BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            THOMAS E. RUGGLES,    
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                                 File No. 906661
 
            CARRIKER FORD, INC.,       
 
                                                   A P P E A L
 
                 Employer,   
 
                                                  D E C I S I O N
 
            and         
 
                        
 
            FARM BUREAU,     
 
                        
 
                 Insurance Carrier,    
 
                 Defendants.      
 
            ____________________________________________________________
 
            
 
            
 
            The record, including the transcript of the hearing before 
 
            the deputy and all exhibits admitted into the record, has 
 
            been reviewed de novo on appeal.  The decision of the deputy 
 
            filed October 28, 1993 is affirmed and is adopted as the 
 
            final agency action in this case with the following 
 
            additional analysis:
 
            
 
            It is noted that entitlement to or calculation of interest 
 
            was not an issue that was raised in the arbitration 
 
            proceeding which culminated in an arbitration decision filed 
 
            May 18, 1993.  That decision directed that interest was to 
 
            be paid pursuant to Iowa Code section 85.30.  Defendants did 
 
            not appeal that decision and the arbitration decision became 
 
            final by operation of Iowa Code section 17A.15(3).  Without 
 
            deciding the issue of jurisdiction there is a question 
 
            whether this agency now has jurisdiction to decide the issue 
 
            defendants raise on how interest on benefits claimant is 
 
            entitled to is to be calculated.
 
            
 
            For the reasons stated in the deputy's decision filed 
 
            October 28, 1993 unpaid benefits for permanent partial 
 
            disability in an arbitration proceeding accrue from the 
 
            onset of permanency.  In this case because claimant had no 
 
            healing period the onset of permanency was the date of 
 
            claimant's injury.  Claimant was entitled to permanent 
 
            partial disability beginning the date of the injury (the 
 
            onset of permanency).  The unpaid permanent partial 
 
            disability benefits accrue interest from the date they were 
 
            due.
 
            
 
            Defendants shall pay the costs of the appeal, including the 
 
            preparation of the hearing transcript.
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            Signed and filed this ____ day of March, 1994.
 
            
 
            
 
            
 
            
 
                                      ________________________________
 
                                      BYRON K. ORTON
 
                                      INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Ms. Angela A. Swanson
 
            Attorney at Law
 
            3400 University Avenue
 
            West Des Moines, Iowa 50266
 
            
 
            Mr. Harold B. Heslinga
 
            Attorney at Law
 
            118 North Market St.
 
            Oskaloosa, Iowa 52577
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               5-4001; 5-2909
 
                                               Filed March 17, 1994
 
                                               Byron K. Orton
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            THOMAS E. RUGGLES,    
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                                 File No. 906661
 
            CARRIKER FORD, INC.,       
 
                                                   A P P E A L
 
                 Employer,   
 
                                                D E C I S I O N
 
            and         
 
                        
 
            FARM BUREAU,     
 
                        
 
                 Insurance Carrier,    
 
                 Defendants.      
 
            ____________________________________________________________
 
            
 
            
 
            5-2909; 5-4001
 
            Interest on claimant's permanent partial disability benefits 
 
            began to run on the onset of permanency.
 
            
 
 
            
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            THOMAS E. RUGGLES,            :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 906661
 
            CARRIKER FORD, INC.,          :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            FARM BUREAU,                  :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Thomas 
 
            E. Ruggles against his employer, Carriker Ford, Inc., and 
 
            its insurance carrier, Farm Bureau Mutual Insurance 
 
            Companies.  Claimant sustained a work-related injury on 
 
            January 3, 1989, and seeks additional workers' compensation 
 
            benefits.
 
            
 
                 The record consists of testimony from the claimant and 
 
            from claimant's wife, Janet Ruggles; joint exhibit 1; and, 
 
            defendants' exhibits 1 through 5.
 
            
 
                 The parties submit the following issues for resolution:
 
            
 
                 1.  Whether claimant's injury is a cause of temporary 
 
            or permanent disability; and,
 
            
 
                 2.  If claimant has sustained a permanent injury, the 
 
            extent of his disability.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The undersigned deputy, having reviewed all of the 
 
            evidence received, finds the following facts:
 
            
 
                 Claimant was born on January 10, 1956.  At the time of 
 
            the hearing, he was 37 years of age.  Claimant is married 
 
            and has two children, ages two and six.  At the time of the 
 
            injury, claimant had one dependent child.
 
            
 
                 After graduating from high school, claimant enlisted in 
 
            the U.S. Army.  He served for a two year period and received 
 
            an honorable discharge in 1976.  While serving, claimant 
 
            received training in the mechanical field.
 
            
 
                 Claimant was married in 1977 and soon began working for 
 
            Century Motors in Sigourney, Iowa.  His job duties included 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            providing maintenance and repair work on used cars such as 
 
            body work, mechanical work and cleaning up the cars so that 
 
            they could be sold.  Claimant received technical training 
 
            through seminars and classes provided by General Motors.
 
            
 
                 Claimant worked for Century Motors for one year, and 
 
            then moved to Oskaloosa and began working for Van Zee's 
 
            Motors, a local car dealership.  He performed the same type 
 
            of job duties as he did for Century Motors, and was sent to 
 
            schools and seminars sponsored by Ford so that he could 
 
            repair Ford vehicles.
 
            
 
                 Claimant worked for Van Zee's for almost four years, 
 
            and then began working for the defendant, Carriker Ford, 
 
            Inc.  In 1981, claimant's job classification was that of 
 
            general mechanic.  He received additional education and 
 
            obtained a certification in general engine repair and 
 
            electronic repair work.
 
            
 
                 On January 3, 1989, claimant was examining an engine 
 
            which was on a stand located in the shop area.  He was 
 
            struck by a car driven by the service manager.  The rear 
 
            bumper of the vehicle hit claimant in the left hip and leg 
 
            area and threw claimant 10 to 15 feet.  Claimant landed on 
 
            his feet.
 
            
 
                 Claimant sought treatment from Tony R. Kunz, M.D., a 
 
            physician with the Family Medical Center in Oskaloosa, Iowa.  
 
            Dr. Kunz's notes are found at pages 41 through 44 of the 
 
            joint exhibits.  His first report, dated March 23, 1990, 
 
            indicates that claimant visited the clinic complaining of 
 
            blurry vision and neck problems with tingling down his right 
 
            arm.  Claimant received physical therapy, traction and pain 
 
            medications in April of 1989, along with a CT scan of his 
 
            head which was done on April 11, 1989.  Dr. Kunz recommended 
 
            an MRI for further evaluation (Jt. Ex. 1-O).
 
            
 
                 Additional notes from Dr. Kunz, labeled defendants' 
 
            exhibits 5-G through I, indicate that claimant saw Dr. Kunz 
 
            in January and April of 1989.  In November of 1989, claimant 
 
            presented to Dr. Kunz with an exacerbation of neck problems 
 
            but did not relate specific trauma other than the original 
 
            injury which occurred in January of 1989.
 
            
 
                 Notes from the physical therapist indicate that on May 
 
            25, 1989, claimant was pain-free with cervical range of 
 
            motion within normal limits.  Claimant was discharged from 
 
            the Mahaska County Hospital Outpatient Physical Therapy Unit 
 
            (defendants' Exhibit 5-F).
 
            
 
                 In September of 1990, claimant began seeking treatment 
 
            from Garry Teigland, D.O., and Michael Pogel, M.D.  Dr. 
 
            Pogel was of the opinion that claimant had sustained an 
 
            aggravation to degenerative changes at the C4-5 level in the 
 
            neck.  He did not feel claimant had sustained a concussion 
 
            from the January 1989 incident.  He was unable to say that 
 
            claimant had sustained any permanent impairment (Def. Ex. 5-
 
            E).  Dr. Teigland, who treated claimant for depression, felt 
 
            that the depression was secondary to the accident.  Dr. 
 
            Teigland prescribed antidepressants and follow-up treatment 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            from a psychiatric standpoint (Def. Ex. 5-A through 5-C).
 
            
 
                 Claimant next saw Dr. Teigland on July 23, 1992.  The 
 
            notes indicate that claimant continued to feel depressed due 
 
            to chronic pain in his neck.  Symptoms included psychomotor 
 
            retardation and slow speech (Jt. Ex. 1-L).
 
            
 
                 In November of 1992, claimant returned to Drs. Pogel 
 
            and Teigland.  Dr. Pogel evaluated claimant's physical 
 
            condition and found that an MRI scan taken after the 
 
            accident showed degenerative disc protrusion at the C4-5 
 
            level.  Dr. Pogel recognized that claimant's accident at 
 
            work aggravated his condition, but was unable to provide any 
 
            permanent impairment to claimant's condition (Def. Ex. 5-E).  
 
            In August of 1991, Dr. Pogel recognized that claimant would 
 
            continue to encounter persistent problems with his neck due 
 
            to degenerative changes but that his most debilitating 
 
            problem was his depression (Def. Ex. 5-D).
 
            
 
                 In August of 1991, Dr. Teigland, who was treating 
 
            claimant's depression, believed that his condition was 
 
            secondary to the accident.  Claimant's condition was 
 
            controlled with Amitriptyline (Def. Ex. 5-A).
 
            
 
                 In November of 1992 and again in January of 1993, 
 
            claimant returned to Dr. Teigland for additional treatment.  
 
            At this time, claimant's complaints centered around his lack 
 
            of ability to concentrate and his lack of energy.  Dr. 
 
            Teigland gave claimant samples of Prozac (Jt. Exs. 1-J 
 
            through 1-K).
 
            
 
                 In November of 1992, claimant returned to Dr. Pogel for 
 
            an evaluation and calculation of impairment rating.  
 
            Following a full examination, which included range of motion 
 
            tests, and using the AMA Guides to the Evaluation of 
 
            Permanent Impairment, Dr. Pogel found that claimant 
 
            displayed a limitation of lateral flexion, degenerative disc 
 
            disease of moderate to severe nature, documented pain and 
 
            rigidity with or without muscle spasm, and was of the 
 
            opinion that claimant had sustained a permanent impairment 
 
            of 7 percent for the whole body.  This rating was confirmed 
 
            in a letter to the insurance company in March of 1993 (Jt. 
 
            Ex. 1-H through 1-I).
 
            
 
                 In April of 1993, claimant was sent to the clinic for 
 
            persistent pain and injury in West Des Moines, Iowa.  He was 
 
            scheduled for a series of evaluations including a neurologic 
 
            examination with David Friedgood, D.O.; consultation with a 
 
            rehabilitation specialist, Clark H. Williams, M.S. C.I.R.S.; 
 
            a functional capacity assessment by Martin Ungs, M.P.T., 
 
            P.T.; and, a neuropsychological assessment by Jim 
 
            Andrikopoulos, Ph.D.  J. Dan Smeltzer, M.A., performed the 
 
            initial pain disability screening evaluation.  He found that 
 
            claimant did not exhibit an emotional focus on pain but that 
 
            he had undergone a change in his lifestyle in that social 
 
            activities had been decreased.  His impression was that 
 
            claimant suffers from a moderate chronic pain syndrome 
 
            secondary to intractable neck pain.  He did not believe 
 
            claimant would become pain disabled and recommended claimant 
 
            continue with psychological intervention addressing the 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            emotional and behavioral consequences of intractable pain.  
 
            He also recommended behavioral and stress management 
 
            oriented therapy (Jt. Ex. 1-G).
 
            
 
                 Dr. Friedgood's reports are dated April 9, April 21, 
 
            and April 30, 1993.  Dr. Friedgood performed a physical 
 
            examination with full range of motion in his cervical spine.  
 
            Reflexes were normal and his mental status testing showed 
 
            claimant to be alert and well oriented.  Dr. Friedgood's 
 
            impression was that claimant displayed a normal neurologic 
 
            examination, and he was unable to determine why claimant 
 
            complained of aches and pains as well as posttraumatic 
 
            depression.  Dr. Friedgood ordered an MRI scan of the brain 
 
            to determine if claimant had a structural brain disorder, 
 
            and he also recommended a series of metabolic studies to 
 
            determine any abnormalities which would account for the 
 
            psychologic symptoms.  He also recommended that claimant 
 
            continue follow-up visits with a neurologist and 
 
            psychiatrist (Jt. Ex. 1-C).
 
            
 
                 Joint exhibit 1-B indicates that Dr. Friedgood had 
 
            completed his evaluation of claimant.  The MRI scan of the 
 
            brain was normal although it did evidence an incidental 
 
            pineal cyst which was of no clinical significance.  All 
 
            metabolic studies were normal and Dr. Friedgood was of the 
 
            impression that claimant had suffered a head injury in 1989 
 
            and now suffered from posttraumatic depression (Jt. Ex. 1-
 
            B).
 
            
 
                 In a follow-up reported dated April 30, 1993, Dr. 
 
            Friedgood indicated that claimant had suffered no permanent 
 
            neurologic damage due to his head injury caused by the 
 
            accident at work in 1989.  He deferred to the psychiatrist 
 
            for a specific psychiatric diagnosis (Jt. Ex. 1-D).
 
            
 
                 A report from Clark Williams, a vocational 
 
            rehabilitationist, can be found at joint exhibit 1-F, and is 
 
            dated April 9, 1993.  This report focuses on claimant's 
 
            educational and work background and it indicates that he is 
 
            able to perform his duties as a general mechanic and 
 
            electronic technician with Carriker Ford, Inc.  Claimant 
 
            stated that due to his seniority, he was able to pick and 
 
            choose the car repair situations in which he gets involved 
 
            and tries to choose those that are less physically demanding 
 
            upon him due to his present physical condition.  Claimant is 
 
            very knowledgeable about different types of equipment and 
 
            tools, and has taken courses in gunsmithing.  He hopes to 
 
            obtain a license for buying and selling firearms.  Mr. 
 
            Williams indicated that claimant presented a good work 
 
            record and had transferable skills associated with 
 
            electronics and automobile computer expertise.  Although Mr. 
 
            Williams indicated that with retraining, claimant would be 
 
            able to become a marketable commodity in computer repair, 
 
            tool and die or machine shop jobs or locksmithing or gun 
 
            repair programs, it was inappropriate to speculate on 
 
            claimant's alternative jobs because Mr. Williams had not 
 
            reviewed the medical and psychological workups.  
 
            Additionally, claimant was continuing with his employment 
 
            with Carriker Ford which apparently Mr. Williams thought was 
 
            conducive to claimant's physical and mental state (Jt. Ex. 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            1-F).
 
            
 
                 Martin Ungs performed a work capacity assessment on 
 
            April 13, 1993.  After an examination which tested 
 
            claimant's range of motion, strength and neurological 
 
            responses of the cervical spine and functional testing, it 
 
            was determined that claimant could lift in the medium to 
 
            heavy category of work as demonstrated by an occasional 
 
            floor-to-knuckle lift of 78 pounds; knuckle-to-shoulder lift 
 
            of 58 pounds; shoulder-to-overhead lift of 50.5 pounds; and, 
 
            carrying 58 pounds 100 feet.  Nonmaterial handling 
 
            activities showed that claimant was unrestrictive for trunk 
 
            bending; overhead reaching; squatting; kneeling; stooping; 
 
            crouching; ladder climbing; and, stair climbing and walking.  
 
            The overall results of the assessment confirmed that 
 
            claimant could work in the medium category for lifting and 
 
            was able to lift 20 pounds on a frequent basis (34 to 66 
 
            percent of the work day) and 20 pounds on a constant basis 
 
            (67 to 100 percent of the workday).  Finally, it was 
 
            determined that claimant had some restriction of the 
 
            cervical range of motion (Jt. Ex. 1-E).  Finally, a report 
 
            from Jim Andrikopoulos who performed a neuropsychological 
 
            evaluation indicates that Dr. Andrikopoulos felt claimant 
 
            was superficially cooperative throughout the testing.  
 
            Results of the first 370 items of the MMPI II and standard 
 
            clinical skills indicated that claimant did not project a 
 
            profile suggestive of depression, anxiety or gross 
 
            psychopathology.  Claimant's performance on a memory test 
 
            was marginal and Dr. Andrikopoulos felt that claimant's 
 
            performance was disproportionate to the medical findings.  
 
            His overall impression was that claimant was a malingerer 
 
            and from the clinical interview, behavioral observations and 
 
            personality testing, he felt that claimant did not show 
 
            signs of clinical depression, anxiety or gross 
 
            psychopathology.  Finally, it was felt that claimant was 
 
            feigning cognitive symptoms and exaggerating physical or 
 
            psychological symptoms.  Dr. Andrikopoulos told claimant he 
 
            did not feel that claimant was depressed and that he should 
 
            reevaluate with his psychiatrist if continued medication was 
 
            necessary.  Dr. Andrikopoulos did not submit any 
 
            recommendations at this time (Jt. Ex.1-A).
 
            
 
              
 
            
 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
                         ANALYSIS AND CONCLUSIONS OF LAW
 
            
 
                 The first issue to be addressed is whether claimant is 
 
            entitled to temporary total or permanent disability 
 
            benefits.
 
            
 
                 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(1).
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury is a proximate 
 
            cause of the disability on which the claim is based.  A 
 
            cause is proximate if it is a substantial factor in bringing 
 
            about the result; it need not be the only cause.  A 
 
            preponderance of the evidence exists when the causal 
 
            connection is probable rather than merely possible.  
 
            Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 
 
            1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 
 
            (Iowa 1974).
 
            
 
                 Section 85.34(1) provides that healing period benefits 
 
            are payable to an injured worker who has suffered permanent 
 
            partial disability until (1) the worker has returned to 
 
            work; (2) the worker is medically capable of returning to 
 
            substantially similar employment; or (3) the worker has 
 
            achieved maximum medical recovery.  The healing period can 
 
            be considered the period during which there is a reasonable 
 
            expectation of improvement of the disabling condition.  See 
 
            Armstrong Tire & Rubber Co. v. Kubli, 312 N.W.2d 60 (Iowa 
 
            Ct. App. 1981).  Healing period benefits can be interrupted 
 
            or intermittent.  Teel v. McCord, 394 N.W.2d 405 (Iowa 
 
            1986).
 
            
 
                 Temporary total or temporary partial disability 
 
            benefits are paid until the injured worker has returned to 
 
            work, or is medically capable of returning to employment 
 
            that is substantially similar to the employment in which the 
 
            worker was engaged at the time of the injury, whichever 
 
            occurs first.  See, Iowa Code section 85.33.
 
            
 
                 Other than time taken to attend doctor appointments, 
 
            claimant did not miss any work.  Therefore, he is not 
 
            entitled to any healing period, temporary total or temporary 
 
            partial disability benefits.  And, even though the greater 
 
            weight of the evidence reveals that claimant did undergo 
 
            physical therapy and extended medical treatment, he was able 
 
            to continue to work at his regular job while undergoing the 
 
            same.  As a result, it is found that claimant is not 
 
            entitled to any healing period benefits.
 
            
 
                 The next issue to address is whether claimant has 
 
            sustained an industrial disability.
 
            
 
                 Claimant is 37 years old.  He graduated from high 
 
            school in 1974.  Immediately following his graduation from 
 
            high school, claimant enlisted in the U.S. Army and served 
 
            for two years.  He received an honorable discharge in 1976.  
 
            Much of claimant's training while in the army centered 
 
            around mechanical training.
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
                 For the past 16 years, claimant has worked for various 
 
            car dealerships as a mechanic.  He has received technical 
 
            training through General Motors and Ford, and he possesses 
 
            special skills in general engine repair and electronic 
 
            repair work.  Claimant received certification from the Ford 
 
            Company in 1985 which has enabled him to be proficient in 
 
            repairing different types of Fords and Mercurys.
 
            
 
                 Claimant's physical condition prior to the accident was 
 
            good, if not excellent.  He was involved in an jeep accident 
 
            while in the army, and suffers periodic bouts of low back 
 
            pain but did not receive any disability or pension payments 
 
            due to the injury.
 
            
 
                 Claimant's physical condition since the work injury has 
 
            been bothersome to him.  He has chronic pain and limited 
 
            range of motion in his neck.  Physical therapy, a three week 
 
            program which was administered shortly after the accident, 
 
            provided temporary relief.  Several physicians associated 
 
            with claimant's case, either by way of treatment or 
 
            evaluation, have concluded that he is suffering from 
 
            depression associated with chronic pain.  One physician has 
 
            stated that claimant is feigning his depression.
 
            
 
                 An injured worker's mental state is but one factor to 
 
            be considered when evaluating an industrial disability, or 
 
            lack of earning capacity.  While there is ample evidence in 
 
            the record to find that claimant's physical injury has 
 
            caused depression, it is difficult to find that his mental 
 
            state had a large impact on his earning capacity.  Much to 
 
            the credit of claimant's work ethic, he has not missed any 
 
            time from work (except to attend periodic doctor 
 
            appointments) and continues to perform his regular job 
 
            duties.  Claimant has seniority at the shop and he is able 
 
            to accept or decline certain other assignments which he 
 
            feels he could not perform due to the pain in his neck.  The 
 
            employer has apparently acquiesced in this practice, and 
 
            continues to employ the claimant.
 
            
 
                 Currently, the claimant earns approximately $23,539 per 
 
            year.  His earnings have increased steadily due to cost of 
 
            living increases.  Claimant is also able to perform some 
 
            jobs associated with construction of a new home.
 
            
 
                 After considering all of the factors that are used when 
 
            evaluating an industrial disability, including claimant's 
 
            current job duties; the employer's ongoing attempts to 
 
            accommodate any physical restrictions he may have; 
 
            claimant's increase in his actual earnings; claimant's 
 
            motivation to continue to work; evaluations from physicians 
 
            and therapists assigned to the case; claimant's permanent 
 
            impairment rating; and, claimant's past and present physical 
 
            condition, it is concluded that he has sustained a 10 
 
            percent industrial disability.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, it is ordered:
 
            
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
                 That defendants shall pay claimant permanent partial 
 
            disability benefits totaling fifty (50) weeks at the rate of 
 
            two hundred fifty-two and 24/100 dollars ($252.24) per week 
 
            beginning January 4, 1989.
 
            
 
                 That defendants shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against the award for 
 
            weekly benefits previously paid.
 
            
 
                 That defendants shall pay interest on benefits awarded 
 
            herein a set forth in Iowa Code section 85.30.
 
            
 
                 That defendants shall pay the costs of this action, 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 That defendants shall file an activity report upon 
 
            payment of this award as required by the agency pursuant to 
 
            rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of May, 1993.
 
            
 
            
 
            
 
            
 
                                          
 
                                        ________________________________
 
                                          PATRICIA J. LANTZ
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr Harold B Heslinga
 
            Attorney at Law
 
            118 N Market St
 
            Oskaloosa IA 52577
 
            
 
            Ms Angela A Swanson
 
            Attorney at Law
 
            5400 University Ave
 
            West Des Moines IA 50265
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                5-1803
 
                                                Filed May 18, 1993
 
                                                Patricia J. Lantz
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            THOMAS E. RUGGLES,            :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 906661
 
            CARRIKER FORD, INC.,          :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            FARM BUREAU,                  :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-1803
 
            
 
            Claimant awarded 10% industrial disability based on a 7% 
 
            functional impairment of the cervical spine; documented 
 
            signs of depression; ability and opportunity to return to 
 
            prior job; increase in actual earnings; and, employer's 
 
            willingness to cooperate.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                           5-4001; 5-2909
 
                                           Filed October 25, 1993
 
                                           Patricia J. Lantz
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            THOMAS E. RUGGLES,            :
 
                                          :       File No. 906661
 
                 Claimant,                :
 
                                          :
 
            vs.                           :      E X P E D I T E D
 
                                          :
 
            CARRIKER FORD, INC.,          :        H E A R I N G
 
                                          :
 
                 Employer,                :       D E C I S I O N
 
                                          :
 
            and                           :       (343 IAC 4.44)
 
                                          :
 
            FARM BUREAU,                  :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-2909; 5-4001
 
            Interest on claimant's permanent partial disability benefits 
 
            began to run on the onset of permanency.
 
            
 
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            THOMAS E. RUGGLES,            :
 
                                          :       File No. 906661
 
                 Claimant,                :
 
                                          :
 
            vs.                           :      E X P E D I T E D
 
                                          :
 
            CARRIKER FORD, INC.,          :        H E A R I N G
 
                                          :
 
                 Employer,                :       D E C I S I O N
 
                                          :
 
            and                           :       (343 IAC 4.44)
 
                                          :
 
            FARM BUREAU,                  :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is an expedited proceeding filed pursuant to 343 
 
            IAC 4.44 et. seq.  An arbitration hearing was held on May 3, 
 
            1993; and a decision was filed on May 18, 1993.  The 
 
            decision awarded claimant permanent partial disability 
 
            benefits and interest.  
 
            
 
                 Claimant and the defendants are unable to agree on the 
 
            amount of interest.  While claimant certified that the 
 
            proceeding was an auxiliary proceeding as governed by 343 
 
            IAC 4.44 (1) (k), (l) or (m), the only issue presented to 
 
            the undersigned deputy was whether interest on the award 
 
            should run from the date of the injury, or from the date 
 
            claimant received an impairment rating.  
 
            
 
                 A hearing was held and audio-taped on October 19, 1993.
 
            
 
                                FINDINGS OF FACT 
 
            
 
                 The undersigned adopts the findings of facts as set 
 
            forth in the arbitration decision, with the following 
 
            additional information. 
 
            
 
                 Defendants paid the costs of claimant's medical 
 
            treatment, and continue to pay for costs associated with his 
 
            on-going care for depression.  
 
            
 
                         ANALYSIS AND CONCLUSIONS OF LAW
 
            
 
                 The sole issue in the case is whether interest on the 
 
            award should run from the date of the injury (as claimant 
 
            underwent no healing period), or from the date claimant 
 
            received an impairment rating. 
 
            
 
                 Iowa Code section 85.30 states, in relevant part:
 
            
 
                    Compensation payments shall be made each week 
 

 
            
 
            Page   2
 
              
 
                 beginning on the eleventh day after the injury, 
 
                 and each week thereafter during the period for 
 
                 which compensation is payable, and if not paid 
 
                 when due, there shall be added to the weekly 
 
                 compensation payments, interest at the rate 
 
                 provided in section 535.3 for court judgments and 
 
                 decrees.
 
            
 
                 The workers' compensation act is to be liberally 
 
            construed in favor of the injured worker, and any doubt in 
 
            its construction is resolved in favor of the employee.  See, 
 
            Usgaard v. Silver Crest Golf Club, 256 Iowa 453, 459; 127 
 
            N.W.2d 636, 639 (1964).  
 
            
 
                 To substantiate his position that the interest on the 
 
            award should be calculated from the date of the hearing, 
 
            claimant relies on Teel v. McCord, 394 N.W.2d 405 (1986).  
 
            In Teel, claimant sustained a severe burn injury while on 
 
            the job.  His healing period was interrupted by several 
 
            returns to work and surgeries.  The first time claimant 
 
            returned to work was on May 7, 1974.  More than six years 
 
            after the injury, the extent of his disability was 
 
            determined.  Two years after the extent of the disability 
 
            (impairment) was medically determined, a hearing was held 
 
            before the agency, and claimant was awarded 150 weeks of 
 
            permanent partial disability compensation.
 
            
 
                 The court analyzed both sections 85.30 and 85.43(1) to 
 
            determine that "the interest on [claimant's] award for 
 
            permanent partial disability became due when he returned to 
 
            work on May 7, 1974."  Teel v. McCord, 394 N.W.2d 405, 407 
 
            (1986).  
 
            
 
                 In the case at bar, defendants argue that claimant was 
 
            never in a healing period because after he was injured, he 
 
            continued to work.  Moreover, the authorized treating 
 
            physicians were never able to determine that claimant had 
 
            sustained a permanent impairment.  
 
            
 
                 The agency has recently ruled that interest on unpaid 
 
            benefits accrues from the onset of permanency, and not from 
 
            the date claimant was given a permanency rating by a doctor.  
 
            See, Bevins v. Farmstead Foods, et al., (App. Decsn., file 
 
            nos. 834865, 881784, 877458 and 888705, filed November 26, 
 
            1991).  This is so even if claimant did not undergo a 
 
            healing period.  Brincks v. Case Power and Equipment (App. 
 
            Decsn., file no. 843233, filed April 18, 1990).  
 
            
 
                 As a result, the interest on claimant's award runs from 
 
            the date of the injury. 
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendants shall pay interest on the award, and 
 
            the interest shall be calculated from the date of the 
 
            injury. 
 
            
 
                 Signed and filed this ____ day of October, 1993.
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                                          
 
                                     ________________________________
 
                                          PATRICIA J. LANTZ
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr Harold B Heslinga
 
            Attorney at Law
 
            118 N Market St
 
            Oskaloosa IA 52577
 
            
 
            Ms Angela A Swanson
 
            Attorney at Law
 
            5400 University Ave
 
            West Des Moines IA 50265
 
            
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         ____________________________________________________________
 
                   
 
         MATT MOELLER,  
 
                   
 
              Claimant, 
 
                   
 
         vs.       
 
                                             File No. 906732
 
         ABELL-HOWE,    
 
                                              A P P E A L
 
              Employer, 
 
                                             D E C I S I O N
 
         and       
 
                   
 
         CRAWFORD AND COMPANY,    
 
                   
 
              Insurance Carrier,  
 
              Defendants.    
 
         ___________________________________________________________
 
         The record, including the transcript of the hearing before the 
 
         deputy and all exhibits admitted into the record, has been 
 
         reviewed de novo on appeal.  The decision of the deputy filed 
 
         August 5, 1991 is affirmed and is adopted as the final agency 
 
         action in this case. 
 
         
 
         Defendants shall pay the costs of the appeal, including the 
 
         preparation of the hearing transcript.
 
         
 
         Signed and filed this ____ day of March, 1993.
 
         
 
         
 
         
 
         
 
                                   ________________________________
 
                                          BYRON K. ORTON
 
                                    INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Thomas M. Wertz
 
         Attorney at Law
 
         4089 21st Avenue SW  
 
         Suite 114
 
         Cedar Rapids, Iowa  52404
 
         
 
         Mr. James E. Shipman
 
         Mr. James M. Peters
 
         Attorneys at Law
 
         1200 MNB Building
 
         Cedar Rapids, Iowa  52401
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                9998
 
                                                Filed March 17, 1993
 
                                                BYRON K. ORTON
 
                                                PJL
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            MATT MOELLER,  
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                             File No. 906732
 
            ABELL-HOWE,    
 
                                               A P P E A L
 
                 Employer, 
 
                                             D E C I S I O N
 
            and       
 
                      
 
            CRAWFORD AND COMPANY,    
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            
 
            
 
            9998
 
            
 
                 Summary affirmance of deputy's decision filed August 5, 
 
            1991.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            MATT MOELLER,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 906732
 
            ABELL-HOWE,                   :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            CRAWFORD AND COMPANY,         :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                                   introduction
 
            
 
                 This is a proceeding in arbitration brought by Matt 
 
            Moeller against Abell-Howe, employer, and Crawford and 
 
            Company, insurance carrier, as defendants.
 
            
 
                 Claimant alleges that he sustained a compensable injury 
 
            to his back on January 4, 1989 and seeks compensation for an 
 
            industrial disability.
 
            
 
                 The case was held at Cedar Rapids, Iowa on April 22, 
 
            1991 and was considered fully submitted upon conclusion of 
 
            the hearing.  
 
            
 
                 The record in this proceeding consists of the testimony 
 
            of claimant; joint exhibits 1-5 and 7-11; and, defendants' 
 
            exhibit A.
 
            
 
                                      issues
 
            
 
                 Pursuant to the prehearing report submitted and 
 
            approved at the hearing, the following issues are presented 
 
            for resolution:
 
            
 
                 1.  Whether claimant received an injury on January 4, 
 
            1989 which arose out of and in the course of his employment;
 
            
 
                 2.  Whether there is a causal connection between the 
 
            alleged injury and claimant's disability;
 
            
 
                 3.  Whether claimant is entitled to temporary 
 
            disability or healing period benefits, or permanent partial 
 
            or permanent total disability benefits;
 
            
 
                 4.  Whether claimant is entitled to medical benefits as 
 
            provided for under Iowa Code section 85.27; and, 
 
            
 
                 5.  Claimant's workers' compensation rate.
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy, having reviewed all of the 
 
            evidence, finds the following facts:
 
            
 
                 Claimant, Matt Moeller, was born on October 27, 1959.  
 
            He graduated from Marion High School in Marion, Iowa.
 
            
 
                 After graduating from high school, claimant began to 
 
            work for Linn Lithoprinting, in Cedar Rapids, Iowa.  His 
 
            duties involved operating a paper cutter and an offset 
 
            press.  He was required to lift at times more than 100 
 
            pounds, and earned $5.00 an hour.
 
            
 
                 After approximately one year at Linn Lithoprinting, 
 
            claimant began working as an apprentice ironworker.  This 
 
            program required him to take classes to learn how to read 
 
            blueprints and weld.  It is a three year program, and 
 
            claimant successfully completed the training in June of 
 
            1982.  During the apprenticeship, claimant worked full time 
 
            as an ironworker.  Claimant worked regularly as an 
 
            ironworker for ten years, before the alleged injury of 
 
            January 4, 1989.  As an ironworker, his responsibilities 
 
            included carrying steel weighing up to 100 pounds, placing 
 
            and tying rebar for bridge decks; connecting and bolting 
 
            iron; working with a crane; and, welding.
 
            
 
                 Claimant is a member of a union, and as such is 
 
            assigned to various jobs for different companies through an 
 
            application process.  Over the past 10 years, he has worked 
 
            for approximately 12 companies.
 
            
 
                 Claimant began working for defendant Abell-Howe on a 
 
            job site for ADM.  Claimant testified that in November of 
 
            1988, as he was placing rebars in the foundation for a 
 
            cooling tower, he felt a sharp pain in his low back and 
 
            right leg.  Claimant continued to work, although he did tell 
 
            his partner about the incident.
 
            
 
                 Claimant continued working until January 4, 1989, when 
 
            he started having more back pain and was unable to sit down.  
 
            He told his foreman, Howard Brunner, who told claimant to 
 
            fill out an accident report and sent him to the company 
 
            doctor, Yang Ahn, M.D.
 
            
 
                 Claimant was treated by Dr. Ahn on January 5, 1989, and 
 
            was treated with prescription medicines, hot packs, 
 
            massages, and traction.
 
            
 
                 Claimant returned to Dr. Ahn on January 10, 1989 and 
 
            was referred to John Robb, M.D., for an evaluation.  
 
            Claimant was off of work during this time.  (Joint Exhibit 
 
            1-A, Pages 1-2)
 
            
 
                 On January 12, 1989, claimant met with Dr. Robb.  The 
 
            history given is consistent with claimant's testimony, in 
 
            that he hurt his back in late November while at work lifting 
 
            heavy iron.  A review of x-rays showed degenerative disc 
 
            disease at L5-S1 with substantial posterior narrowing.  
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            Claimant was given an exercise program, and was to return to 
 
            Dr. Robb in two weeks.  At this time, claimant was still off 
 
            of work.
 
            
 
                 Claimant returned to Dr. Robb in late January and mid 
 
            February of 1989, and showed only moderate improvement.  He 
 
            was diagnosed as having a lumbosacral strain.
 
            
 
                 On March 9, 1989, Dr. Robb sent claimant to Work Injury 
 
            Rehabilitation Center for a work hardening program.
 
            
 
                 After several more visits to Dr. Robb, claimant 
 
            underwent an MRI of the lumbar spine on April 28, 1989.  
 
            This test revealed a herniated disc at L5-S1 on the right 
 
            side.  Claimant was to continue with his exercise program, 
 
            and on June 22, 1989, Dr. Robb recommended that claimant 
 
            undergo vocational training.  He told claimant that he 
 
            should not report to his previous occupation, and should 
 
            secure employment which would not entail lifting in excess 
 
            of 40 pounds on an occasional basis, and not more than 25 
 
            pounds on a repetitive basis.
 
            
 
                 On September 26, 1989, Dr. Robb made the following 
 
            evaluation:
 
            
 
                 Permanent impairment function: 5 per cent of the 
 
                 body as a whole as a result of degenerative disk 
 
                 disease which predates the accident, and 7 per 
 
                 cent of the back due to disk herniation with the 
 
                 associated intermittent radiculitis affecting the 
 
                 right leg.
 
            
 
                 DIAGNOSIS:  1.  Degenerative disk disease L5-S1.
 
            
 
                             2.  Moderate disk herniation L5-S1 
 
                 right.
 
            
 
                             3.  Lumbosacral strain, aggravation of 
 
                 pre-                 existing degenerative disk 
 
                 disease.
 
            
 
            (Jt. Ex. 1-C, p. 27)
 
            
 
                 He also stated that claimant would not be able to 
 
            return to his previous occupation as an ironworker.  (Jt. 
 
            Ex. 1-C, p. 14)
 
            
 
                 Claimant underwent an evaluation at the Spine 
 
            Diagnostic and Treatment Center at the University of Iowa 
 
            Hospitals and Clinics on November 21, 1989.  Claimant was 
 
            motivated to regain his status as an ironworker, and 
 
            requested continued chiropractic treatment.  The results of 
 
            the vocational rehabilitation assessment are less than 
 
            glowing.  The notes indicate that claimant was unable to 
 
            deal with pain very well, and that he became easily 
 
            discouraged.  However, claimant did express an interest in 
 
            applying to various factories in the Cedar Rapids area, and 
 
            the consultant assigned to his case predicted a successful 
 
            rehabilitation outcome from the program.  (Jt. Ex. 1-D, pp. 
 
            68-85)
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
                 Claimant eventually underwent a steroid injection at 
 
            the University.
 
            
 
                 Next, claimant was referred to Richard F. Neiman, M.D., 
 
            a neurologist.  Upon examination, Dr. Neiman believed it 
 
            would be unwise for claimant to return to work as an 
 
            ironworker.  He restricted claimant's work activity to not 
 
            more than 35 pounds lifting on a repetitive basis, with a 
 
            maximum lifting of 50 pounds.  He thought claimant should 
 
            avoid prolonged sitting or standing, and extensive flexion, 
 
            extension or lateral rotation of the back.  He thought 
 
            claimant was employable.  (Jt. Ex. 1-B, pp. 3-4)
 
            
 
                 On April 24, 1990, Dr. Neiman was able to review the 
 
            MRI scan previously performed on claimant.  He, too, found a 
 
            disc bulge and a possibility of a free fragment on the right 
 
            side at the L5-S1 level.  These instabilities were assessed 
 
            at seven percent functional impairment of the whole person.  
 
            Furthermore, Dr. Neiman made the following impairment 
 
            ratings, which are a bit confusing:
 
            
 
                 Using the Manual for Orthopaedic Surgeons in 
 
                 Evaluating Permanent Impairment, persistent muscle 
 
                 spasm rigidity and pain substantiated by 
 
                 demonstrable degenerative changes moderate 
 
                 osteoarthritc [sic] lipping revealed by xray, 
 
                 combined trauma pre-existing factors, probably 
 
                 comes about as close as we can get.  Talk about 
 
                 neurogenic back pain recovering in 5-8 weeks of 5% 
 
                 and surgical excision of disc no fusion, good 
 
                 results with no persistent pain and then 
 
                 modification of the pain with fusion.  However, 
 
                 they don't exactly address the herniated disc.  I 
 
                 would think The Manual for Orthopaedic Surgeons 
 
                 would probably give approximately 10% level of 
 
                 impairment.  Therefore, combining the two which 
 
                 has been my practice in the recent past, an 
 
                 impairment rating would be of 8.5% of the whole 
 
                 person.
 
            
 
                 I think it is more important functionally to try 
 
                 and get him into additional activity.  Certainly 
 
                 working on the heavy iron work is next to 
 
                 impossible.
 
            
 
            (Jt. Ex. 1-B, pp. 5-6)
 
            
 
                 Dr. Neiman's restrictions provide:
 
            
 
                 I think he is capable of doing light duty and 
 
                 sedentary type work.  I usually suggest a maximum 
 
                 of repetative [sic] lifting 15-20, maximum 
 
                 probably 25-30 pounds.  He should be able to 
 
                 change positions frequently.  Ideally, he would be 
 
                 better off being employed in a position that 
 
                 produces less back strain.  His disability is work 
 
                 related.  He previously was employed as an iron 
 
                 worker.  I advised that he should not do this 
 
                 position since it requires excessive strain of the 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                 back that will aggravate the disc bulge.  I think 
 
                 he is capable of doing light to moderate activity 
 
                 but not the previous iron work that he had been 
 
                 doing.  He is disabled from his occupation since 
 
                 sometime in 1989.
 
            
 
            (Jt. Ex. 1-B, p. 8).
 
            
 
                 Dr. Robb subsequently modified his opinions in reports 
 
            dated November 20, 1990 and March 26, 1991.  Those reports 
 
            state that claimant's low back condition had resolved due to 
 
            limited activity and avoidance of stress to the low back.  
 
            Dr. Robb then opined that claimant did not have any 
 
            permanent functional impairment to his back due to the 
 
            work-related accident, yet assessed five percent impairment 
 
            due to degenerative arthritis in claimant's back.  And, he 
 
            limited claimant's lifting activities to not more than 50 
 
            pounds, with limited bending, lifting and stooping.  He 
 
            recommended that claimant should not return to the job of 
 
            ironworker.  (Jt. Ex. 1-C, pp. 16-21).
 
            
 
                 Finally, claimant underwent a functional capacities 
 
            assessment at the Work Injury Rehabilitation Center on 
 
            February 19 and 20, 1991.  (Jt. Ex. 1-C, pp. 41-50) 
 
            
 
                         analysis and conclusions of law
 
            
 
                 The first issue to be addressed is whether claimant 
 
            received an injury in November of 1988 which arose out of 
 
            and in the course of his employment.
 
            
 
                 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(1).
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that he received an injury in November 1988 
 
            which arose out of and in the course of his employment. 
 
            McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 
 
            1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 
 
            N.W.2d 128 (1967). 
 
            
 
                 The 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. 
 
            
 
                 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.
 
            
 
                 "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 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            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; Musselman, 261 Iowa 352, 154 N.W.2d 128. 
 
            
 
                 Claimant provided a detailed description of both the 
 
            physical demands and job duties of an ironworker.  He has 
 
            worked steadily as an ironworker during the past 12 years, 
 
            and testified that he has never been injured on the job nor 
 
            has he missed time from work due to any work related 
 
            illnesses.  The medical evidence, both in the histories 
 
            provided to the various health care providers, as well as 
 
            the services rendered to treat claimant's physical problems, 
 
            are consistent with the back injury claimant alleges.  He 
 
            was performing those job duties required by his position, 
 
            was working on his regular shift, and was performing his 
 
            duties in a manner associated with those of an ironworker.
 
            
 
                 The injury sustained can be seen to have followed as a 
 
            natural incident of the work.  And, claimant's testimony 
 
            allowed the undersigned to become familiar with the overall 
 
            working conditions and nature of the job.  Claimant has 
 
            sustained his burden of proof, and has shown by a 
 
            preponderance of the evidence that he sustained an injury in 
 
            November of 1988 which arose out of and in the course of his 
 
            employment.  It is noted that claimant alleged an injury on 
 
            January 4, 1989; however, this is the date that he first 
 
            missed work due to the injury occurred in November of 1988.
 
            
 
                 The next issue to be addressed is whether there is a 
 
            causal relationship between claimant's injury and his 
 
            disability.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of November 
 
            1988 is causally related to the disability on which he now 
 
            bases his claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
            N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 296, 18 
 
            N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903 (Iowa 1974).  However, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Id. at 907.  Further, the weight to be given to such 
 
            an opinion is for the finder of fact, and that may be 
 
            affected by the completeness of the premise given the expert 
 
            and other surrounding circumstances.  Bodish, 257 Iowa 516, 
 
            133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
            Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
            
 
                 Furthermore, if the available expert testimony is 
 
            insufficient alone to support a finding of causal 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            connection, such testimony may be coupled with nonexpert 
 
            testimony to show causation and be sufficient to sustain an 
 
            award.  Giere v. Aase Haugen Homes, Inc., 259 Iowa 1065, 146 
 
            N.W.2d 911, 915 (1966).  Such evidence does not, however, 
 
            compel an award as a matter of law.  Anderson v. Oscar Mayer 
 
            & Co., 217 N.W.2d 531, 536 (Iowa 1974).  To establish 
 
            compensability, the injury need only be a significant 
 
            factor, not be the only factor causing the claimed 
 
            disability.  Blacksmith v. All-American, Inc., 290 N.W.2d 
 
            348, 354 (Iowa 1980).
 
            
 
                 Our supreme court has stated many times that a claimant 
 
            may recover for a work connected aggravation of a 
 
            preexisting condition.  Almquist v. Shenandoah Nurseries, 
 
            218 Iowa 724, 254 N.W. 35 (1934).  See also Auxier v. 
 
            Woodward State Hosp. Sch., 266 N.W.2d 139 (Iowa 1978); Gosek 
 
            v. Garmer and Stiles Co., 158 N.W.2d 731 (Iowa 1968); Barz 
 
            v. Oler, 257 Iowa 508, 133 N.W.2d 704 (1965); Olson v. 
 
            Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 
 
            (1963); Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 
 
            112 N.W.2d 299 (1961); Ziegler v. United States Gypsum Co., 
 
            252 Iowa 613, 106 N.W.2d 591 (1960).
 
            
 
                 As noted under the findings of fact, all of the health 
 
            care providers who have offered opinions regarding 
 
            claimant's physical condition, have related his current 
 
            physical disability to his position as an ironworker.  
 
            Claimant provided testimony which shows that he was in good, 
 
            if not excellent physical condition prior to November of 
 
            1988.  And, although there is evidence which shows that 
 
            claimant has sought chiropractic care at various stages in 
 
            his life, there is nothing in the record to indicate that he 
 
            ever sustained any type of permanent disability.  It is 
 
            concluded that claimant's current disability is related to 
 
            his work-related injury.
 
            
 
                 Defendants have also made a special point of arguing 
 
            that apportionment is mandated.  There is evidence in the 
 
            record which indicates that claimant had some preexisting 
 
            degenerative disease in his spine; however, the record does 
 
            not reflect that his condition was such that he lost time 
 
            from work or sought concentrated medical treatment.  Nor is 
 
            there any evidence that he had a permanent impairment or 
 
            restrictions on his ability to perform any job because of 
 
            his preexisting condition.  No apportionment between 
 
            claimant's preexisting arthritic condition and his post 
 
            work-related injury status is allowed.
 
            
 
                 The next issue to be addressed is whether claimant is 
 
            entitled to temporary total or healing period benefits.
 
            
 
                 As a general rule, temporary total disability benefits 
 
            are paid where there has been no permanent impairment due to 
 
            a work-related injury.  Healing period benefits are awarded 
 
            in the event an injury worker sustains a permanent 
 
            impairment due to a work-related injury.
 
            
 
                 Once again, the true primary treating physicians, Dr. 
 
            Neiman and Dr. Robb have both assessed a permanent 
 
            functional impairment to claimant's body as a whole.  And, 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            both have imposed permanent medical restrictions on 
 
            claimant's activities.  As a result, it is concluded that 
 
            claimant has sustained a permanent injury, and is therefore 
 
            entitled to healing period benefits during the times he was 
 
            taken off of work by a health care provider.
 
            
 
                 The next issue to be addressed is whether claimant has 
 
            sustained an industrial disability.
 
            
 
                 If claimant has an impairment to the body as a whole, 
 
            an industrial disability has been sustained.  Industrial 
 
            disability was defined in Diederich v. Tri-City Railway Co., 
 
            219 Iowa 587, 593, 258 N.W.2d 899, 902 (1935) as follows:  
 
            "It is therefore plain that the legislature intended the 
 
            term `disability' to mean `industrial disability' or loss of 
 
            earning capacity and not a mere `functional disability' to 
 
            be computed in the terms of percentages of the total 
 
            physical and mental ability of a normal man."
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, expe
 
            rience and inability to engage in employment for which he is 
 
            fitted.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 
            125 N.W.2d 251 (1963).  Barton v. Nevada Poultry, 253 Iowa 
 
            285, 110 N.W.2d 660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial disabil
 
            ity.  This is so as impairment and disability are not syn
 
            onymous.  Degree of industrial disability can in fact be 
 
            much different than the degree of impairment because in the 
 
            first instance reference is to loss of earning capacity and 
 
            in the latter to anatomical or functional abnormality or 
 
            loss.  Although loss of function is to be considered and 
 
            disability can rarely be found without it, it is not so that 
 
            a degree of industrial disability is proportionally related 
 
            to a degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  These are matters which the 
 
            finder of fact considers collectively in arriving at the 
 
            determination of the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  There are no 
 
            guidelines which give, for example, age a weighted value of 
 
            ten percent of the total value, education a value of fifteen 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            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).
 
            
 
                 At the time of the incident, claimant was 29 years of 
 
            age.  He is a high school graduate, and has three years 
 
            training as an ironworker apprentice.  This includes not 
 
            only on the job training, but classes in blueprint reading, 
 
            welding and rigging.  
 
            
 
                 Claimant's work history is concentrated in the 
 
            construction business, as he has worked for more than 10 
 
            years as an ironworker. 
 
            
 
                 As noted earlier, claimant was in good, if not 
 
            excellent, physical condition prior to the injury.  
 
            Subsequent to the injury, he has undergone numerous 
 
            examinations, tests and evaluations.  He has voiced 
 
            complaints of pain, and objective findings have shown a 
 
            herniated disc which can cause limited range of motion.
 
            
 
                 Intellectually and emotionally, claimant appeared 
 
            average, and his motivation to return to a position which 
 
            will accommodate his physical limitations has been good.
 
            
 
                 It was frustrating for the claimant, as positions for 
 
            which he is qualified are typically low paying, considerably 
 
            lower than his position as an ironworker.  His current job 
 
            is with ABC Seamless Siding in Cedar Rapids, Iowa.  His job 
 
            duties require him to measure and cut seamless siding.  It 
 
            does involve some lifting, bending and stooping.  Claimant 
 
            stated that, on a physical level, the work was certainly not 
 
            as demanding as that work involved as an ironworker.
 
            
 
                 As an ironworker, claimant earned $15.18 per hour; in 
 
            his current position, claimant earns $6.00 per hour, which 
 
            represents actual earnings loss of 61 percent.  It has been 
 
            the position of the agency that actual earnings are 
 
            indicative of earning capacity.
 
            
 
                 Claimant stated that he is not as strong as he was 
 
            prior to the accident, has sustained a 15 pound weight loss, 
 
            and that his low back affects every day in both his work and 
 
            home activities.
 
            
 
                 One of the factors used when assessing any claimant's 
 
            industrial disability is that worker's ability to return to 
 
            work for which he or she is suited.  See, Olson v. Goodyear 
 
            Serv. Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 
 
            (1963).  A common theme found within the medical evidence is 
 
            that claimant can not, or at least has been advised not to 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            return to the physically demanding job as an ironworker.
 
            
 
                 Considering all of the factors that comprise an 
 
            industrial disability, it is determined that claimant has 
 
            sustained a 50 percent industrial disability.
 
            
 
                 The next issue to be resolved is the calculation of 
 
            claimant's workers' compensation rate.
 
            
 
                 The evidence supports claimant's testimony that he was 
 
            paid $15.18 per hour.  Iowa Code section 85.36(6) indicates:
 
            
 
                    In the case of an employee who is paid on a 
 
                 daily, or hourly basis, . . . the weekly earnings 
 
                 shall be computed by dividing by thirteen the 
 
                 earnings, not including overtime or premium pay of 
 
                 said employee earned in the employ of the employer 
 
                 in the last completed period of thirteen 
 
                 consecutive calendar weeks immediately preceding 
 
                 the injury.
 
            
 
                 Premium pay is not included in the calculation; however 
 
            overtime hours worked are included in the rate at straight 
 
            pay.  Any week during the thirteen weeks immediately 
 
            preceding the injury which was not completed due to reasons 
 
            personal to the employee (illness or vacation) shall not be 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            included in the thirteen week period calculation.  Joint 
 
            Exhibit 7 depicts hours worked and gross wages earned during 
 
            the thirteen weeks prior to claimant's injury, from October 
 
            8, 1988 through December 31, 1988.  The exhibit shows that 
 
            weeks 8 and 12 and 13 included holidays, and claimant was 
 
            not paid for these days.  
 
            
 
                 The agency has held that where no employee worked on a 
 
            given day, the week will be included in the rate 
 
            calculation.  If the absence is personal to the employee 
 
            (sick leave or vacation), the week will be excluded.  See, 
 
            Lewis v. Aalf's Mfg. Co., I Iowa Indus. Comm'r Report 206, 
 
            207 (Appeal Dec. 1980).
 
            
 
                 As a result, claimant's correct rate of compensation is 
 
            based on 486 hours x $15.18 per hour equals $7377.48 divided 
 
            by 13 equals $567.40.  Using the July 1, 1988 Guide to Iowa 
 
            Workers' Compensation Claim Handling rate book, a married 
 
            individual with one dependent yields a rate of $350.98.
 
            
 
                 The final issue to be discussed is whether claimant is 
 
            entitled to medical benefits as provided for under Iowa Code 
 
            section 85.27.
 
            
 
                 The Code provides, in pertinent part:
 
            
 
                    The employer, for all injuries compensable 
 
                 under this chapter or chapter 85A, shall furnish 
 
                 reasonable surgical, medical, dental, osteopathic, 
 
                 chiropractic, podiatric, physical rehabilitation, 
 
                 nursing, ambulance and hospital services and 
 
                 supplies therefor and shall allow reasonably 
 
                 necessary transportation expenses incurred for 
 
                 such services.
 
            
 
                 Defendants argue that because claimant's medical 
 
            treatment was not authorized, they are relieved of paying 
 
            for medical services rendered to treat claimant's 
 
            compensable injury.
 
            
 
                 This issue is easily addressed.  Defendants have denied 
 
            liability.  Agency precedence has clearly stated that when 
 
            the employer denies liability for the claim, the defense of 
 
            unauthorized medical treatment will fail.  See, Holbert v. 
 
            Townsend Eng'r Co., 32 Biennial Rep., Iowa Indus. Comm'r. 
 
            78, 80 (review Dec. 1975).  Claimant is awarded medical 
 
            benefits.
 
            
 
                 The last issue to address is claimant's motion to amend 
 
            the petition.
 
            
 
                 At the close of the hearing, claimant moved to amend 
 
            his petition to conform to the proof.  Defendants objected, 
 
            and argued that any amendment, particularly with respect to 
 
            the injury date, would be prejudicial.
 
            
 
                 Whether to grant a motion to amend the pleadings to 
 
            conform to the proof at trial is within the court's 
 
            discretion, National Bank & Trust Co. v. Campbell, 463 
 
            N.W.2d 104 (Iowa App. 1990).
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            
 
                 Where a party can not claim surprise or prejudice, the 
 
            amendment can be allowed.
 
            
 
                 Here, the medical evidence indicates that claimant 
 
            consistently told providers that he initially hurt his back 
 
            in November 1988.  Yet, claimant continued working until 
 
            January 4, 1989, when his condition deteriorated and he 
 
            sought medical treatment.  Although defendants argued that 
 
            by amending the injury date at the close of the hearing 
 
            would somehow affect the applicable statute of limitations, 
 
            the undersigned finds the argument without merit and amends 
 
            the petition to reflect an injury date of November 1988.
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendants pay claimant permanent partial 
 
            disability payments for two hundred fifty (250) weeks at the 
 
            rate of three hundred fifty and 98/100 dollars ($350.98) per 
 
            week beginning October 5, 1989.
 
            
 
                 That defendants pay the accrued weekly benefits in a 
 
            lump sum.
 
            
 
                 That defendants pay medical bills and mileage incurred 
 
            by claimant as provided for under Iowa Code section 85.27.
 
            
 
                 That defendants pay interest on benefits awarded herein 
 
            as set forth in Iowa Code section 85.30.
 
            
 
                 That defendants pay the costs of this action pursuant 
 
            to rule 343 IAC 4.33.
 
            
 
                 That defendants file claim activity reports upon 
 
            payment of the award as required by this agency pursuant to 
 
            rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of August, 1991.
 
            
 
            
 
            
 
            
 
                                          
 
            ________________________________
 
                                          PATRICIA J. LANTZ
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr Thomas M Wertz
 
            Attorney at Law
 
            4089 21st Avenue SW
 
            Suite 114
 
            Cedar Rapids Iowa 52404
 
            
 
            Mr James E Shipman
 
            Attorney at Law
 
            1200 MNB Building
 

 
            
 
            Page  13
 
            
 
            
 
            
 
            
 
            Cedar Rapids Iowa 52401
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      5-1800
 
                      Filed August 5, 1991
 
                      PATRICIA J. LANTZ
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            MATT MOELLER,  :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :      File No. 906732
 
            ABELL-HOWE,    :
 
                      :    A R B I T R A T I O N
 
                 Employer, :
 
                      :      D E C I S I O N
 
            and       :
 
                      :
 
            CRAWFORD AND COMPANY,    :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            5-1800
 
            Claimant, 29-year-old ironworker with ten years of 
 
            experience, sustained a back injury.
 
            High school education, average motivation, and an actual 
 
            loss of earings of 61 percent.
 
            Claimant awarded 50 percent industrial disability.
 
            
 
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            MARY E BOYER,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 906819
 
            IOWA PORK INDUSTRIES a/k/a,   :
 
            AMERICAN FOOD GROUPS and      :
 
            a/k/a DAKOTA PORK,            :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            CNA INSURANCE COMPANIES,      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration wherein Mary E. 
 
            Boyer seeks additional weekly compensation for healing 
 
            period and permanent partial disability based upon an 
 
            admitted injury of January 18, 1989.  The record made 
 
            consists of the factual stipulation and statement of issues 
 
            submitted jointly by the parties.  It also includes 
 
            claimant's exhibit 1 and defendants' exhibits A through I.  
 
            The parties waived to making of a verbatim record of the 
 
            hearing.  The exhibits offered were received and arguments 
 
            made by counsel.  No oral testimony was given.
 
            
 
                                FINDINGS OF FACT
 
            
 
                 The facts are contained in the factual stipulation 
 
            submitted by the parties.  That stipulation is in writing 
 
            and is incorporated herein as though fully set forth.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 The party who would suffer loss if an issue were not 
 
            established has the burden of proving that issue by a 
 
            preponderance of the evidence.  Iowa R. of App. P. 14(f).
 
            
 
                 The right of an employee to receive compensation for 
 
            injuries sustained is statutory. The statute conferring this 
 
            right can also fix the amount of compensation payable for 
 
            different specific injuries.  The employee is not entitled 
 
            to compensation except as the statute provides.  Soukup v. 
 
            Shores Co., 222 Iowa 272, 268 N.W. 598 (1936).
 
            
 
                 Section 85.34(1) provides that healing period benefits 
 
            are payable to an injured worker who has suffered permanent 
 
            partial disability until (1) the worker has returned to 
 
            work; (2) the worker is medically capable of returning to 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            substantially similar employment; or (3) the worker has 
 
            achieved maximum medical recovery.  The healing period can 
 
            be considered the period during which there is a reasonable 
 
            expectation of improvement of the disabling condition.  See 
 
            Armstrong Tire & Rubber Co. v. Kubli, 312 N.W.2d 60 (Iowa 
 
            Ct. App. 1981).  Healing period benefits can be interrupted 
 
            or intermittent.  Teel v. McCord, 394 N.W.2d 405 (Iowa 
 
            1986).
 
            
 
                 Compensation for permanent partial disability begins at 
 
            termination of the healing period.  Section 85.34(2).  
 
            Permanent partial disabilities are classified as either 
 
            scheduled or unscheduled.  A specific scheduled disability 
 
            is evaluated by the functional method; the industrial method 
 
            is used to evaluate an unscheduled disability. Simbro v. 
 
            Delong's Sportswear, 332 N.W.2d 886 (Iowa 1983); Graves v. 
 
            Eagle Iron Works, 331 N.W.2d 116 (Iowa 1983); Martin v. 
 
            Skelly Oil Co., 252 Iowa 128, 106 N.W.2d 95 (1960).
 
            
 
                 Once weekly compensation benefits have been commenced, 
 
            section 86.13 of the Code of Iowa requires that 30 days 
 
            advance notice must be given before those weekly benefits 
 
            are terminated unless the employee has returned to work.
 
            
 
                 This case deals with five claims for additional weekly 
 
            benefits being made by the claimant.  
 
            
 
                 FIRST CLAIM
 
            
 
                 The first claim made by the claimant is that she seeks 
 
            30 additional days of healing period based upon the lack of 
 
            a written notice prior to benefits being terminated on or 
 
            about April 19, 1989.  Defendants contend that the claimant 
 
            returned to work and that no notice was necessary.  Exhibit 
 
            A is not conclusive but it corroborates defendants' 
 
            contention.  Since claimant is seeking benefits she has the 
 
            obligation of proving that she did not return to work on or 
 
            about April 19, 1989.  The proof fails to show that she did 
 
            not return to work on or about April 19, 1989.  Accordingly, 
 
            claimant is not entitled to any additional weekly 
 
            compensation under the theory alleged in the first of her 
 
            five contentions.
 
            
 
                 SECOND CLAIM             
 
            
 
                 In her second contention claimant seeks an additional 
 
            30 days of healing period for inadequate notice of 
 
            termination of August 10, 1990.  The parties agree, as shown 
 
            at section III. 1.(b) of the statement of issues that 
 
            claimant was mailed a check in the amount of $701.38 
 
            together with notice on August 10, 1990.  Defendants contend 
 
            that the payment should be applied to their permanent 
 
            partial disability compensation obligation.  Claimant 
 
            disagrees.
 
            
 
                 There is nothing in section 86.13 which deals with the 
 
            characterization of weekly compensation payments regarding 
 
            whether it is properly termed as healing period or permanent 
 
            partial disability compensation.  It has been long 
 
            established that overpaid healing period benefits are 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            credited against the permanent partial disability liability.  
 
            Wilson Feed Corp. v. Cherry, 315 N.W.2d 756 (Iowa 1982).  
 
            There is no requirement to give a separate notice when 
 
            healing period is converted to permanency benefits.  The 
 
            requirement of the statute is quite simple.  If someone is 
 
            off work receiving weekly compensation benefits of any 
 
            character, it is necessary to give the 30-day notice if 
 
            those benefits are to be terminated unless the person 
 
            returns to work.  It is perfectly proper to give a 30-day 
 
            notice at the time the healing period ends and to apply the 
 
            additional 30 days' worth of benefits which are paid to the 
 
            permanent partial disability obligation.  It is therefore 
 
            concluded that claimant is not entitled to any additional 
 
            weekly compensation based on the second of her five 
 
            contentions.
 
            
 
                 THIRD CLAIM
 
            
 
                 This claimant's third contention is that she is 
 
            entitled to an additional 30 days of healing period benefits 
 
            for an allegedly inadequate notice of March 24, 1992.  As 
 
            shown in paragraph seven on page two of the factual 
 
            stipulation, claimant was given a 30-day notice on March 29, 
 
            1992, and she was paid benefits through April 27, 1992.  
 
            Accordingly, the employer has substantially met its legal 
 
            obligation as far as giving notice is concerned.  This is 
 
            not, however, conclusive upon the ultimate issue of whether 
 
            claimant is entitled to additional healing period benefits 
 
            subsequent to April 27, 1992.  As shown by paragraph five at 
 
            page two of the factual stipulation, the healing period 
 
            entitlement from January 14, 1992 through April 27, 1992 was 
 
            paid.  As stated by defense counsel in his brief, there is 
 
            no evidence that any healing period benefits came due after 
 
            April 27, 1992.  Accordingly, claimant is not entitled to 
 
            any recovery based upon her third contention.
 
            
 
                 FOURTH CLAIM
 
            
 
                 The fourth contention is that claimant seeks 30 
 
            additional days of healing period benefits for defendants' 
 
            alleged failure to provide a 30-day notice for the period of 
 
            time ending September 23, 1992.  The notice given March 29, 
 
            1992, was sufficient for the termination that occurred on 
 
            April 27, 1992.  When additional benefits were paid 
 
            subsequently, however, with the claimant remaining off work, 
 
            it became necessary to give another notice when those 
 
            benefits were terminated.  Claimant is correct and is 
 
            entitled to recover an additional 30 days of weekly 
 
            compensation as she contends.  The amount thereof is 
 
            $701.38.  
 
            
 
                 The 30-day notice requirement provided by the second 
 
            paragraph of section 86.13 is procedural in nature.  It is 
 
            well recognized that 30 days would not be an adequate amount 
 
            of time to allow the industrial commissioner to act upon the 
 
            claim.  There is no requirement that an employer have any 
 
            type of supporting medical evidence or documentation when it 
 
            gives the notice.  It is purely procedural.  The fourth 
 
            unnumbered paragraph of section 86.13, however, provides 
 
            that a penalty can be imposed if benefits are unreasonably 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            terminated.  When claim is made under that fourth paragraph 
 
            some reasonable justification is needed if the employer is 
 
            to avoid being penalized.  In this case, no claim has been 
 
            made under the fourth paragraph of section 86.13.
 
            
 
                 The proper method of characterizing payments paid under 
 
            the 30-day notice provision is an issue in this case.  When 
 
            the notice is given, it is perfectly proper to characterize 
 
            those payments as permanent partial disability compensation 
 
            benefits or as healing period, whichever satisfies the 
 
            obligation.  It is not, however, required that the benefits 
 
            be characterized as permanent partial disability where there 
 
            has been a failure to comply with the 30-day notice 
 
            requirement and the individual has not returned to work.  
 
            When there is a failure to give the notice, or a belated 
 
            notice, it is determined that the additional entitlement to 
 
            30 days of benefits should have the character of a penalty 
 
            under the fourth paragraph of section 86.13.  In this case, 
 
            the single check issued September 11, 1992, in the amount of 
 
            $1,776.80 has been characterized as satisfying a healing 
 
            period obligation.  Claimant's additional entitlement in the 
 
            amount of $701.38 should be considered as a penalty for 
 
            failing to give the statutorily required notice.  It should 
 
            not be applied to the permanent partial disability 
 
            compensation liability.  
 
            
 
                 FIFTH ClAIM
 
            
 
                 The claimant's fifth contention is that her injuries 
 
            should be compensated as losses of the individual fingers 
 
            involved, rather than converted into an equivalent 
 
            disability of the hand.  Since the AMA Guides are 
 
            inconsistent with the workers' compensation statute when 
 
            converting from the fingers into the hand, it is not 
 
            uncommon for there to be a considerable difference in the 
 
            amount of the disability award when impairments of the 
 
            fingers are converted into the hand.  In this case, if 
 
            claimant's permanent disability is computed based upon the 
 
            individual fingers, her entitlement is 50.4 weeks of 
 
            compensation benefits.  If it is computed upon the 
 
            stipulated 24 percent impairment of the hand, the 
 
            entitlement is 45.6 weeks.  
 
            
 
                 When performing statutory construction it is important 
 
            to remember that words are given their ordinary meaning and 
 
            that the workers' compensation statutes are to be liberally 
 
            construed in favor of the worker.  Caterpillar Tractor Co. 
 
            v. Shook, 313 N.W.2d 503 (Iowa 1981); American Home Products 
 
            Corp. v. Iowa State Board of Tax Review, 302 N.W.2d 140 
 
            (Iowa 1981).  It is elementary that fingers are an integral 
 
            part of the hand.  If a small child is asked to draw a 
 
            picture of a hand, the result invariably includes fingers 
 
            and a thumb.  That result is consistent with many 
 
            authorities such as Black's Law Dictionary, Stedman's 
 
            Medical Dictionary, Gray's Anatomy, and Webster's New World 
 
            Dictionary.  It is only in this agency's efforts to deny 
 
            benefits under the Second Injury Fund that fingers and the 
 
            thumb are held to not be parts of the hand.  Patton v. 
 
            Roberts Dairy Co., file number 890255 & 943984 (App. Dec. 
 
            May 27, 1993).  That decision concludes that since section 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            85.34 provides a separate means of computing disabilities of 
 
            the fingers, that fingers are somehow not a part of the 
 
            hand.  The rule from that case should be limited in 
 
            application to claims against the Second Injury Fund.  For 
 
            all other purposes, fingers clearly are a part of a hand.  
 
            This agency has previously held that where the injury is 
 
            limited to the fingers it cannot be compensated based upon 
 
            impairment of the hand.  Morrison v. Wilson Foods, I Iowa 
 
            Industrial Commissioner Report, 244 (1980); Herold v. 
 
            Constructors, Inc., 271 N.W.2d 543 (Neb. 1978).
 
            
 
                 In this case all the ratings of impairment and 
 
            disability are based upon losses of fingers.  The equivalent 
 
            impairment of the hand is arrived at only by converting 
 
            those losses into an equivalent impairment of the hand.  
 
            From the record made it appears as though no part of the 
 
            claimant's hand is impaired other than the three affected 
 
            fingers.  It is clear that the claimant has lost those 
 
            fingers.  It would be totally irreconcilable with the 
 
            beneficent purpose of the workers' compensation statutes to 
 
            provide a construction which would give her less by 
 
            converting those impairments into the hand than what she 
 
            would receive when treating each finger independently.  That 
 
            is particularly true in this case since there is no evidence 
 
            that the hand is impaired other than through the impairment 
 
            of the affected fingers.  It is unconscionable to award less 
 
            compensation because the injury is more severe than what 
 
            would be awarded if the injury were less severe.  Even if 
 
            there were some disability of the hand which was independent 
 
            from that of the fingers, the loss of the fingers creates a 
 
            minimum entitlement.  It is therefore concluded that the 
 
            claimant is entitled to recover 50.4 weeks of permanent 
 
            partial disability compensation for the injuries to her 
 
            second, third and little fingers.  Under the provisions of 
 
            section 85.34(2)(c, d, e) she is entitled to receive 
 
            $8,248.97 since the weekly rate of compensation of $163.67.
 
            
 
                 Defendants have made considerable payments toward 
 
            satisfying their liability in this case.  In 1989 they paid 
 
            25 weeks of benefits totally $4,091.75.  They are entitled 
 
            to credit for the 30 days of benefits paid in August 1990 
 
            totaling $701.38.  They are entitled to credit for the 
 
            payment made February 19, 1993, in the amount of $1,851.76.  
 
            They are also entitled to credit for the payment paid June 
 
            10, 1993, in the amount of $818.96.  These payments total 
 
            $7,463.85.  The permanent partial disability compensation 
 
            entitlement in this case has therefore been underpaid in the 
 
            sum of $785.12.  
 
            
 
                                      ORDER
 
            
 
                 IT IS THEREFORE ORDERED that defendants pay Mary Boyer 
 
            four and two-sevenths weeks (4 2/7) of compensation at the 
 
            rate of one hundred sixty-three and 67/100 dollars ($163.67) 
 
            per week as a result of the termination of benefits without 
 
            thirty (30) days prior notice.  This computes to seven 
 
            hundred one and 38/100 dollars ($701.38). 
 
            
 
                 It is further ordered that defendants pay Mary E. Boyer 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            the sum of seven hundred eighty-five and 12/100 dollars 
 
            ($785.12) in permanent partial disability compensation.
 
            
 
                 It is further ordered that defendants file claim 
 
            activity reports pursuant to rule 343 IAC 3.1.
 
            
 
                 It is further ordered that the costs of this action are 
 
            assessed against defendants.
 
            
 
                 Signed and filed this ____ day of December, 1993.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. W.M. Forker
 
            Attorney at Law
 
            232 Davidson Bldg
 
            Sioux City, Iowa  51101
 
            
 
            Mr. Joe Cosgrove
 
            Attorney at Law
 
            400 Frances Bldg
 
            Sioux City, Iowa  51101
 
            
 
            Mr. Michael P. Jacobs
 
            Mr. Michael W. Ellwanger
 
            Attorneys at Law
 
            300 Toy Bldg
 
            Sioux City, Iowa  51101
 
            
 
 
            
 
            
 
            
 
                                           4000.1 1803
 
                                           Filed December 20, 1993
 
                                           Michael G Trier
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            MARY E BOYER,  
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                              File No. 906819
 
            IOWA PORK INDUSTRIES a/k/a,   
 
            AMERICAN FOOD GROUPS and      
 
            a/k/a DAKOTA PORK
 
                                           A R B I T R A T I O N
 
                 Employer, 
 
                                               D E C I S I O N
 
            and       
 
                      
 
            CNA INSURANCE COMPANIES, 
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            
 
            4000.1
 
            Whenever an employee has been receiving weekly compensation 
 
            and the employer terminates benefits without the employee 
 
            returning to work that a 30-day notice is required.  If 
 
            made, those payments qualify as healing period or permanent 
 
            partial disability according to the underlying facts 
 
            ultimately determined in the case.  If the notice is not 
 
            given, however, the additional benefits awarded do not 
 
            satisfy healing period or permanent partial disability 
 
            obligations.  It was not necessary for an employer to have 
 
            documentation to support its decision to terminate benefits 
 
            in order for the 30-day notice to be procedurally correct 
 
            but that such documentation is necessary to successfully 
 
            defend against a claim under the fourth paragraph of section 
 
            86.13.  
 
            
 
            1803
 
            Where injury caused total loss of third and fourth fingers 
 
            and an 18 percent impairment of second finger, claimant was 
 
            held entitled to recover permanent partial disability based 
 
            upon section 85.34(2)(c, d & e).  If the impairments of the 
 
            fingers had been converted into the hand it would provide 
 
            five fewer weeks of benefits.  While fingers constitute a 
 
            part of the hand, the beneficent purpose of the workers' 
 
            compensation act prohibits reduction of benefits when the 
 
            severity of the injury increases.  
 
            
 
 
            
 
         
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
         
 
            JAMES W. CARR,   
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                             File Nos. 906851/935598
 
            BLACK HAWK WASTE SYSTEMS,       
 
                                                  A P P E A L
 
                 Employer,   
 
                                                D E C I S I O N                        
 
            LIBERTY MUTUAL,       
 
                        
 
                 Insurance Carrier,    
 
                 Defendants.      
 
            ____________________________________________________________
 
          
 
            The record, including the transcript of the hearing before 
 
            the deputy and all exhibits admitted into the record, has 
 
            been reviewed de novo on appeal.
 
            
 
                                     ISSUES
 
            
 
            The issues on appeal are:  The extent of claimant's healing 
 
            period from his November 8, 1989 knee injury; whether 
 
            claimant has proved that his back condition was the result 
 
            of either of his two accidents; whether defendants are 
 
            entitled to reimbursement for overpayment of compensation; 
 
            and whether defendants are entitled to a credit for 
 
            overpayment of the second injury for the underpayment of the 
 
            first injury.
 
            
 
                               FINDINGS OF FACT
 
            
 
            The findings of fact contained in the proposed agency 
 
            decision filed July 30, 1992 are adopted as set forth below.  
 
            Segments designated by brackets ([ ]) indicate language that 
 
            is in addition to the language of the proposed agency 
 
            decision.
 
            
 
                 *****
 
            
 
                 James W. Carr is a 38-year-old married man who 
 
            graduated from high school in 1970.  He has worked for 
 
            sixteen different employers, all for relative short periods 
 
            of time as shown in his answer to interrogatory No. 8 
 
            (Claimant's Exhibit 10, pages 10-13).  Most of the jobs 
 
            appear to have consisted primarily of manual labor or 
 
            cashier-type of work.  Claimant has also accumulated five 
 
            felony convictions and an aggravated misdemeanor conviction 
 
            for offenses consisting of forgery, false use of a financial 
 
            instrument, burglary and theft (Def. Ex. D; Cl. Ex. 10, pp. 
 
            41-42).
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                 Claimant's preinjury medical history is remarkable for 
 
            problems with persistent headaches, dizziness and blackout 
 
            spells in 1985, 1987 and 1988 (Cl. Ex. 4, pp. 38, 39, 41, 
 
            46). A report from the University of Iowa dated September 
 
            16, 1987, indicates that claimant had been off work due to 
 
            visual disturbances (Def. Ex. A1).  He has been afflicted 
 
            with hypertension since he was a teenager and the records 
 
            indicate that it has not always been well controlled.  The 
 
            preinjury records do not contain any significant reference 
 
            to back pain or leg symptoms.  
 
            
 
                 Claimant was injured on January 5, 1989, when he 
 
            neglected to lower the rails of his refuse truck and they 
 
            hit a beam, stopping the truck immediately and throwing him 
 
            forward within the truck.  It appears unlikely that the 
 
            claimant lost consciousness from that incident as he 
 
            extracted himself from the vehicle and walked to the John 
 
            Deere plant medical department where he was treated by the 
 
            plant nurse.  The ambulance attendants who transported him 
 
            to the hospital noted head and face lacerations.  A cervical 
 
            collar was placed on him (Cl. Ex. 2, p. 5).
 
            
 
                 The records from the hospital emergency room note "No 
 
            L.O.C.," an abbreviation which indicates no loss of 
 
            consciousness, though he was noted to be slightly dizzy.  He 
 
            demonstrated facial lacerations, thoracic spine pain and 
 
            pain in his knee.  While at the hospital, x-rays were taken 
 
            of his cervical and thoracic spine which showed degeneration 
 
            at the C6-7 level and mild scoliosis in the thoracic spine.  
 
            No low back complaints were noted.  His right knee appears 
 
            to have become increasingly symptomatic while he was at the 
 
            hospital (Cl. Ex. 2, pp. 1-3 and 7).
 
            
 
                 Claimant returned for a recheck on January 9, 1989, at 
 
            which time the records show that he continued to have pain 
 
            and swelling in his knee and, pain in his upper back and 
 
            headaches.  He exhibited tenderness to palpation in his 
 
            thoracic spine.  A straight leg raising test was performed 
 
            which was interpreted as being positive on his right leg at 
 
            30 degrees.  The diagnosis shown is low back strain with 
 
            contusion of the knee (Cl. Ex. 2, p. 9).  The report of 
 
            injury signed by the claimant on January 17, 1989, lists his 
 
            back as a part of his body which was injured.  It does not 
 
            specify whether it was the upper, middle or low back (Cl. 
 
            Ex. 16).  The records indicate that on January 19, 1989, 
 
            claimant received heat application to his low back (Cl. Ex. 
 
            4, p. 2).  In the prehearing report, the parties stipulate 
 
            that claimant's healing period entitlement runs from January 
 
            6, 1989 through February 5, 1989.  A number of work releases 
 
            appear in the record including January 23, 1989 (Def. Ex. 
 
            A2, p. 2), January 30, 1989 (Def. Ex. A2, p. 1), and 
 
            February 3, 1989 (Def. Ex. 4, p. 3).  The stipulated date of 
 
            February 5, 1989 is not irreconcilable with the record and 
 
            is accepted as being correct for marking the end of the 
 
            claimant's initial healing period entitlement.
 
            
 
                 After returning to work on or about February 6, 1989, 
 
            claimant entered into a course of treatment with Orthopedic 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            Surgeon Jitu D. Kothari, M.D., for treatment of his right 
 
            knee.  On February 17, 1989, claimant was noted to have 
 
            post-traumatic condromalacia of his right patella secondary 
 
            to the accident of January 5, 1989.  Claimant returned to 
 
            Dr. Kothari in February 23, 1989, but did not again return 
 
            to Dr. Kothari until after the November 8, 1989 injury (Cl. 
 
            Ex. 3, pp. 6 and 7).
 
            
 
                 The notes from claimant's family physician note that on 
 
            August 17, 1989, he complained of lack of feeling in his 
 
            left leg, a symptom which had started on the previous day 
 
            and on August 24, 1989, he reported occasional numbness in 
 
            his right leg (Cl. Ex. 4, pp. 5 and 6).
 
            
 
                 On November 8, 1989, claimant was again driving his 
 
            employer's truck.  He stopped at a stop sign and the cab of 
 
            the truck tipped forward.  There is uncertainty in the 
 
            record regarding how far forward the truck tipped but it is 
 
            clear that the claimant did bump his knee in the incident 
 
            but he denied striking his head.  He phoned his physician on 
 
            November 8, 1989, reporting the incident and knee pain (Cl. 
 
            Ex. 4, p. 8). X-rays of right knee were again taken on 
 
            November 8, 1989 (cl. ex. 2, p. 12). The emergency room 
 
            record makes record of knee complaints and symptoms but does 
 
            not mention any back complaints of any nature (Cl. Ex. 2, p. 
 
            10).
 
            
 
                  He was seen by his family physicians on November 17, 
 
            1989, with complaints of sore throat and coughing.  Neither 
 
            his knee nor his back are mentioned (Cl. Ex. 4, p. 10).  On 
 
            November 30, 1989, he was seen by Dr. Kothari.  Dr. Kothari 
 
            recommended arthroscopic surgery (Cl. Ex. 3, p. 9).  The 
 
            surgery was performed December 14, 1989 (Cl. Ex. 2, pp. 32 
 
            and 33).  He was found to have a full thickness articular 
 
            cartilage flap in the medial femoral condyle and medial 
 
            facet of the patella of his right knee.
 
            
 
                 After a relatively uneventful period of recuperation 
 
            following surgery, claimant was released to return to work 
 
            by Dr. Kothari and also by his family physician effective 
 
            January 22, 1990 (Cl. Ex. 3, p. 17; Cl. Ex. 4, p. 36).  
 
            Neither release listed any restrictions on activity.  
 
            [Claimant was initially released to return to light duty 
 
            work by Dr. Kothari effective January 8, 1990.  The release 
 
            to return to work by Dr. Kothari for January 22, 1990 was 
 
            for regular work duties (Cl. Ex. 3, pp. 4, 17).  Claimant 
 
            did not keep medical appointments for February 20, 1990, 
 
            March 2, 1990 and March 9, 1990 (Cl. Ex. 3, p. 11).]  
 
            Claimant worked approximately half time for a few days and 
 
            then again went off work on January 31, 1990.  [It was Dr. 
 
            Kotharis' opinion that the numbness of claimant's right 
 
            thigh was not related to claimant's knee injury.  (Ex. C, p. 
 
            24)]  Claimant saw his family physician, Dennis Harris, 
 
            D.O., as a follow-up for a gynecomastia condition which had 
 
            been treated while claimant was off work.  On that January 
 
            31, 1990 visit, claimant also complained of increasing 
 
            numbness and tingling in his right leg.  The note at one 
 
            point state that no low back pain existed but at another 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            point state that moderate back pain existed.  A straight leg 
 
            raising test was indicated as being negative.  Distinct 
 
            weakness of the right thigh musculature was noted.  Dr. 
 
            Harris recommended that claimant refrain from truck driving 
 
            (Cl. Ex. 4, p. 12).  It is noted that claimant had worked 
 
            continuously following his return to work in February 1989 
 
            until the day before undergoing the surgery in December 
 
            1989.  He was not off work for the November injury until the 
 
            day the knee surgery was performed.
 
            
 
                 Claimant was first seen by Muhammad Eyad Dughly, M.D., 
 
            for back complaints on February 13, 1990.  Dr. Dughly 
 
            provided testing and conservative treatment over the 
 
            following months until releasing claimant for light duty on 
 
            June 19, 1990.  The employer apparently had no light duty 
 
            work available for the claimant.  Claimant did not report 
 
            for work and was terminated for absenteeism.  EMG tests were 
 
            essentially negative except for the absence of the "H" 
 
            response in claimant's right leg (Cl. Ex. 6, p. 26 and 27).  
 
            That response was subsequently found to be normal in testing 
 
            done at the University of Iowa Hospitals (Cl. Ex. 7, p. 56; 
 
            Dep. Ex. 4).  A sensory examination performed June 25, 1990, 
 
            showed decreased sensation over claimant's entire right leg, 
 
            right arm and right side of his face (Cl. Ex. 6, p. 46).  
 
            Dr. Dughly was unable to state whether claimant's headaches 
 
            were any worse following either accident than they were 
 
            before the first accident occurred (Cl. Ex. 6, pp. 77 and 
 
            78).  Dr. Dughly found claimant to have a spondylolisthesis 
 
            condition which he felt was caused by the accident.  He also 
 
            stated that if it was caused by the accident, the pain 
 
            should have started immediately following the accident (Cl. 
 
            Ex. 6, pp. 83 and 84).  Dr. Dughly stated that claimant had 
 
            really not made any significant improvement for any of the 
 
            conditions since the time treatment was started.  He felt 
 
            that when deposed in July of 1991, no further significant 
 
            improvement was expected (Cl. Ex. 6, pp. 98, 109-111).  Dr. 
 
            Dughly felt that claimant had a 3 to 4 percent permanent 
 
            impairment due to post-traumatic headaches, 5 to 6 percent 
 
            due to low back, 5 to 6 percent due to right leg numbness 
 
            and whatever impairment was related to the knee injury 
 
            itself (Cl. Ex. 6, pp. 68-70).  Dr. Dughly felt that 
 
            claimant should follow activity restrictions (Cl. Ex. 6, p. 
 
            95).
 
            
 
                 Claimant was also evaluated by Neurologist James M. 
 
            Doro, D.O.  Dr. Doro found claimant's neurological exam to 
 
            be essentially normal.  He related claimant's difficulties 
 
            to a chronic musculoskeletal strain (Cl. Ex. 7, pp. 11, 12, 
 
            17 and 18).  Dr. Doro felt that claimant's spondylolisthesis 
 
            was not related to either of the accidents because no 
 
            corresponding complaints were noted following the accidents 
 
            (Cl. Ex. 7, pp. 21 and 22).  He felt that claimant's low 
 
            back problem, whatever it actually was, was not related to 
 
            either of the accidents (Cl. Ex. 7, pp. 22-26).  He felt 
 
            that claimant's pains were idiopathic and stated that the 
 
            majority of people with such complaints are unable to 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            identify an incident which caused them (Cl. Ex. 7, pp. 42, 
 
            57 and 59).
 
            
 
                 Dr. Kothari expressed no opinion regarding the cause of 
 
            claimant's back complaints other than to state that the 
 
            thigh pain was not a result of the knee condition (Def. Ex. 
 
            C, pp. 24, 25 and 29).  Dr. Kothari related claimant's knee 
 
            condition to the first accident but stated that the second 
 
            may have aggravated it (Def. Ex. C, pp. 22 and 23).
 
            
 
                 The record of this case is devoid of any prompt reports 
 
            of thigh or low back pain of any continuing nature following 
 
            either of the two accidents.  Any testimony from claimant or 
 
            his spouse providing an onset of symptoms at or about the 
 
            time of either accident is not corroborated by any of the 
 
            medical records.  Further, claimant's testimony and 
 
            credibility is suspect as evidenced by his criminal 
 
            convictions as well as his attempt to recover for headaches 
 
            when the record shows a preexisting course of headaches 
 
            which appear to have been more aggressively treated 
 
            medically than the ones of which he now complains.  The 
 
            objective record is absolutely devoid of any evidence of 
 
            worsening of any pattern of headaches.  The diagnostic 
 
            testing regarding his back condition has failed to show any 
 
            definite objective cause for the complaints.  The MRI 
 
            results are at best equivocal.  For all these reasons, the 
 
            evidence from Dr. Doro is preferred over that from Dr. 
 
            Dughly, despite the fact that Dr. Dughly was a treating 
 
            physician.  The assessment made by Dr. Kothari regarding the 
 
            right knee is accepted as being correct.  It is essentially 
 
            uncontradicted.  It is therefore found that James W. Carr 
 
            injured his right knee on January 5, 1989, and aggravated 
 
            that injury on November 8, 1989.  As indicated by Dr. 
 
            Kothari, he has a 5 percent permanent partial impairment of 
 
            his right leg.  It is noted that claimant did not obtain 
 
            further care or treatment for the right knee after having 
 
            seen Dr. Kothari only twice in early 1989, until after the 
 
            second injury occurred.  The need for surgery and permanent 
 
            impairment is therefore attributed to that second injury.  
 
            Failing to keep medical appointments is strong evidence of a 
 
            lack of symptoms.  It is found that the existence of 
 
            permanent disability affecting claimant's right knee was not 
 
            discoverable based upon the information readily available 
 
            until subsequent to the second injury which aggravated the 
 
            knee.
 
            The record shows that claimant is married, has one child for 
 
            whom he is required to pay support, and four stepchildren 
 
            who reside with him and whom he, together with his wife, 
 
            supports.  The record does not indicate whether or not 
 
            claimant pays support for his child or whether he is 
 
            entitled, under the tax laws, to claim his child as an 
 
            exemption for income tax purposes.  While claimant's spouse 
 
            may have earned more than the claimant, it is found that 
 
            both contributed to the support of the home where they 
 
            resided and that they were, as joint tax payers, both 
 
            entitled to claim claimant's stepchildren, the children of 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            his wife, as dependents for income tax purposes.
 
            
 
                            CONCLUSIONS OF LAW
 
            
 
            The conclusions of law contained in the proposed agency 
 
            decision filed June 30, 1992 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.
 
            
 
                 The occurrence of both injuries was not disputed, the 
 
            only dispute is with regard to whether the injuries 
 
            permanently affected claimant's back or head.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury is a proximate 
 
            cause of the disability on which the claim is based.  A 
 
            cause is proximate if it is a substantial factor in bringing 
 
            about the result; it need not be the only cause.  A 
 
            preponderance of the evidence exists when the causal 
 
            connection is probable rather than merely possible.  
 
            Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 
 
            1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 
 
            (Iowa 1974).
 
            
 
                 The evidence fails to show any worsening of claimant's 
 
            headache condition from that which had existed for a 
 
            considerable amount of time prior to the time he commenced 
 
            employment with Black Hawk Waste Disposal.  It is therefore 
 
            concluded that he has failed to prove by a preponderance of 
 
            the evidence that either accident proximately caused any 
 
            permanent head injury.
 
            
 
                 That back condition is not quite so clear cut.  
 
            Nevertheless, the burden of proof rests with the claimant.  
 
            His testimony is rendered suspect as previously indicated 
 
            herein.  It is nor corroborated by medical records or 
 
            reports.  While it is possible that one of the accidents in 
 
            some way injured his low back, the record fails to show that 
 
            it is probable that claimant's low back was permanently 
 
            injured in either of the two accidents.  It is noted that 
 
            many individuals sustain injuries which are temporary in 
 
            nature and from which a full recovery occurs.  The one note 
 
            showing heat being applied to claimant's low back and the 
 
            diagnosis of low back strain shortly following the first 
 
            injury is consistent with there being a full recovery from 
 
            any low back injury in that first accident.  The next record 
 
            of any back or leg symptoms appears in August of 1989, 
 
            several months after the initial injury and several months 
 
            before the second.  No further record of back complaints 
 
            exists until after the time claimant was released to return 
 
            to work from the knee injury by Dr. Kothari.  The evidence 
 
            from Dr. Doro that such back and leg complaints are usually 
 
            found to be idiopathic has been previously found to be 
 
            correct.  Claimant has therefore failed to prove by a 
 
            preponderance of the evidence that his low back condition, 
 
            whatever it may be, and his leg were proximately caused by 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            either of the two accidents which are the subjects of this 
 
            case.
 
            
 
                 Claimant's recovery period from the first injury has 
 
            been stipulated to have run from January 6, 1989 through 
 
            February 5, 1989, a span of 4.571 weeks.  With regard to the 
 
            second injury, his period of recover runs from December 14, 
 
            1989 through January 22, 1990, a span of 5.714 weeks, ending 
 
            when Dr. Kothari released him to return to work.  [Claimant 
 
            was released to return to regular work.  He did not keep 
 
            three medical appointments for treatment of his knee from 
 
            February 20, 1990 through March 2, 1990.  Claimant may have 
 
            missed some work for problems after January 22, 1990 but 
 
            these do not appear to be related to his work injury.  
 
            Claimant bears the burden of proving entitlement to 
 
            benefits.  Claimant has not proved that his healing period 
 
            extended beyond January 22, 1990.  Claimant's healing period 
 
            ended on that day.]
 
            
 
                 Claimant is also entitled to recover permanent partial 
 
            disability representing a 5 percent disability of his right 
 
            leg pursuant to Iowa Code section 85.34(2)"o".  Five percent 
 
            of 220 weeks is 11 weeks.  Claimant's entitlement to weekly 
 
            compensation pursuant to Iowa Code sections 85.34(1) and 
 
            85.34(2) therefore totals 21.143 weeks.
 
            
 
                 The parties stipulated to claimant's rate of earnings 
 
            and marital status.  The only dispute regarding the rate of 
 
            compensation is his entitlement to exemptions.  The weekly 
 
            rate of earnings is the same for both injuries, namely, 
 
            $325.  The first injury is, however, found under the 1988 
 
            benefits schedule while the second falls under the 1989 
 
            benefits schedule.  Under Iowa Code section 85.61(6)"a", the 
 
            exemptions which are to be used are those exemptions the 
 
            individual is allowed under the Internal Revenue Code.  
 
            Since claimant, as a married person, would have been 
 
            entitled to file a joint income tax return with his spouse 
 
            he would have been able to claim the four stepchildren as 
 
            dependents on such a return and they should be allowed when 
 
            determining his rate of compensation.  There is no evidence 
 
            that he is entitled to claim his child for whom he has been 
 
            ordered to pay support as a tax dependent.  Agency 
 
            precedence has established a presumption that the employee 
 
            is entitled to an exemption for any natural child for whom 
 
            the employee is ordered to pay support.  Biggs v. Charles 
 
            Donner, II Iowa Indus. Comm'r Rep. 34 (Appeal Dec. 1982).  
 
            It is therefore concluded that claimant is entitled to count 
 
            as exemptions in determining the rate himself, his spouse, 
 
            his four stepchildren and his one natural child for whom he 
 
            is ordered to pay support.  The record does not show 
 
            claimant to have not paid any support or to have abandoned 
 
            the natural child as would avoid the agency precedent.  The 
 
            rate of compensation should therefore be computed with seven 
 
            exemptions.  The rate for the January 5, 1989 injury is 
 
            $230.78.  The rate for the November 8, 1989 injury is 
 
            $231.64.
 
            
 
                 Inasmuch as claimant has failed to prove that his back 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            condition resulted from either of the two accidents, his 
 
            expenses listed in claimant's exhibit 5 are not recoverable 
 
            by him under the provisions of Iowa Code section 85.27.
 
            
 
                 The prehearing reports filed in this proceedings show 
 
            that claimant has been paid 4.571 weeks of compensation at 
 
            the rate of $226.31 based upon the January 5, 1989 injury 
 
            and 23.429 weeks of compensation at the rate of $227.82 
 
            based upon the November 8, 1989 injury.  *****  [Claimant's 
 
            entitlement to weekly benefits for the January 5, 1989 
 
            injury was stipulated to be from January 6, 1989 through 
 
            February 5, 1989.  It was also stipulated that claimant was 
 
            paid 4.429 weeks at a rate of $225.31.  Claimant has been 
 
            paid the correct duration of his weekly benefits.  However, 
 
            claimant was compensated at a rate lower than what was 
 
            determined to be the correct rate above ($230.78).  
 
            Defendants are liable to claimant for the difference between 
 
            what was actually paid and what should be paid.
 
            
 
                 Claimant's entitlement for the November 8, 1989 injury 
 
            is healing period benefits from December 14, 1989 until 
 
            January 22, 1990 (5.714 weeks) and 11 weeks of permanent 
 
            partial disability benefits.  The total weekly benefits for 
 
            the November 8, 1989 injury is 16.714 weeks.  Claimant has 
 
            been paid 23.429 weeks of benefits and is entitled to no 
 
            further weekly benefits for that injury.
 
            
 
                 Regarding this injury (November 8, 1989) defendants 
 
            have paid claimant more than their liability.  The amount 
 
            paid (23.429 weeks at a rate of $227.82 per week) exceeds 
 
            the defendants' liability (16.714 weeks at the correct rate 
 
            of $231.64 per week) therefore, claimant takes nothing for 
 
            this injury.
 
            
 
                 Claimant has been overpaid weekly benefits.  Defendants 
 
            assert on cross-appeal that they are entitled to 
 
            reimbursement of their overpayment.  The defendants cite no 
 
            controlling authority for this agency to have authority to 
 
            order the claimant to reimburse defendants for the 
 
            overpayment in this case.  There is no statutory nor case 
 
            law authority that empowers this agency to order claimant to 
 
            reimburse defendants for an overpayment of weekly benefits.  
 
            This agency will not require that the claimant reimburse 
 
            defendants for an overpayment.
 
            
 
                 Defendants are not entitled to a credit for overpayment 
 
            of the November 8, 1989 liability for their underpayment of 
 
            their liability for the January 5, 1989 injury.  The agency 
 
            clearly has authority to consider and order credit for 
 
            excess payments as provided in Iowa Code section 85.34(4).  
 
            However, defendants do not receive a credit for overpayment 
 
            of one injury for their liability for a second injury.  See 
 
            Peek v. Super Valu, File No. 910511 (Appeal Decision March 
 
            10, 1993)  In this case claimant had two separate and 
 
            distinct injuries, albeit to the same knee.  The first 
 
            injury resulted in a temporary disability and the second 
 
            resulted in a need for surgery and a permanent disability.  
 
            These injuries involved separate traumatic events.
 
            
 
                 In this case defendants have paid weekly benefits for 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            each injury at a rate lower than the rate determined above.  
 
            Defendants are entitled to credit for weekly benefits paid 
 
            for each injury.  However, defendants are liable to claimant 
 
            for the difference in the rate previously paid and the 
 
            proper rate for the January 5, 1989 injury.  Defendants are 
 
            not entitled to credit for the overpayment of the November 
 
            8, 1989 injury to satisfy the liability of the underpayment 
 
            of the January 5, 1989 injury.]
 
            WHEREFORE, the decision of the deputy is affirmed in part 
 
            and reversed in part.
 
            
 
                                      ORDER
 
            
 
            THEREFORE, it is ordered:
 
            
 
            That defendants are to pay unto claimant temporary total 
 
            disability benefits from January 6, 1989 through February 5, 
 
            1989 for the January 5, 1989 injury at the rate of two 
 
            hundred thirty and 78/100 dollars ($230.78) per week.
 
            
 
            That defendants are to be given credit for benefits paid for 
 
            the January 5, 1989 injury for the liability for the January 
 
            5, 1989 injury. 
 
            
 
            That defendant shall pay accrued weekly benefits in a lump 
 
            sum.
 
            
 
            That defendants shall pay interest on unpaid weekly benefits 
 
            awarded herein as set forth in Iowa Code section 85.30.
 
            That claimant shall take nothing from these proceedings for 
 
            the November 8, 1989 injury. 
 
            That claimant and defendants shall share equally the costs 
 
            of the appeal including transcription of the hearing.  Each 
 
            party shall pay its costs incurred in these proceedings
 
            That claimant not be required by this agency to reimburse 
 
            defendants for overpayment of weekly benefits.
 
            
 
                 That defendants shall file claim activity reports as 
 
            
 
            required by this agency pursuant to rule 343 IAC 3.1(2).
 
            Signed and filed this ____ day of July, 1993.
 
            
 
                    
 
            
 
                                       ________________________________
 
                                                BYRON K. ORTON
 
                                           INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. David W. Stamp
 
            Attorney at Law
 
            3324 Kimball Ave
 
            P O Box 2696
 
            Waterloo, IA 50704
 
            
 
            Mr. Kevin R. Rogers
 
            Attorney at Law
 
            528 W 4th St
 
            P O Box 1200
 
            Waterloo, IA 50704
 
 
 
 
         
 
       
 
         
 
         
 
         
 
                                 1704; 2302; 3002; 1900; 5-1402.40
 
                                 Filed July 29, 1993
 
                                 Byron K. Orton
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
                     
 
         JAMES W. CARR,   
 
                     
 
              Claimant,   
 
                     
 
         vs.         
 
                                           File Nos. 906851/935598
 
         BLACK HAWK WASTE SYSTEMS,       
 
                                                A P P E A L
 
              Employer,   
 
                                             D E C I S I O N
 
         and         
 
                     
 
         LIBERTY MUTUAL,       
 
                     
 
              Insurance Carrier,    
 
              Defendants.      
 
         _________________________________________________________________
 
         
 
         1703
 
         Where there are two separate injuries, defendants are not allowed 
 
         a credit for overpayment on the second injury to satisfy 
 
         underpayment on the first injury.
 
         
 
         1704; 2302
 
         The agency does not have authority to require that claimant 
 
         reimburse defendants for an overpayment of weekly benefits.
 
         
 
         3002; 1900
 
         Claimant was allowed exemptions in computing the rate of 
 
         compensation for his wife's children (his stepchildren) even 
 
         though wife's earnings may have been higher than his, and also 
 
         for his own natural child for whom he was ordered to pay child 
 
         support though the record did not indicate one way or the other 
 
         regarding whether he actually paid the support, in part or in 
 
         full, or was entitled to claim the child as an income tax 
 
         exemption.
 
         
 
         5-1402.40
 
         Claimant failed to prove that headache complaints and back 
 
         complaints resulted from either of the two injuries which were 
 
         the subject of the action.