diagnostic Pathology 
 
            Specialists dated June 12, 1992, in the amount of $108.25 is 
 
            not sufficiently identified as to be related to this injury 
 
            or the treatment of any of the physicians in this case and 
 
            therefore cannot be allowed (Ex. ee, p. 5).  All of the 
 
            other bills are identifiable with the care provided by Dr. 
 
            O'Hara, who was an unauthorized physician, and therefore 
 
            employer is not liable for these medical expenses (Ex. ee, 
 
            pp. 7-30).
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 WHEREFORE, based upon the foregoing and following 
 
            principles of law these conclusions of law are made:
 
            
 
                 That the pinning injury of December 14, 1988, was the 
 
            cause of claimant's temporary and permanent disability, 
 

 
            
 
            Page  15
 
            
 
            
 
            
 
            
 
            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 15.571 weeks of healing 
 
            period benefits for the period from August 6, 1991 through 
 
            November 22, 1991, Iowa Code section 85.34(1).
 
            
 
                 That Claimant has sustained a 20 percent industrial 
 
            disability to the body as a whole and is entitled to 100 
 
            weeks of permanent partial disability benefits Iowa Code 
 
            section 85.34(2)(u).  Peterson v. Truck Haven Cafe, Inc., 
 
            vol. 1, no. 3 State of Iowa Industrial Commissioner 
 
            Decisions 654, 658 (App. Dec. February 28, 1985).  
 
            Christensen v. Hagen, Inc., vol. I, No. 3, State of Iowa 
 
            Industrial Commissioner Decisions 529 (App. Dec. March 26, 
 
            1985).  Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 
 
            N.W.2d 251 (1963).  Diederich v. Tri-City Ry. Co., 219 Iowa 
 
            587, 258 N.W. 899 (1935).  Iowa Administrative Procedure Act 
 
            17A.14(5).  
 
            
 
                 That employer did not meet the obligation to actively 
 
            monitor the medical care chosen by them.  Cox, Thirty-fourth 
 
            Biennial Report of the Industrial Commissioner 79, 80); 
 
            Zimmerman, II Iowa Industrial Commissioner Report 462.
 
            
 
                 That employer failed to provide claimant with effective 
 
            care that was promptly offered and reasonably suited to 
 
            treat the injury of claimant until July 17, 1991.  Iowa Code 
 
            section 85.27.
 
            
 
                 That by failing to provide claimant with effective 
 
            orthopaedic care promptly offered and reasonably suited to 
 
            threat the injury without undue inconvenience to the injured 
 
            employee, then employer forfeited the right to choose the 
 
            care until such time that they did provide the effective 
 
            care of an orthopaedic surgeon.
 
            
 
                 That employer failed to provide claimant the effective 
 
            care of an orthopaedic surgeon (Dr. Miller) until July of 
 
            1991; and therefore employer is liable for the charges of 
 
            the orthopaedic surgeon retained by claimant (Dr. O'Hara) 
 
            until July 17, 1991, in order to receive proper and 
 
            effective care in the amount of $567.29 as detailed above; 
 
            and that employer is liable for these medical expenses.
 
            
 
                 That employer failed to pay the legitimate charges of 
 
            their own selected and authorized treating physician, Dr. 
 
            Miller, in the amount of $818.40, without any justification 
 
            or excuse and employer is also liable for these medical 
 
            expenses.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 That defendant employer pay to claimant fifteen point 
 
            five seven one (15.571) weeks of healing period benefits at 
 
            the stipulated rate of three hundred fourteen and 98/100 
 
            dollars ($314.98) per week in the total amount of four 
 

 
            
 
            Page  16
 
            
 
            
 
            
 
            
 
            thousand nine hundred four and 55/100 dollars ($4,904.55) 
 
            commencing on August 6, 1991.
 
            
 
                 That defendant pay to claimant one hundred (100) weeks 
 
            of permanent partial disability benefits at the stipulated 
 
            rate of three hundred fourteen and 98/100 dollars ($314.98) 
 
            per week in the total amount of thirty-one thousand four 
 
            hundred ninety-eight dollars ($31,498) commencing on 
 
            November 23, 1991.
 
            
 
                 That the parties stipulated that defendant paid 
 
            claimant four point seven one four (4.714) weeks of workers' 
 
            compensation benefits at the rate of three hundred fourteen 
 
            and 98/100 dollars ($314.98) per week prior to hearing but 
 
            it cannot be determined by this deputy whether this is a 
 
            true credit against this award because it appears that these 
 
            may be the benefits which were paid to claimant when he was 
 
            off work for anywhere from two days to three weeks in 
 
            December and January of 1988.  
 
            
 
                 That these benefits are to be paid in a lump sum.
 
            
 
                 That interest will accrue pursuant to Iowa Code section 
 
            85.30.
 
            
 
                 That defendant employer pay to claimant or the provider 
 
            of medical services $1,385.69 as calculated and detailed 
 
            above.
 
            
 
                 That the costs of this action, including the cost of 
 
            the attendance of the court reporter at hearing and the 
 
            transcript of hearing are charged to defendant pursuant to 
 
            Iowa Code sections 86.19(1) and 86.40 and rule 343 IAC 4.33.
 
            
 
                 That defendant employer is ordered to file a first 
 
            report of injury within ten (10) days after the signing and 
 
            filing of this decision because there is no first report of 
 
            injury in the industrial commissioner's file.  Since 
 
            claimant did not object to defendant's failure to file a 
 
            first report of injury no sanctions were imposed on 
 
            defendant.  (See paragraph 2 of the Hearing Assignment 
 
            Order).
 
            
 
                 Signed and filed this ____ day of May, 1993.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          WALTER R. McMANUS, JR.
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Christopher J. Tinley
 
            Attorney at Law
 
            306 Metropolitan Federal Bank Bldg.
 
            Council Bluffs, IA  50503
 
            
 
            
 

 
            
 
            Page  17
 
            
 
            
 
            
 
            
 
            Mr. W. Curtis Hewett
 
            Attorney at Law
 
            35 Main Place, Ste. 300
 
            Council Bluffs, IA  50503
 
            
 
            
 
 
            
 
           
 
            
 
            
 
            
 
                                              1802, 1803, 2501, 2700
 
                                              2901, 2902, 2906
 
                                              Filed May 27, 1993
 
                                              Walter R. McManus, Jr.
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            BRIAN W. HANSON,    
 
                      
 
                 Claimant, 
 
                                                 File No. 903578
 
            vs.       
 
                                              A R B I T R A T I O N
 
            GRIFFIN PIPE PRODUCTS CO.,    
 
                                                 D E C I S I O N
 
                 Employer, 
 
                 Self-Insured,  
 
                 Defendant.     
 
            ___________________________________________________________
 
            
 
            1802
 
            
 
                 Healing period awarded basically as agreed to by the 
 
            parties and as supported by the medical evidence.  Healing 
 
            period did not terminate when the doctor released claimant 
 
            to go to work with restrictions but rather it terminated 
 
            when employer gave claimant accommodated work so he could 
 
            return to work.  Healing period did not terminate when the 
 
            doctor said claimant had reached maximum improvement because 
 
            claimant returned to work at an earlier date.
 
            
 
            1803
 
            
 
                 Claimant awarded 20 percent industrial disability.  He 
 
            received a severe traumatic injury when his upper torso was 
 
            pinned by a 1000 pound sound hood, knocked unconscious and 
 
            hospitalized.  The primary treating physician gave the only 
 
            impairment rating of 10 percent.  Claimant was permanently 
 
            restricted from overhead work, lifting 50 pounds more than 
 
            one time and 30 pounds repetitively.  The doctor 
 
            prognosticated that claimant would have neck and right 
 
            shoulder pain for the rest of his life and would require 
 
            medications intermittently.  Claimant's aromioclavicular 
 
            joint was essentially destroyed and was resected and 
 
            reformed.  Claimant's opportunity for advancement with this 
 
            employer was limited to general laborer because of his 
 
            restrictions.  Factors reducing industrial were claimant's 
 
            young employment age of thirty years and his retrainability.  
 
            Also, a big factor was the fact employer had accommodated 
 
            the employee with work within his restrictions and both 
 
            employer and employee said that claimant's job security was 
 
            not in jeopardy.  However, it was noted that employer's 
 
            accommodation was not transferable to the competitive labor 
 
            market.  Cites
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            
 
            2501, 2700
 
            
 
                 Employer provided only the care of a neurosurgeon when 
 
            it was clear that claimant needed orthopaedic care.  It was 
 
            determined that employer did not acquiesce in the physician 
 
            claimant chose to see on his own nor did employer waive the 
 
            right to choose the care because employer at all times had 
 
            assigned a neurosurgeon to treat claimant and had protested 
 
            and notified claimant and his chosen physician that he was 
 
            not authorized.  However, it was determined that employer 
 
            forfeited the right to choose the care during the period 
 
            when they only authorized a neurosurgeon, whose care was 
 
            ineffective, when it was clear that claimant needed an 
 
            orthopaedic surgeon and claimant's medical expenses for his 
 
            choice of physician during this period of time were awarded.  
 
            The basis for this determination was that the right to 
 
            choose the care is not absolute.  Employer forfeited the 
 
            right to choose the care by not providing effective 
 
            orthopaedic care, promptly offered and reasonably suited to 
 
            treat the injury without undue inconvenience to the 
 
            employee.  Also, employer had failed to actively monitor the 
 
            care.  Numerous cites.
 
            
 
                 Once employer had authorized an effective orthopaedic 
 
            surgeon then claimant's medical expenses with his own 
 
            physician after that time were denied.  Thus, claimant's 
 
            choice of physician, who was unauthorized after employer 
 
            eventually authorized an orthopaedic doctor, still remained 
 
            the primary treating and operating surgeon.
 
            
 
                 Employer failed to pay the bills of the orthopaedic 
 
            surgeon that they retained without any explanation, 
 
            justification or excuse.  It was commented that this conduct 
 
            is what has prompted legislation for interest and penalties 
 
            on unreasonable failure to pay legitimate medical expenses.
 
            
 
            2901, 2902, 2906
 
            
 
            Since claimant failed to object to the failure of defendant 
 
            to file a first report of injury no sanctions were imposed 
 
            on defendant.  Defendant was ordered to file a first report 
 
            of injury within ten days of the signing and filing of the 
 
            decision.