BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
       _________________________________________________________________
 
                 
 
       LARRY FRANCIS SCHREINER,      
 
                 
 
          Claimant,   
 
                 
 
       vs.            
 
                                            File No. 904876
 
       ALTON RENDERING WORKS,   
 
                                              A P P E A L
 
          Employer,   
 
                                            D E C I S I O N
 
       and            
 
                 
 
       CIGNA COMPANIES,    
 
                 
 
          Insurance Carrier,    
 
          Defendants.      
 
       _________________________________________________________________
 
       
 
       
 
          The record, including the transcript of the hearing before 
 
       the deputy and all exhibits admitted into the record, has been 
 
       reviewed de novo on appeal.
 
       
 
                                  ISSUES
 
       
 
          Defendants state the following issue on appeal:  "Has 
 
       Claimant failed to satisfy his legal burden of proving 
 
       entitlement to disability and medical benefits by a preponderance 
 
       of the evidence?"
 
       
 
          Claimant states the following issue on cross-appeal:  
 
       "Defendants' objection to introduction of the report of Dr. 
 
       Durward should have been overruled and the report taken into 
 
       account in determining the issue of Claimant's entitlement to 
 
       workers' compensation benefits."
 
       
 
                            FINDINGS OF FACT
 
       
 
          The findings of fact contained in the proposed agency 
 
       decision filed February 15, 1994 are adopted as set forth below.  
 
       Segments designated by asterisks (*****) indicate portions of the 
 
       language from the proposed agency decision that have been 
 
       intentionally deleted and do not form a part of this final agency 
 
       decision.
 
       
 
          Larry Schreiner, 32 years of age at hearing, is a 1979 high 
 
       school graduate without further education.  His work history has 
 
       generally been very heavy and basically unskilled work, mostly in 
 
       packing plants and rendering houses.  Claimant also operated a 
 
       forklift machine for approximately one year.
 
       
 
          Claimant is of low normal intelligence, nearly so low as to 
 
       be considered "borderline" (between low normal and retarded).  
 
       The record clearly shows that he is a life-long bully and 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
       ruffian.  His criminal history includes drug offenses, extensive 
 
       motor vehicle violations, vandalism to vehicles and an assault on 
 
       a television cameraman associated with a labor dispute.  Claimant 
 
       was twice expelled from high school for violent conduct, 
 
       including fights with teachers.  His sister Linda made it clear 
 
       that he has employed intimidation throughout his life as a means 
 
       of gaining "respect" from his victims.
 
       
 
          It is found that claimant was not a credible witness.  His 
 
       testimony in many respects contradicts the voluminous record, 
 
       always to his benefit.  Several examples will suffice.  At trial, 
 
       claimant admitted abusing only marijuana, cocaine, 
 
       methamphetamine and alcohol (he is an admitted alcoholic who has 
 
       been treated on multiple occasions).  In his deposition 
 
       testimony, he conceded a single exposure to lysergic acid 
 
       diethylamide (LSD), but, innocently enough, only when it was 
 
       slipped into his drink at a bar.  However, several medical 
 
       records show claimant admitting to multiple experiences with this 
 
       hallucinogenic substance.  Medical records also show abuse of 
 
       valium and intravenous use of both cocaine and "crank" 
 
       (understood here as an especially powerful form of amphetamine).  
 
       Dr. Poss, a chiropractor who provided many disputed services and 
 
       a favorable chiropractic report for claimant was eventually shown 
 
       to have been one of claimant's former roommates, although 
 
       claimant was very, very slow and reluctant to make this 
 
       disclosure.  In his deposition testimony, claimant conceded only 
 
       minor emotional problems prior to the subject work injury, 
 
       whereas the record shows that he had made multiple suicide 
 
       threats and attempts.  Claimant substantially understated his 
 
       horrific record of motor vehicles offenses, which include since 
 
       1975, four convictions for operating while intoxicated (not two, 
 
       as claimant admitted) and three convictions of driving while his 
 
       license was suspended or revoked.  Other violations abound.  
 
       Claimant clearly has little or no regard for the laws of this 
 
       state.  Another factor considered in assessing claimant's 
 
       credibility is an invalid Minnesota Multiphasic Personality 
 
       Inventory (MMPI) with an elevated scale colloquially known as 
 
       "fake bad," or tending to show problems in excess of those 
 
       actually existing.  In claimant's case, this is almost surely 
 
       related to secondary gain considerations, especially this 
 
       litigation.  The result of this case is reached despite 
 
       claimant's testimony, not because of it.
 
       
 
          Ironically, the work injury in this case occurred when 
 
       claimant engaged in an act of genuine heroism.  A fellow employee 
 
       was apparently working without a gas mask at the bottom of a 
 
       sewer or manhole when he was overcome by noxious fumes.  Despite 
 
       the obvious danger, Mr. Schreiner descended into the hole in an 
 
       attempted rescue.  While climbing out, claimant was himself 
 
       overcome by the fumes and fell back, perhaps as far as ten feet.
 
       
 
          Claimant was eventually hauled from this dangerous sewer 
 
       with hooks, but in extremis.
 
       
 
          When claimant reached the Marion Health Center by hospital, 
 
       he was cyanotic and suffering clonic spasms or seizures to such a 
 
       degree that intubation was somewhat delayed.  His family was 
 
       called and told to hurry to the hospital because claimant was at 
 
       the point of death.  Initial diagnoses were:
 
            
 
            1.  Multiple gas inhalation with carbon monoxide, 
 
            carboxyhemoglobin, methemoglobin and probable 
 
            sulfhemoglobin;
 
            
 
            2.  Head injury, extent not determined;
 
            
 

 
 
 
 
 
 
 
 
 
 
 
 
 
            3.  Gross lactic acidosis; and,
 
            
 
            4.  Fulminant pulmonary edema from chemical burn.
 
       
 
          Although claimant survived, he asserts that he is now 
 
       disabled from residual mental problems resulting from the 
 
       traumatic nature of this incident and spinal problems, relating 
 
       to the fall.  Defendants, pointing to claimant's incredibly 
 
       extensive preexisting history of trauma, insist that there are 
 
       alternate explanations for any current disability.  As might be 
 
       expected given such a complex medical history, there is 
 
       substantial diversity of medical opinion.
 
       
 
          Claimant's pre-injury medical history includes a whiplash 
 
       injury in 1980, toxic inhalation of acid and chlorine gas in 
 
       1982, suicide attempts, multiple substance abuse treatments (in 
 
       1983, claimant reported consumption of up to 1 case of beer per 
 
       day, every day), depression, carpal tunnel syndrome (treated 
 
       surgically), low back pain with radiation in 1985, forehead 
 
       lacerations (four stitches) and lacerations, contusions, 
 
       lumbosacral sprain and a fracture of the vertebra at L3 in 1986 
 
       resulting from a fight (or, as claimant would have it, an 
 
       unprovoked attack on his person).  In January 1987, claimant 
 
       suffered a right parietal temporal skull fracture, contusions and 
 
       lacerations, a broken kneecap, lumbar spine muscle spasm and a 
 
       cerebral concussion in another fight (or, as claimant would again 
 
       have it, another unprovoked assault).
 
       
 
          The 1987 treating physician, Dr. Lentini, noted that the 
 
       left pupil was somewhat enlarged compared to the right, but was 
 
       actively reactive to light and accommodation.  A CAT scan of the 
 
       head resulted in an impression of a small area bilaterally 
 
       suggesting metabolic disease, calcification in the right frontal 
 
       hemisphere also suggesting metabolic or idiopathic cause, and 
 
       nondisplaced right parietal skull fracture.  There was no edema 
 
       around either area of increased attenuation to suggest recent 
 
       injury.
 
       
 
          In 1987, claimant was also involved in a motorcyle accident 
 
       with substantial loss of skin, but no fractures.
 
       
 
          Following the work injury, claimant returned to full-time 
 
       light duty work on December 6, 1988, but was discharged in 
 
       February 1989 for refusing to acknowledge receipt of a reprimand.  
 
       A Job Service of Iowa contested case determination filed May 3, 
 
       1989 disqualified Mr. Schreiner for job insurance benefits 
 
       because he had been discharged *****.  This termination of 
 
       employment is not indicative of industrial disability.
 
       
 
          Claimant has subsequently been briefly employed in a drywall 
 
       job for which he was paid in cash.  Claimant acknowledged those 
 
       payments were "eventually" reported to the Social Security 
 
       Administration, implying of course that he did not do so 
 
       promptly.  Presumably, such income is deductible from the Social 
 
       Security benefits claimant is now receiving.  In 1987, claimant 
 
       earned, by his own estimate, approximately $1,000.00 while 
 
       "working off" a debt owed to his father.  This was not reported 
 
       as income.  Although claimant asserted that he was able and 
 
       available for work when he applied for job service benefits, he 
 
       now contends that he is completely disabled due to back pain and 
 
       mental and emotional problems, including post-traumatic shock 
 
       syndrome.
 
       
 
          The first neurologist to treat claimant, J. L. Case, M.D., 
 
       released claimant from care on September 21 as he was for all 
 
       intents and purposes neurologically intact with respect to both 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
       higher cortical functions as well as his motor, sensory and 
 
       coordination systems.  A repeat CAT scan of the head was entirely 
 
       negative.  J. P. Tiedman, M.D., reported on January 17, 1989, 
 
       that claimant was in a "very good recovered state" and refused to 
 
       authorize an additional 30 days of light duty work.
 
       
 
          An MRI scan of the cervical spine was performed on May 15, 
 
       1989.  Impression was of mild congenital spinal stenosis from C4-
 
       C6 with superimposed bulging of the anulus at C5-6, but no 
 
       evidence of herniated disc or cord compression.
 
       
 
          In April 1991, claimant was admitted to a one-month 
 
       inpatient course of substance abuse treatment.  It was reported 
 
       that claimant completed an MMPI, but that results were invalid 
 
       and he refused to retake the test.  Claimant was described as 
 
       having difficulty integrating into the patient community because 
 
       of his intimidating behaviors.  Claimant was already under the 
 
       care of a psychiatrist, Dr. Gerald Brooks, and a psychologist, 
 
       Dr. Schmitz.  The treating physician at Marion Health Center, 
 
       C.H. Auh, M.D., diagnosed on Axis I: alcohol dependence, poly-
 
       substance dependence (cocaine, methamphetamine, hallucinogen, 
 
       cannabis, amphetamine) and paranoid disorder, grandiose type.  
 
       Claimant was discharged with staff approval with recommendations 
 
       to return to Drs. Brooks and Schmidtz and referral to a local 
 
       Alcoholics Anonymous group.
 
       
 
          On May 4, 1992, electroencephalogram testing was performed 
 
       by D. Nitz, M.D.  The study was normal, both awake and asleep.
 
       
 
          In late 1989, claimant was referred to a neurosurgeon, 
 
       Quentin J. Durward, M.D.  Dr. Durward found a minimal compression 
 
       fracture of T9 and a suggestion of bulging at C5-6 on a poor 
 
       quality MRI scan.  Because claimant complained of myofascial pain 
 
       with markedly tender paraspinal muscles and numbing in the arms, 
 
       Dr. Durward ordered EMG testing which showed slowing of the right 
 
       median nerve across the wrist compatible with right carpal tunnel 
 
       neuropathy.  There was no evidence of cervical radiculopathy, so 
 
       Dr. Durward concluded that claimant should be treated for 
 
       myofascial pain, but there could be a mild degree of residual 
 
       pain resulting from the fracture.  Dr. Durward reported that this 
 
       pain could last for years, but would generally tend to improve 
 
       with time.  He recommended return to work with a lifting 
 
       restriction of 15 pounds which could be gradually increased as 
 
       pain in the neck and superior shoulders gradually lessened.  Dr. 
 
       Durward estimated impairment at five percent of the body as a 
 
       whole under the AMA Guides.  Note that Dr. Durward's 1993 report, 
 
       claimant's exhibit 1, was excluded from evidence and has not been 
 
       considered.
 
       
 
          Dr. Dean J. Poss wrote on May 23, 1989 that claimant needed 
 
       to restrict lifting over 20 pounds, standing for long periods of 
 
       time, stooping or bending at the waist, and repetitive bending 
 
       should be avoided.  He subsequently rated impairment at 25 
 
       percent of the whole man.  Although Dr. Poss is a chiropractor, 
 
       his rating was purportedly based on American Medical Association 
 
       Guides.  In an undated noted, Dr. Poss stated that due to his 
 
       work injuries, claimant was "unable to work, and recommend that 
 
       he not work in order to avoid aggravation of his injuries."
 
       
 
          Claimant was referred to Drs. Brooks and Schmitz (a Ph.D.) 
 
       on April 4, 1989.  Dr. Schmitz's psychological evaluation 
 
       resulted in observations that claimant was failing to function 
 
       like a normal 27-year-old in the prime of life, and that he had 
 
       very evident problems with memory, concentration and recall.  
 
       Claimant had difficulty expressing himself, tended to lose his 
 
       stream of thought, and experienced doubt, frustration and 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
       embarrassment over the above.  Dr. Schmitz's report also reveals 
 
       that claimant was not entirely candid.  For example, claimant 
 
       denied he had any history of prior health or emotional problems, 
 
       which was clearly false.  While claimant conceded two drunken 
 
       driving convictions, he denied any other legal problems.  
 
       Claimant denied experiencing any teacher or peer problems, 
 
       although he had been expelled from school on multiple occasions.
 
       
 
          Dr. Schmitz found claimant functioning in the lower end of 
 
       the low average range of intelligence, with a full scale IQ of 
 
       80.  Dr. Schmitz believed this represented a slippage in 
 
       claimant's actual level of functioning.  Drs. Brooks and Moore, 
 
       both psychiatrists, do not.  He administered and found an MMPI 
 
       valid, with most scales out of the normal range.  The most 
 
       elevated scales measure schizophrenia, psychasthenia, depression 
 
       and hypochondriasis.  Persons with similar profiles often 
 
       experience: depression, anxiety, nervousness, feelings of 
 
       hopelessness, ruminative introspection, overidealizational, 
 
       difficulties concentrating and thinking, excessive indecision, 
 
       doubt and devastation, self-esteem problems, weakness, fatigue, 
 
       loss of interest and initiative, introversion and distance.  A 
 
       fairly major depression was indicated.  Dr. Schmitz concluded 
 
       that testing showed signs of organic dysfunction and recommended 
 
       counseling and medication to deal with depression and anxiety.
 
       
 
          Incidently, Dr. Schmitz's revealing chart note of September 
 
       10, 1992 reads:
 
            
 
            Larry was seen for two units today.  He became 
 
            very forthright.  He indicated that he had done 
 
            occasional work in the past several years with a 
 
            friend from the past who subsequently now has 
 
            turned him in to the Government because Larry 
 
            wouldn't work with him anymore.  He indicated 
 
            that he was not able to work.  It was too 
 
            distressful.  The individual paid Larry in cash 
 
            and did not report any of the dealings with the 
 
            Government.  The person would also appear to be 
 
            in some problems with the Government.
 
       
 
       (Joint Exhibit 37, Page 43)
 
       
 
          Dr. Brooks has issued multiple reports and testified by 
 
       deposition on April 19, 1993.  Dr. Brooks is board certified in 
 
       general psychiatry, geniatric psychiatry and adolescent 
 
       psychiatry.  According to Dr. Brooks, all of the treatment 
 
       claimant had received in his office was caused by the subject 
 
       work injury.  He believed that without psychotherapy and 
 
       medications, claimant's level of functioning would probably be a 
 
       great deal less than it now is.
 
       
 
          In September 1989, Dr. Brooks opined that claimant had been 
 
       unable to function in a work situation since he began treatment 
 
       and probably since March 1989; he anticipated that inability to 
 
       work and symptomatology would continue for an indefinite time.  
 
       In September 1990, Dr. Brooks added post-traumatic stress 
 
       disorder to his previous diagnosis of adjustment order with mixed 
 
       emotional features and depression.  He again causally related 
 
       claimant's psychological condition to the work injury, and felt 
 
       it was impossible to know how long the syndrome would continue, 
 
       adding that it caused significant disability and interfered with 
 
       claimant's present level of functioning and ability to be 
 
       retrained.
 
       
 
          In his deposition, Dr. Brooks opined that claimant had been 
 
       unable to engage in full time employment from the date of injury 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
       to the present, secondary both to emotional and physical trauma 
 
       caused by the injury.  He felt it would be several years before 
 
       claimant could be employed, and then, it would have to be in a 
 
       very low stress situation.
 
       
 
          Claimant was also seen for evaluation by Dr. Stan Moore, 
 
       also a board certified psychiatrist.  Dr. Moore saw claimant on 
 
       December 11, 1992 and testified by deposition on May 10, 1993.  
 
       Dr. Moore, like Dr. Brooks, believed that claimant suffers an 
 
       organic mental disorder, but found himself unable to conclude 
 
       with medical certainty what the cause of that disorder might be.  
 
       He found claimant's previous history, including severe alcohol 
 
       abuse and head injuries, to be perfectly capable of causing 
 
       claimant's organic problems.  Of course, the hypoxia and anoxia 
 
       (oxygen deprivation) that claimant suffered on the date of 
 
       accident was also consistent with a showing of brain damage.  
 
       Again like Dr. Brooks, Dr. Moore believed that claimant suffers a 
 
       (mild) post-traumatic stress syndrome, but does not agree that 
 
       this condition renders him unable to work.  
 
       
 
          It is noted that Dr. Kimball, a trainee psychiatrist in the 
 
       chemical dependency unit of the Cherokee Mental Health Institute, 
 
       concluded in April 1987 that claimant did not have an organic 
 
       brain syndrome at that time.
 
       
 
          Dr. Moore agreed that claimant's post-traumatic stress 
 
       disorder was caused by the work injury and agreed abstractly that 
 
       the condition can be disabling.  He also agreed that it would 
 
       necessitate some type of treatment, but did not think that the 
 
       treatment provided by Dr. Schmitz was medically necessary.  Dr. 
 
       Moore also agreed that a number of the symptoms claimant now 
 
       claims to suffer are consistent with post-traumatic stress, 
 
       including not thinking clearly, difficulty organizing thoughts, 
 
       mental confusion, losing one's train of thought, disrupted sleep 
 
       patterns, nightmares, feelings of desperation and loss of hope, 
 
       feelings of isolation, perhaps feelings of worthlessness and 
 
       decrease in prior level of function.  Dr. Moore also opined that 
 
       if claimant were to be employed, it should be in a low stress 
 
       job.
 
       
 
          Both Dr. Brooks and Dr. Moore are highly qualified 
 
       psychiatrists.  They agree in many respects, and disagree in but 
 
       few.  However, the few are significant, including whether 
 
       claimant is disabled from work due to his post-traumatic stress 
 
       syndrome and, as Dr. Brooks finds, his organic mental problems.  
 
       Given that Dr. Brooks was a treating physician over an extended 
 
       time and considering Dr. Kimball's view that claimant did not 
 
       suffer organic brain deficiencies in 1987, one year prior to the 
 
       injury, Dr. Brooks' view is accepted.  Due to organic brain 
 
       disorder and post-traumatic stress syndrome, claimant has since 
 
       March 1989 been unable to work for psychological and organic 
 
       reasons, and will be unable to do so for the immediately 
 
       foreseeable future.  Even then, claimant will require a low 
 
       stress job.
 
       
 
          Dr. Robert Sundell, a board certified neurologist, saw 
 
       claimant for evaluation on November 30, 1992, and testified by 
 
       deposition on May 17, 1993.  He found a normal neurological 
 
       examination and no restriction in range of motion, loss of 
 
       strength, loss of reflexes, sensory loss, trouble with balance 
 
       with the cranial nerves, or muscle atrophy.
 
       
 
          Dr. Sundell generally concluded that claimant had suffered 
 
       no permanent injury on September 14, 1988 and believed that 
 
       maximum medical improvement had been reached at six months 
 
       following injury.  Dr. Sundell also believed that claimant could 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
       resume his usual and customary activities with no new 
 
       restrictions.  Dr. Sundell concluded that claimant did not suffer 
 
       from post-traumatic stress disorder and did not believe that 
 
       claimant has permanent organic brain damage.  However, the 
 
       restrictions imposed by treating psychiatrist Brooks are given 
 
       preference here.
 
       
 
          Claimant was seen by Thomas A. Carlstrom, M.D., on November 
 
       29, 1990.  Although Dr. Carlstrom's specialty does not appear, he 
 
       writes on the letterhead of Iowa Methodist Low Back Institute.  
 
       Dr. Carlstrom noted a fairly significant diminished range of 
 
       motion of the neck in all planes and had little doubt that 
 
       claimant was experiencing myofascial pain as a result of the 
 
       fall.  This is consistent with the view of Dr. Durward.  He 
 
       believed pain was significant but might diminish with the passage 
 
       of time.  He saw little need for further physical therapy and 
 
       would discontinue it.  Dr. Carlstrom did not discuss whether 
 
       medical restrictions were appropriate, but rated impairment at 
 
       about eight percent of the body as a whole due to diminished 
 
       range of motion in the neck.
 
       
 
                          CONCLUSIONS OF LAW
 
       
 
          The conclusions of law contained in the proposed agency 
 
       decision filed February 15, 1994 are adopted as set forth below.  
 
       Segments designated by asterisks (*****) indicate portions of the 
 
       language from the proposed agency decision that have been 
 
       intentionally deleted and do not form a part of this final agency 
 
       decision.
 
       
 
          The claimant has the burden of proving by a preponderance of 
 
       the evidence that the injury is a proximate cause of the 
 
       disability on which the claim is based.  A cause is proximate if 
 
       it is a substantial factor in bringing about the result; it need 
 
       not be the only cause.  A preponderance of the evidence exists 
 
       when the causal connection is probable rather than merely 
 
       possible.  Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 
 
       1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 (Iowa 
 
       1974).
 
       
 
          The question of causal connection is essentially within the 
 
       domain of expert testimony.  The expert medical evidence must be 
 
       considered with all other evidence introduced bearing on the 
 
       causal connection between the injury and the disability.  The 
 
       weight to be given to any expert opinion is determined by the 
 
       finder of fact and may be affected by the accuracy of the facts 
 
       relied upon by the expert as well as other surrounding 
 
       circumstances.  The expert opinion may be accepted or rejected, 
 
       in whole or in part.  Sondag v. Ferris Hardware, 220 N.W.2d 903 
 
       (Iowa 1974); Anderson v. Oscar Mayer & Co., 217 N.W.2d 531 (Iowa 
 
       1974); Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 
 
       (1965).
 
       
 
          A finding of impairment to the body as a whole found by a 
 
       medical evaluator does not equate to industrial disability.  
 
       Impairment and disability are not synonymous.  The degree of 
 
       industrial disability can be much different than the degree of 
 
       impairment because industrial disability references to loss of 
 
       earning capacity and impairment references to anatomical or 
 
       functional abnormality or loss.  Although loss of function is to 
 
       be considered and disability can rarely be found without it, it 
 
       is not so that a degree of industrial disability is 
 
       proportionally related to a degree of impairment of bodily 
 
       function.
 
       
 
          Factors to be considered in determining industrial dis-
 

 
 
 
 
 
 
 
 
 
 
 
 
 
       ability include the employee's medical condition prior to the 
 
       injury, immediately after the injury, and presently; the situs of 
 
       the injury, its severity and the length of the healing period; 
 
       the work experience of the employee prior to the injury and after 
 
       the injury and the potential for rehabilitation; the employee's 
 
       qualifications intellectually, emotionally and physically; 
 
       earnings prior and subsequent to the injury; age; education; 
 
       motivation; functional impairment as a result of the injury; and 
 
       inability because of the injury to engage in employment for which 
 
       the employee is fitted.  Loss of earnings caused by a job 
 
       transfer for reasons related to the injury is also relevant.  
 
       Likewise, an employer's refusal to give any sort of work to an 
 
       impaired employee may justify an award of disability.  McSpadden 
 
       v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980).  These are 
 
       matters which the finder of fact considers collectively in 
 
       arriving at the determination of the degree of industrial 
 
       disability.
 
       
 
          There are no weighting guidelines that indicate how each of 
 
       the factors are to be considered.  Neither does a rating of 
 
       functional impairment directly correlate to a degree of 
 
       industrial disability to the body as a whole.  In other words, 
 
       there are no formulae which can be applied and then added up to 
 
       determine the degree of industrial disability.  It therefore 
 
       becomes necessary for the deputy or commissioner to draw upon 
 
       prior experience as well as general and specialized knowledge to 
 
       make the finding with regard to degree of industrial disability.  
 
       See Christensen v. Hagen, Inc., Vol. 1 No. 3 State of Iowa 
 
       Industrial Commissioner Decisions 529 (App. March 26, 1985); 
 
       Peterson v. Truck Haven Cafe, Inc., Vol. 1 No. 3 State of Iowa 
 
       Industrial Commissioner Decisions 654 (App. February 28, 1985).
 
       
 
          *****
 
       
 
          This opinion accepts the opinions of the treating 
 
       physicians, Dr. Brooks and Dr. Durward, as most persuasive.  
 
       Those physicians have had an opportunity to observe claimant over 
 
       a longer time than Dr. Sundell or Dr. Moore.  Dr. Moore in part 
 
       buttresses the opinions of Dr. Brooks.  Both are psychiatrists, 
 
       and better able to speak to the post-traumatic stress diagnosis 
 
       than Dr. Sundell, although the question of organic brain damage 
 
       is perhaps more appropriate to Dr. Sundell's specialty.
 
       
 
          Dr. Durward, buttressed in part by Dr. Carlstrom, recommends 
 
       a 15 pound lifting restriction.  This alone is hugely disabling 
 
       to a worker of claimant's limited intelligence and employment 
 
       history of heavy menial work.  Dr. Brooks finds that claimant is 
 
       unable to work due to his psychological problems, although this 
 
       condition may improve in time.  Similarly, claimant's soft tissue 
 
       neck problems may improve.  If so, review-reopening is available 
 
       to defendants.  Permanent total disability does not necessarily 
 
       imply perpetuity, and may come to an end if claimant develops 
 
       earning capacity.
 
       
 
          Claimant shall therefore be awarded temporary total 
 
       disability from September 14, 1988 through his return to work 
 
       after December 5, 1988.  Iowa Code section 85.33(1).  Claimant 
 
       shall be awarded permanent total disability from April 4, 1989, 
 
       pursuant to Dr. Brooks' opinion.  Such benefits shall remain 
 
       payable until such time as claimant no longer suffers a total 
 
       industrial disability.
 
       
 
          Claimant has failed to establish that the chiropractic 
 
       treatment of Dr. Poss is reasonably necessary.  Dr. Brooks' 
 
       testimony establishes that his treatment is reasonable and 
 
       necessary.  All other expenses shown on joint exhibit 45 bear 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
       causally to the injury.  Defendants shall pay the expenses shown 
 
       on exhibit 45, except for Dr. Poss.
 
       
 
          Claimant's exhibit 1, a report of Dr. Durward, was objected 
 
       to by defendants as untimely.  Claimant served the report on 
 
       defendant five days before hearing, which was beyond the 
 
       discovery deadlines set forth in the hearing assignment order.  
 
       Claimant relies on a written memorandum of a telephone 
 
       conversation in which counsel for defendants set forth their 
 
       agreement to extend the deadlines for exchange of exhibits.  
 
       
 
          In the memorandum, counsel for defendants does state "that 
 
       you will provide me with your medical records and bills by May 3, 
 
       or as soon as practicable thereafter;..."  Claimant urges that 
 
       the "as soon as practicable" language means that his service of 
 
       the exhibit on May 13 is within the extension agreed upon by the 
 
       parties.  However, the following sentence in the memorandum 
 
       reads: "that if such bills and records received on or about May 
 
       3, [sic] I will be able to certify to you by May 6, whether I 
 
       have any records which are different or additional to those in 
 
       your possession;..."  Reading the two clauses in conjunction, it 
 
       appears that the contemplation of the parties was that claimant 
 
       would provide any medical records he intended to introduce at the 
 
       hearing to defendants by May 3, 1993, and that defendants would 
 
       notify claimant of any additional exhibits by May 6.  The 
 
       memorandum does not contemplate an indefinite extension of 
 
       discovery deadlines up until the day of hearing.  Defendants, 
 
       receiving the exhibit in question so close to the hearing, were 
 
       prejudiced by the eleventh hour service, which deprived them of 
 
       an adequate opportunity to depose the doctor.  Exhibit 1 was 
 
       properly excluded.  
 
       
 
          It is also noted that, as claimant argued at the hearing in 
 
       his remarks to admit the exhibit, most of the contents of the 
 
       exhibit already existed previously in other exhibits in the 
 
       record.  The remaining conclusion of Dr. Durward that claimant's 
 
       condition is the result of his work injury and not the result of 
 
       organic brain syndrome is superfluous, in that other medical 
 
       evidence has been relied upon to reach the same conclusion and 
 
       claimant is being awarded benefits herein.
 
       
 
          WHEREFORE, the decision of the deputy is affirmed.
 
       
 
                                   ORDER
 
       
 
          THEREFORE, it is ordered:
 
       
 
          That defendants shall pay temporary total disability 
 
       benefits at the stipulated rate of one hundred sixty-five and 
 
       79/100 dollars ($165.79) per week from September 14, 1988 through 
 
       December 5, 1988 (11.857 weeks).
 
       
 
          That defendants shall pay permanent total disability 
 
       benefits at the stipulated rate from April 4, 1989 and continuing 
 
       during such time as claimant remains totally disabled.
 
       
 
          That all accrued weekly benefits shall paid in a lump sum 
 
       together with statutory interest.
 
       
 
          That defendants shall pay the medical expenses set forth on 
 
       joint exhibit 45, except for the fees submitted by Dr. Poss.
 
       
 
          That claimant and defendants shall share equally the costs 
 
       of the appeal including transcription of the hearing.  Defendants 
 
       shall pay all other costs.
 
            
 

 
 
 
 
 
 
 
 
 
 
 
 
 
            Signed and filed this ____ day of November, 1994.
 
       
 
       
 
       
 
       
 
                                ________________________________
 
                                        BYRON K. ORTON
 
                                   INDUSTRIAL COMMISSIONER
 
       
 
       Copies To:
 
       
 
       Mr. N. Richard Willia
 
       Attorney at Law
 
       P.O. Box 1768
 
       Sioux City, Iowa 51102
 
       
 
       Mr. James Cosgrove
 
       Mr. M. James Daley
 
       Attorneys at Law
 
       P.O. Box 1828
 
       Sioux City, Iowa 51102
 
       
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                         1804; 2907
 
                                         Filed November 30, 1994
 
                                         Byron K. Orton
 
                         
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
       _________________________________________________________________
 
                 
 
       LARRY FRANCIS SCHREINER,      
 
                 
 
          Claimant,   
 
                 
 
       vs.           
 
                                             File No. 904876
 
       ALTON RENDERING WORKS,   
 
                                               A P P E A L
 
          Employer,   
 
                                            D E C I S I O N
 
       and            
 
                 
 
       CIGNA COMPANIES,    
 
                 
 
          Insurance Carrier,    
 
          Defendants.      
 
       _________________________________________________________________
 
       
 
       1804
 
       
 
          Claimant was injured in a fall into a sewer pit, suffering 
 
       cervical myofacial pain (15 pound lifting restriction), post-
 
       traumatic stress syndrome and probable organic brain damage (from 
 
       toxic gases in the pit).  Although lacking in credibility, 
 
       claimant was awarded permanent total disability.
 
       
 
       2907
 
       
 
          Each party was assessed its own costs where both counsel 
 
       engaged in tactics needlessly driving deposition costs higher.
 
       
 
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            LARRY FRANCIS SCHREINER,      :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 904876
 
            ALTON RENDERING WORKS,        :
 
                                               A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            CIGNA COMPANIES,              :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a contested case proceeding upon the petition 
 
            in arbitration of claimant Larry F. Schreiner against his 
 
            employer, Alton Rendering Works, and its insurance carrier, 
 
            Cigna Companies.  Mr. Schreiner sustained injury in a fall 
 
            with associated exposure to toxic gases on September 14, 
 
            1988, and now seeks benefits under the Iowa Workers' 
 
            Compensation Act.  Defendants agree that claimant sustained 
 
            injury, but contend that his disability was only temporary 
 
            in nature.
 
            
 
                 A hearing was accordingly held in Sioux City, Iowa on 
 
            May 18, 1993.  Witnesses at hearing included claimant, Linda 
 
            Schreiner, Phil Van Gelder and Leighann Dilley.  The record 
 
            also includes joint exhibits 1-65, defendants' exhibits 1-10 
 
            and 12-15 and claimant's exhibits 4, 5, 17-21 and 23.   
 
            Claimant's exhibits 1, 2 and 22 were excluded upon 
 
            objection.  Objections to defendants' exhibit 11 and 
 
            claimant's exhibits 3, and 6-16 were taken under advisement.
 
            
 
                 The objection to defendants' exhibit 11 is hereby 
 
            sustained.  The objection to claimant's exhibit 3 is hereby 
 
            sustained.  Objections to claimant's exhibits 6, 7, 8, 9, 
 
            10, 12 and 14 are hereby sustained.  Objections to 
 
            claimant's exhibits 11, 15 and 16 are hereby overruled and 
 
            those exhibits are received.
 
            
 
                 The assessment of costs in this case is based upon the 
 
            conduct of both counsel during depositions.  Needlessly 
 
            technical and outright leading objections and technical 
 
            wrangling increase costs far beyond what is necessary.
 
            
 
                                     ISSUES
 
            
 
                 The parties have stipulated to the following:
 
            
 
                    1.  Claimant sustained injury arising out of 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                    and in the course of his employment on 
 
                    September 14, 1988;
 
            
 
                    2.  The injury caused temporary disability;
 
            
 
                    3.  Permanent disability, if any, should be 
 
                    calculated industrially;
 
            
 
                    4.  The correct rate of weekly compensation 
 
                    is $165.79;
 
            
 
                    5.  Fees or prices charged by medical 
 
                    providers are fair and reasonable, as is the 
 
                    treatment (except for Dr. Poss and Dr. 
 
                    Brooks); and,
 
            
 
                    6.  Defendants voluntarily paid some 
 
                    benefits prior to hearing, both workers' 
 
                    compensation and medical expenses under 
 
                    section 85.35(2).
 
            
 
                 Issues presented for resolution include:
 
            
 
                    1.  Whether the injury caused permanent 
 
                    disability;
 
            
 
                    2.  The extent of temporary total disability 
 
                    or healing period (periods after March 13, 
 
                    1989 are disputed);
 
            
 
                    3.  The extent of permanent disability, if 
 
                    any, and the appropriate commencement date;
 
            
 
                    4.  Entitlement to medical benefits; and,
 
            
 
                    5.  Whether claimant is an odd-lot employee.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The undersigned deputy industrial commissioner finds:
 
            
 
                 Larry Schreiner, 32 years of age at hearing, is a 1979 
 
            high school graduate without further education.  His work 
 
            history has generally been very heavy and basically 
 
            unskilled work, mostly in packing plants and rendering 
 
            houses.  Claimant also operated a forklift machine for 
 
            approximately one year.
 
            
 
                 Claimant is of low normal intelligence, nearly so low 
 
            as to be considered "borderline" (between low normal and 
 
            retarded).  The record clearly shows that he is a life-long 
 
            bully and ruffian.  His criminal history includes drug 
 
            offenses, extensive motor vehicle violations, vandalism to 
 
            vehicles and an assault on a television cameraman associated 
 
            with a labor dispute.  Claimant was twice expelled from high 
 
            school for violent conduct, including fights with teachers.  
 
            His sister Linda made it clear that he has employed 
 
            intimidation throughout his life as a means of gaining 
 
            "respect" from his victims.
 
            
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                 It is found that claimant was not a credible witness.  
 
            His testimony in many respects contradicts the voluminous 
 
            record, always to his benefit.  Several examples will 
 
            suffice.  At trial, claimant admitted abusing only 
 
            marijuana, cocaine, methamphetamine and alcohol (he is an 
 
            admitted alcoholic who has been treated on multiple 
 
            occasions).  In his deposition testimony, he conceded a 
 
            single exposure to lysergic acid diethylamide (LSD), but, 
 
            innocently enough, only when it was slipped into his drink 
 
            at a bar.  However, several medical records show claimant 
 
            admitting to multiple experiences with this hallucinogenic 
 
            substance.  Medical records also show abuse of valium and 
 
            intravenous use of both cocaine and "crank" (understood here 
 
            as an especially powerful form of amphetamine).  Dr. Poss, a 
 
            chiropractor who provided many disputed services and a 
 
            favorable chiropractic report for claimant was eventually 
 
            shown to have been one of claimant's former roommates, 
 
            although claimant was very, very slow and reluctant to make 
 
            this disclosure.  In his deposition testimony, claimant 
 
            conceded only minor emotional problems prior to the subject 
 
            work injury, whereas the record shows that he had made 
 
            multiple suicide threats and attempts.  Claimant 
 
            substantially understated his horrific record of motor 
 
            vehicles offenses, which include since 1975, four 
 
            convictions for operating while intoxicated (not two, as 
 
            claimant admitted) and three convictions of driving while 
 
            his license was suspended or revoked.  Other violations 
 
            abound.  Claimant clearly has little or no regard for the 
 
            laws of this state.  Another factor considered in assessing 
 
            claimant's credibility is an invalid Minnesota Multiphasic 
 
            Personality Inventory (MMPI) with an elevated scale 
 
            colloquially known as "fake bad," or tending to show 
 
            problems in excess of those actually existing.  In 
 
            claimant's case, this is almost surely related to secondary 
 
            gain considerations, especially this litigation.  The result 
 
            of this case is reached despite claimant's testimony, not 
 
            because of it.
 
            
 
                 Ironically, the work injury in this case occurred when 
 
            claimant engaged in an act of genuine heroism.  A fellow 
 
            employee was apparently working without a gas mask at the 
 
            bottom of a sewer or manhole when he was overcome by noxious 
 
            fumes.  Despite the obvious danger, Mr. Schreiner descended 
 
            into the hole in an attempted rescue.  While climbing out, 
 
            claimant was himself overcome by the fumes and fell back, 
 
            perhaps as far as ten feet.
 
            
 
                 Claimant was eventually hauled from this dangerous 
 
            sewer with hooks, but in extremis.
 
            
 
                 When claimant reached the Marion Health Center by 
 
            hospital, he was cyanotic and suffering clonic spasms or 
 
            seizures to such a degree that intubation was somewhat 
 
            delayed.  His family was called and told to hurry to the 
 
            hospital because claimant was at the point of death.  
 
            Initial diagnoses were:
 
            
 
                    1.  Multiple gas inhalation with carbon 
 
                    monoxide, carboxyhemoglobin, methemoglobin 
 
                    and probable sulfhemoglobin;
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
                    2.  Head injury, extent not determined;
 
            
 
                    3.  Gross lactic acidosis; and,
 
            
 
                    4.  Fulminant pulmonary edema from chemical 
 
                    burn.
 
            
 
                 Although claimant survived, he asserts that he is now 
 
            disabled from residual mental problems resulting from the 
 
            traumatic nature of this incident and spinal problems, 
 
            relating to the fall.  Defendants, pointing to claimant's 
 
            incredibly extensive preexisting history of trauma, insist 
 
            that there are alternate explanations for any current 
 
            disability.  As might be expected given such a complex 
 
            medical history, there is substantial diversity of medical 
 
            opinion.
 
            
 
                 Claimant's pre-injury medical history includes a 
 
            whiplash injury in 1980, toxic inhalation of acid and 
 
            chlorine gas in 1982, suicide attempts, multiple substance 
 
            abuse treatments (in 1983, claimant reported consumption of 
 
            up to 1 case of beer per day, every day), depression, carpal 
 
            tunnel syndrome (treated surgically), low back pain with 
 
            radiation in 1985, forehead lacerations (four stitches) and 
 
            lacerations, contusions, lumbosacral sprain and a fracture 
 
            of the vertebra at L3 in 1986 resulting from a fight (or, as 
 
            claimant would have it, an unprovoked attack on his person).  
 
            In January 1987, claimant suffered a right parietal temporal 
 
            skull fracture, contusions and lacerations, a broken 
 
            kneecap, lumbar spine muscle spasm and a cerebral concussion 
 
            in another fight (or, as claimant would again have it, 
 
            another unprovoked assault).
 
            
 
                 The 1987 treating physician, Dr. Lentini, noted that 
 
            the left pupil was somewhat enlarged compared to the right, 
 
            but was actively reactive to light and accommodation.  A CAT 
 
            scan of the head resulted in an impression of a small area 
 
            bilaterally suggesting metabolic disease, calcification in 
 
            the right frontal hemisphere also suggesting metabolic or 
 
            idiopathic cause, and nondisplaced right parietal skull 
 
            fracture.  There was no edema around either area of 
 
            increased attenuation to suggest recent injury.
 
            
 
                 In 1987, claimant was also involved in a motorcyle 
 
            accident with substantial loss of skin, but no fractures.
 
            
 
                 Following the work injury, claimant returned to full 
 
            time light duty work on December 6, 1988, but was discharged 
 
            in February 1989 for refusing to acknowledge receipt of a 
 
            reprimand.  A Job Service of Iowa contested case 
 
            determination filed May 3, 1989 disqualified Mr. Schreiner 
 
            for job insurance benefits because he had been discharged 
 
            for misconduct.  This determination by a sister agency is 
 
            entitled to preclusive effect.  This termination of 
 
            employment is not indicative of industrial disability.
 
            
 
                 Claimant has subsequently been briefly employed in a 
 
            drywall job for which he was paid in cash.  Claimant 
 
            acknowledged those payments were "eventually" reported to 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            the Social Security Administration, implying of course that 
 
            he did not do so promptly.  Presumably, such income is 
 
            deductible from the Social Security benefits claimant is now 
 
            receiving.  In 1987, claimant earned, by his own estimate, 
 
            approximately $1,000.00 while "working off" a debt owed to 
 
            his father.  This was not reported as income.  Although 
 
            claimant asserted that he was able and available for work 
 
            when he applied for job service benefits, he now contends 
 
            that he is completely disabled due to back pain and mental 
 
            and emotional problems, including post-traumatic shock 
 
            syndrome.
 
            
 
                 The first neurologist to treat claimant, J. L. Case, 
 
            M.D., released claimant from care on September 21 as he was 
 
            for all intents and purposes neurologically intact with 
 
            respect to both higher cortical functions as well as his 
 
            motor, sensory and coordination systems.  A repeat CAT scan 
 
            of the head was entirely negative.  J. P. Tiedman, M.D., 
 
            reported on January 17, 1989, that claimant was in a "very 
 
            good recovered state" and refused to authorize an additional 
 
            30 days of light duty work.
 
            
 
                 An MRI scan of the cervical spine was performed on May 
 
            15, 1989.  Impression was of mild congenital spinal stenosis 
 
            from C4-C6 with superimposed bulging of the anulus at C5-6, 
 
            but no evidence of herniated disc or cord compression.
 
            
 
                 In April 1991, claimant was admitted to a one-month 
 
            inpatient course of substance abuse treatment.  It was 
 
            reported that claimant completed an MMPI, but that results 
 
            were invalid and he refused to retake the test.  Claimant 
 
            was described as having difficulty integrating into the 
 
            patient community because of his intimidating behaviors.  
 
            Claimant was already under the care of a psychiatrist, Dr. 
 
            Gerald Brooks, and a psychologist, Dr. Schmitz.  The 
 
            treating physician at Marion Health Center, C. H. Auh, M.D., 
 
            diagnosed on Axis I: alcohol dependence, poly-substance 
 
            dependence (cocaine, methamphetamine, hallucinogen, 
 
            cannabis, amphetamine) and paranoid disorder, grandiose 
 
            type.  Claimant was discharged with staff approval with 
 
            recommendations to return to Drs. Brooks and Schmidtz and 
 
            referral to a local Alcoholics Anonymous group.
 
            
 
                 On May 4, 1992, electroencephalogram testing was 
 
            performed by D. Nitz, M.D.  The study was normal, both awake 
 
            and asleep.
 
            
 
                 In late 1989, claimant was referred to a neurosurgeon, 
 
            Quentin J. Durward, M.D.  Dr. Durward found a minimal 
 
            compression fracture of T9 and a suggestion of bulging at 
 
            C5-6 on a poor quality MRI scan.  Because claimant 
 
            complained of myofascial pain with markedly tender 
 
            paraspinal muscles and numbing in the arms, Dr. Durward 
 
            ordered EMG testing which showed slowing of the right median 
 
            nerve across the wrist compatible with right carpal tunnel 
 
            neuropathy.  There was no evidence of cervical 
 
            radiculopathy, so Dr. Durward concluded that claimant should 
 
            be treated for myofascial pain, but there could be a mild 
 
            degree of residual pain resulting from the fracture.  Dr. 
 
            Durward reported that this pain could last for years, but 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            would generally tend to improve with time.  He recommended 
 
            return to work with a lifting restriction of 15 pounds which 
 
            could be gradually increased as pain in the neck and 
 
            superior shoulders gradually lessened.  Dr. Durward 
 
            estimated impairment at five percent of the body as a whole 
 
            under the AMA Guides.  Note that Dr. Durward's 1993 report, 
 
            claimant's exhibit 1, was excluded from evidence and has not 
 
            been considered.
 
            
 
                 Dr. Dean J. Poss wrote on May 23, 1989 that claimant 
 
            needed to restrict lifting over 20 pounds, standing for long 
 
            periods of time, stooping or bending at the waist, and 
 
            repetitive bending should be avoided.  He subsequently rated 
 
            impairment at 25 percent of the whole man.  Although Dr. 
 
            Poss is a chiropractor, his rating was purportedly based on 
 
            American Medical Association Guides.  In an undated noted, 
 
            Dr. Poss stated that due to his work injuries, claimant was 
 
            "unable to work, and recommend that he not work in order to 
 
            avoid aggravation of his injuries."
 
            
 
                 Claimant was referred to Drs. Brooks and Schmitz (a 
 
            PH.D.) on April 4, 1989.  Dr. Schmitz's psychological 
 
            evaluation resulted in observations that claimant was 
 
            failing to function like a normal 27-year-old in the prime 
 
            of life, and that he had very evident problems with memory, 
 
            concentration and recall.  Claimant had difficulty 
 
            expressing himself, tended to lose his stream of thought, 
 
            and experienced doubt, frustration and embarrassment over 
 
            the above.  Dr. Schmitz's report also reveals that claimant 
 
            was not entirely candid.  For example, claimant denied he 
 
            had any history of prior health or emotional problems, which 
 
            was clearly false.  While claimant conceded two drunken 
 
            driving convictions, he denied any other legal problems.  
 
            Claimant denied experiencing any teacher or peer problems, 
 
            although he had been expelled from school on multiple 
 
            occasions.
 
            
 
                 Dr. Schmitz found claimant functioning in the lower end 
 
            of the low average range of intelligence, with a full scale 
 
            IQ of 80.  Dr. Schmitz believed this represented a slippage 
 
            in claimant's actual level of functioning.  Drs. Brooks and 
 
            Moore, both psychiatrists, do not.  He administered and 
 
            found an MMPI valid, with most scales out of the normal 
 
            range.  The most elevated scales measure schizophrenia, 
 
            psychasthenia, depression and hypochondriasis.  Persons with 
 
            similar profiles often experience: depression, anxiety, 
 
            nervousness, feelings of hopelessness, ruminative 
 
            introspection, overidealizational, difficulties 
 
            concentrating and thinking, excessive indecision, doubt and 
 
            devastation, self-esteem problems, weakness, fatigue, loss 
 
            of interest and initiative, introversion and distance.  A 
 
            fairly major depression was indicated.  Dr. Schmitz 
 
            concluded that testing showed signs of organic dysfunction 
 
            and recommended counseling and medication to deal with 
 
            depression and anxiety.
 
            
 
                 Incidently, Dr. Schmitz's revealing chart note of 
 
            September 10, 1992 reads:
 
            
 
                    Larry was seen for two units today.  He 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
                    became very forthright.  He indicated that 
 
                    he had done occasional work in the past 
 
                    several years with a friend from the past 
 
                    who subsequently now has turned him in to 
 
                    the Government because Larry wouldn't work 
 
                    with him anymore.  He indicated that he was 
 
                    not able to work.  It was too distressful.  
 
                    The individual paid Larry in cash and did 
 
                    not report any of the dealings with the 
 
                    Government.  The person would also appear to 
 
                    be in some problems with the Government.
 
            
 
            (Joint Exhibit 37, Page 43)
 
            
 
                 Dr. Brooks has issued multiple reports and testified by 
 
            deposition on April 19, 1993.  Dr. Brooks is board certified 
 
            in general psychiatry, geniatric psychiatry and adolescent 
 
            psychiatry.  According to Dr. Brooks, all of the treatment 
 
            claimant had received in his office was caused by the 
 
            subject work injury.  He believed that without psychotherapy 
 
            and medications, claimant's level of functioning would 
 
            probably be a great deal less than it now is.
 
            
 
                 In September 1989, Dr. Brooks opined that claimant had 
 
            been unable to function in a work situation since he began 
 
            treatment and probably since March 1989; he anticipated that 
 
            inability to work and symptomatology would continue for an 
 
            indefinite time.  In September 1990, Dr. Brooks added 
 
            post-traumatic stress disorder to his previous diagnosis of 
 
            adjustment order with mixed emotional features and 
 
            depression.  He again causally related claimant's 
 
            psychological condition to the work injury, and felt it was 
 
            impossible to know how long the syndrome would continue, 
 
            adding that it caused significant disability and interfered 
 
            with claimant's present level of functioning and ability to 
 
            be retrained.
 
            
 
                 In his deposition, Dr. Brooks opined that claimant had 
 
            been unable to engage in full time employment from the date 
 
            of injury to the present, secondary both to emotional and 
 
            physical trauma caused by the injury.  He felt it would be 
 
            several years before claimant could be employed, and then, 
 
            it would have to be in a very low stress situation.
 
            
 
                 Claimant was also seen for evaluation by Dr. Stan 
 
            Moore, also a board certified psychiatrist.  Dr. Moore saw 
 
            claimant on December 11, 1992 and testified by deposition on 
 
            May 10, 1993.  Dr. Moore, like Dr. Brooks, believed that 
 
            claimant suffers an organic mental disorder, but found 
 
            himself unable to conclude with medical certainty what the 
 
            cause of that disorder might be.  He found claimant's 
 
            previous history, including severe alcohol abuse and head 
 
            injuries, to be perfectly capable of causing claimant's 
 
            organic problems.  Of course, the hypoxia and anoxia (oxygen 
 
            deprivation) that claimant suffered on the date of accident 
 
            was also consistent with a showing of brain damage.  Again 
 
            like Dr. Brooks, Dr. Moore believed that claimant suffers a 
 
            (mild) post-traumatic stress syndrome, but does not agree 
 
            that this condition renders him unable to work.  
 
            
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
                 It is noted that Dr. Kimball, a trainee psychiatrist in 
 
            the chemical dependency unit of the Cherokee Mental Health 
 
            Institute, concluded in April 1987 that claimant did not 
 
            have an organic brain syndrome at that time.
 
            
 
                 Dr. Moore agreed that claimant's post-traumatic stress 
 
            disorder was caused by the work injury and agreed abstractly 
 
            that the condition can be disabling.  He also agreed that it 
 
            would necessitate some type of treatment, but did not think 
 
            that the treatment provided by Dr. Schmitz was medically 
 
            necessary.  Dr. Moore also agreed that a number of the 
 
            symptoms claimant now claims to suffer are consistent with 
 
            post-traumatic stress, including not thinking clearly, 
 
            difficulty organizing thoughts, mental confusion, losing 
 
            one's train of thought, disrupted sleep patterns, 
 
            nightmares, feelings of desperation and loss of hope, 
 
            feelings of isolation, perhaps feelings of worthlessness and 
 
            decrease in prior level of function.  Dr. Moore also opined 
 
            that if claimant were to be employed, it should be in a low 
 
            stress job.
 
            
 
                 Both Dr. Brooks and Dr. Moore are highly qualified 
 
            psychiatrists.  They agree in many respects, and disagree in 
 
            but few.  However, the few are significant, including 
 
            whether claimant is disabled from work due to his 
 
            post-traumatic stress syndrome and, as Dr. Brooks finds, his 
 
            organic mental problems.  Given that Dr. Brooks was a 
 
            treating physician over an extended time and considering Dr. 
 
            Kimball's view that claimant did not suffer organic brain 
 
            deficiencies in 1987, one year prior to the injury, Dr. 
 
            Brooks' view is accepted.  Due to organic brain disorder and 
 
            post-traumatic stress syndrome, claimant has since March 
 
            1989 been unable to work for psychological and organic 
 
            reasons, and will be unable to do so for the immediately 
 
            foreseeable future.  Even then, claimant will require a low 
 
            stress job.
 
            
 
                 Dr. Robert Sundell, a board certified neurologist, saw 
 
            claimant for evaluation on November 30, 1992, and testified 
 
            by deposition on May 17, 1993.  He found a normal 
 
            neurological examination and no restriction in range of 
 
            motion, loss of strength, loss of reflexes, sensory loss, 
 
            trouble with balance with the cranial nerves, or muscle 
 
            atrophy.
 
            
 
                 Dr. Sundell generally concluded that claimant had 
 
            suffered no permanent injury on September 14, 1988 and 
 
            believed that maximum medical improvement had been reached 
 
            at six months following injury.  Dr. Sundell also believed 
 
            that claimant could resume his usual and customary 
 
            activities with no new restrictions.  Dr. Sundell concluded 
 
            that claimant did not suffer from post-traumatic stress 
 
            disorder and did not believe that claimant has permanent 
 
            organic brain damage.  However, the restrictions imposed by 
 
            treating psychiatrist Brooks are given preference here.
 
            
 
                 Claimant was seen by Thomas A. Carlstrom, M.D., on 
 
            November 29, 1990.  Although Dr. Carlstrom's specialty does 
 
            not appear, he writes on the letterhead of Iowa Methodist 
 
            Low Back Institute.  Dr. Carlstrom noted a fairly 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            significant diminished range of motion of the neck in all 
 
            planes and had little doubt that claimant was experiencing 
 
            myofascial pain as a result of the fall.  This is consistent 
 
            with the view of Dr. Durward.  He believed pain was 
 
            significant but might diminish with the passage of time.  He 
 
            saw little need for further physical therapy and would 
 
            discontinue it.  Dr. Carlstrom did not discuss whether 
 
            medical restrictions were appropriate, but rated impairment 
 
            at about eight percent of the body as a whole due to 
 
            diminished range of motion in the neck.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury is a proximate 
 
            cause of the disability on which the claim is based.  A 
 
            cause is proximate if it is a substantial factor in bringing 
 
            about the result; it need not be the only cause.  A 
 
            preponderance of the evidence exists when the causal 
 
            connection is probable rather than merely possible.  
 
            Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 
 
            1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 
 
            (Iowa 1974).
 
            
 
                 The question of causal connection is essentially within 
 
            the domain of expert testimony.  The expert medical evidence 
 
            must be considered with all other evidence introduced 
 
            bearing on the causal connection between the injury and the 
 
            disability.  The weight to be given to any expert opinion is 
 
            determined by the finder of fact and may be affected by the 
 
            accuracy of the facts relied upon by the expert as well as 
 
            other surrounding circumstances.  The expert opinion may be 
 
            accepted or rejected, in whole or in part.  Sondag v. Ferris 
 
            Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar 
 
            Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, 
 
            Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial 
 
            disability.  Impairment and disability are not synonymous.  
 
            The degree of industrial disability can be much different 
 
            than the degree of impairment because industrial disability 
 
            references to loss of earning capacity and impairment 
 
            references to anatomical or functional abnormality or loss.  
 
            Although loss of function is to be considered and disability 
 
            can rarely be found without it, it is not so that a degree 
 
            of industrial disability is proportionally related to a 
 
            degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of the 
 
            healing period; the work experience of the employee prior to 
 
            the injury and after the injury and the potential for 
 
            rehabilitation; the employee's qualifications 
 
            intellectually, emotionally and physically; earnings prior 
 
            and subsequent to the injury; age; education; motivation; 
 
            functional impairment as a result of the injury; and 
 
            inability because of the injury to engage in employment for 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            which the employee is fitted.  Loss of earnings caused by a 
 
            job transfer for reasons related to the injury is also 
 
            relevant.  Likewise, an employer's refusal to give any sort 
 
            of work to an impaired employee may justify an award of 
 
            disability.  McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 
 
            (Iowa 1980).  These are matters which the finder of fact 
 
            considers collectively in arriving at the determination of 
 
            the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  Neither does a 
 
            rating of functional impairment directly correlate to a 
 
            degree of industrial disability to the body as a whole.  In 
 
            other words, there are no formulae which can be applied and 
 
            then added up to determine the degree of industrial 
 
            disability.  It therefore becomes necessary for the deputy 
 
            or commissioner to draw upon prior experience as well as 
 
            general and specialized knowledge to make the finding with 
 
            regard to degree of industrial disability.  See Christensen 
 
            v. Hagen, Inc., Vol. 1 No. 3 State of Iowa Industrial 
 
            Commissioner Decisions 529 (App. March 26, 1985); Peterson 
 
            v. Truck Haven Cafe, Inc., Vol. 1 No. 3 State of Iowa 
 
            Industrial Commissioner Decisions 654 (App. February 28, 
 
            1985).
 
            
 
                 This decision is admittedly offered with grave 
 
            misgivings.  The writer has no doubt that claimant has 
 
            engaged in a pattern of falsehood and deceit to maximize his 
 
            personal gain from this litigation.  Nonetheless, even liars 
 
            or malingerers can suffer real disability.  This record 
 
            contains a wealth of the most diverse opinion from 
 
            well-respected medical specialists.  Depending on which 
 
            opinions are accepted, claimant could as easily be found to 
 
            have no permanent disability whatsoever as the permanent 
 
            total disability found here.
 
            
 
                 This opinion accepts the opinions of the treating 
 
            physicians, Dr. Brooks and Dr. Durward, as most persuasive.  
 
            Those physicians have had an opportunity to observe claimant 
 
            over a longer time than Dr. Sundell or Dr. Moore.  Dr. Moore 
 
            in part buttresses the opinions of Dr. Brooks.  Both are 
 
            psychiatrists, and better able to speak to the 
 
            post-traumatic stress diagnosis than Dr. Sundell, although 
 
            the question of organic brain damage is perhaps more 
 
            appropriate to Dr. Sundell's specialty.
 
            
 
                 Dr. Durward, buttressed in part by Dr. Carlstrom, 
 
            recommends a 15 pound lifting restriction.  This alone is 
 
            hugely disabling to a worker of claimant's limited 
 
            intelligence and employment history of heavy menial work.  
 
            Dr. Brooks finds that claimant is unable to work due to his 
 
            psychological problems, although this condition may improve 
 
            in time.  Similarly, claimant's soft tissue neck problems 
 
            may improve.  If so, review-reopening is available to 
 
            defendants.  Permanent total disability does not necessarily 
 
            imply perpetuity, and may come to an end if claimant 
 
            develops earning capacity.
 
            
 
                 Claimant shall therefore be awarded temporary total 
 
            disability from September 14, 1988 through his return to 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            work after December 5, 1988.  Iowa Code section 85.33(1).  
 
            Claimant shall be awarded permanent total disability from 
 
            April 4, 1989, pursuant to Dr. Brooks' opinion.  Such 
 
            benefits shall remain payable until such time as claimant no 
 
            longer suffers a total industrial disability.
 
            
 
                 Claimant has failed to establish that the chiropractic 
 
            treatment of Dr. Poss is reasonably necessary.  Dr. Brooks' 
 
            testimony establishes that his treatment is reasonable and 
 
            necessary.  All other expenses shown on joint exhibit 45 
 
            bear causally connection to the injury.  Defendants shall 
 
            pay the expenses shown on exhibit 45, except for Dr. Poss.
 
            
 
                                     ORDER
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Defendants shall pay temporary total disability 
 
            benefits at the stipulated rate of one hundred sixty-five 
 
            and 79/100 dollars ($165.79) per week from September 14, 
 
            1988 through December 5, 1988 (11.857 weeks).
 
            
 
                 Defendants shall pay permanent total disability 
 
            benefits at the stipulated rate from April 4, 1989 and 
 
            continuing during such time as claimant remains totally 
 
            disabled.
 
            
 
                 All accrued weekly benefits shall paid in a lump sum 
 
            together with statutory interest.
 
            
 
                 Defendants shall pay the medical expenses set forth on 
 
            joint exhibit 45, except for the fees submitted by Dr. Poss.
 
            
 
                 Each party shall bear its own costs.
 
            
 
                 Signed and filed this ____ day of February, 1994.
 
            
 
            
 
            
 
            
 
                                          
 
                                          ________________________________
 
                                          DAVID R. RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr N Richard Willia
 
            Attorney at Law
 
            PO Box 1768
 
            Sioux City Iowa 51102
 
            
 
            Mr M James Daley
 
            Attorney at Law
 
            1109 Badgerow Building
 
            PO Box 1828
 
            Sioux City Iowa 51102
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            1804; 2907
 
                                            Filed February 15, 1994
 
                                            DAVID R. RASEY
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            LARRY FRANCIS SCHREINER,      :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 904876
 
            ALTON RENDERING WORKS,        :
 
                                              A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            CIGNA COMPANIES,              :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            1804
 
            Claimant was injured in a fall into a sewer pit, suffering 
 
            cervical myofacial pain (15 pound lifting restriction), 
 
            post-traumatic stress syndrome and probable organic brain 
 
            damage (from toxic gases in the pit).  Although lacking in 
 
            credibility, claimant was awarded permanent total 
 
            disability.
 
            
 
            2907
 
            Each part was assessed its own costs where both counsel 
 
            engaged in tactics needlessly driving deposition costs 
 
            higher.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            WAYNE MORWITZER,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 905109
 
            KEIM TRANSPORTATION COMPANY,  :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            USF&G,                        :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                                   introduction
 
            
 
                 This is a hearing upon a petition for arbitration filed 
 
            by Wayne Morwitzer, claimant, against Keim Transportation 
 
            Company, employer, and U S F & G, insurance carrier, 
 
            defendants, for benefits as a result of an alleged injury 
 
            which occurred on February 19, 1988.  A hearing was held in 
 
            Des Moines, Iowa on August 29, 1990 and the case was fully 
 
            submitted at the close of the hearing.  Claimant was 
 
            represented by Joseph M. Bauer.  Defendants were represented 
 
            by Philip H. Dorff, Jr.  The record consists of the 
 
            testimony of Wayne Morwitzer, claimant; Glen Keim, 
 
            president; Bernard Wiltz, risk manager; and, joint exhibits 
 
            A through G.  The deputy ordered a transcript of the 
 
            hearing.
 
            
 
                                   stipulations
 
            
 
                 The parties stipulated that an employer-employee 
 
            relationship existed between claimant and employer at the 
 
            time of the alleged injury.
 
            
 
                                      issues
 
            
 
                 The sole issue presented by the parties for 
 
            determination is whether the industrial commissioner of Iowa 
 
            has subject matter jurisdiction over this case which the 
 
            parties agree is determined by whether claimant's employment 
 
            is principally localized in Iowa as provided in Iowa Code 
 
            section 85.71(1) (transcript, pages 8-12).
 
            
 
                                 findings of fact
 
            
 
                 It is determined that claimant's employment is 
 
            principally localized within Iowa under the provisions of 
 
            Iowa Code section 85.71(1) and, therefore, the Iowa 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            
 
            Industrial Commissioner does have subject matter 
 
            jurisdiction over this case.
 
            
 
                 Claimant is a resident and domiciled at Clare, Iowa, 
 
            which is approximately 12 miles from Fort Dodge, Iowa 
 
            (transcript, pages 17 and 18).  The employer's principal 
 
            place of business is Sabetha, Kansas (transcript, pages 
 
            46-48).  Claimant was injured in a truck accident on 
 
            February 19, 1988 at Preston, Illinois (transcript, pages 40 
 
            and 41).
 
            
 
                 Iowa Code section 85.71(1) provides as follows:
 
            
 
                 If an employee, while working outside the 
 
                 territorial limits of this state, suffers an 
 
                 injury on account of which the employee, or in the 
 
                 event of death, the employee's dependents, would 
 
                 have been entitled to the benefits provided by 
 
                 this chapter had such injury occurred within this 
 
                 state, such employee, or in the event of death 
 
                 resulting from such injury, the employee's 
 
                 dependents, shall be entitled to the benefits 
 
                 provided by this chapter, provided that at the 
 
                 time of such injury:
 
            
 
                    1.  The employment is principally localized in 
 
                 this state, that is, the employee's employer has a 
 
                 place of business in this or some other state and 
 
                 the employee regularly works in this state, or if 
 
                 the employee is domiciled in this state, or
 
            
 
                 With respect to paragraph 1, it is determined that the 
 
            employee's employer has a place of business in this state.  
 
            Glen Keim, president of Keim Transportation Company, 
 
            testified that his company, which is incorporated in Kansas, 
 
            maintains a place of business in Fort Dodge, Iowa.  He 
 
            referred to it as a loading facility.  He denied it was a 
 
            terminal.  He said he or the corporation owns five acres, 
 
            two separate tracts at Fort Dodge.  The facility consists of 
 
            a large metal building containing 8,000 square feet, a small 
 
            concrete block building containing 300 feet of office space 
 
            and two hard surface lots where trailers are parked.  Keim 
 
            said he has 20 trailers at the Fort Dodge location.  
 
            Exhibits E, F and G are photographs of the facility.
 
            
 
                 Exhibit E shows a very large, hard surface lot, 
 
            probably gravel, with eight semi-trailers lined up in a row, 
 
            and portions of the cabs of two semi-tractors.
 
            
 
                 Exhibit F shows a large metal building with a sign 
 
            which says "Keim Transportation Inc."  There is a smaller 
 
            concrete block building in front of the metal building.  
 
            
 
                 Exhibit G shows the large metal building, capable of 
 
            garaging several semi-tractors or trailers, and 11 parked 
 
            trailers in a row on the hard surface area which appear to 
 
            be loaded, tarped and chained.  Claimant testified that 
 
            there was another building and parking lot operated by Keim 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
            
 
            that was not shown in the photographs (transcript, page 26).
 
            
 
                 Keim testified that he employs four or five employees 
 
            at the Fort Dodge facility (transcript, page 49) and that 
 
            there are 15 or 20 men who are drivers that operate from 
 
            that facility and who live in the Fort Dodge area 
 
            (transcript, page 61).  He testified that the principal 
 
            place of business is Sabetha, Kansas and his company makes 
 
            deliveries in all 48 states and Canada.  He said he is not 
 
            incorporated in Iowa or any other state and does not pay 
 
            Iowa income tax.  He described 20 other loading facilities 
 
            operated by his company at other places.
 
            
 
                 Keim said that employees are hired and fired at 
 
            Sabetha, Kansas.  The loads are assigned and dispatched from 
 
            Sabetha, Kansas.  Drivers are required to call the 
 
            dispatcher at an "800" number at Sabetha, Kansas twice a day 
 
            when they are on the road.  Keim said the business is 
 
            operated from the Kansas office and all employees take their 
 
            commands from there.
 
            
 
                 Keim testified that claimant was hired as an 
 
            over-the-road truck driver to deliver in any of the 48 
 
            states and Canada, but as it happened, he delivered to 
 
            approximately 14 Midwestern states.  Keim testified that 
 
            most of the destinations and deliveries were to points 
 
            outside of Iowa and there are no strictly intrastate 
 
            drivers.
 
            
 
                 The company president said that claimant picked up a 
 
            truck originally in Sabetha, Kansas, but after that all of 
 
            his trips started and ended in Fort Dodge, Iowa (transcript, 
 
            page 62).  He said it was the company policy that drivers 
 
            were to be home every weekend, save for exceptional 
 
            circumstances, which were infrequent (transcript, pages 51, 
 
            55, 56 and 57).  The witness stated that the purpose of the 
 
            Fort Dodge facility was to haul gypsum products which were 
 
            produced in the Fort Dodge area (transcript, page 59).
 
            
 
                 The witness testified that light maintenance on the 
 
            trucks is performed at the Fort Dodge facility, but no major 
 
            mechanical repairs are made there because they are performed 
 
            in Kansas (transcript, page 63).  He said that trailers were 
 
            loaded and unloaded at the Fort Dodge facility and the 
 
            drivers were not required to move to Kansas in order to work 
 
            for the company (transcript, page 64).
 
            
 
                 Bernard Wiltz, risk manager for employer, testified 
 
            that the company has a policy of hiring the sons of their 
 
            regular drivers and permitting the fathers to train the sons 
 
            as drivers.  During the training period, the sons are paid a 
 
            small salary.  Claimant's mother contacted him and asked if 
 
            claimant could be trained by his step-father.  Wiltz said 
 
            the final determination to hire was made in Kansas after the 
 
            application was received at the principal place of business 
 
            in Kansas.  The witness said that claimant was terminated in 
 
            Kansas in April of 1988 and that he signed the termination 
 
            report on June 6, 1988 (exhibit 3).  Wiltz said that a claim 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
            
 
            for unemployment compensation for claimant was processed in 
 
            Kansas (exhibits C and D; transcript, pages 64-69).
 
            
 
                 Claimant testified that he was 25 years old.  He was 
 
            born at Fort Dodge and had lived in nearby Clare, Iowa all 
 
            of his life, except for three years between the ages of 18 
 
            and 21 when he lived in Florida, Illinois and Texas.  He 
 
            said he started to work for employer on July 13, 1987 at his 
 
            mother's suggestion by riding with his step-father.  
 
            Claimant testified that he completed the application for 
 
            employment in Fort Dodge, Iowa and while driving on the road 
 
            with his step-father and had turned it in to the 
 
            receptionist at the Fort Dodge facility who forwarded it to 
 
            Kansas (transcript, pages 17-20 and 32-34).  Claimant said 
 
            he was actually hired as a driver's helper before he ever 
 
            left home at Clare, Iowa (transcript, page 34).  He said he 
 
            has an Iowa chauffeur's license and took his pre-employment 
 
            physical examination in Fort Dodge, Iowa (transcript, page 
 
            21).  He related that he was paid $.15 per mile for his 
 
            trips which always originated and ended in Fort Dodge, Iowa, 
 
            except for the trip to Sabetha, Kansas to pick up his truck 
 
            when he was hired.  He testified that his mileage always 
 
            began and ended in Fort Dodge, Iowa (transcript, page 22).  
 
            Claimant said that his paychecks were required to be 
 
            deposited to a Sabetha, Kansas bank account in his name and 
 
            employer then notified claimant that his check had been 
 
            deposited.  He was issued a check book that showed his 
 
            Clare, Iowa address (transcript, page 23).  Claimant related 
 
            that Kansas income tax was withheld from his checks.  He 
 
            then filed both Iowa and Kansas income tax returns and 
 
            Kansas paid the taxes to Iowa (transcript, pages 24 and 25).  
 
            He identified the trailers on the hard surface lots in the 
 
            photographs of defendant's Fort Dodge facility as waiting to 
 
            be picked up and delivered (transcript, pages 25 and 26).
 
            
 
                 Claimant related that his typical work week was to go 
 
            to the Fort Dodge facility on Sunday afternoon, get in his 
 
            truck and back it under a trailer, and deliver it to 
 
            Chicago, Davenport or some other location.  He then called 
 
            the "800" number in Kansas and was given a new load.  He 
 
            then might haul some steel from one point in Illinois to 
 
            another point in Illinois and then return home for the 
 
            weekend.  Claimant testified that he returned home to Fort 
 
            Dodge, Iowa for every weekend.  The truck would be serviced 
 
            and cleaned and he would take out another load on Sunday to 
 
            a new destination (transcript, pages 27, 28 and 42).
 
            
 
                 Claimant stated that he primarily hauled wallboard 
 
            which was produced by the National Gypsum Company or the 
 
            Georgia Pacific Company at Fort Dodge, Iowa.  He said the 
 
            trailers were loaded by shag drivers who took them from the 
 
            employer's Fort Dodge facility to the gypsum company plant, 
 
            loaded them, tarped them, chained them, brought them back to 
 
            employer's Fort Dodge facility, weighed them and parked them 
 
            on the slab to await delivery to some point, usually outside 
 
            the state of Iowa.  He said the shag drivers were employed 
 
            by Keim also.  Claimant described that the Fort Dodge 
 
            facility had a shop manager, a secretary and two or three 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
            
 
            other full-time maintenance employees.  He turned in his log 
 
            sheets, receipts and other papers to Ruth at the Fort Dodge 
 
            facility on Friday or Saturday when he arrived home from a 
 
            road trip (transcript, pages 29 and 30).  Claimant granted 
 
            that most of the time he delivered wallboard or some other 
 
            product outside of Iowa, but sometimes he made deliveries in 
 
            Iowa also and went back to Fort Dodge for another load 
 
            (transcript, page 42).
 
            
 
                 Claimant said he did not intend to file an unemployment 
 
            compensation claim until a welfare employee suggested that 
 
            he do so.  He actually filed the claim in Iowa, but 
 
            apparently it was sent to Kansas because he found out later 
 
            that it was processed in Kansas (transcript, pages 30, 31 
 
            and 45).
 
            
 
                 Claimant acknowledged that he took his driver's test 
 
            and received his driver's certificate in Kansas (transcript, 
 
            pages 34 and 35).  However, he took his road test with his 
 
            step-father in Iowa.  He admitted that the dispatches came 
 
            from Kansas and that much of the paperwork was performed in 
 
            Kansas (transcript, page 35).  He believed his supervisor 
 
            was the dispatcher, Bob Easter, at Sabetha, Kansas 
 
            (transcript, pages 39 and 40).  He acknowledged that he 
 
            delivered loads to approximately 14 states surrounding Iowa 
 
            and including Iowa (transcript, pages 41 and 42).  Claimant 
 
            testified that he worked for employer from July of 1987 
 
            until February of 1988.  His accident occurred at or near 
 
            Preston, Illinois after a trip from Fort Dodge, Iowa to 
 
            Preston, Illinois.  He received a termination notice by mail 
 
            from Bernard Wiltz at his home in Clare in April of 1988.  
 
            He acknowledged that he was receiving workers' compensation 
 
            payments in Kansas (transcript, pages 43 and 44).
 
            
 
                 In the case of Iowa Beef Processors v. Miller, 312 
 
            N.W.2d 530 (Iowa 1981), it was determined that domicile in 
 
            Iowa alone is not sufficient to entitle an employee, who has 
 
            sustained an injury outside of the state of Iowa, to 
 
            workers' compensation benefits in Iowa under Iowa Code 
 
            section 85.71(1); but, rather, there must be some meaningful 
 
            relationship between domicile within the state of Iowa and 
 
            the employer-employee relationship.  In that case, the 
 
            claimant was an Iowa resident.  The employer maintained its 
 
            principal place of business in Nebraska.  The employee was 
 
            injured in Nebraska.  The Court found there was no 
 
            meaningful relationship between Miller's domicile in Iowa 
 
            and her employment for IBP in Nebraska.  The fact that 
 
            Miller responded to an employment advertisement in an Iowa 
 
            newspaper was insufficient to supply the necessary 
 
            meaningful connection.
 
            
 
                 In the case of George H. Wentz, Inc. v. Sabasta, 337 
 
            N.W.2d 495 (Iowa 1983), the claimant was an Iowa resident, 
 
            injured in South Dakota while working for an employer with 
 
            its principal place of business in Nebraska.  In that case, 
 
            the Supreme Court determined that the existence of hiring 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
            
 
            provisions in the employer's collective bargaining contract, 
 
            the employer's alleged reliance on availability of a pool of 
 
            Iowa workers, and referral of claimant by an Iowa union 
 
            local was insufficient to supply the necessary meaningful 
 
            connection.
 
            
 
                 In this case, it is determined that a meaningful 
 
            connection between claimant's domicile in Iowa and the 
 
            employer-employee relationship does exist because:  (1) 
 
            employer maintained a place of business in Iowa and actually 
 
            operated a business in Iowa.  The business operated was the 
 
            business of hauling the gypsum products manufactured by the 
 
            National Gypsum Company and Georgia Pacific Company produced 
 
            in the Fort Dodge area to destinations in the states 
 
            surrounding Iowa and the Midwest in general.  Employer 
 
            purchased and owns five acres of ground, two tracts of land, 
 
            an 8,000 square foot permanent metal building structure, a 
 
            300 square foot concrete building structure, a third 
 
            building, and two hard surface lots to store, load, weigh, 
 
            unload, maintain and operate 15 or 20 tractors and 20 
 
            trailers; (2) In the operation of this business, employer 
 
            employed four or five employees to perform office work and 
 
            light maintenance work at the Fort Dodge facility.  Employer 
 
            employed claimant and 15-20 other truck drivers in the Fort 
 
            Dodge vicinity to make deliveries from Fort Dodge to 
 
            presumably the same points of destination to which claimant 
 
            delivered these products.
 
            
 
                 Is the employer's operation any different than numerous 
 
            other companies who may be incorporated in one state, 
 
            maintain a principal place of business in another state, and 
 
            operate places of business in several states or possibly all 
 
            48 states and Canada?  It is determined that the evidence 
 
            establishes that ". . . the employee's employer has a place 
 
            of business in this . . . state" and employs persons who are 
 
            resident and domiciled in Iowa to work at this place of 
 
            business.
 
            
 
                 Claimant's log book entries which commence on September 
 
            1, 1987 and end on February 21, 1988 (exhibit B) corroborate 
 
            claimant's and Keim's testimony that claimant's trips 
 
            originated in Fort Dodge, Iowa, usually on a Sunday or 
 
            Monday, and terminated in Fort Dodge, Iowa on a Friday, 
 
            Saturday or Sunday.  Sometimes claimant would return to Fort 
 
            Dodge, Iowa in the course of a week four or five times 
 
            (exhibit C, pages 7-12).  Sometimes claimant made deliveries 
 
            to Iowa destinations as well as to the surrounding states of 
 
            Minnesota, Wisconsin, Illinois, Missouri, Kansas, Nebraska, 
 
            South Dakota and North Dakota.  Long distance trips such as 
 
            to Montana, Tulsa, Oklahoma, or Atlanta, Georgia are 
 
            isolated instances.  Neither party submitted proof by 
 
            precise calculation of how many miles or hours were traveled 
 
            in Iowa and how many miles were traveled outside of Iowa.  
 
            In any event, however, in order to get to the border states, 
 
            from Fort Dodge, Iowa, which is in the north central part of 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
            
 
            the state, it was necessary for claimant to traverse 
 
            numerous miles over Iowa territory in order to get to the 
 
            border and then again to return to Fort Dodge, Iowa.  
 
            Therefore, it is apparent that in order to make the 
 
            deliveries which claimant made in Iowa and to make the 
 
            deliveries which he made to the border states, it was 
 
            necessary for claimant to travel over a substantial number 
 
            of miles in the state of Iowa to make deliveries and to 
 
            travel over a substantial number of Iowa miles again to 
 
            return home to Fort Dodge.
 
            
 
                 Therefore, since claimant initiated all trips in Fort 
 
            Dodge, Iowa, and terminated all trips in Fort Dodge, Iowa, 
 
            he motored over a substantial number of Iowa miles in order 
 
            to make deliveries and to return home.  His trip mileage 
 
            began at Fort Dodge, Iowa and ended at Fort Dodge, Iowa.  
 
            For these reasons, it is determined that claimant's 
 
            employment was primarily localized in Iowa.  His trips to 
 
            any other state were so sporadic that it cannot be said that 
 
            any other single state was the state where claimant's 
 
            employment was principally localized.  Claimant only 
 
            occasionally made deliveries or stops in Kansas and it 
 
            cannot be said that his work was principally localized in 
 
            Kansas under the evidence in this record.
 
            
 
                 Reviewing the cases, the Miller case at page 533, the 
 
            Wentz case at page 501, and the case of Orr v. McNair, 386 
 
            N.W.2d 145 (Iowa App. 1986), at page 149, the Supreme Court 
 
            of Iowa and the Court of Appeals of Iowa have both stated:  
 
            ". . . The employee must perform the primary portion of his 
 
            services for the employer within the territorial boundaries 
 
            of the state of Iowa or that such services be attributable 
 
            to the employer's business in this state."  Since neither n this state for employer.  It is further determined 
 
            that a substantial portion of claimant's working time was 
 
            spent serving the employer in the state of Iowa.  From Fort 
 
            Dodge, Iowa, to any point on the Iowa border and from any 
 
            point on the Iowa border back to Fort Dodge, Iowa would 
 
            require a substantial portion of the employee's working time 
 
            serving the employer in the state of Iowa.  As previously 
 
            mentioned, sometimes claimant returned to Fort Dodge, Iowa 
 
            several times in the course of one week which only further 
 
            increases the substantial amount of time claimant spent in 
 
            the state of Iowa serving employer.
 
            
 
                 If employer required employees to commute from Sabetha, 
 
            Kansas to Fort Dodge, Iowa or from any other state, it would 
 
            constitute an impossible burden on the employer and the 
 
            employees.  Consequently, it is determined that there is a 
 
            meaningful relationship between claimant's domicile at 
 
            Clare, Iowa, approximately 12 miles from Fort Dodge, Iowa, 
 
            and the employer-employee relationship with employer who 
 
            maintains a loading station, terminal, place of business and 
 
            is operating a business of hauling gypsum products from two 
 
            major manufacturers in the Fort Dodge vicinity to points in 
 
            the Midwest states.
 
            
 
                                conclusions of law
 
            
 
                 WHEREFORE, based upon the evidence presented and the 
 
            foregoing principles of law, the following conclusions of 
 
            law are made:
 
            
 
                 That employer has a place of business and is operating 
 
            a business in the state of Iowa at Fort Dodge, Iowa.
 
            
 
                 That claimant is domiciled and is a resident of Clare, 
 
            Iowa.
 
            
 
                 That there is a meaningful relationship between 
 
            claimant's domicile at Clare, Iowa, near Fort Dodge, Iowa, 
 
            and the employer-employee relationship with employer who has 
 
            a place of business and operates a business at Fort Dodge, 
 
            Iowa.
 
            
 
                 That the industrial commissioner of the state of Iowa 
 
            does have subject matter jurisdiction over this case because 
 
            claimant's employment with employer was principally 
 
            localized in the state of Iowa within the context of Iowa 
 
            Code section 85.71(1).  Iowa Beef Processors v. Miller, 312 
 
            N.W.2d 530 (Iowa 1981); George H. Wentz, Inc. v. Sabasta, 
 
            337 N.W.2d 495 (Iowa 1983); Orr v. Lewis Cent. School Dist., 
 
            298 N.W.2d 256 (Iowa 1988).
 
            
 
                                      order
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 That this case be returned to docket and placed in 
 
            assignment for hearing on the other issues which may need to 
 
            be determined in this case.
 
            
 
                 That the costs of this action, including the cost of 
 
            the transcript, are charged to defendants pursuant to 
 
            Division of Industrial Services Rule 343-4.33.
 
            
 
                 That the employer file a first report of injury within 
 
            ten (10) days after the signing and filing of this decision.
 
            
 
                 That defendants file claim activity reports as 
 
            requested by this agency pursuant to Division of Industrial 
 
            Services Rule 343-3.1.
 
            
 
                 Signed and filed this ______ day of ____________, 1990.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          WALTER R. McMANUS, JR.
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Joseph M. Bauer
 
            Attorney at Law
 
            309 Court Avenue
 
            Suite 500, Saddlery Building
 
            Des Moines, Iowa  50309
 
            
 
            Mr. Philip H. Dorff, Jr.
 
            Attorney at Law
 
            Suite 111, Terrace Center
 
            2700 Grand Avenue
 
            Des Moines, Iowa  50312
 
            
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               2301
 
                                               Filed September 7, 1990
 
                                               WALTER R. McMANUS, JR.
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            WAYNE MORWITZER,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 905109
 
            KEIM TRANSPORTATION COMPANY,  :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            USF&G,                        :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
            2301
 
            Claimant was domiciled at and a resident of Clare, Iowa near 
 
            Fort Dodge, Iowa.  Employer maintained a loading facility 
 
            which was determined to be a place of business at Fort 
 
            Dodge, Iowa.  Claimant was injured in a truck accident in 
 
            Illinois.  Claimant made deliveries to a few places in Iowa 
 
            and a lot of places in the states surrounding Iowa.  
 
            Claimant's trips all began and ended in Fort Dodge, Iowa.  
 
            His paid mileage began and ended in Fort Dodge, Iowa.  He 
 
            made deliveries in Iowa.  Sometimes he returned to Fort 
 
            Dodge, Iowa from various places in state and outside of Iowa 
 
            three or four times a week.  From Fort Dodge, Iowa to 
 
            anyplace on the Iowa border to make a delivery outside Iowa 
 
            and from any place on the Iowa border back to Fort Dodge, 
 
            Iowa constituted a substantial amount of service for 
 
            employer in the state of Iowa.  Since employer maintained a 
 
            place of business and operated a business of delivering 
 
            gypsum products from two manufacturers in the Fort Dodge 
 
            area and since employer maintained substantial real estate, 
 
            three buildings, two hard surface lots and 20 trailers at 
 
            Fort Dodge, Iowa to conduct this business, it was found that 
 
            there was a meaningful relationship between claimant's 
 
            domicile and the employer-employee relationship.  Therefore, 
 
            claimant's employment was localized in Iowa.  There is 
 
            subject matter jurisdiction in Iowa and for the industrial 
 
            commissioner in the state of Iowa under the provisions of 
 
            Iowa Code section 85.71(1).
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DAVID HAUSER,
 
          
 
               Claimant,
 
                                         File No. 905110
 
          vs.
 
          
 
          NATURE'S WAY LANDSCAPING,      A R B I T R A T I 0 N
 
          
 
               Employer,                 D E C I S.I 0 N
 
          
 
          and
 
          
 
          UNITED FIRE & CASUALTY
 
          COMPANY,
 
          
 
          
 
               Insurance Carrier,
 
               Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration wherein David Hauser 
 
         seeks compensation for healing period and permanent partial 
 
         disability benefits and payment of medical expenses based upon an 
 
         alleged leg injury occurring on August 14, 1986.  The case was 
 
         heard in Des Moines, Iowa, on May 1, 1990.  The record in the 
 
         proceeding consists of the testimony of David Hauser and Kirk D. 
 
         Johnson, and joint Exhibits 1 through 13.
 
         
 
                                      ISSUES
 
         
 
              The issues for resolution are:
 
         
 
              1. Whether claimant's disability is causally connected to 
 
         his August 14, 1986 injury;
 
         
 
              2. The nature and extent of claimant's disability;
 
         
 
              3. Whether claimant is entitled to Iowa Code section 85.27 
 
         medical benefits, in particular, the payment of the $810 bill  of 
 
         Todd F. Hines, Ph.D.; and
 
         
 
              4. Whether claimant is entitled to Iowa Code section 86.13 
 
         penalty benefits.
 
         
 
         
 
         
 
         HAUSER V. NATURE'S WAY LANDSCAPING
 
         Page 2
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
                              REVIEW OF THE EVIDENCE
 
         
 
              Claimant is a 36-year-old high school graduate.  He has 
 
         basically farmed most of his adult life up to becoming employed 
 
         with defendant employer in 1985.  He described the various 
 
         physical work he did as a farmer.  He described his work with 
 
         defendant employer which involved, digging, landscaping, 
 
         scraping, kneeling, planting trees, planting bushes, laying 
 
         patios, building walls, lifting, shoveling, driving trucks and 
 
         skid loaders.
 
         
 
              Claimant was injured on August 14, 1986 when he was getting 
 
         on a skid loader and his leg got caught between the bucket and 
 
         loader arm crushing his leg in the calf area.  Claimant was taken 
 
         to the hospital and had a lengthy surgery.  Claimant described 
 
         his recovery problems involving infection and a second surgery 
 
         and his trouble sleeping, all of which he contends resulted in 
 
         emotional problems.  Claimant was released to return to work in 
 
         March 1988.  Claimant described the pain he had in his right calf 
 
         area, thigh and knee, foot and toes.  Claimant said today his 
 
         foot still hurts, he gets right leg cramps, and his right leg is 
 
         stiff and weak around his knee area.  Claimant said various 
 
         activities and weather aggravate his leg and causes cramps and 
 
         pain.  Claimant related the type of work or the type of landscape 
 
         grade that has an effect on his leg.
 
         
 
              Claimant stated he worked six days a week before his injury 
 
         and received time and a half.  Claimant now works five days a 
 
         week and works every other Saturday.  Defendant employer's 
 
         business work is seasonal and claimant has the usual seasonal 
 
         layoffs.  Claimant testified he cannot now go biking with his 
 
         children, he sold his horses he used to ride, and he has a low 
 
         energy level, and does very little dancing.  Claimant related the 
 
         psychological problems and anxiety he has had since his August 
 
         14, 1986 injury and explained how this affected his work and 
 
         resulted in him seeking psychiatric help.  Claimant said he is 
 
         taking medicine now and is more stable.  Claimant emphasized he 
 
         had no physical or mental problems.before his August 14, 1986 
 
         injury.  Claimant discussed his attempt to work for a lawn care 
 
         company in January 1989 and was unable to keep up with the 
 
         required number of lawns and necessary walking.  He also 
 
         attempted to frame houses but this lasted only two weeks.  
 
         Claimant said there was a piece of muscle missing from his right 
 
         leg due to his injury and that he had a vessel transplanted into 
 
         his right leg from his ankle.  Claimant acknowledged he has 
 
         played golf once or twice this year.
 
         
 
              Kirk D. Johnson, president of defendant employer, described 
 
         his business and what type of work claimant performed, which was 
 
         the same or similar to claimant's description.  He emphasized it 
 
         is very physical work requiring kneeling, digging and lifting and
 
         
 
         
 
         
 
         HAUSER V. NATURE'S WAY LANDSCAPING 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         Page 3
 
         
 
         
 
         involved long hours nine months a year.  He said he knew claimant 
 
         before claimant came to work for him and elaborated that claimant 
 
         was one of the best men he ever worked with.  He said claimant 
 
         started working for him at $6.00 per hour and at the time of his 
 
         injury was making $7.75 per hour.  Johnson indicated claimant was 
 
         off work the rest of 1986 after his August injury, all of 1987 
 
         and returned to work March 10, 1988.  He noticed claimant was not 
 
         able to do the work like he did before his 1986 injury and 
 
         claimant needed other people to go with him rather than claimant 
 
         working alone on certain jobs.  Johnson said he noticed claimant 
 
         has lost endurance, has difficulty lifting, and at one point was 
 
         concerned about claimant's mental health and depression.  Johnson 
 
         recommended that claimant seek psychological help.
 
         
 
              He described the time claimant quit in 1989 because claimant 
 
         could no longer keep up the six day week so he reduced claimant's 
 
         hours to five days a week with Wednesdays and Sundays off and 
 
         every other Saturday off.  Claimant then return to employment 
 
         with defendant employer.  Claimant has had no raises since his 
 
         injury.  Johnson acknowledged he once indicated claimant would be 
 
         partnership material before claimant was injured.
 
         
 
              Douglas S. Reagan, M.D., an orthopedic surgeon, testified by 
 
         way of deposition on October 9, 1989 that he first saw claimant 
 
         on August 14, 1986 at Iowa Methodist Hospital.  He described 
 
         claimant's injury which basically involved damage to claimant's 
 
         arteries, including the main artery to his leg, the bone and 
 
         muscles.  He described the six and three-quarters hours operation 
 
         as major which included taking a vein from claimant's left ankle 
 
         to repair claimant's right leg artery.  He also described the 
 
         crushing injury to claimant's femur.  Dr. Reagan testified to the 
 
         various medical care and procedures performed on claimant, 
 
         including additional hospitalization around September 20, 1986 
 
         and surgeries on September 20, 22, and 25, 1986 and October 1986.  
 
         Dr. Reagan related a TENS unit was prescribed for claimant.  He 
 
         also said claimant had an arteriogram and an angioplasty to open 
 
         a constricted area in the vein of claimant's right leg.  This was 
 
         done by David H. Stubbs, M.D. Dr. Reagan said claimant was 
 
         released to return to work on March 8, 1988.  He opined a 51 
 
         percent impairment to claimant's right leg under the AMA Guides.  
 
         He recalled he received a call from claimant's wife concerning 
 
         claimant's depression and recommended in the fall of 1988 that 
 
         claimant seek psychological treatment.  Dr. Reagan acknowledged 
 
         it is not uncommon for a person to have depression due to the 
 
         experience of continuous pain. (Reagan Deposition, pages 24-25)
 
         
 
              On March 7, 1988, David H. Stubbs, M.D., wrote:
 
         
 
                 Mr. Hauser has some loss of motion in the right knee 
 
              joint, as well as perhaps some weakness.  In addition, there 
 
              is a neurologic problem for which he wears the
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         HAUSER V. NATURE'S WAY LANDSCAPING 
 
         Page 4
 
         
 
         
 
              TENS unit on that foot.  It is my estimate that based on his 
 
              claudication that is slightly over 100 yards, that he picks 
 
              up 20 per cent disability in the lower extremity for that.  
 
              He is missing about 40 degrees of flexion in the knee, which 
 
              is worth another 20 per cent.
 
              
 
                 He also has a problem in the foot which would be probably 
 
              a Type-two grade disability; that is, decreased sensation 
 
              with or without pain which you can block out during 
 
              activity.  It may actually be a three, but it really does 
 
              not interfere with activity.  However, he knows that it is 
 
              there, so I suspect about another 20 per cent there.  That 
 
              gives him a total right lower extremity disability of 
 
              approximately 60 per cent, which when related to the whole 
 
              person would be in the range of about 24 per cent.
 
              
 
                 He may at some point in the future require revisional 
 
              surgery for his claudication, but only time will tell 
 
              regarding that.  I am very pleased that he is interested in 
 
              returning to work and hope that he can function 
 
              satisfactorily, despite his disabilities.
 
         
 
         (Joint Exhibit 3, page 5)
 
         
 
              On February 12, 1990, Dr. Stubbs wrote:
 
         
 
                 My medical relationship with Mr. Hauser has been 
 
              restricted to problems with the right leg.  I do not have 
 
              any evidence that he has had phlebitis, though specifically, 
 
              I have not done any testing to exclude that diagnosis.  He 
 
              has made significant improvement from the date of his 
 
              injury.  When I last saw him on January 29, I felt that his 
 
              functional impairment related to the right leg was improved, 
 
              compared to a previous evaluation performed on March 7, 
 
              1989.
 
              
 
                 I have no data on file which would indicate any total 
 
              body impairment, except as one can extrapolate from the 
 
              rating that I gave to the right leg on March 7.
 
         
 
         (Jt. Ex. 3)
 
         
 
              There are records of Dr. Stubbs' surgery reports concerning 
 
         claimant which have been testified to or reflected in the 
 
         doctor's permanent partial impairment rating to claimant's right 
 
         leg.  Iowa Methodist Medical Center records also reflect the 
 
         surgical procedures.  It is not necessary to set them out herein.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         HAUSER V. NATURE'S WAY LANDSCAPING
 
         Page 5
 
         
 
         
 
              Thomas W. Bower, L.P.T., did a Cybex evaluation of 
 
         claimant's knee and ankle which showed a deficiency in his right 
 
         ankle. on March 16, 1988, he wrote:
 
         
 
                 On the basis of this exam, this patient has incurred an 8 
 
              percent impairment to the right ankle and a 7 percent 
 
              impairment to the loss of motion of the right knee.  These 
 
              would then total to a 15 percent impairment to the right 
 
              lower extremity.
 
         
 
         (Jt. Ex. 5)
 
         
 
              Michael Taylor, M.D., a psychiatrist, testified by way of 
 
         deposition on October 2, 1989.  He opined that claimant's 
 
         diagnosis is a "Major Depressive Disorder - mild."  He further 
 
         opined that claimant's "depressive illness is most likely 
 
         causally related to his August 14, 1986, injury, and the sequelae 
 
         of that injury."  (Jt. Ex. 2, p. 24) Because of the nature of 
 
         this decision, further review of Dr. Taylor's testimony is not 
 
         necessary.
 
         
 
              On April 3, 1989, Todd F. Hines, Ph.D., opined:
 
         
 
                 It is my opinion that this gentleman exhibits clinically 
 
              significant depression and anxiety.  The depression often 
 
              takes the form of unconscious anger which slows his overall 
 
              recovery process.  Further, it is my opinion that this 
 
              psychological disorder clearly arises from the sequelae of 
 
              his August, 1986, work injury.
 
         
 
         (Jt. Ex. 4)
 
         
 
                                  APPLICABLE LAW
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of August 14, 1986 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. 0. 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,
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         HAUSER V. NATURE'S WAY LANDSCAPING 
 
         Page 6
 
         
 
         
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman v. Central Telephone Co.
 
         , 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              If a claimant contends he has industrial disability he has 
 
         the burden of proving his injury results in an ailment extending 
 
         beyond the scheduled loss.  Kellogg v. Shute and Lewis Coal Co., 
 
         256 Iowa 1257, 130 N.W.2d 667 (1964).
 
         
 
              Iowa Code section 85.34(l) provides that if an employee has 
 
         suffered a personal injury causing permanent partial disability, 
 
         the employer shall pay compensation for a healing period from the 
 
         day of the injury until (1) the employee returns to work; or (2) 
 
         it is medically indicated that significant improvement from the 
 
         injury is not anticipated; or (3) until the employee is medically 
 
         capable of returning to substantially similar employment.
 
         
 
              Iowa Code section 85.27 provides, in part:
 
         
 
                 For purposes of this section, the employer is obliged to 
 
              furnish reasonable services and supplies to treat an injured 
 
              employee, and has the right to choose the care.  The 
 
              treatment must be offered promptly and be reasonably suited 
 
              to treat the injury without undue inconvenience to the 
 
              employee.  If the employee has reason to be dissatisfied 
 
              with the care offered, the employee should communicate the 
 
              basis of such dissatisfaction to the employer, in writing if 
 
              requested, following which the employer and the employee may 
 
              agree to alternate care reasonably suited to treat the 
 
              injury.  If the employer and employee cannot agree on such 
 
              alternate care, the commissioner may, upon application and 
 
              reasonable proofs of the necessity therefor, allow and order 
 
              other care.  In an emergency, the employee may choose the 
 
              employee's care at the employer's expense, provided the 
 
              employer or the employer's agent cannot be reached 
 
              immediately.  
 
              
 
              Iowa Code section 86.13 provides, in part:
 
              
 
                 If a delay in commencement or termination of benefits 
 
              occurs without reasonable or probable cause or excuse, the 
 
              industrial commissioner shall award benefits in addition to 
 
              those benefits payable under this chapter, or chapter 85, 
 
              85A, or 85B, up to fifty percent of the amount of benefits 
 
              that were unreasonably delayed or denied.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         HAUSER V. NATURE'S WAY LANDSCAPING
 
         Page 7
 
         
 
         
 
                                     ANALYSIS
 
         
 
              Claimant received a severe injury to his right lower 
 
         extremity.  Claimant contends since claimant has a vascular 
 
         problem and the surgery included taking a vein from the 
 
         claimant's left ankle to placed in his right leg, that claimant 
 
         has a body as a whole impairment.  Claimant contends that there 
 
         is additional support for this contention by Dr. Reagan who 
 
         opined a 20 percent impairment to claimant's body as a whole 
 
         initially and then opined a 51 percent impairment to claimant's 
 
         right leg (Jt. Ex. 2, p. 39 and 48).  Dr. Stubbs opined a 60 
 
         percent right lower extremity impairment and a 24 percent 
 
         impairment to claimant's body as a whole.  Defendants paid 20 
 
         percent permanent partial disability benefits initially based on 
 
         Dr. Reagan opining a 20 percent permanent partial impairment to 
 
         claimant's body as a whole, but paid benefits based on a 
 
         scheduled member system.  He was claimant's authorized treating 
 
         physician. obviously, sometime thereafter defendants contended 
 
         that this was a 20 percent impairment to a scheduled member, 
 
         claimant's right lower extremity and paid 44 weeks of benefits 
 
         (20 percent times 220 weeks equals 44 weeks).  It is obvious both 
 
         doctors made a common mistake of converting a scheduled member 
 
         rating to a body as a whole.  This is contrary to current law and 
 
         holdings of this agency.  Claimant contends this is a vascular 
 
         injury and this puts claimant into a body as a whole-type injury.  
 
         Claimant cites Blacksmith v. All-American, Inc., 290 N.W.2d 348 
 
         (Iowa 1980).  The undersigned disagrees with claimant that this 
 
         case supports his contention.  In addition thereto, that case 
 
         refers to the vascular disease of phlebitis.  Claimant does not 
 
         have phlebitis and Dr. Stubbs specifically stated that in Joint 
 
         Exhibit 3.  Claimant has failed to show that the claimant has an 
 
         injury or impairment to his body as a whole.  It is immaterial 
 
         that the doctors took a scheduled injury rating and converted it 
 
         on a chart to a body as a whole impairment.
 
         
 
              The only other right lower extremity rating is by Thomas 
 
         Bower, L.P.T., who opined a 15 percent right lower extremity 
 
         impairment.  Based on the medical evidence, Mr. Bower is 
 
         completely out of bounds in his opinion.  The two medical doctors 
 
         are more reliable and have had much more contact with claimant.  
 
         Mr. Bower had a one time brief contact in his relationship to 
 
         claimant.  Dr. Stubbs performed the surgeries on claimant and is 
 
         in the best position to more accurately opine claimant's 
 
         impairment.  He and Dr. Reagan are only 9 percent apart.  The 
 
         greater weight of evidence clearly shows claimant has a severe 
 
         impairment to his right lower extremity and he is doing a good 
 
         job trying to work through it.  It is not uncommon that the 
 
         benefits from a severe injury to a scheduled member does not seem 
 
         just compared to some body as a whole injuries.  It is not up to 
 
         the deputies to change the law.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         HAUSER V. NATURE'S WAY LANDSCAPING
 
         Page 8
 
         
 
         
 
              There is evidence that claimant suffered psychological 
 
         injuries as a result of this injury.  This agency has held that 
 
         if there is a scheduled injury everything, including 
 
         psychological damage and reduced capacity to labor and to earn, 
 
         is included in the scheduled loss.  Pitcher v. Penick & 
 
         Ford, File No. 681597, filed October 21, 1987, Appeal Decision.  
 
         Since it has been concluded by the undersigned that this is a 
 
         scheduled member loss, then claimant's psychological damage is 
 
         encompassed therein.  The undersigned finds claimant has a 60 
 
         percent impairment to his right lower extremity which is causally 
 
         connected to his August 14, 1986 injury.
 
         
 
              Claimant contends he is entitled to temporary partial 
 
         disability benefits for the period from June 1, 1989 to December 
 
         1, 1989 because claimant reduced his work week from six days to 
 
         five days and off every other Saturday rather than working every 
 
         Saturday during the landscaping season.  The loss of income is 
 
         incorporated in the scheduled member benefit system.  This is not 
 
         a body as a whole injury.  Therefore, the undersigned cannot 
 
         consider the loss of income, which is an element to consider to 
 
         determine industrial disability, when we only have a scheduled 
 
         member injury.
 
         
 
              The undersigned finds claimant is not entitled to any 
 
         temporary partial disability benefits.
 
         
 
              Claimant seeks payment of an $810 bill of Dr. Hines for a 
 
         psychological evaluation.  The employer told claimant to seek 
 
         psychological help and claimant went to Dr. Taylor, whose bills 
 
         were paid by defendants.  Claimant apparently considered this as 
 
         an okay to later seek the services of Dr. Hines on January 30, 
 
         1989 (Jt. Ex. 11).  On October 24, 1988, claimant's attorney 
 
         wrote defendant insurance company as to the defendant employer 
 
         advising claimant to get some psychological help.  On October 27, 
 
         1988, defendant insurance company responded that any contact with 
 
         other doctors should be made with defendant insurance company and 
 
         not with defendant employer and only Dr. Reagan was the treating 
 
         doctor (Jt. Ex. 13).  The undersigned finds Dr. Hines' treatment 
 
         was not authorized.  Additionally, this being a scheduled member 
 
         injury, defendants are not responsible for claimant's $810 
 
         psychological evaluation bill with Dr. Hines.
 
         
 
              The final issue is whether claimant is entitled to 86.13 
 
         penalty benefits.  There were two substantial scheduled member 
 
         ratings, Dr. Reagan on February 22, 1988 and Dr. Stubbs on March 
 
         7, 1988.  Both of these doctors are competent.  Dr. Reagan was 
 
         the claimant's authorized treating physician.  Defendants then 
 
         sent claimant to Thomas Bower for a period thereafter and Bower 
 
         opined a 15 percent impairment to claimant's right lower 
 
         extremity.  Defendants paid 20 percent permanent partial 
 
         disability benefits (44 weeks) to claimant based on his right
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         HAUSER V. NATURE'S WAY LANDSCAPING 
 
         Page 9
 
         
 
         
 
         lower extremity injury.  How defendants arrived at a 20 percent 
 
         figure can only be answered by looking at Dr. Reagan's opinion 
 
         that originally opined a 20 percent body as a whole impairment 
 
         (Jt. Ex. 11, p. 48).  He later opined a 51 percent impairment to 
 
         claimant's right lower extremity.  It is obvious the doctor 
 
         converted the 51 percent right lower extremity impairment to a 20 
 
         percent body as a whole.  It is obvious from the evidence that 
 
         the defendants knew the doctor did this conversion and it was 
 
         further obvious that the defendants were contending that there 
 
         was a scheduled injury and not a body as a whole injury.  This 
 
         was further verified by defendants, inquiry to the doctor who 
 
         then in December of 1988 converted back his body as a whole 
 
         rating to the 51 percent impairment to claimant's right lower 
 
         extremity.  It would have been logical for defendants to pay the 
 
         51 percent since they do not believe, and rightly so, that a 
 
         scheduled member loss is a body as a whole injury.  Why did 
 
         defendants choose the 20 percent body as a whole figure and pay 
 
         it as a scheduled loss (44 weeks versus 100 weeks - 20 percent 
 
         times 500 weeks).  There is no logic in defendants' paying a 20 
 
         percent body as a whole rating as if it was a 20 percent 
 
         scheduled member rating.  This was contradictory to their 
 
         position in this case.  Defendants are in violation of 86.13. 
 
         Defendants should have paid 112.2 weeks (51 percent times 220 
 
         weeks) if they were serious in following their treating doctor's 
 
         opinion.  Defendants arbitrarily took a 20 percent body as a 
 
         whole rating and used it as a scheduled member rating knowing 
 
         full well that this was not logical and was inconsistent with 
 
         their contention that claimant had a scheduled member injury and 
 
         not a body as a whole injury.  The undersigned finds that there 
 
         was an unreasonable delay in the payment of benefits by the 
 
         defendants who paid on their doctor's ratings but paid on a body 
 
         as a whole rating based on a scheduled injury, using the 
 
         scheduled injury benefit rate.  Claimant is entitled to 25 weeks 
 
         of penalty benefits.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1. Claimant incurred a work-related injury to his right 
 
         lower extremity which resulted from his August 14, 1986 injury.
 
         
 
              2. Claimant incurred 81.857 weeks of healing period as 
 
         stipulated by the parties and paid at the rate of $242.02 per 
 
         week.
 
         
 
              3. Claimant incurred a 60 percent permanent partial 
 
         impairment to his right lower extremity as a result of his 
 
         work-related August 14, 1986 scheduled injury.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              4. Claimant did not incur a body as a whole impairment as a 
 
         result of his work-related August 14, 1986 injury.
 
         
 
         
 
         
 
         HAUSER V. NATURE'S WAY LANDSCAPING
 
         Page 10
 
         
 
         
 
              5. Claimant did not incur any temporary partial disability 
 
         benefits during the period June 1, 1989 to and including December 
 
         1, 1989 at which time he was working a five day week and every 
 
         other Saturday versus his pre-injury schedule of six days per 
 
         week including every Saturday.
 
         
 
              6. Claimant did not have authorization from defendants to 
 
         seek treatment from Todd Hines, a psychologist.  Claimant is 
 
         responsible for the bill from Dr. Hines.
 
         
 
              7. Defendants unreasonably withheld claimant's benefit 
 
         entitlement after defendants received a scheduled injury rating 
 
         from their chosen doctor.  Defendants paid some permanent partial 
 
         disability benefits, the amount of which was inconsistent with 
 
         their litigation posture in this matter.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant's August 14, 1986 injury caused a 60 percent 
 
         permanent partial impairment to claimant's lower right extremity, 
 
         a scheduled injury.
 
         
 
              Claimant incurred 81.857 weeks of healing period which was 
 
         caused by claimant's August 14, 1986 work injury.
 
         
 
              Claimant's August 14, 1986 work injury did not cause a body 
 
         as a whole injury.
 
         
 
              Claimant's August 14, 1986 work injury did not cause any 
 
         temporary partial disability to claimant during the period of 
 
         June 1, 1989 to and including December 1, 1989.
 
         
 
              Todd Hines, Ph.D., was not a defendant-authorized medical 
 
         provider and claimant is responsible for his bill.
 
         
 
              Claimant is entitled to 132 weeks of permanent partial 
 
         disability benefits (60 percent times 220 weeks) for his 
 
         work-related scheduled injury to his lower right extremity 
 
         commencing March 10, 1988 at the rate of $242.02 per month.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That claimant is entitled to eighty-one point eight five 
 
         seven (81.857) weeks of healing period benefits at the weekly 
 
         rate of two hundred forty-two and 02/100 dollars ($242.02).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              That claimant is entitled to one hundred thirty-two (132) 
 
         weeks of permanent partial disability benefits at the weekly rate
 
         
 
         
 
         
 
         HAUSER V. NATURE'S WAY LANDSCAPING
 
         Page 11
 
         
 
         
 
         of two hundred forty-two and 02/100 dollars ($242.02) beginning 
 
         March 10, 1988.
 
         
 
              That claimant is entitled to twenty-five (25) weeks of 
 
         penalty benefits at the rate of two hundred forty-two and 02/100 
 
         dollars ($242.02), which amount totals six thousand fifty and 
 
         50/100 dollars ($6,050.50) commencing on the date of this 
 
         decision.
 
         
 
              That defendants shall pay accrued weekly benefits in a lump 
 
         sum and shall receive credit against the award for weekly 
 
         benefits previously paid.  Defendants have previously paid 
 
         eighty-one point eight five seven (81.857) weeks of healing 
 
         period benefits and forty-four (44) weeks of permanent partial 
 
         disability benefits.
 
         
 
              That defendants shall pay interest on benefits awarded 
 
         herein as set forth in Iowa Code section 85.30.
 
         
 
              That defendants shall pay the costs of this action, pursuant 
 
         to Division of Industrial Services Rule 343-4.33.
 
         
 
              That defendants shall file an activity report upon payment 
 
         of this award as required by this agency, pursuant to Division of 
 
         Industrial Services Rule 343-3.1
 
         
 
              Signed and filed this 24th day of May, 1990.
 
         
 
         
 
         
 
         
 
         
 
                                         BERNARD J. O'MALLEY
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies to:
 
         
 
         Mr Jim Lawyer
 
         Attorney at Law
 
         1200 35th St, Ste 500
 
         West Des Moines IA 50265
 
         
 
         Mr E J Kelly
 
         Attorney at Law
 
         Terrace Ctr Ste 111
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         2700 Grand Ave
 
         Des Moines IA 50312
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                         1803.1; 5-2500; 4000.2
 
                                         Filed May 24, 1990
 
                                         Bernard J. O'Malley
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DAVID HAUSER,
 
          
 
                Claimant,
 
                                         File No. 905110
 
          VS.
 
          
 
          NATURE'S WAY LANDSCAPING,      A R B I T R A T I 0 N
 
          
 
                Employer,                D E C I S I 0 N
 
          
 
          and
 
          
 
          UNITED FIRE & CASUALTY
 
          COMPANY,
 
          
 
                Insurance Carrier,
 
                Defendants.
 
         
 
         
 
         1803.1
 
         
 
              Found claimant incurred a scheduled member, right lower 
 
         extremity, injury and not a body as a whole injury.
 
         
 
              Claimant awarded benefits based on a 60% permanent partial 
 
         impairment to his right lower extremity (60% x 220 = 132 weeks).
 
         
 
              Claimant was not awarded any additional benefits based on 
 
         his causally related psychological injuries as these types of 
 
         injuries, if any, are included in the scheduled loss.
 
         
 
         5-2500
 
         
 
              Claimant is responsible for his psychologist bill as it was 
 
         unauthorized treatment.  Claimant was provided the services of a 
 
         psychiatrist by defendants and defendants paid these bills.
 
         
 
         4000.2
 
         
 
              Claimant awarded penalty benefits because defendants 
 
         unreasonably delayed benefits.  Defendants'. own doctor opined a 
 
         51% permanent partial impairment to claimant's right lower 
 
         extremity and mistakenly converted it to a 20% permanent partial 
 
         impairment to claimant's body as a whole.  Defendants paid 
 
         benefits of 44 weeks (20% x 220 weeks) rather than 112.2 weeks 
 
         (51% x 220 weeks).  If defendants were following their logic, 
 
         they would have paid 100 weeks (20% x 500 weeks).  Defendants 
 
         have always contended claimant only had a scheduled member 
 
         injury.