BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         ____________________________________________________________
 
                                       :
 
         THOMAS C. MERRIFIELD,         :
 
                                       :
 
              Claimant,                :
 
                                       :
 
         vs.                           :
 
                                       :       File No. 905145
 
         CEDARAPIDS, INC. f/k/a        :
 
         IOWA MANUFACTURING CO.,       :         A P P E A L
 
                                       :
 
              Employer,                :       D E C I S I O N
 
                                       :
 
         and                           :
 
                                       :
 
         LIBERTY MUTUAL,               :
 
                                       :
 
              Insurance Carrier,       :
 
              Defendants.              :
 
         ___________________________________________________________
 
         
 
                                   INTRODUCTION
 
         
 
              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.
 
         
 
                                      ISSUE
 
         
 
              Defendants state the following issue on appeal:
 
         
 
              Did the deputy err in awarding the claimant permanent 
 
              partial disability benefits equal to 80% of the body as 
 
              a whole?
 
         
 
                                 FINDINGS OF FACT
 
         
 
              The findings of fact contained in the proposed agency 
 
         decision filed May 5, 1993 are adopted as final agency action.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              The conclusions of law contained in the proposed agency 
 
         decision filed May 5, 1993 are adopted as set forth below.  
 
         Segments designated by asterisks (*****) indicate portions of the 
 
         language from the proposed agency decision that have been 
 
         intentionally deleted and do not form a part of this final agency 
 
         decision.  Segments designated by brackets ([ ]) indicate 
 
         language that is in addition to the language of the proposed 
 
         agency decision.
 
         
 
              Functional impairment is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which the employee is 
 
         fitted.  Olson v. Goodyear Serv. Stores, 255 Iowa 1112, 125 
 
         N.W.2d 251 (1963); Barton v. Nevada Poultry, 253 Iowa 285, 110 
 

 
         
 
         Page   2
 
         
 
         
 
         
 
         
 
         N.W.2d 660 (1961).
 
         
 
              A finding of impairment to the body as a whole found by a 
 
         medical evaluator does not equate to industrial disability.  
 
         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).
 
         
 
              Compensation for permanent partial disability shall begin at 
 
         the termination of the healing period.  Compensation shall be 
 
         paid in relation to 500 weeks as the disability bears to the body 
 
         as a whole.  Section 85.34.
 
         
 
              Defendants concede that claimant's current medical problems 
 
         are serious.  Indeed, they have voluntarily paid a not 
 
         inconsiderable total of voluntary benefits for permanency.
 
         
 
              Claimant is clearly limited to sedentary, or possibly light 
 
         employment.  It does not appear possible that he could perform 
 
         any of the jobs he held prior to the subject work injury.  
 
         Defendants were unable (or chose not) to offer him further 
 

 
         
 
         Page   3
 
         
 
         
 
         
 
         
 
         employment, even after he developed an entirely new set of skills 
 
         in accounting.  This, in and of itself, is indicative of 
 
         industrial disability.  McSpadden v. Big Ben Coal Co., 288 N.W.2d 
 
         181 (Iowa 1980).
 
         
 
              Prior to obtaining those new skills, it seem most unlikely 
 
         that claimant could have performed any work in which he had 
 
         previous experience.  Even with his AA Degree, Mr. Merrifield did 
 
         not find a job until 1986, and then, on a part time basis only.  
 
         Even more to the point, his current employer is accommodating to 
 
         a degree which claimant is most unlikely to find in other 
 
         prospective employers.  It is not realistic to believe that many 
 
         employers would work with claimant to find a suitable chair, 
 
         allow him to take breaks at will to walk or lie down, or to 
 
         frequently leave work before the end of his assigned shift.  
 
         While it is possible that claimant is earning as much now as he 
 
         was at the time of injury (as noted, his previous earnings have 
 
         not been adjusted for inflation), a mere showing that claimant 
 
         has no loss of actual earnings does not preclude a finding of 
 
         industrial disability.  Michael v. Harrison County, 34th Biennial 
 
         Report of the Iowa Industrial Commissioner 218 (1979).  It is 
 
         glaringly obvious that claimant's ability to work in the 
 
         competitive labor market has been severely compromised.  In other 
 
         words, his earning capacity in general (not limited strictly to 
 
         his current employer) has been greatly diminished.
 
         
 
              With respect to claimant's current employment, it is further 
 
         noted that defendants are not in a position to take full credit 
 
         for what claimant has accomplished by dint of perseverance and 
 
         commendable motivation.  It has been held that a defendant who 
 
         refused to rehire should not have benefit of retraining where it 
 
         played no part in the acquisition of that training.  Boleyn v. 
 
         Coca Cola Bottling Co., No. 838421 (Arb. Dec. June 25, 1990).  
 
         Defendants in this case did contribute to claimant's retraining, 
 
         but only to the extent required by Iowa Code section 85.70: $20 
 
         per week for 26 weeks, or $520.*****Defendants should get some 
 
         "credit" for claimant's educational accomplishments, but not 
 
         much.  On the other hand, a claimant's potential for retraining, 
 
         or lack thereof, is clearly significant in determining loss of 
 
         earning capacity.  It is indisputable that claimant had good 
 
         potential for retraining, particularly given his high motivation 
 
         to return to the work force.
 
         
 
              Claimant is now, twelve years after the work injury, some 46 
 
         years of age.  He was unemployed for five years after the injury, 
 
         and only partially employed for one year after that.  His 
 
         industrial disability is greater than would be the case for an 
 
         older or younger worker, although this factor is mitigated due to 
 
         claimant's capacity for and realization of successful retraining.
 
         
 
                  *****
 
         
 
              [Claimant's disability is lessened by the fact that his 
 
         present employer has proven to be extremely accommodating.  
 
         Although claimant might have a significant disadvantage competing 
 
         for a position with a less-accommodating employer in the future, 
 
         this award must be based on claimant's present situation.  To 
 
         base the award on events that may or may not occur in the future 
 
         would be to engage in speculation.  If claimant loses his 
 
         position with his present employer, he has review-reopening 
 

 
         
 
         Page   4
 
         
 
         
 
         
 
         
 
         available as a remedy to address any disability that results.
 
         
 
              Similarly, claimant's wages now are actually greater than 
 
         prior to his injury.  Although a significant amount of time has 
 
         elapsed since his injury, there is no evidence in the record to 
 
         indicate what his wages would be with his prior employer had he 
 
         not been injured.  Again, it would be speculation to hypothesize 
 
         what claimant's wages would have been today had he not been 
 
         injured absent any evidence in the record to establish those 
 
         facts.  The record merely shows that claimant is now making more 
 
         in wages than at the time he was injured.  Claimant was without 
 
         income for a substantial period of time prior to obtaining his 
 
         present position, however.  It is held that claimant has 
 
         sustained a permanent industrial disability equivalent to 65 
 
         percent of the body as a whole, or 325 weeks.]
 
         
 
              Per the parties' stipulation, the commencement date of 
 
         permanent partial disability benefits is November 4, 1984.  
 
         Defendants shall have credit for 215 weeks of permanent partial 
 
         disability voluntarily paid prior to hearing.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed and 
 
         modified.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That defendants shall pay unto claimant three hundred 
 
         twenty-five (325) weeks of permanent partial disability benefits 
 
         at the stipulated rate of two hundred twenty-one and 52/100 
 
         dollars ($221.52) commencing November 4, 1984.
 
         
 
              That defendants shall have credit for two hundred fifteen 
 
         (215) weeks of permanent partial disability voluntarily paid 
 
         prior to hearing.
 
         
 
              That all accrued but unpaid benefits shall be paid in a lump 
 
         sum together with statutory interest.
 
         
 
              That defendants shall pay the costs of this matter including 
 
         the transcription of the hearing.  
 
         
 
              
 
         
 
              Signed and filed this ____ day of August, 1993.
 
         
 
         
 
         
 
         
 
                                       ________________________________
 
                                                BYRON K. ORTON
 
                                           INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr Robert F Wilson
 
         Attorney at Law
 
         810 Dows Building
 
         Cedar Rapids Iowa 52401
 

 
         
 
         Page   5
 
         
 
         
 
         
 
         
 
         
 
         Ms Deborah A Dubik
 
         Mr Greg A Egbers
 
         Attorneys at Law
 
         600 Union Arcade Building
 
         111 East Third Street
 
         Davenport Iowa 52801-1596
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               5-1803; 2901; 2905
 
                                               Filed August 31, 1993
 
                                               BYRON K. ORTON
 
                      
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            THOMAS C. MERRIFIELD,         :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 905145
 
            CEDARAPIDS, INC. f/k/a        :
 
            IOWA MANUFACTURING CO.,       :         A P P E A L
 
                                          :
 
                 Employer,                :       D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL,               :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-1803
 
            Permanent partial disability was determined.
 
            
 
            2901; 2905
 
            Claimant filed a petition in arbitration.  Defendants, who 
 
            had voluntarily paid certain benefits, filed answer claiming 
 
            that the action was properly in review-reopening, and that 
 
            claimant needed to prove a change in condition.  Claimant 
 
            then erroneously amended his petition to a review-reopening 
 
            action.
 
            At hearing, upon inquiry, it appeared that there had been no 
 
            prior adjudication or agreement for settlement approved by 
 
            this agency.  Although the case involved an 1981 injury, the 
 
            record did not show that a memorandum of agreement had been 
 
            filed (in any event, a change in condition is not necessary 
 
            in such cases).  It was ruled that the case was properly 
 
            submitted as an arbitration proceeding.
 
            
 
 
            
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            THOMAS MERRIFIELD,            :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 905145
 
            CEDARAPIDS, INC., f/k/a       :
 
            IOWA MANUFACTURING COMPANY,   :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INSURANCE      :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration in which claimant 
 
            Thomas Merrifield seeks benefits under the Iowa Workers' 
 
            Compensation Act from his employer, Cedarapids, Inc., and 
 
            its insurance carrier Liberty Mutual Insurance Company.  Mr. 
 
            Merrifield suffered a serious work related back injury on 
 
            January 7, 1981.
 
            
 
                 This cause came on for hearing in Cedar Rapids, Iowa on 
 
            April 6, 1993.  The record consists of the testimony of 
 
            claimant and Sally Merrifield along with joint exhibits 1-12 
 
            and defendants' exhibit A.
 
            
 
                                      ISSUE
 
            
 
                 The parties have stipulated that claimant sustained 
 
            injury arising out of and in the course of employment on 
 
            January 7, 1981, that the injury caused both temporary and 
 
            permanent disability, that entitlement to healing period 
 
            benefits is no longer in dispute, that permanent disability 
 
            is to be compensated industrially, to the rate of 
 
            compensation ($221.52 per week), that medical benefits are 
 
            no longer in dispute, and that defendants are entitled to 
 
            credit for certain benefits voluntarily paid prior to 
 
            hearing.
 
            
 
                 The sole issue presented for resolution is the extent 
 
            of claimant's permanent disability.
 
            
 
                 Claimant's petition was filed in arbitration.  
 
            Defendants' answer asserted that the case was properly in 
 
            review-reopening since the case was "initially settled" and 
 
            that claimant should be required to demonstrate a change in 
 
            condition.  Claimant subsequently filed an amendment to show 
 
            that his petition was in review-reopening.
 

 
            
 
            Page   2
 
            
 
            
 
                  
 
                 A proceeding of this nature is in review-reopening 
 
            where benefits have not been commuted, when a memorandum of 
 
            agreement has been filed, where an award of benefits has 
 
            been adjudicated by this agency, or where an agreement for 
 
            settlement has been approved by this agency.  The record 
 
            does not show that a memorandum of agreement (abolished in 
 
            1982) has been filed in this case; in any event, filing of a 
 
            memorandum of agreement is a unilateral act which does not 
 
            necessitate showing a change of condition in 
 
            review-reopening.  Caterpillar Tractor Company v. Mejorado, 
 
            410 N.W.2d 675 (Iowa 1987).  Defendants conceded at hearing 
 
            that there has been no prior adjudication or approval of an 
 
            agreement for settlement by this agency.  It was thereupon 
 
            ruled that this case is properly one in arbitration, not 
 
            review-reopening.
 
            
 
                 Defendants would have us believe that they are 
 
            empowered to unilaterally establish claimant's industrial 
 
            disability by voluntarily making payments; that to obtain 
 
            further benefits, claimant now must show that his condition 
 
            has changed to his detriment.  An extreme example serves to 
 
            illustrate the unreasonableness of this approach:  if a 
 
            hypothetical worker were to be simultaneously blinded and 
 
            made quadriplegic as the result of a work injury, 
 
            defendants, under this theory, could voluntarily pay five 
 
            percent industrial disability, then sit back and demand that 
 
            claimant show a change in condition in order to establish 
 
            any further entitlement.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The undersigned deputy industrial commissioner finds:
 
            
 
                 Thomas Merrifield, 46 years of age at hearing, suffered 
 
            a work related back injury on January 7, 1981.  Mr. 
 
            Merrifield slipped and twisted his back while working on a 
 
            platform and has suffered progressively more severe back and 
 
            leg symptoms since that day.
 
            
 
                 At the time of his injury, claimant was a high school 
 
            graduate with experience in farm management and warehousing.  
 
            Claimant had managed his family farm and had skills as a 
 
            material control person, foreman and in various aspects of 
 
            warehousing, including detailed document review.
 
            
 
                 Following the injury, claimant has had a long but 
 
            unsuccessful surgical history.  Fred Pilcher, M.D., 
 
            performed a disc excision and decompression of nerve roots 
 
            at L4 and L5 in early 1982.  On April 6, 1983, Earl Y. 
 
            Bickel, M.D., performed an exploration and discectomy at 
 
            L4-5 with a fusion from L4 to S1. This procedure followed 
 
            immobilization by plaster cast, which had appeared 
 
            effective.
 
            
 
                 By November 2, 1984, neurosurgeon Robert A. Hayne, 
 
            M.D., felt that claimant had reached maximum medical 
 
            improvement (the parties had stipulated to commencement of 
 
            permanency benefits on November 4, 1984), and rated 
 
            impairment in the vicinity of 27-28 percent of the body as a 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            whole.  He recommended a lifting restriction of 40 pounds 
 
            and felt claimant should be required to use good body 
 
            mechanics and be able to alternate periods of sitting and 
 
            standing.
 
            
 
                 In the meantime, claimant only worked one or two days 
 
            after his injury.  He was released by Cedarapids, Inc., 
 
            during a general layoff while recuperating.
 
            
 
                 On May 20, 1985, Dr. Bickel gave claimant a release to 
 
            return to work with no lifting over 25 pounds.  He was not 
 
            offered further work by defendant.  Indeed, Roger 
 
            Kromphardt, of Crawford Rehabilitation Services, had written 
 
            on June 22, 1982, of learning that defendant was "not 
 
            receptive at all to taking back a worker that has been 
 
            injured without a full release to do any physically 
 
            demanding job they may have."
 
            
 
                 Defendants have provided claimant with rehabilitation 
 
            services from two companies:  Crawford Rehabilitation 
 
            Services and Management Consulting & Rehabilitation 
 
            Services, Inc.  A review of their records shows that 
 
            claimant has been highly motivated and diligent in his 
 
            efforts to return to the work force.  With assistance from 
 
            the Iowa State Rehabilitation Division (along with $520 in 
 
            benefits paid by defendants under Iowa Code section 85.70) 
 
            Mr. Merrifield attended Hawkeye Technical Institute and 
 
            received an Associate of Arts Degree in accounting in 1984.  
 
            Following a long and no doubt disheartening search for work, 
 
            claimant finally obtained a part time position in April 1986 
 
            with his current employer, the City of Marion.  
 
            Approximately one year later, claimant was promoted to a 
 
            full time position in the accounts payable department, a 
 
            position he still holds.  Claimant now earns a salary of 
 
            $24,600, which is higher than his gross earnings with 
 
            defendant in 1981 (although the record does not disclose 
 
            what those 1981 earnings would be if adjusted for 12 years 
 
            of inflation).
 
            
 
                 The City of Marion has proven to be an extremely 
 
            accommodating employer.  For example, Mr. Merrifield was 
 
            allowed to "audition" numerous desk chairs to find the most 
 
            comfortable model.  He is allowed to take breaks to walk 
 
            around or even to lie down at his will.  Although claimant 
 
            has and continues to miss a great deal of work due to pain, 
 
            he is not criticized by his employer, even when he leaves in 
 
            the middle of the day.  This happens regularly.  Claimant 
 
            tries to work every day, but finds this hard to do because 
 
            of his severe, chronic and intractable pain.
 
            
 
                 As noted before, claimant's development of symptoms has 
 
            been progressively.  By 1990, he found weight bearing so 
 
            painful that he has since used crutches full time.  Indeed, 
 
            the crutches he used at hearing bore visible evidence of 
 
            heavy wear.
 
            
 
                 In early 1991, claimant underwent further surgery by 
 
            Dr. Bickel to reduce scar tissue at the site of the earlier 
 
            procedures.  By February 17, 1992, Dr. Bickel wrote that 
 
            although claimant had returned to work, he was having 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            additional problems and was to have an epidural block.  
 
            Degree of impairment had not yet been determined, but Dr. 
 
            Bickel considered it of a high degree, above 20-30 percent.  
 
            Dr. Bickel noted that claimant walks with two crutches, but 
 
            was not able to stand for any period of time, which 
 
            necessitated sitting down and lying down.  Claimant was able 
 
            to work "on a restricted basis."
 
            
 
                 Further treatment was considered in 1992 by two 
 
            neurosurgeons: David W. Beck, M.D. and James R. LaMorgese, 
 
            M.D.
 
            
 
                 Dr. Beck observed that magnetic resonance imaging 
 
            performed in April 1992 showed "tremendous scar tissue at 
 
            L4-5 completely obliterating the foraman at L4-5 on the 
 
            left."  He reported that claimant had intense pain down the 
 
            leg on the left side, had no use of his foot on the left 
 
            side and was numb in the leg.  Claimant used crutches 
 
            because bearing weight caused intense pain and could not "do 
 
            anything for any length of time, such as sit, stand, or 
 
            walk."  At this time, two treatment modalities were under 
 
            consideration: a dorsal column stimulator and a morphine 
 
            pump.  Dr. Beck felt that any additional attempts at 
 
            removing scar tissue would fail and did not believe a dorsal 
 
            column stimulator would do any good.  He recommended a 
 
            morphine pump, which requires a permanent implantation of a 
 
            device to slowly secrete morphine directly to the affected 
 
            area.  Dr. LaMorgese, on the other hand, recommended that a 
 
            dorsal column stimulator be attempted first, because a 
 
            morphine infusion pump would naturally result in morphine 
 
            dependence.  Claimant himself, although still looking for 
 
            some relief, is not anxious to attempt a morphine pump due 
 
            to the likelihood of addiction and the possibility that his 
 
            symptoms may worsen even further.
 
            
 
                 Dr. LaMorgese placed a dorsal column stimulator on 
 
            February 15, 1993.  Unfortunately, the procedure not only 
 
            failed to relieve pain in the left leg, but worsened 
 
            symptoms on the right side.  The stimulator was removed.  
 
            Dr. LaMorgese charted his belief that claimant may require a 
 
            morphine pump at a later date after he is settled down from 
 
            the unsuccessful dorsal stimulator procedure.
 
            
 
                 Claimant's current condition was summarized by Dr. 
 
            LaMorgese on April 1, 1991:
 
            
 
                 Tom Merrfield [sic] is a patient of mine whom I 
 
                 have been treating for chronic back and leg pain.  
 
                 Mr. Merrifield has a severe condition that is 
 
                 quite disabling.  He has been resistant to all 
 
                 forms of treatment to this point in time.  Mr. 
 
                 Merrifield has curtailed his level of activity 
 
                 significantly because of the pain.  He continues 
 
                 to work at an office type job, despite the 
 
                 significant pain problem that he has.  He requires 
 
                 Canadian crutches to ambulate to help relieve some 
 
                 of the weight bearing pain.  Mr. Merrifield is to 
 
                 be congratulated as to his persistence and 
 
                 willingness to continue to be employed.  There is 
 
                 a very real possibility that with time Mr. 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                 Merrifield will not be able to continue with 
 
                 gainful employment because of his back condition.  
 
                 It is unpredictable when this time might come, but 
 
                 it is a very significant possibility.
 
            
 
            (Joint Exhibit 12).
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, expe
 
            rience and inability to engage in employment for which the 
 
            employee is fitted.  Olson v. Goodyear Serv. Stores, 255 
 
            Iowa 1112, 125 N.W.2d 251 (1963); Barton v. Nevada Poultry, 
 
            253 Iowa 285, 110 N.W.2d 660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial 
 
            disability.  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 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            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).
 
            
 
                 Compensation for permanent partial disability shall 
 
            begin at the termination of the healing period.  
 
            Compensation shall be paid in relation to 500 weeks as the 
 
            disability bears to the body as a whole.  Section 85.34.
 
            
 
                 Defendants concede that claimant's current medical 
 
            problems are serious.  Indeed, they have voluntarily paid a 
 
            not inconsiderable total of voluntary benefits for 
 
            permanency.
 
            
 
                 Claimant is clearly limited to sedentary, or possibly 
 
            light employment.  It does not appear possible that he could 
 
            perform any of the jobs he held prior to the subject work 
 
            injury.  Defendants were unable (or chose not) to offer him 
 
            further employment, even after he developed an entirely new 
 
            set of skills in accounting.  This, in and of itself, is 
 
            indicative of industrial disability.  McSpadden v. Big Ben 
 
            Coal Co., 288 N.W.2d 181 (Iowa 1980).
 
            
 
                 Prior to obtaining those new skills, it seem most 
 
            unlikely that claimant could have performed any work in 
 
            which he had previous experience.  Even with his AA Degree, 
 
            Mr. Merrifield did not find a job until 1986, and then, on a 
 
            part time basis only.  Even more to the point, his current 
 
            employer is accommodating to a degree which claimant is most 
 
            unlikely to find in other prospective employers.  It is not 
 
            realistic to believe that many employers would work with 
 
            claimant to find a suitable chair, allow him to take breaks 
 
            at will to walk or lie down, or to frequently leave work 
 
            before the end of his assigned shift.  While it is possible 
 
            that claimant is earning as much now as he was at the time 
 
            of injury (as noted, his previous earnings have not been 
 
            adjusted for inflation), a mere showing that claimant has no 
 
            loss of actual earnings does not preclude a finding of 
 
            industrial disability.  Michael v. Harrison County, 34th 
 
            Biennial Report of the Iowa Industrial Commissioner 218 
 
            (1979).  It is glaringly obvious that claimant's ability to 
 
            work in the competitive labor market has been severely 
 
            compromised.  In other words, his earning capacity in 
 
            general (not limited strictly to his current employer) has 
 
            been greatly diminished.
 
            
 
                 With respect to claimant's current employment, it is 
 
            further noted that defendants are not in a position to take 
 
            full credit for what claimant has accomplished by dint of 
 
            perseverance and commendable motivation.  It has been held 
 
            that a defendant who refused to rehire should not have 
 
            benefit of retraining where it played no part in the 
 
            acquisition of that training.  Boleyn v. Coca Cola Bottling 
 
            Co., No. 838421 (Arb. Dec. June 25, 1990).  Defendants in 
 
            this case did contribute to claimant's retraining, but only 
 
            to the extent required by Iowa Code section 85.70: $20 per 
 
            week for 26 weeks, or $520.  The benefits mandated under 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            section 85.70 are almost comically inadequate in terms of 
 
            any meaningful rehabilitation program. Defendants should get 
 
            some "credit" for claimant's educational accomplishments, 
 
            but not much.  On the other hand, a claimant's potential for 
 
            retraining, or lack thereof, is clearly significant in 
 
            determining loss of earning capacity.  It is indisputable 
 
            that claimant had good potential for retraining, 
 
            particularly given his high motivation to return to the work 
 
            force.
 
            
 
                 Claimant is now, twelve years after the work injury, 
 
            some 46 years of age.  He was unemployed for five years 
 
            after the injury, and only partially employed for one year 
 
            after that.  His industrial disability is greater than would 
 
            be the case for an older or younger worker, although this 
 
            factor is mitigated due to claimant's capacity for and 
 
            realization of successful retraining.
 
            
 
                 The medical evidence and the progressive nature of 
 
            claimant's symptoms make clear the possibility that he may 
 
            one day be unable to continue his employment with the City 
 
            of Marion, highly motivated or not.  For purposes of any 
 
            subsequent review-reopening, the writer wishes to make it 
 
            clear that he has not considered the likelihood that 
 
            claimant may lose or give up his current employment as a 
 
            factor; otherwise, the extent of industrial disability 
 
            determined here would be higher.
 
            
 
                 Considering then these factors in specific and the 
 
            record otherwise in general, it is held that claimant has 
 
            sustained a permanent industrial disability equivalent to 
 
            eighty percent of the body as a whole, or 400 weeks.  Per 
 
            the parties' stipulation, the commencement date of permanent 
 
            partial disability benefits is November 4, 1984.  Defendants 
 
            shall have credit for 215 weeks of permanent partial 
 
            disability voluntarily paid prior to hearing.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Defendants shall pay unto claimant four hundred (400) 
 
            weeks of permanent partial disability benefits at the 
 
            stipulated rate of two hundred twenty-one and 52/100 dollars 
 
            ($221.52) commencing November 4, 1984.
 
            
 
                 Defendants shall have credit for two hundred fifteen 
 
            (215) weeks of permanent partial disability voluntarily paid 
 
            prior to hearing.
 
            
 
                 All accrued but unpaid benefits shall be paid in a lump 
 
            sum together with statutory interest.
 
            
 
                 Costs are assessed to defendants.
 
            
 
                 Signed and filed this ____ day of May, 1993.
 
            
 
            
 
            
 
            
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
                                          
 
                                        ________________________________
 
                                          DAVID R. RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr Robert F Wilson
 
            Attorney at Law
 
            810 Dows Building
 
            Cedar Rapids Iowa 52401
 
            
 
            Ms Deborah A Dubik
 
            Mr Greg A Egbers
 
            Attorneys at Law
 
            600 Union Arcade Building
 
            111 East Third Street
 
            Davenport Iowa 52801-1596
 
            
 
 
            
 
 
 
        
 
 
 
 
 
                                                  5-1803; 2901-2905
 
                                                  Filed May 5, 1993
 
                                                  DAVID R. RASEY
 
            
 
                        BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            THOMAS MERRIFIELD,  
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                                 File No. 905145
 
            CEDARAPIDS, INC., f/k/a  
 
            IOWA MANUFACTURING COMPANY,   
 
                                               A R B I T R A T I O N
 
                 Employer, 
 
                                                 D E C I S I O N
 
            and       
 
                      
 
            LIBERTY MUTUAL INSURANCE 
 
            COMPANY,  
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            
 
            5-1803
 
            Permanent partial disability was determined.
 
            
 
            2901; 2905
 
            Claimant filed a petition in arbitration.  Defendants, who 
 
            had voluntarily paid certain benefits, filed answer claiming 
 
            that the action was properly in review-reopening, and that 
 
            claimant needed to prove a change in condition.  Claimant 
 
            then erroneously amended his petition to a review-reopening 
 
            action.
 
            
 
            At hearing, upon inquiry, it appeared that there had been no 
 
            prior adjudication or agreement for settlement approved by 
 
            this agency.  Although the case involved an 1981 injury, the 
 
            record did not show that a memorandum of agreement had been 
 
            filed (in any event, a change in condition is not necessary 
 
            in such cases).  It was ruled that the case was properly 
 
            submitted as an arbitration proceeding.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
            _____
 
                                            :
 
            GARY CHRISTEN,                  :
 
                                            :
 
                 Claimant,                  :        File No. 905165
 
                                            :
 
            vs.                             :          A P P E A L
 
                                            :
 
            IBP, INC,                       :        D E C I S I O N
 
                                            :
 
                 Employer,                  :
 
                 Self-Insured,              :
 
                 Defendant.                 :
 
            ____________________________________________________________
 
            _____
 
            The record, including the transcript of the hearing before 
 
            the deputy and all exhibits admitted into the record, has 
 
            been reviewed de novo on appeal.  The decision of the deputy 
 
            filed December 14, 1990 is affirmed and is adopted as the 
 
            final agency action in this case.
 
            Claimant shall pay the costs of the appeal, including the 
 
            preparation of the hearing transcript.
 
            Signed and filed this ____ day of December, 1992.
 
            
 
            
 
            
 
            
 
                      ________________________________
 
                               BYRON K. ORTON
 
                          INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Steve Hamilton
 
            Attorney at Law
 
            P.O. Box 188
 
            Storm Lake, Iowa 50588
 
            
 
            Mr. John M. Comer
 
            Attorney at Law
 
            P.O. Box 515, Dept. #41
 
            Dakota City, NE 68731
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          9998
 
                                          Filed December 21, 1992
 
                                          BYRON K. ORTON
 
                                          DRR
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
            _____
 
                                            :
 
            GARY CHRISTEN,                  :
 
                                            :
 
                 Claimant,                  :        File No. 905165
 
                                            :
 
            vs.                             :          A P P E A L
 
                                            :
 
            IBP, INC,                       :        D E C I S I O N
 
                                            :
 
                 Employer,                  :
 
                 Self-Insured,              :
 
                 Defendant.                 :
 
            ____________________________________________________________
 
            _____
 
            
 
            
 
            9998
 
            
 
                 Summary affirmance of deputy's decision filed December 
 
            14, 1990.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            GARY CHRISTEN,                :
 
                                          :
 
                 Claimant,                :         File No. 905165
 
                                          :
 
            vs.                           :      A R B I T R A T I O N
 
                                          :
 
            IBP, INC.,                    :         D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration upon claimant's 
 
            petition filed March 22, 1989.  Claimant sustained a 
 
            work-related repetitive motion injury (bilateral carpal 
 
            tunnel syndrome) on July 29, 1988 and now seeks benefits 
 
            under the Iowa Workers' Compensation Act from his 
 
            self-insured employer, IBP, Inc.
 
            
 
                 Hearing on the arbitration petition was had in Storm 
 
            Lake, Iowa, on April 11, 1990.  The record consists of 
 
            claimant's exhibits 1 through 10, defendant's exhibits 1 
 
            through 42 and the testimony of claimant, Lee Ann Kneifl and 
 
            Jean Christen.
 
            
 
                 In addition, the undersigned has taken official notice 
 
            of the contents of the legal file, particularly including 
 
            defendant's answer, prehearing conference notes and the date 
 
            a first report of injury was filed.  In particular, 
 
            defendant's answer denies paragraphs 4 and 10 of the 
 
            petition and therefore denies that claimant sustained an 
 
            injury arising out of and in the course of his employment.  
 
            The prehearing conference notes of September 27, 1989 
 
            reflect that defendant as of that date conceded that 
 
            claimant sustained an injury arising out of and in the 
 
            course of employment.  The first report of injury was filed 
 
            on April 17, 1989.  It is a photocopy, but some relevant 
 
            blanks have been "whited out" and new information inserted 
 
            in black ink.  Among those areas is line 34 showing the 
 
            report was dated April 14, 1988.  This is presumably a 
 
            scrivener's error, and should read "1989."
 
            
 
                 The parties have not been afforded an opportunity to 
 
            contest these facts.  However, the undersigned determines 
 
            and holds that fairness to the parties does not require an 
 
            opportunity to contest those facts.  See Iowa Code section 
 
            17A.14(4).
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                                      issues
 
            
 
                 Pursuant to the prehearing report, the parties have 
 
            stipulated:  that claimant sustained an injury arising out 
 
            of and in the course of his employment with IBP, Inc., on 
 
            July 29, 1988; that if claimant has sustained permanent 
 
            disability attributable to the injury, he has sustained a 
 
            scheduled member disability to the right and left hands; 
 
            that the appropriate rate of weekly compensation is $208.11; 
 
            that defendant voluntarily paid 16.286 weeks of compensation 
 
            at the stipulated rate prior to hearing.
 
            
 
                 Issues presented for resolution include:  whether the 
 
            work injury caused temporary or permanent disability, the 
 
            extent of each and the commencement date of the latter; the 
 
            extent of claimant's entitlement to medical benefits, 
 
            whether the fees charged for medical services are fair and 
 
            reasonable, whether those expenses were incurred for 
 
            reasonable and necessary treatment, whether the expenses are 
 
            causally connected to the work injury, and whether those 
 
            expenses were authorized by defendant; whether claimant 
 
            should be barred from weekly benefits by reason of his 
 
            refusal to submit to medical examination under Iowa Code 
 
            section 85.39; whether claimant should be barred from 
 
            benefits by reason of refusal to accept suitable work under 
 
            Iowa Code section 85.33(3); taxation of costs.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy, having heard the testimony and 
 
            considered all of the evidence, finds:
 
            
 
                 Claimant began his employment with IBP, a meat packing 
 
            concern, on September 22, 1987.  He first began complaining 
 
            of numbness and inability to close his hands bilaterally on 
 
            or about July 29, 1988.  An extremely adversarial 
 
            relationship between claimant and defendant soon developed.
 
            
 
                 In November and December, 1988 and January, 1989, 
 
            claimant repeatedly failed to appear for medical 
 
            examinations set up by defendant.  Claimant finally was seen 
 
            by Ronald S. Bergman, D.O., on January 31, 1989.  Dr. 
 
            Bergman is licensed to practice in the state of Iowa, is a 
 
            Diplomate of the National Board of Examiners for Osteopathic 
 
            Physicians and Surgeons and is board certified in plastic 
 
            and reconstructive surgery by the American Association of 
 
            Osteopathic Specialists.  There is no evidence in this 
 
            record indicating that Dr. Bergman is not a skilled and 
 
            competent surgeon.  As a result of the January 31 
 
            examination, claimant was scheduled for surgery on February 
 
            8, 1989.  The surgery was to be a left carpal tunnel release 
 
            with use of a CO2 laser.
 
            
 
                 On February 6, claimant's wife called Dr. Bergman's 
 
            office to cancel the planned surgery.  Claimant had 
 
            apparently developed misgivings concerning the efficacy of 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            laser surgery.
 
            
 
                 On February 7, 1989, Lee Ann (presumably Kneifl) 
 
            advised Dr. Bergman's office that claimant would be 
 
            terminated, but that defendant would pick up the bill for 
 
            surgery if claimant changed his mind later.  Claimant was 
 
            then scheduled for an independent medical examination (for 
 
            purposes of determining an impairment rating) on February 
 
            21.  On February 10, claimant called to announce that he 
 
            would not appear.  Although supporting documents do not 
 
            appear of record, Ms. Kneifl testified that claimant 
 
            eventually appeared for an IME with Dr. Bergman in May, 
 
            1989.
 
            
 
                 The record contains a June 1988 article reprinted from 
 
            Plastic and Reconstructive Surgery co-authored by Dr. 
 
            Bergman and entitled, "Clinical Experience with the CO2 
 
            Laser During Carpal Tunnel Decompression," which, standing 
 
            unrebutted, establishes the reasonableness of that 
 
            procedure.  Other physicians seem wary of this new 
 
            procedure, and question whether it is superior to steel 
 
            scalpel surgery, but do not, in any event, show the 
 
            procedure to be dangerous or inferior.
 
            
 
                 Kneifl testified that defendant "admitted" that 
 
            claimant had sustained a work injury in December 1988 and 
 
            simultaneously prepared a first report of injury.  However, 
 
            this agency's file reflects that a first report of injury 
 
            was not filed until April 17, 1989, and that, although 
 
            obviously amended, it indicated that it was prepared on 
 
            April 14, 1988 (seven months before the same report 
 
            indicates the employer first knew of claimant's condition).  
 
            The first report was signed by defendant's trial counsel.  
 
            It seems that the April 1988 date is a scrivener's error 
 
            only, and should read 1989.  More to the point, defendant's 
 
            answer filed in this matter on March 23, 1989 denied that 
 
            claimant suffered an injury on July 29, 1988 and denied that 
 
            it was a carpal tunnel injury--repetitive cumulative trauma 
 
            at IBP.  The documentary evidence is much more persuasive 
 
            than Lee Ann Kneifl's testimony.  Defendant did not concede 
 
            that claimant sustained an injury arising out of and in the 
 
            course of his employment until the prehearing conference 
 
            held in this matter on September 27, 1989.
 
            
 
                 Claimant eventually selected his own physician, Robert 
 
            Cochrane, Jr., M.D., and underwent a left carpal tunnel 
 
            release on June 13, 1989 and a right carpal tunnel release 
 
            on August 18, 1989.
 
            
 
                 Claimant had been suspended from work for failure to 
 
            attend a company-scheduled medical examination with Dr. 
 
            Bergman effective January 6, 1989.  Before he underwent 
 
            surgery, defendant offered him a list of four physicians for 
 
            treatment:  Dr. Bergman, John J. Dougherty, M.D., (certified 
 
            by the American Board of Orthopaedic Surgery), Kevin 
 
            Liudahl, M.D., (his curriculum vitae is unclear, but he 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            apparently is certified by the American Board of Orthopaedic 
 
            Surgeons) and David Lindgren, M.D.  This offer, including an 
 
            offer to pay all costs of examination, was made by defendant 
 
            on January 12, 1989.  In his response to a request for 
 
            admissions, claimant admitted that defendant offered medical 
 
            treatment by those physicians pursuant to Iowa Code section 
 
            85.27 and that he refused that treatment.
 
            
 
                 On February 22, 1989, claimant authored the following 
 
            letter to defendant:
 
            
 
                 My absence has been due to my dispute with IBP 
 
                 over proper medical care of my job related injury 
 
                 i.e. carpal tunnel syndrome.
 
            
 
                 I have talked to two doctors whom I hold with high 
 
                 regard.  They indicate that I may work on a light 
 
                 duty basis until the time of my surgery for carpal 
 
                 tunnel syndrome.  I am providing you this letter 
 
                 to you as notification of the fact that I am 
 
                 making a worker's [sic] compensation claim 
 
                 specifically for those reasons.
 
            
 
                 The undersigned interprets this letter as showing an 
 
            offer to return to work on a light-duty basis, at least 
 
            until surgery.
 
            
 
                 In a letter dated March 6, 1989, Dr. Cochrane wrote 
 
            that, following a carpal tunnel release, six weeks is 
 
            normally required before the patient can return to 
 
            unrestricted use of the operated hand and wrist.  Dr. 
 
            Cochrane was not familiar with laser surgery for carpal 
 
            tunnel syndrome and considered it experimental on that 
 
            basis.
 
            
 
                 Dr. Cochrane's chart notes of September 5, 1989 reflect 
 
            that claimant was to continue with light activities and was 
 
            unable to return to work until he again returned.  The next 
 
            chart note is October 4, 1989, at which time Dr. Cochrane 
 
            dismissed claimant from care and allowed him to return to 
 
            work as tolerated.  Another note of October 9 reflects that 
 
            Dr. Cochrane advised defendant's counsel that he would wait 
 
            about six months from surgery before rating claimant for a 
 
            final impairment, which could be in the range of 5-10 
 
            percent depending upon how he did.  Claimant had not reached 
 
            maximum medical improvement as of October 9, but was able to 
 
            return to work.
 
            
 
                 On January 24, 1990, Dr. Cochrane responded to a letter 
 
            from claimant's attorney dated January 15.  It does not 
 
            appear that he saw claimant again after October 4, 1989.  He 
 
            felt claimant had sustained a ten percent impairment of the 
 
            right hand and wrist and a ten percent impairment of the 
 
            left hand and wrist causally related to repetitive trauma 
 
            that claimant sustained at IBP.
 
            
 
                 Claimant was then seen by Dr. Bergman and his 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            associate, Eugene Cherny, M.D., on February 22 and March 29, 
 
            1990.  On April 6, 1990, Dr. Bergman rated claimant as 
 
            having sustained a zero percent permanent partial impairment 
 
            on the left and a zero percent permanent partial impairment 
 
            on the right.
 
            
 
                 Although Dr. Cochrane was the treating surgeon, it 
 
            appears that his assessment of permanent disability was 
 
            speculative and not based on any examination after October 
 
            4, 1989, at which time claimant had not yet reached maximum 
 
            recovery.  Dr. Bergman's impairment rating was based on two 
 
            examinations in February and March, 1990.  Therefore, Dr. 
 
            Bergman's rating is entitled to greater weight.  Claimant 
 
            has not established permanent impairment of his right or 
 
            left hands following carpal tunnel syndrome surgery.
 
            
 
                 In a report dated December 7, 1988, Scott Wulfekuhler, 
 
            M.D., opined that his diagnosis of early median nerve 
 
            entrapment bilaterally was caused, aggravated or accelerated 
 
            by claimant's employment activities.
 
            
 
                 Claimant was evaluated by Richard P. Murphy, M.D., on 
 
            or before February 20, 1989.  In part, Dr. Murphy opined 
 
            that if claimant eventually underwent surgical release, he 
 
            would be unable to return to strenuous work with the upper 
 
            extremities for approximately six weeks.
 
            
 
                 A. J. Wolbrink, M.D., wrote on March 15, 1989 that 
 
            carpal tunnel surgery patients are normally able to do only 
 
            light work intermittently for six weeks after surgery 
 
            (during which he protects them with a splint) and that 
 
            strength and healing with decreased pain continues for at 
 
            least six months after surgery.
 
            
 
                 Thomas P. Ferlic, M.D., wrote on March 1, 1989 that 
 
            normally people are off six weeks for carpal tunnel surgery 
 
            and thereafter most people return to their former 
 
            occupation.  However, he oftentimes permits an additional 
 
            two weeks for healing if the occupation is bothersome to the 
 
            patient.
 
            
 
                 Claimant also submitted substantial medical expenses 
 
            from various health services providers and numerous mileage 
 
            claims from Storm Lake to Omaha for Dr. Murphy (his 
 
            evaluation) and Dr. Cochrane.  No evidence was presented as 
 
            to whether the fees charged for medical services and 
 
            supplies were fair and reasonable.
 
            
 
                                conclusions of law
 
            
 
                 The parties stipulate that claimant sustained an injury 
 
            arising out of and in the course of his employment.
 
            
 
                 The supreme court of Iowa in Almquist v. Shenandoah 
 
            Nurseries, 218 Iowa 724, 731-32, 254 N.W. 35, 38 (1934) 
 
            discussed the definition of personal injury in workers' 
 
            compensation cases as follows:
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                 While a personal injury does not include an 
 
                 occupational disease under the Workmen's 
 
                 Compensation Act, yet an injury to the health may 
 
                 be a personal injury.  [Citations omitted.]  
 
                 Likewise a personal injury includes a disease 
 
                 resulting from an injury....The result of changes 
 
                 in the human body incident to the general 
 
                 processes of nature do not amount to a personal 
 
                 injury.  This must follow, even though such 
 
                 natural change may come about because the life has 
 
                 been devoted to labor and hard work.  Such result 
 
                 of those natural changes does not constitute a 
 
                 personal injury even though the same brings about 
 
                 impairment of health or the total or partial 
 
                 incapacity of the functions of the human body. 
 
            
 
                    ....
 
                 
 
                 A personal injury, contemplated by the Workmen's 
 
                 Compensation Law, obviously means an injury to the 
 
                 body, the impairment of health, or a disease, not 
 
                 excluded by the act, which comes about, not through the 
 
                 natural building up and tearing down of the human body, 
 
                 but because of a traumatic or other hurt or damage to 
 
                 the health or body of an employee.  [Citations 
 
                 omitted.]  The injury to the human body here 
 
                 contemplated must be something, whether an accident or 
 
                 not, that acts extraneously to the natural processes of 
 
                 nature, and thereby impairs the health, overcomes, 
 
                 injures, interrupts, or destroys some function of the 
 
                 body, or otherwise damages or injures a part or all of 
 
                 the body.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of July 29, 
 
            1988 is causally related to the disability on which he now 
 
            bases his claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
            N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 296, 18 
 
            N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hosp., 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903 (Iowa 1974).  However, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Id. at 907.  Further, the weight to be given to such 
 
            an opinion is for the finder of fact, and that may be 
 
            affected by the completeness of the premise given the expert 
 
            and other surrounding circumstances.  Bodish, 257 Iowa 516, 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            133 N.W.2d 867.  See also Musselman v. Cent. Tel. Co., 261 
 
            Iowa 352, 154 N.W.2d 128 (1967).
 
            
 
                 Carpal tunnel syndrome in this case is a repetitive 
 
            motion injury.  The undisputed medical evidence is that 
 
            claimant's repetitive hand motions during the course of his 
 
            employment caused him to develop this malady and resulted in 
 
            surgery.  Claimant has met his burden of proof in 
 
            establishing causal connection.
 
            
 
                 Pursuant to Iowa Code sections 85.32 and 85.33, 
 
            compensation for temporary total disability extending beyond 
 
            fourteen days is payable until the employee has returned to 
 
            work or is medically capable of returning to substantially 
 
            similar employment, whichever first occurs.  Although the 
 
            parties have stipulated to an injury date of July 29, 1988, 
 
            claimant seeks temporary benefits from the first surgery 
 
            (June 13, 1989) until October 4, 1989.  It was on the latter 
 
            date that Dr. Cochrane, the treating surgeon, released 
 
            claimant to return to work (in fact, claimant did return to 
 
            work in October, 1989 and remains employed as a utility 
 
            worker).  Claimant shall be allowed temporary total 
 
            disability benefits from June 13 through October 4, 1989, a 
 
            total of 16 weeks, 2 days.
 
            
 
                 It has been found that claimant has sustained no 
 
            permanent impairment resulting from his bilateral wrist 
 
            surgery.  Accordingly, no award is justified.
 
            
 
                 Defendant is of the view that claimant should be barred 
 
            from temporary total or partial disability benefits under 
 
            section 85.33(3) on the basis that he refused to accept 
 
            suitable work.  In fact, claimant was under suspension and 
 
            had offered to return to work in February, 1989.  The 
 
            medical evidence shows that a six- or perhaps eight-week 
 
            recuperative period is typical following carpal tunnel 
 
            surgery, which is also consistent with the experience of 
 
            this agency.  Claimant was not offered suitable work and 
 
            himself offered to return to light-duty work prior to his 
 
            surgery.  Defendant's reliance on 85.33(3) is misplaced.
 
            
 
                 Claimant also asserts entitlement to substantial 
 
            medical benefits under section 85.27.  However, the parties 
 
            dispute whether the fees charged for medical services and 
 
            supplies are fair and reasonable and claimant did not 
 
            present evidence establishing the fairness and 
 
            reasonableness of those assorted costs.  Claimant bears the 
 
            burden of proof on this issue, and under current agency 
 
            precedent, medical benefits may not be awarded.  Anderson v. 
 
            High Rise Constr. Specialists, Inc., file number 850996 
 
            (App. Decn., July 31, 1990).
 
            
 
                 However, claimant has accumulated substantial mileage 
 
            expenses with respect to his evaluation from Dr. Murphy and 
 
            his treatment from Dr. Cochrane.  Therefore, the asserted 
 
            defense of lack of authorization must be considered.
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                 It has long been established law in this agency that an 
 
            employer cannot simultaneously deny liability on the claim 
 
            and seek to direct the course of medical treatment.  
 
            Barnhart v. MAQ, Inc., I Iowa Industrial Commissioner 
 
            Report 16 (1981).  No formal admission of liability predated 
 
            defendant's answer in this case, and the answer denied that 
 
            claimant sustained an injury arising out of and in the 
 
            course of employment (and prayed the petition be dismissed).  
 
            It was not until September 27, 1989, at the prehearing 
 
            conference, that liability was admitted.  It appears that 
 
            all or almost all medical costs were accrued prior to that 
 
            date.  The authorization defense must fail.
 
            
 
                 However, irrespective of a formal authorization 
 
            defense, the evidence is undisputed that defendant offered 
 
            claimant the choice of selecting any of four qualified 
 
            physicians prior to his election to undergo surgery at the 
 
            hands of Dr. Cochrane.  In Adams v. Happel & Sons, Inc., 
 
            Thirty-fourth Biennial Report of the Industrial Commissioner 
 
            11 (1979), it was held that the offer of care by defendants 
 
            meets the statutory obligation under section 85.27.  
 
            Claimant's refusal was held to create an undue burden upon 
 
            defendants since it frustrated the employer's duty to 
 
            provide reasonable medical services.  With claimant's 
 
            rejection of offered medical care, the defendants' 
 
            obligation to provide hospital and medical care was 
 
            discharged.  Although this decision was written by a deputy 
 
            and is therefore only persuasive rather than binding 
 
            precedent, this writer finds himself duly persuaded.  
 
            Defendant's offer of suitable medical care discharged its 
 
            obligation under section 85.27.
 
            
 
                 Since the parties stipulated that defendant paid 16 
 
            weeks, 2 days of compensation on a voluntary basis prior to 
 
            hearing, claimant shall take nothing further from this 
 
            proceeding.
 
            
 
                 The legal file contains an offer to confess judgment 
 
            duly executed by defendant's attorney bearing the date of 
 
            March 23, 1990.  Defendant offered to allow judgment to be 
 
            taken against it in the sum of $7,640.55 in addition to 
 
            benefits previously paid.  Based in part on this offer to 
 
            confess judgment, costs shall be assessed against claimant.  
 
            Defendant's exhibit 42 is a statement of costs, including a 
 
            charge of $250.00 for a medical report from Dr. Bergman.  
 
            This is equivalent to an expert witness fee and shall be 
 
            allowed only in the amount of $150.00.  See Iowa Code 
 
            section 622.72.
 
            
 
                           
 
            
 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Claimant shall take nothing further from this 
 
            proceeding.
 
            
 
                 The costs of this action shall be assessed to claimant 
 
            pursuant to 343 IAC 4.33, except that Dr. Bergman's charge 
 
            is assessed only in the amount of one hundred fifty and 
 
            00/100 dollars ($150.00).
 
            
 
                 Signed and filed this ______ day of ____________, 1990.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          DAVID RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Steve Hamilton
 
            Attorney at Law
 
            606 Ontario Street
 
            P.O. Box 188
 
            Storm Lake, Iowa  50588
 
            
 
            Mr. Robert L. Harris
 
            Mr. Wendell F. Cowan
 
            Attorneys at Law
 
            P.O. Box 515, Dept. #41
 
            Dakota City, Nebraska  68731
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           1803; 2501; 2700; 2906
 
                           Filed December 14, 1990
 
                           DAVID RASEY
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            GARY CHRISTEN, :
 
                      :
 
                 Claimant, :         File No. 905165
 
                      :
 
            vs.       :      A R B I T R A T I O N
 
                      :
 
            IBP, INC.,     :         D E C I S I O N
 
                      :
 
                 Employer, :
 
                 Self-Insured,  :
 
                 Defendant.     :
 
            ____________________________________________________________
 
            
 
            2906
 
            Official notice was taken of legal file (answer and 
 
            prehearing conference notes) without notice to parties under 
 
            17A.14(4).
 
            
 
            1803
 
            Treating physician gave impairment rating without having 
 
            seen claimant since long before the anticipated date of 
 
            maximum recuperation.  Opinion of examining physician (zero 
 
            percent permanent partial disability) was found entitled to 
 
            greater weight.
 
            
 
            2501; 2700
 
            Where defendant filed answer denying liability, 
 
            authorization defense was held invalid until date of 
 
            prehearing conference (where liability was conceded).  
 
            However, where defendant offered claimant choice of four 
 
            treating physicians and agreed to pay for treatment, this 
 
            was held to discharge obligation under 85.27.
 
            Claimant did not offer proof that medical charges were fair 
 
            and reasonable.  See Anderson.
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JERRY P. HARTZER,
 
          
 
               Claimant,
 
          
 
          VS.                                         File No. 905167
 
         
 
         DALLAS SERVICE CORP.,                      A R B I T R A T I O N
 
         
 
               Employer,                                D E C I S I O N
 
         
 
          and
 
         
 
         
 
         LIBERTY MUTUAL INSURANCE CO.,
 
         
 
               Insurance Carrier,
 
               Defendants.
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Jerry P. 
 
         Hartzer, claimant, against Dallas Service Corp., employer, and 
 
         Liberty Mutual Insurance Co., insurance carrier, to recover 
 
         benefits under the Iowa Workers' Compensation Act as a result of 
 
         an injury sustained on August 3, 1987.  This matter came on for 
 
         hearing before the undersigned deputy industrial commissioner on 
 
         June 15, 1990 and was considered fully submitted at the close of 
 
         the record.  The record in this case consists of the testimony of 
 
         claimant, Joint Exhibits 1 through 13, inclusive, and Defendants' 
 
         Exhibit A which was admitted into evidence for its probative 
 
         value over claimant's objection.
 
         
 
                                      ISSUES
 
         
 
              Pursuant to the prehearing report and order submitted and 
 
         approved June 15, 1990, the following issues are presented for 
 
         resolution:
 
         
 
              1. Whether claimant's permanent partial disability is 
 
         confined to the upper extremity or extends to the body as a whole 
 
         as an industrial disability;
 
         
 
              2. The extent of claimant's entitlement to permanent partial 
 
         disability benefits; and
 
         
 
              3.Claimant's entitlement to the reasonable expenses of an 
 
         independent medical examination under Iowa Code section 85.39.
 
         
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         HARTZER V. DALLAS SERVICE CORP.
 
         Page 2
 
         
 
         
 
                                 FINDINGS OF FACT
 
         
 
              The undersigned deputy industrial commissioner, having heard 
 
         the testimony and considered all of the evidence, finds that:
 
         
 
              On August 3, 1987, claimant sustained an injury which arose 
 
         out of and in the course of his employment when, while unloading 
 
         a trailer, a box broke pulling his right shoulder.  Claimant 
 
         continued working until the pain forced him to see Kevin Smith, 
 
         M.D., who treated him for two or three weeks.  On referral from 
 
         Dr. Smith, claimant came under the care of Sinesio Misol, M.D., 
 
         who had treated claimant earlier for back pain and sciatica.  
 
         Claimant underwent an arthrogram and CT scan in November 1987, 
 
         which did not show a definite rotator cuff tear.  Dr. Misol 
 
         diagnosed an impingement syndrome and treated claimant 
 
         conservatively until such treatment proved unsuccessful.  
 
         Claimant eventually underwent a Neer release (a decompression of 
 
         the coraco-acromial ligament in the subcoracoid region) of the 
 
         right shoulder on January 14, 1988, which "consists of trying to 
 
         remove or trim down that part of bone that hits against the 
 
         tendon, which is the acromion."  (Misol Deposition, Joint Exhibit 
 
         3, p. 10)  Claimant was released to return to work on June 14, 
 
         1988 without restrictions although Dr. Misol recommended claimant 
 
         avoid repetitive use of his arm, overhead work and heavy lifting.  
 
         Dr. Misol opined that claimant had a permanent partial impairment 
 
         of 10 percent of the extremity but testified:
 
         
 
              Q....Regardless of where the surgical work was done, is it 
 
              the fact that anatomically we are still talking about loss 
 
              of use of function of the upper extremity; that is, 
 
              regardless of whether we call our impairment one because of 
 
              arthritis or because of the surgery that was done, or are we 
 
              still talking about an impairment that relates to the 
 
              function or use of the upper extremity?
 
              
 
              A. It is my opinion that the answer is yes, we're talking 
 
              about use of the arm.  If we want to be picky, of course, 
 
              you can always say, "How can an arm go around the world 
 
              without a body attached to it?" But we're talking about the 
 
              use of the arm, and not of the chest and not of the waist; 
 
              otherwise, if we do nothing to establish a certain order, 
 
              then they tend to be very complicated and don't heal.
 
         
 
         (Misol Dep.; Jt. Ex. E, pp. 32-33)
 
         
 
         
 
              Claimant has difficulty generally with his arm with regard 
 
         to overhead work, placing it behind his back, stretching and 
 
         heavy lifting.  Claimant's arm "aches," he cannot lay on his 
 
         right side and he suffers an aching from his "neck to shoulder."
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         HARTZER V. DALLAS SERVICE CORP.
 
         Page 3
 
         
 
         
 
              Claimant was seen by Physical Therapy Consultants, Thomas W. 
 
         Bower, L.P.T., and Scott B. Neff, D.O., on February 14, 1990, for 
 
         evaluation regarding permanent impairment.  Their opinion states:
 
         
 
                 The patient at this time states that he is unable to lie 
 
              on his left [sic] side comfortably and the shoulder aches 
 
              from time to time.  Any kind of stressful activity such as 
 
              lifting, increases the pain in the shoulder substantially.  
 
              Active range of motion today shows forward elevation to 120 
 
              degrees, abduction to 105 degrees, extension to 45 degrees, 
 
              external rotation of 40 degrees, and internal rotation 
 
              measuring full.  All movements are pain-limited.  The 
 
              patient is very tender and continues to be tender over the 
 
              AC joint and reacts on the impingement maneuver to still 
 
              have some impingement problems present.  Therefore, the 
 
              shoulder may not be completely decompressed at this time.
 
              
 
              The rating, on the basis of the range of motion studies 
 
              today, demonstrates an 11% impairment to the upper extremity 
 
              which obviously is very close to Dr. Misol's previous 
 
              rating.  We feel this is beginning to have an overall affect 
 
              on the body as a whole and as a result, would be converted 
 
              to a 7% impairment body as a whole measurement.  It is 
 
              unlikely under the present circumstances that his shoulder 
 
              is going to improve much beyond.where it is.  If in fact he 
 
              is still impinging, perhaps further medical attention may be 
 
              needed.
 
         
 
         (Jt. Ex. 5)
 
         
 
                         REASONING AND CONCLUSIONS OF LAW
 
         
 
              An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
         employment.  Section 85.3(l).
 
         
 
              It has been stipulated that as a result of the injury of 
 
         August 3, 1987, claimant suffered a permanent partial disability.  
 
         What is in dispute is whether claimant's disability is limited to 
 
         the upper extremity (a scheduled injury) or extends into the body 
 
         as a whole (an industrial disability).
 
         
 
              The right of a worker to receive compensation for injuries 
 
         sustained which arose out of and in the course of employment is 
 
         statutory.  The statute conferring this right can also fix the 
 
         amount of compensation to be paid for different specific 
 
         injuries, and the employee is not entitled to compensation except 
 
         as provided by the statute.  Soukup v. Shores Co., 222 Iowa 272, 
 
         268 N.W. 598 (1936).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Permanent partial disabilities are classified as either 
 
         scheduled or unscheduled.  A specific scheduled disability is
 
         
 
         
 
         
 
         HARTZER V. DALLAS SERVICE CORP.
 
         Page 4
 
         
 
         
 
         evaluated by the functional method; the industrial method is used 
 
         to evaluate an unscheduled disability.  Martin v. Skelly Oil Co., 
 
         252 Iowa 128, 133, 106 N.W.2d 95, 98 (1960) ; Graves v. Eagle 
 
         Iron Works, 331 N.W.2d 116 (Iowa 1983).; Simbro v. DeLong's 
 
         Sportswear, 332 N.W.2d 886, 887 (Iowa 1983).
 
         
 
              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).  See Alm v. Morris 
 
         Barrack Cattle Company, 240 Iowa 1174, 38 N.W.2d 161 (1949).
 
         
 
              Based upon the situs of the injury and particularly the 
 
         surgery as well as claimant's own testimony of subjective 
 
         symptoms beyond the upper extremity and Dr. Neff's opinion that 
 
         claimant's condition has an overall effect on the body as a 
 
         whole, under Alm, 240 Iowa 1174, 38 N.W.2d 161, it is concluded 
 
         claimant has sustained an injury to the body as a whole entitling 
 
         him to an industrial disability.  See also Nazarenus v. Oscar 
 
         Mayer & Co., II Iowa Industrial Commissioner Reports 281 (Appeal 
 
         Decision 1982).
 
         
 
              In Alm, claimant had a rating of 25 to 30 percent impairment 
 
         to the arm and the court, noting the anatomical location of the 
 
         injury extended from the arm into the shoulder, ruled that the 
 
         injury was not restricted to a schedule, thus, by law, an injury 
 
         to the shoulder which produces permanent impairment entitles the 
 
         claimant to an industrial disability.  Furthermore, the greater 
 
         weight of evidence in the record establishes that the residuals 
 
         of claimant's impairment extend beyond the extremity into the 
 
         body as whole.  See Lauhofff Grain Co. v. McIntosh, 395 N.W.2d 
 
         834 (Iowa 1986).
 
         
 
              The mere fact that the rating pertains to a scheduled member 
 
         does not mean that disability is restricted to a schedule.  
 
         Pullen v. Brown & Lambrecht Earthmoving, Incorporated, II Iowa 
 
         Industrial Commissioner Report 308 (Appeal Decision 1982).
 
         
 
              There are two impairment ratings in the record.  Dr. Misol 
 
         assigned a 10 percent permanent partial impairment to the upper 
 
         extremity while Dr. Neff assigned a 11 percent to the upper 
 
         extremity or 7 percent of the body as a whole.
 
         
 
              Functional impairment is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963). 
 
         Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              A finding of impairment to the body as a whole found by a 
 
         medical evaluator does not equate to industrial disability.  This 
 
         is so as impairment and disability are not synonymous.  Degree of
 
         
 
         
 
         
 
         HARTZER V. DALLAS SERVICE CORP.
 
         Page 5
 
         
 
         
 
         industrial disability can in fact be much different than the 
 
         degree of impairment because in the first instance reference is 
 
         to loss of earning capacity and in the latter to anatomical or 
 
         functional abnormality or loss.  Although loss of function is to 
 
         be considered and disability can rarely be found without it, it 
 
         is not so that a degree of industrial disability is 
 
         proportionally related to a degree of impairment of bodily 
 
         function.
 
         
 
              Factors to be considered in determining industrial 
 
         disability include the employee's medical condition prior to the 
 
         injury, immediately after the injury, and presently; the situs of 
 
         the injury, its severity and the length of healing period; the 
 
         work experience of the employee prior to the injury, after the 
 
         injury and potential for rehabilitation; the employee's 
 
         qualifications intellectually, emotionally and physically; 
 
         earnings prior and subsequent to the injury; age; education; . 
 
         motivation; functional impairment as a result of the injury; and 
 
         inability because of the injury to engage in employment for which 
 
         the employee is fitted.  Loss of earnings caused by a job 
 
         transfer for reasons related to the injury is also relevant.  
 
         These are matters which the finder of fact considers collectively 
 
         in arriving at the determination of the degree of industrial 
 
         disability.
 
         
 
              There are no weighting guidelines that indicate how each of 
 
         the factors are to be considered.  There are no guidelines which 
 
         give, for example, age a weighted value of ten percent of the 
 
         total value, education a value of fifteen percent of total, 
 
         motivation - five percent; work experience - thirty percent, etc.  
 
         Neither does a rating of functional impairment directly correlate 
 
         to a degree of industrial disability to the body as a whole.  In 
 
         other words, there are no formulae which can be applied and then 
 
         added up to determine the degree of industrial disability.  It 
 
         therefore becomes necessary for the deputy to draw upon prior 
 
         experience, general and specialized knowledge to make the finding 
 
         with regard to degree of industrial disability.  See Peterson v. 
 
         Truck Haven Cafe, Inc., (Appeal Decision, February 28, 1985); 
 
         Christensen v. Hagen, Inc., (Appeal Decision, March 26, 1985).
 
         
 
              Claimant is 53 years old and earned his GED in 1982, having 
 
         completed school to the tenth grade.  Claimant has always driven 
 
         a truck as a living and continues to drive since his injury.  
 
         Claimant is no longer employed by defendant for reasons unrelated 
 
         to his injury.  While still in the healing period, claimant 
 
         worked driving a truck-for F.W. Max Company.  Defendant employer 
 
         became aware of claimant's actions and when claimant attempted to 
 
         return to work, he was discharged.  The undersigned cannot 
 
         conclude that claimant's discharge was for reasons related to the 
 
         injury.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant is currently employed with Chief Bus Service 
 
         (formerly Hawkeye) earning $350 per week.  Claimant is not under 
 
         any medical care and, except for the evaluation by Dr. Neff, has
 
         
 
         
 
         
 
         HARTZER V. DALLAS SERVICE CORP.
 
         Page 6
 
         
 
         
 
         not seen any physician since his release to return to work on 
 
         June 13, 1988.
 
         
 
              Claimant has no medically imposed restrictions on his 
 
         employability but has some difficulty with lifting.  Claimant was 
 
         uncertain whether or not he could have continued to do the job he 
 
         held with defendant had he not been discharged.  However, 
 
         claimant did not eliminate this as a possibility.  It is 
 
         acknowledged, however, that claimant would have difficulty 
 
         maintaining employment as a truck driver that required extensive 
 
         loading and unloading responsibilities.
 
         
 
              Considering all the elements of industrial disability, it is 
 
         determined that claimant has sustained a permanent partial 
 
         disability of 7 percent for industrial purposes entitling him to 
 
         35 weeks of permanent partial disability benefits.
 
         
 
              Iowa Code section 85.39 provides:
 
         
 
                 If an evaluation of permanent disability has been made by 
 
              a physician retained by the employer and the employee 
 
              believes this evaluation to be-too low, the employee shall, 
 
              upon application to the commissioner and upon delivery of a 
 
              copy of the application to the employer and its insurance 
 
              carrier, be reimbursed by the employer the reasonable fee 
 
              for a subsequent examination by a physician of the 
 
              employee's own choice, and reasonably necessary 
 
              transportation expenses incurred for the examination.  The 
 
              physician chosen by the employee has the right to confer 
 
              with and obtain from the employer-retained physician 
 
              sufficient history of the injury to make a proper 
 
              examination.
 
         
 
              Claimant originally filed a request for examination under 
 
         Iowa Code section 85.39 on January 18, 1990.  Defendants resisted 
 
         the application on the basis that:
 
         
 
              Dr. Misol is not "a physician retained by the employer" as 
 
              envisioned or stated in Section 85.39, but rather is an 
 
              orthopedic surgeon chosen by the claimant for the instant 
 
              problem as so chosen by the claimant on prior occasions, for 
 
              other orthopedic problems.  That claimant has no basis to 
 
              contest the opinions of Dr. Misol for any reason associated 
 
              with the employer or insurance carrier imposing a physician 
 
              upon this claimant, as envisioned in Section 85.39, the 
 
              Code.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
         (Defendants, Resistance to Application for 85.39 Exam)
 
         
 
              Claimant testified that Dr. Smith, "the company doctor," 
 
         referred him to Dr. Misol.  Defendants authorized claimant to see 
 
         Dr. Misol (See Answer to Interrogatory No. 4, Jt. Ex. 8, p. 5) 
 
         Defendants have paid all medical expenses associated with 
 
         claimant's injury.  (See Answers to Interrogatory Nos. 2 & 3,
 
         
 
         
 
         
 
         HARTZER V. DALLAS SERVICE CORP.
 
         Page 7
 
         
 
         
 
         Jt. Ex. 8, p. 3-4) Defendants neither objected to claimant's 
 
         seeing Dr. Misol nor did they advise claimant that Dr. Misol's 
 
         treatment would not be authorized.  Based on these facts, it is 
 
         determined that Dr. Misol, regardless of who initially chose him, 
 
         became the physician retained by the employer.  Thus, under Iowa 
 
         Code section 85.39, claimant is entitled to an independent 
 
         medical examination after Dr. Misol rendered an opinion on 
 
         permanent partial impairment which claimant considered too low.  
 
         Defendants are liable for the reasonable costs thereof.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              Defendants shall pay unto claimant thirty-five (35) weeks of 
 
         permanent partial disability benefits at the stipulated rate of 
 
         three hundred forty-four and 43/100 dollars ($344.43) per week 
 
         commencing June 14, 1988.
 
         
 
              Benefits that have accrued shall be paid in a lump sum 
 
         together with statutory interest thereon, pursuant to Iowa Code 
 
         section 85.30.
 
         
 
              Defendants are liable for the eighty-five dollar ($85) cost 
 
         of the independent medical examination that claimant underwent 
 
         with Physical Therapy Consultants.  Defendants shall remit this 
 
         amount directly to the health care provider unless claimant has 
 
         paid that expense in which event that amount shall be paid to 
 
         claimant.
 
         
 
              Costs of this action are assessed against defendants, 
 
         pursuant to Division of Industrial Services Rule 343-4.33.
 
         
 
              Signed and filed this 29th day of June, 1990.
 
         
 
         
 
         
 
                                         DEBORAH A. DUBIK
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         Copies to:
 
         
 
         Mr Marvin E Duckworth
 
         Attorney at Law
 
         Terrace Ctr Ste 111
 
         2700 Grand Ave
 
         Des Moines IA 50312
 
         
 
         Mr James C Huber
 
         Attorney at Law
 
         500 Liberty Bldg
 
         Des Moines Ia 50309
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                         5-1803.1; 2502
 
                                         Filed June 29, 1990
 
                                         Deborah A. Dubik
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JERRY P. HARTZER,
 
          
 
                Claimant,
 
                                                      File No. 905167 
 
          VS.
 
                                                    A R B I T R A T I O N
 
          DALLAS SERVICE CORP.,
 
                                                        D E C I S I O N
 
                Employer,
 
         
 
          and
 
         
 
         LIBERTY MUTUAL INSURANCE CO.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         
 
         5-1803.1
 
         
 
              Claimant's shoulder injury found to be to the body as a 
 
         whole and industrial disability (7%) awarded.
 
         
 
         2502
 
         
 
              Defendants' argument that, since employer did not 
 
         specifically retain the second physician that claimant saw, 
 
         claimant was not entitled to an independent medical examination 
 
         after physician rendered opinion on permanency failed.  
 
         Defendants authorized treatment and paid for same.  Physician was 
 
         retained by defendants and costs of independent medical 
 
         examination authorized.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            WILLIAM J. FURNE,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 905173
 
            LOUIS RICH CO.,               :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            THE HARTFORD INSURANCE GROUP, :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by William 
 
            J. Furne, claimant, against Louis Rich Company, employer, 
 
            and The Hartford Insurance Company, insurance carrier, to 
 
            recover benefits under the Iowa Workers' Compensation Act as 
 
            a result of an injury sustained on March 5, 1989.  This 
 
            matter came on for hearing before the undersigned deputy 
 
            industrial commissioner on September 24, 1991, in Davenport, 
 
            Iowa.  The record was considered fully submitted at the 
 
            close of the hearing.  The record in this case consists of 
 
            claimant's testimony, testimony from Mike McGuire and Tom 
 
            Brashaw; joint exhibits 1-9, claimant's exhibits l-3 and 
 
            defendants' exhibits A through F.
 
            
 
                                      issues
 
            
 
                 Pursuant to the prehearing report and order dated 
 
            September 24, 1991, the parties presented the following 
 
            issues for resolution:
 
            
 
                 1.  Whether claimant sustained an injury on March 5, 
 
            1989, which arose out of and in the course of employment 
 
            with employer;
 
            
 
                 2.  Whether the alleged injury is a cause of temporary 
 
            and permanent disability;
 
            
 
                 3.  The extent of entitlement to weekly compensation 
 
            for permanent disability, if defendants are liable for the 
 
            injury; and,
 
            
 
                 4.  Whether claimant's medical expenses are causally 
 
            connected to his work injury.
 
            
 
                                 findings of fact
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                 The undersigned has carefully considered all the 
 
            testimony given at the hearing, arguments made, evidence 
 
            contained in the exhibits herein and makes the following 
 
            findings:
 
            
 
                 On March 3, 1989, claimant, a truck driver with 
 
            employer, left West Liberty, Iowa with a tractor trailer 
 
            owned by employer.  He drove eight hours to Ft. Wayne, 
 
            Indiana and arrived there around 1:00 a.m.  He took a nap in 
 
            the trailer until one-half hour before his 9:00 a.m. 
 
            appointment at the warehouse where he unloaded his cargo 
 
            until 12:00 p.m.  After carrying out this task, he went to a 
 
            truck stop to eat lunch and then went to the Ryder Center to 
 
            drop off his trailer.  His next destination was Rochester, 
 
            Indiana where he had to unload at 10:00 p.m. the next day.  
 
            On March 4, 1989, he drove the tractor to a boarding house 
 
            owned by Julie Kennel where he spent the night.  During the 
 
            layover in Ft. Wayne, Indiana, claimant was paid $75 layover 
 
            pay and reimbursed for meals, lodging and other costs.  
 
            Claimant's uncontroverted testimony indicates there was no 
 
            company policy as to where a driver stayed overnight and 
 
            sleeping arrangements were made at his option.  Claimant 
 
            slept late on March 5, 1989, and when he awoke early 
 
            afternoon it was cold and rainy.  Claimant testified that he 
 
            contemplated taking a different route to Rochester, Indiana 
 
            and decided to check a road map at a local gas station 
 
            before going for some lunch.  Claimant, Julie Kennel, her 
 
            two children and a friend of Julie's, took Julie's car to an 
 
            Amoco gas station where Julie filled her gas tank while 
 
            claimant checked a map for an alternate route.  He also 
 
            bought cigarettes and candy for the pending trip.  On his 
 
            way back to the car, claimant slipped and fell.  He felt an 
 
            immediate onset of pain in his back and called Mike McGuire, 
 
            his supervisor, regarding the incident (Exhibit 1).
 
            
 
                 The pertinent medical evidence of record indicates that 
 
            claimant was admitted to Lutheran Hospital of Indiana on 
 
            March 5, 1989.  Claimant presented with complaints of a 
 
            burning sensation in the anterior thigh with occasional 
 
            numbness in the left foot.  A lumbosacral spine CT scan was 
 
            performed and confirmed the presence of a nondisplaced 
 
            fracture of the left transverse process at the L3 vertebral 
 
            body and a possible L4-L5 disc herniation.  During the 
 
            course of hospitalization, claimant required intramuscular 
 
            pain medications.  By March 9, 1989, he was ready for dis
 
            charge.  He was fitted with a lumbar corset and was given 
 
            pain medication and a muscle relaxant (Ex. 1).
 
            
 
                 Upon returning to Iowa, claimant was seen by A. B. 
 
            Brakel, M.D., who referred claimant to the University of 
 
            Iowa Medical Center for further evaluation.  On March 29, 
 
            1989, claimant was seen in the Neurosurgery Outpatient 
 
            Clinic.  An MRI of the lumbar spine was performed and 
 
            revealed degenerative discs at the L4-5 and L5-Sl levels; a 
 
            large disc bulge/protusion at the L5-Sl midline and to the 
 
            left; and similar changes at the L4-5 level with the 
 
            protrusion more to the right side.  Claimant was put on con
 
            servative therapy, medication and exercises (Ex. 3, pages 1-
 
            6).
 
            
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                 Claimant was seen in the Neurosurgery Outpatient Clinic 
 
            on May 17, 1989, for a follow-up evaluation.  The impression 
 
            was that claimant had a bilateral radiculopathy, a right L5 
 
            and a left Sl, caused by the discs.  He was given the option 
 
            of surgery, which he rejected.  However, on June 8, 1989, he 
 
            was hospitalized for cervical spine x-rays, a lumbar 
 
            myelogram and a CT scan.  The x-rays did not show any 
 
            evidence of displacement or fracture.  The other tests 
 
            showed minimal disc bulge at L4 and L5.  Instead of a 
 
            laminectomy, claimant opted to continue conservative 
 
            treatment (Ex. 3, pp. 7 & 26-27).
 
            
 
                 On June 11, 1989, claimant presented to Troxell 
 
            Chiropractic Clinic for treatment.  After three months of 
 
            treatment he was still unable to carry out simple normal 
 
            daily activities without exacerbation of his condition (Ex. 
 
            6).
 
            
 
                 On August 29, 1989, claimant presented to the Pain 
 
            Clinic at the University of Iowa Medical Center.  He was 
 
            diagnosed with low back pain secondary to L4,5, L5,Sl discs 
 
            and fracture of the transverse process at L3 as well as 
 
            signs of radicular symptoms in an L5 distribution on the 
 
            left.  He refused epidural or caudal steroid injections but 
 
            had a TENS unit placed with approximately 20 percent to 25 
 
            percent relief (Ex. 3, p. 9).
 
            
 
                 On November 9, 1989, claimant was seen in the 
 
            Neurosurgery Outpatient Clinic where he displayed stiffness 
 
            in his neck and lower back.  Nevertheless, he performed well 
 
            on toe and heel walking and had good straight leg raising 
 
            bilaterally.  There was no evidence of weakness in the legs.  
 
            The previous myelogram was noted to show no evidence of 
 
            nerve route amputation.  There was no evidence of atrophy in 
 
            the upper extremities and his motor strength was equal.  
 
            Cervical spine films were negative without abnormality.  A 
 
            soft cervical collar was prescribed (Ex. 3, pp. 10-11).
 
            
 
                 When claimant returned to the Neurosurgery Clinic on 
 
            March 29, 1990, he complained not only of low back pain but 
 
            neck pain radiating into the hand, involving the index and 
 
            middle fingers.  On examination, he displayed caution in 
 
            head turning, flexion and extension but no evidence of motor 
 
            or sensory deficits in the upper extremities was noted.  An 
 
            MRI of the cervical spine showed a herniated cervical disc 
 
            at C5-6 on the left side which explained his numbness.  The 
 
            option of surgical intervention was discussed and considered 
 
            (Ex. 3, p. 12).
 
            
 
                 Claimant was referred by his attorney to the Franciscan 
 
            Rehabilitation Center for evaluation by Robert J. Chesser, 
 
            M.D.  After reviewing claimant's medical history and noting 
 
            his complaints, Dr. Chesser stated:  "I feel that Mr. 
 
            Furne's symptoms are related to herniated discs which were 
 
            precipitated by the injury."  Dr. Chesser recommended 
 
            surgical intervention for claimant's cervical and lumbar 
 
            pain (Ex. 2, pp. 3-5).
 
            
 
                 Dr. Chesser referred claimant for a physical capacity 
 
            evaluation which was conducted by Karen Dhanens on April 25, 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            1990 (Ex. 2, pp. 6-14).  Based on the results of this 
 
            assessment, Dr. Chesser released claimant to full time work 
 
            activity at the sedentary level on May 11, 1990.  The test 
 
            results had indicated a 15 pound lifting limit and a 19 
 
            pound carrying limit.  He was able to tolerate 20 minutes of 
 
            static standing, 45 minutes of sitting and 45 to 60 minutes 
 
            of non-static standing (Ex. 2, p. 15).  
 
            
 
                 Claimant was then referred by defendants to John S. 
 
            Koch, M.D., for evaluation at the Iowa Musculoskeletal 
 
            Center.  At this time, Dr. Koch commented "I find this man 
 
            to be overweight, in poor physical condition and unemployed, 
 
            with a history of a fracture having occurred to his spine.  
 
            I have no distinct evidence of neurological deficit and 
 
            findings for the basis of his complaints are only 
 
            subjective.  I do not feel continued chiropractic treatment 
 
            would be of benefit for this man.... I would consider him 20 
 
            % impaired..." (Ex. 4, pp. 1-4).
 
            
 
                 On May 21, 1990, Mark L. McGowan, D.C., from the 
 
            Troxell Chiropractic Clinic, gave claimant a permanent 
 
            partial impairment rating of 20 percent in part due to his 
 
            disc injuries and to his restricted range of motion (Ex. 6, 
 
            pp. 1-3).
 
            
 
                 On September 7, 1991, claimant visited the Durant 
 
            Chiropractic Clinic where he was evaluated by Glenn 
 
            Sorgenfrey, D.C.  His complaints were referable to an 
 
            exacerbation of low back pain.  He refused to go to an 
 
            emergency room for medical help and chiropractic adjustments 
 
            were made.  He advised claimant to continue bed rest and 
 
            consider orthopedic surgery.  He opined that claimant is 
 
            unemployable (Ex. 7).
 
            
 
                    
 
            
 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            conclusions of law
 
            
 
                 The first issue to be determined is whether claimant 
 
            received an injury which arose out of and in the course of 
 
            his employment with employer.
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that he received an injury on March 5, 1989, 
 
            which arose out of and in the course of his employment.  
 
            McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); 
 
            Musselman v. Central Telephone Co., 261 Iowa 352, 154 
 
            N.W.2d 128 (1967). 
 
            
 
                 The injury must both arise out of and be in the course 
 
            of the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 
 
            Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 
 
            of the Iowa Report.  See also Sister Mary Benedict v. St. 
 
            Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (l963) and Hansen 
 
            v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958).
 
            
 
                 The words "out of" refer to the cause or source of the 
 
            injury.  Crowe, 246 Iowa 402, 68 N.W.2d 63 (1955). 
 
            
 
                 The words "in the course of" refer to the time and 
 
            place and circumstances of the injury.  McClure v. Union 
 
            et al. Counties, 188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 
 
            402, 68 N.W.2d 63 (1955).
 
            
 
                 "An injury occurs in the course of the employment when 
 
            it is within the period of employment at a place the 
 
            employee may reasonably be, and while he is doing his work 
 
            or something incidental to it."  Cedar Rapids Comm. Sch. 
 
            Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979), McClure, 188 
 
            N.W.2d 283 (Iowa 1971); Musselman, 261 Iowa 352, 154 N.W.2d 
 
            128 (1967). 
 
            
 
                 The supreme court of Iowa in Almquist v. Shenandoah 
 
            Nurseries, 218 Iowa 724, 731-32, 254 N.W. 35, 38 (1934) 
 
            discussed the definition of personal injury in workers' 
 
            compensation cases as follows:
 
            
 
                 
 
            
 
                 While a personal injury does not include an occupa
 
                 tional disease under the Workmen's Compensation 
 
                 Act, yet an injury to the health may be a personal 
 
                 injury.  [Citations omitted.]  Likewise a personal 
 
                 injury includes a disease resulting from an 
 
                 injury....The result of changes in the human body 
 
                 incident to the general processes of nature do not 
 
                 amount to a personal injury.  This must follow, 
 
                 even though such natural change may come about 
 
                 because the life has been devoted to labor and 
 
                 hard work.  Such result of those natural changes 
 
                 does not constitute a personal injury even though 
 
                 the same brings about impairment of health or the 
 
                 total or partial incapacity of the functions of 
 
                 the human body. 
 
            
 
                    ....
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
                 
 
                 A personal injury, contemplated by the Workmen's 
 
                 Compensation Law, obviously means an injury to the 
 
                 body, the impairment of health, or a disease, not 
 
                 excluded by the act, which comes about, not through the 
 
                 natural building up and tearing down of the human body, 
 
                 but because of a traumatic or other hurt or damage to 
 
                 the health or body of an employee.  [Citations 
 
                 omitted.]  The injury to the human body here con
 
                 templated must be something, whether an accident or 
 
                 not, that acts extraneously to the natural processes of 
 
                 nature, and thereby impairs the health, overcomes, 
 
                 injures, interrupts, or destroys some function of the 
 
                 body, or otherwise damages or injures a part or all of 
 
                 the body.
 
            
 
                 Defendants contend that while claimant was on a 
 
            business trip on March 5, 1989, his accident and injury 
 
            occurred while pursuing personal pleasure removing him from 
 
            the course of employment and rendering his injury 
 
            non-compensable.  Defendants argue that claimant deviated 
 
            from the course of employment while driving a friend's car, 
 
            stopping at a gas station to refuel and intending to share 
 
            lunch afterwards.  They argue that since claimant had not 
 
            reembarked upon the business portion of his trip, he was not 
 
            in the course of employment.
 
            
 
                 Defendants' argument is without merit.  lA Larson 
 
            Workmen's Compensation Law at section 25 states the law 
 
            with respect to a traveling employee as follows:
 
            
 
                 Employees whose work entails travel away from the 
 
                 employer's premises are held in the majority of 
 
                 jurisdiction to be within the course of their 
 
                 employment continuously during the trip, except 
 
                 when a distinct department on a personal errand is 
 
                 shown.  Thus, injuries arising out of the 
 
                 necessity of sleeping in hotels or eating in 
 
                 restaurants away from home are usually held 
 
                 compensable.
 
            
 
                 lA Larson Workmen's Compensation Law at section 
 
            25.21(a) further states that:
 
            
 
                 [T]raveling employees, whether or not on call, 
 
                 usually do receive protection when the injury has 
 
                 its origin in a risk created by the necessity of 
 
                 sleeping and eating away from home.
 
            
 
                 Furthermore, Larson states that:
 
            
 
                 So, when a traveling man slips in the street or is 
 
                 struck by an automobile between his hotel and a 
 
                 restaurant the injury has been held compensable, 
 
                 even though the accident occurred on a Sunday 
 
                 evening, or involved an extended trip occasioned 
 
                 by employee's wish to eat at a particular 
 
                 restaurant....
 
            
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
                 There is no doubt that on March 5, 1989, claimant was 
 
            laid-over in Ft. Wayne, Indiana assigned to deliver a load 
 
            of meat later that day to Rochester, Indiana.  Claimant was 
 
            paid by employer $75 during the 24 hour layover.  He was 
 
            paid $15 a day for meals and $38 for board.  Claimant slept 
 
            late that day and left the boarding house in order to get 
 
            some lunch.  The fact that he chose to share lunch with 
 
            friends and in the process first stopped at a local gas 
 
            station to fuel his friend's car, pick up some cigarettes 
 
            and candy and allegedly check a map in order to determine an 
 
            alternate route to Rochester, is not a significant deviation 
 
            to take claimant out of the course of employment.
 
            
 
                 1A Larson Workmen's Compensation Law at section 
 
            25.23(c) states as follows:
 
            
 
                 Many recent decisions to the effect that when an 
 
                 employee is required to travel to a distant place 
 
                 on the business of his employer and is directed to 
 
                 remain at that place for a specified length of 
 
                 time, his status as an employee continues during 
 
                 the entire trip, and any injury occurring during 
 
                 such period is compensable, so long as the 
 
                 employee at the time of injury was engaged in a 
 
                 reasonable activity.
 
            
 
                 An employee does not cease to be in the course of his 
 
            employment merely because he is not actually engaged in 
 
            doing some specified prescribed tasks, if, in the course of 
 
            his employment, he does some act which he deems necessary 
 
            for the benefit of his employer.  Crees v. Sheldahl 
 
            Telephone Co., 258 Iowa 292, 139 N.W.2d 190 (1965).  
 
            Claimant seeking nourishment in order to fortify himself for 
 
            his pending trip was a necessary act and ultimately benefits 
 
            the employer.  Injuries received while ministering to self 
 
            have been held compensable in Walker v. Speeder Mach. Corp., 
 
            213 Iowa 1134, 140 N.W. 725 (1932).
 
            
 
                 The general rule is that the course of employment 
 
            commences after the employee reaches the premises where his 
 
            actual work begins and is carried on and ceases when he 
 
            leaves.  Otto v. Independent Sch. Dist., 237 Iowa 991, 994, 
 
            23 N.W.2d 915, 916 (1946).  However, the going and coming 
 
            rule usually does not apply to traveling employees because 
 
            they are in the course of their employment until they return 
 
            home.  Heissler v. Strange Bros. Hide Co., 212 Iowa 848, 237 
 
            N.W. 343 (1931).  Claimant was at all times on the road for 
 
            employers' benefit.
 
            
 
                 Accordingly, claimant has shown by a preponderance of 
 
            the evidence that his injury on March 5, 1989, arose out of 
 
            and in the course of employment with employer.
 
            
 
                 The next issue to be determined is whether there is a 
 
            causal connection between claimant's injury and the 
 
            disability on which he now bases his claim.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of March 5, 
 
            1989, is causally related to the disability on which he now 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            bases his claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
            N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 296, 18 
 
            N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903 (Iowa 1974).  However, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Id. at 907.  Further, the weight to be given to such 
 
            an opinion is for the finder of fact, and that may be 
 
            affected by the completeness of the premise given the expert 
 
            and other surrounding circumstances.  Bodish, 257 Iowa 516, 
 
            133 N.W.2d 867.  See also Musselman, 261 Iowa 352, 154 
 
            N.W.2d 128 (1967).
 
            
 
                 While a claimant is not entitled to compensation for 
 
            the results of a preexisting injury or disease, the mere 
 
            existence at the time of a subsequent injury is not a 
 
            defense.  Rose v. John Deere Ottumwa Works, 247 Iowa 900, 
 
            908, 76 N.W.2d 756, 760-61 (1956).  If the claimant had a 
 
            preexisting condition or disability that is aggravated, 
 
            accelerated, worsened or lighted up so that it results in 
 
            disability, claimant is entitled to recover.  Nicks v. 
 
            Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, 815 
 
            (1962).
 
            
 
                 An employer takes an employee subject to any active or 
 
            dormant health impairments, and a work connected injury 
 
            which more than slightly aggravates the condition is 
 
            considered to be a personal injury.  Ziegler v. United 
 
            States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591 (1960), 
 
            and cases cited.
 
            
 
                 Defendants argue that claimant's current disability 
 
            preexisted his injury on March 5, 1989.  While it is true 
 
            that claimant sustained some minor injuries to his low back 
 
            in 1975, 1982 and 1984 which required less than two months 
 
            off work each time, these injuries in no way interfered with 
 
            claimant's ability to perform the heavy manual labor 
 
            requirements of his job with employer.  Causation was 
 
            established by Dr. Chesser.  Claimant's statement that he 
 
            was asymptomatic prior to that injury also supports the 
 
            finding of causal connection.  Defendants presented no 
 
            evidence to the contrary.
 
            
 
                 Since claimant has proven a compensable injury, he is 
 
            entitled to all reasonable and necessary medical expenses, 
 
            hospital services and supplies and reasonable necessary 
 
            transportation expenses incurred for such services.  
 
            Employer will pay all medical bills set out in joint exhibit 
 
            9 which is part of the evidence in this case.
 
            
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
                 The next issue to be determined is whether claimant is 
 
            permanently and totally disabled as a result of his back 
 
            injury either as an odd-lot employee or otherwise.
 
            
 
                 Under the odd-lot doctrine, which was formally adopted 
 
            by the Iowa Supreme Court in Guyton v. Irving Jensen Co., 
 
            373 N.W.2d 101 (Iowa 1985), a worker becomes an odd-lot 
 
            employee when an injury makes the worker incapable of 
 
            obtaining employment in any well-known branch of the labor 
 
            market.  An odd-lot worker is thus totally disabled if the 
 
            only services the worker can perform are so limited in 
 
            quality, dependability, or quantity that a reasonably stable 
 
            market for them does not exist.  Id., citing Lee v. 
 
            Minneapolis Street Railway Company, 230 Minn. 315, 320, 41 
 
            N.W.2d 433, 436 (1950).  The rule of odd-lot allocates the 
 
            burden of production of evidence.  If the evidence of degree 
 
            of obvious physical impairment, coupled with other facts 
 
            such as claimant's mental capacity, education, training or 
 
            age, places claimant prima facie in the odd-lot category, 
 
            the burden should be on the employer to show that some kind 
 
            of suitable work is regularly and continuously available to 
 
            the claimant.  Certainly in such cases it should not be 
 
            enough to show that claimant is physically capable of 
 
            performing light work and then round out the case for non
 
            compensable by adding a presumption that light work is 
 
            available.  Guyton, 373 N.W.2d at 105.
 
            
 
                 When a worker makes a prima facie case of total 
 
            disability by producing substantial evidence that the worker 
 
            is not employable in the competitive labor market, the 
 
            burden to produce evidence of suitable employment shifts to 
 
            the employer.  If the employer fails to produce such 
 
            evidence and the trier of fact finds the worker falls in the 
 
            odd-lot category, the worker is entitled to a finding of 
 
            total disability.  Even under the odd-lot doctrine, the 
 
            trier of fact is free to determine the weight and 
 
            credibility of the evidence in determining whether the 
 
            worker's burden of persuasion has been carried.  Only in an 
 
            exceptional case would evidence be sufficiently strong to 
 
            compel a finding of total disability as a matter of law.  
 
            Guyton, 373 N.W.2d at 106.  The court went on to state:
 
            
 
                    The commissioner did not in his analysis 
 
                 address any of the other factors to be considered 
 
                 in determining industrial disability.  Industrial 
 
                 disability means reduced earning capacity.  Bodily 
 
                 impairment is merely one factor in a gauging 
 
                 industrial disability.  Other factors include the 
 
                 worker's age, intelligence, education, 
 
                 qualifications, experience, and the effect of the 
 
                 injury on the worker's ability to obtain suitable 
 
                 work.  See Doerfer Division of CCA v. Nicol, 359 
 
                 N.W.2d 428, 438 (Iowa 1984).  When the combination 
 
                 of factors precludes the worker from obtaining 
 
                 regular employment to earn a living, the worker 
 
                 with only a partial functional disability has a 
 
                 total disability.  See McSpadden v. Big Ben Coal 
 
                 Co, 288 N.W.2d 181, 192 (Iowa 1980).
 
            
 
                 In determining whether claimant is an odd-lot employee, 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            it must first be reviewed whether claimant has made a prima 
 
            facie case of total disability by producing substantial 
 
            evidence that he is not employable in the competitive labor 
 
            market.  Although the undersigned cannot dispute that 
 
            claimant has obstacles to employment, it clearly has not 
 
            been shown that he is unemployable.  Merely because claimant 
 
            cannot return to work with defendant employer because of his 
 
            work restrictions does not mean that he is not employable.  
 
            The evidence presented by claimant on this issue falls far 
 
            short of that needed to establish a prima facie showing that 
 
            he is unemployable in the same sense contemplated in Guyton 
 
            373 N.W.2d 101.  Although claimant made some attempt to find 
 
            work between January - July 1991, , his efforts in this 
 
            regard stopped in July 1991, after he was notified of his 
 
            eligibility to receive social security disability benefits 
 
            (Claimant's Ex. l).  The evidence does not establish that 
 
            the only services that claimant can perform are so limited 
 
            in quality, dependability or quantity that a reasonable 
 
            stable market for them does not exist.  In fact, claimant 
 
            was released to return to sedentary work activity in May 
 
            1990.  Of all the doctors who have treated and/or examined 
 
            claimant, only Dr. Sorgenfrey indicated, without 
 
            explanation, that he is unemployable.  His opinion in this 
 
            regard is not entitled to significant weight and 
 
            consideration since he is not a vocational expert.  A 
 
            vocational assessment determined that claimant is 
 
            employable.  A determination made by the Social Security 
 
            Administration as to claimant's disability is not binding on 
 
            this agency.
 
            
 
                 Although the evidence does not support a finding that 
 
            claimant is an odd-lot employee, it does support a finding 
 
            that claimant has a permanent disability which is causally 
 
            related to his injury.  Claimant has clearly demonstrated 
 
            that he sustained an industrial disability as a result of 
 
            the March 5, 1989 injury.
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, 
 
            experience and inability to engage in employment for which 
 
            he is fitted.  Olson v. Goodyear Service Stores, 255 Iowa 
 
            1112, 125 N.W.2d 251 (1963).  Barton v. Nevada Poultry, 253 
 
            Iowa 285, 110 N.W.2d 660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial disabil
 
            ity.  This is so as impairment and disability are not syn
 
            onymous.  Degree of industrial disability can in fact be 
 
            much different than the degree of impairment because in the 
 
            first instance reference is to loss of earning capacity and 
 
            in the latter to anatomical or functional abnormality or 
 
            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 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  These are matters which the 
 
            finder of fact considers collectively in arriving at the 
 
            determination of the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  There are no 
 
            guidelines which give, for example, age a weighted value of 
 
            ten percent of the total value, education a value of fifteen 
 
            percent of total, motivation - five percent; work experience 
 
            - thirty percent, etc.  Neither does a rating of functional 
 
            impairment directly correlate to a degree of industrial 
 
            disability to the body as a whole.  In other words, there 
 
            are no formulae which can be applied and then added up to 
 
            determine the degree of industrial disability.  It therefore 
 
            becomes necessary for the deputy or commissioner to draw 
 
            upon prior experience, general and specialized knowledge to 
 
            make the finding with regard to degree of industrial dis
 
            ability.  See Peterson v. Truck Haven Cafe, Inc., (Appeal 
 
            Decision, February 28, 1985);  Christensen v. Hagen, Inc., 
 
            (Appeal Decision, March 26, l985).
 
            
 
                 Claimant has been given permanent impairment ratings 
 
            ranging from 20 percent to 23 percent.  Based on a physical 
 
            capacity evaluation, Dr. Chesser limited claimant to full 
 
            time sedentary work activity with a 15 pound lifting 
 
            limitation and a 19 pound carrying limitation.  Claimant's 
 
            vocational profile includes a ninth grade education and a 
 
            GED certificate received while serving in the military.  He 
 
            is 33 years old and all of his work activity has been as a 
 
            manual laborer.  Claimant cannot perform any of his prior 
 
            work.  On August 16, 1989, employer terminated claimant's 
 
            employment allegedly due to falsification of an employment 
 
            application and misuse of a telephone credit card.  Claimant 
 
            has not worked since his injury on March 5, 1989.  His last 
 
            job search was in July 1991.  On May 13, 1991, he was found 
 
            eligible for social security disability benefits and 
 
            receives $918.00 per month.  He testified that he applied 
 
            for unemployment compensation benefits sometime in 1990 and 
 
            held himself out ready, willing and able to work.  According 
 
            to claimant's exhibit 1, he actively pursued employment 
 
            possibilities between January - July 1991.  Claimant has not 
 
            participated in any vocational rehabilitation training.  
 
            Despite recommendations from the University of Iowa Medical 
 
            Center and chiropractors would have treated claimant, he has 
 
            resisted surgery which may improve his symptoms.  In 
 
            addition to his workers' compensation claim, claimant filed 
 
            a lawsuit against the Amoco Service Station in Ft. Wayne, 
 
            Indiana.  While not minimizing the severity of claimant's 
 
            physical condition, his motivation to return to gainful 
 
            employment appears questionable.
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            
 
                 After considering all of the factors of industrial 
 
            disability including claimant's age, education, work 
 
            experience, functional impairment, loss of earning capacity, 
 
            his present condition and loss of earnings, it is found that 
 
            claimant sustained a 30 percent industrial disability as a 
 
            result of the March 5, 1989 injury to his back and neck.  
 
            The commencement date for payment of such benefits is May 
 
            12, 1990.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 That defendants pay to claimant healing period benefits 
 
            at the rate of four hundred thirty-six and 18/00 dollars 
 
            ($436.18) for the period from March 5, 1989 through May 11, 
 
            1990.
 
            
 
                 That defendants pay to claimant one hundred fifty (150) 
 
            (30 x 500) weeks of permanent partial disability benefits at 
 
            the rate of four hundred thirty-six and 18/l00 dollars 
 
            ($436.18) per week commencing May 12, 1990.
 
            
 
                 That defendants receive credit for any benefits 
 
            previously paid.
 
            
 
                 That defendants pay accrued amounts in a lump sum.
 
            
 
                 That defendants pay interest pursuant to Iowa Code 
 
            section 85.30.
 
            
 
                 That defendants pay all of the medical bills set out in 
 
            joint exhibit 9.
 
            
 
                 That defendants file claim activity reports as required 
 
            by this agency.
 
            
 
            
 
            
 
                 Signed and filed this ____ day of October, 1991.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________               
 
            JEAN M. INGRASSIA
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. James M. Hood
 
            Attorney at Law
 
            302 Union Arcade Bldg
 
            Davenport  IA  52801
 
            
 
            Mr. Greg A. Egbers
 
            Attorney at Law
 
            600 Union Arcade Bldg
 

 
            
 
            Page  13
 
            
 
            
 
            
 
            
 
            111 E 3rd St
 
            Davenport  IA  52801
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      1110; 5-1803; 5-1804; 5-4100
 
                      Filed October 7, 1991
 
                      JEAN M. INGRASSIA
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            WILLIAM J. FURNE,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 905173
 
            LOUIS RICH CO.,               :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            THE HARTFORD INSURANCE GROUP, :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            
 
            
 
            1100 - Traveling Employees
 
            Claimant, an over-the-road truck driver, was found to be in 
 
            the course of employment when he was injured after slipping 
 
            on an icy pavement while stopping at a gas station with a 
 
            friend on the way to lunch.
 
            
 
                 The general rule is that the course of employment 
 
            commences after the employee reaches the premises where his 
 
            actual work begins and is carried on and ceases when he 
 
            leaves.  Otto v. Independent Sch. Dist., 237 Iowa 991, 994, 
 
            23 N.W.2d 915, 916 (1946).  However, the going and coming 
 
            rule usually does not apply to traveling employees because 
 
            they are in the course of their employment until they return 
 
            home.  Heissler v. Strange Bros. Hide Co., 212 Iowa 848, 237 
 
            N.W. 343 (1931).  Claimant was at all times on the road for 
 
            employers' benefit.
 
            
 
            
 
            5-4100; 5-1804; 5-1803
 
            Claimant alleges he is permanently and totally disabled 
 
            either as an odd-lot employee or otherwise.
 
            Claimant failed to show that he is unemployable under Guyton 
 
            v. Irving Jensen Co., 373 N.W.2d 101, 105 (Iowa 1985).  He 
 
            made a minimal job search for six months, his efforts 
 
            stopped after he was found entitled to social security 
 
            disability benefits.
 
            Nevertheless, the evidence supports a finding that claimant 
 
            has a permanent disability as a result of his injury.  
 

 
            
 
 
 
 
 
 
 
 
 
 
 
            Claimant has clearly demonstrated that he sustained an 
 
            industrial disability as a result of the March 5, 1989 
 
            injury.
 
            Claimant received functional impairment ratings between 
 
            20-23 percent.  He is limited to light/sedentary work with a 
 
            15-19 pound lifting/carrying restriction.  He is 33 years 
 
            old and has a GED certificate.  His past relevant work is 
 
            manual labor.  He refuses surgery which may improve his back 
 
            and neck symptoms.  He has a herniated cervical disc at C5-6 
 
            on the left and minimal disc bulge at L4-L5.  Claimant was 
 
            terminated by employer on August 16, 1989, due to abuse of a 
 
            telephone credit card and falsification of an employment 
 
            application.  He has not worked since.  His motivation to 
 
            work is questionable.  It was determined he sustained a 30 
 
            percent industrial disability.