BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            GARY HARBAUGH, 
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                               File No. 912866
 
            CITY OF JEFFERSON,  
 
                                                 A P P E A L
 
                 Employer, 
 
                                               D E C I S I O N
 
            and       
 
                      
 
            EMPLOYERS MUTUAL COMPANIES,   
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            The record, including the transcript of the hearing before 
 
            the deputy and all exhibits admitted into the record, has 
 
            been reviewed de novo on appeal.  The decision of the deputy 
 
            filed November 3, 1993 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 May, 1994.
 
            
 
            
 
            
 
                                    ________________________________
 
                                            BYRON K. ORTON
 
                                        INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr Harry W Dahl, III
 
            Attorney at Law
 
            974 73rd St  Suite 16
 
            Des Moines  IA  50312
 
            
 
            Mr David L Jenkins
 
            Attorney at Law
 
            801 Grand Avenue  Suite 3700
 
            Des Moines  IA  50309
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               5-1803
 
                                               Filed May 19, 1994
 
                                               BYRON K. ORTON
 
                           
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            GARY HARBAUGH, 
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                                File No. 912866
 
            CITY OF JEFFERSON,  
 
                                                  A P P E A L
 
                 Employer, 
 
                                                D E C I S I O N
 
            and       
 
                      
 
            EMPLOYERS MUTUAL COMPANIES,   
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            
 
            
 
            5-1803
 
            Claimant was a police officer covered by the City of 
 
            Jefferson's workers' compensation policy.
 
            
 
            He was involved in a fight, and during the next three years 
 
            underwent six surgeries.
 
            
 
            He was fired from the city, and eventually found part-time 
 
            employment as a janitor.
 
            
 
            Claimant, 49 years of age with a high school diploma, was 
 
            awarded 85 percent industrial disability .
 
            
 
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            GARY HARBAUGH,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :        File No. 912866
 
            CITY OF JEFFERSON,            :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            EMPLOYERS MUTUAL COMPANIES,   :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Gary 
 
            Harbaugh against his former employer, The City of Jefferson, 
 
            and its insurance carrier, Employers Mutual Insurance 
 
            Companies.  
 
            
 
                 Claimant, Gary Harbaugh, sustained an injury on March 
 
            16, 1989 which arose out of and in the course of his 
 
            employment.  He seeks additional workers' compensation.  A 
 
            hearing was held in Des Moines, Iowa on September 15, 1993.  
 
            The evidence in the case consists of testimony from the 
 
            claimant and joint exhibits A-L, which include deposition 
 
            testimony from Douglas Koontz, M.D., Scott Neff, D.O., and 
 
            Tony Mack, a physical therapist.  
 
            
 
                                      ISSUES
 
            
 
                 The parties submitted the following issues for 
 
            resolution:
 
            
 
                 1.  Whether claimant is entitled to temporary total, 
 
            temporary partial disability or healing period benefits from 
 
            April 19, 1989 through December 7, 1992
 
            
 
                 2.  Whether claimant is entitled to permanent partial 
 
            disability benefits; and,
 
            
 
                 3.  Whether claimant is entitled to certain medical 
 
            benefits as governed by Iowa Code section 85.27.  
 
            
 
                 Defendants argue that the requested expenses were not 
 
            authorized by them, and the treatment was not causally 
 
            connected to the work injury. 
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The undersigned deputy, having reviewed all of the 
 

 
            
 
            Page   2
 
            
 
            
 
            evidence received, finds the following facts:
 
            
 
                 At the time of the hearing, claimant was 49 years of 
 
            age.  He is married, and has two children.  
 
            
 
                 Claimant graduated from high school in 1962.  
 
            Additional education includes training at the Iowa Law 
 
            Enforcement Academy, and educational seminars.  
 
            
 
                 Claimant's work history includes positions as a gas 
 
            station attendant; production/dock worker for a frozen food 
 
            factory; telephone equipment installer; route person for 
 
            Anderson-Erickson; shoe repair entrepreneur; and 
 
            patrolperson for the police department in Jefferson, Iowa.  
 
            His gross earnings from 1977 through October of 1985 totaled 
 
            $35,000.00.
 
            
 
                 Claimant has worked for the City of Jefferson as a 
 
            police officer during several time periods.  In 1985, the 
 
            Chief of Police asked claimant to return to his prior 
 
            position as a police officer.  The salary ($15,000/year), 
 
            and the benefits (IPERS, health insurance and a uniform 
 
            allowance) coupled with the Chief of Police's reputation and 
 
            the overall management of the department, convinced claimant 
 
            to close his shoe repair business and accept the position.  
 
            His duties ranged from investigating reported crimes and 
 
            traffic accidents to rescuing cats from trees.  Claimant 
 
            stated that he did not have any physical conditions which 
 
            prevented him from fully completing required job duties.  
 
            
 
                 Claimant admitted, and the record confirms that he did 
 
            have prior back problems for which he received treatment 
 
            from several chiropractors.  The care was sporadic, and none 
 
            of the symptoms for which he was treated prevented him from 
 
            performing his job duties.  (Joint Exhibit A).
 
            
 
                 In February of 1989, as claimant was leaving the 
 
            courthouse, he missed a step and jarred his low back.  He 
 
            received five chiropractic treatments.  There is no evidence 
 
            in the record to suggest that claimant sustained any 
 
            permanent injury due to this incident.
 
            
 
                 On March 16, 1989, claimant was working the 11:00 p.m. 
 
            to 7:00 a.m. shift.  At approximately 11:28 p.m., he was 
 
            dispatched to a local bar to stop a fight.  He was familiar 
 
            with the suspected instigator's name and reputation.  Once 
 
            on the scene, the suspect was combative and refused arrest.  
 
            A fight ensued, and claimant received some serious injuries.  
 
            (Jt. Ex. I).  Once the suspect was hand-cuffed and in the 
 
            jail, claimant was sent to the Greene County Medical Center 
 
            emergency room for treatment.  (Jt. Ex. B-1).  He was 
 
            treated and returned to the jail to complete his paperwork.
 
            
 
                 Claimant felt pain "all over" and stayed off of work 
 
            for the next several days.  One week after the incident he 
 
            continued to feel pain in his neck and right shoulder.  On 
 
            March 30, 1989, he was sent back to Lawrence Marshall, M.D., 
 
            a general practitioner at the Greene County Medical Center.  
 
            After several weeks of unsuccessful conservative treatment, 
 
            claimant was referred to Robert Hayne, M.D., a neurosurgeon.  
 

 
            
 
            Page   3
 
            
 
            
 
            After an examination and an MRI, it was determined that 
 
            claimant had sustained a right shoulder injury and a 
 
            herniated disc at the C4-5 level.  Surgical repair of the 
 
            herniation occurred on May 4, 1989, yet claimant continued 
 
            to have problems.  After a course of physical therapy which 
 
            apparently did not relieve claimant's symptoms, further 
 
            investigation found an abnormality at the C5-6 interspace, 
 
            for which Dr. Hayne recommended additional fusion surgery.  
 
            (Jt. Exs. B-2 and B-3).
 
            
 
                 Claimant was sent to Rodney Johnson, M.D., an 
 
            orthopedic specialist.  He diagnosed a non-union of the 
 
            dowel graft of the fusion at the C4-5 level, a bulging disc 
 
            at C3-4 and right shoulder pain, which was treated with 
 
            cortisone injections.  Dr. Johnson recommended a second 
 
            opinion from Douglas Koontz, M.D., a neurologist, who agreed 
 
            with Dr. Johnson's diagnoses and course of treatment.  (Jt. 
 
            Ex. B-4; B-5, pp. 43-49).
 
            
 
                 Claimant underwent cervical exploration and removal of 
 
            the bone graft and an anterior cervical fusion at the C3-4 
 
            and 4-5 levels on January 22, 1990.  He continued to have 
 
            right shoulder pain, and the results of an MRI revealed a 
 
            torn rotator cuff on the right side and degenerative changes 
 
            of the labrum on the left shoulder.  Physical therapy was 
 
            recommended and tried, but claimant continued to experience 
 
            weakness and pain in the right shoulder.  (Jt. Ex. B-11).  
 
            Rotator cuff repair was recommended by Dr. Johnson.  (Jt. 
 
            Ex. B-4).
 
            
 
                 In August of 1990, Dr. Koontz believed that claimant 
 
            had sustained a 17 percent impairment to the body as a whole 
 
            due to the cervical surgeries.  (Jt. Ex. B-5, p. 8).  
 
            Claimant was then referred to Scott Neff, M.D., for further 
 
            treatment of the right shoulder. (Jt. Ex. B-4 and B-5).
 
            
 
                 Dr. Neff saw claimant in August of 1990.  He determined 
 
            that claimant needed to undergo an arthrogram and a CT study 
 
            to determine whether claimant had a torn rotator cuff, and 
 
            whether claimant needed to undergo surgery.  Eventually, 
 
            claimant underwent surgery on the right shoulder to repair a 
 
            torn rotator cuff.  (Jt. Ex. B-7).  Follow-up treatment was 
 
            rendered by Dr. Neff, who recommended physical therapy.  He 
 
            was of the opinion that claimant would be unable to return 
 
            to work as a police officer, and suggested job retraining.  
 
            Permanent restrictions included light or sedentary work 
 
            activities, including office work, parts counter, dispatch 
 
            or records custodian.  He predicted a six month to one year 
 
            healing period following the repair of the rotator cuff.  
 
            (Jt. Ex. B-6, pp. 10-14).  A lengthy letter from Dr. Neff to 
 
            the insurance company, dated December 30, 1991, contains his 
 
            opinion that claimant had sustained a five percent permanent 
 
            impairment to the body as a whole due to the rotator cuff 
 
            tear and repair.  He also stated that the physical therapy 
 
            did not cause, worsen or alter claimant's neck disease and 
 
            pathology.  (Jt. Ex. B-6, pp. 18-20).  In his deposition, 
 
            however, Dr. Neff deferred to Dr. Koontz's opinion regarding 
 
            the causal connection between the exercises and the 
 
            herniation at C5-6. (Jt. Ex. E).
 
            
 

 
            
 
            Page   4
 
            
 
            
 
                 In July of 1991, claimant returned to Dr. Koontz with 
 
            renewed complaints of left arm pain, which appeared during 
 
            the physical therapy program directed at his right and left 
 
            shoulders.  Dr. Koontz's records indicate that an EMG showed 
 
            a pinched nerve at the C6 level, and an MRI showed a disc 
 
            rupture at the C5-6 level.  This was a new development which 
 
            had not appeared on any prior test results.  A cervical 
 
            discectomy and fusion at the C5-6 level was contemplated in 
 
            response to positive findings of a large disc rupture at the 
 
            C5-6 level.  Dr. Koontz believed that because the rupture at 
 
            this level was not present on the previous MRIs, it had 
 
            developed at the same time claimant began to complain of 
 
            left arm numbness and discomfort during physical therapy for 
 
            the shoulders.  (Jt. Ex. B-5, pp. 10-15; B-11).  Later, Dr. 
 
            Koontz expressed his opinion that the physical therapy 
 
            exercises could have contributed to the herniation at the 
 
            C5-6 level.  (Jt. Ex. D, p. 23; B-5).
 
            
 
                 On December 13, 1991, Thomas Bower, a licensed physical 
 
            therapist evaluated claimant.  He determined there was a 13 
 
            percent impairment to claimant's right shoulder, a 5 percent 
 
            impairment to the left upper extremity based on loss of 
 
            range of motion, and an additional 18 percent impairment for 
 
            the "persistent glenohumeral crepitation" in the left upper 
 
            extremity.  Mr. Bower combined the two ratings, and 
 
            determined that claimant had sustained a 14 percent 
 
            impairment to the body as a whole.   He recommended light to 
 
            sedentary work activities.  (Jt. Ex. B-10).  In October of 
 
            1992, Mr. Bower was of the opinion that the physical therapy 
 
            exercises could aggravate claimant's neck condition, but did 
 
            not believe they could be solely responsible for further 
 
            herniation and the subsequent surgery.  (Jt. Ex. B-10).
 
            
 
                 In December of 1991, claimant returned to Dr. Koontz 
 
            and requested surgery to repair the disc rupture at the C5-6 
 
            level.  Dr. Koontz reiterated that the surgery was 
 
            necessitated by a work-related injury, and the same was 
 
            scheduled for January 6, 1992.  The surgery was not 
 
            successful, as the bone plug slipped and resulted in a 
 
            non-fusion at the C5-6 level.  Claimant continued to have 
 
            significant neck and bilateral trapezius and shoulder pain.  
 
            He developed pain and numbness in the right ear and 
 
            developed right eye twitching.  Yet another surgery was 
 
            scheduled for April 1, 1992, and Dr. Koontz used a bone 
 
            graft from claimant's left hip.  (Jt. Ex. B-5, pp. 16-25).
 
            
 
                 Follow-up treatment continued.  Dr. Koontz did not 
 
            believe claimant could return to work as a police officer, 
 
            and recommended vocational rehabilitation.  A conservative 
 
            exercise program was started, and formal physical therapy 
 
            was instituted in October, 1992.  Dr. Koontz also 
 
            recommended work conditioning, work hardening and a 
 
            functional capacity evaluation (FCE).  (Jt. Ex. B-5, pp. 
 
            26-34).
 
            
 
                 The FCE was performed on November 17, 1992.  The report 
 
            indicates that claimant demonstrated maximum effort 
 
            throughout the testing procedures.  In a summary report, it 
 
            was recommended that claimant be placed in a light-medium 
 
            work classification, with lifting of not more than 20 pounds 
 

 
            
 
            Page   5
 
            
 
            
 
            infrequently, and up to 15 pounds on a frequent basis.  He 
 
            was not to perform repetitive lifting above the mid-chest 
 
            level, and was to avoid work activities that would require 
 
            prolonged cervical extension or flexion, repetitive 
 
            rotation, and avoid prolonged exposure to vibration, 
 
            bouncing, jarring of the body.  (Jt. Ex. B-14).  Dr. Koontz 
 
            agreed with the results of the FCE, and released claimant to 
 
            return to work, with the aforementioned restrictions on 
 
            December 7, 1992.  (Jt. Ex. B-5, pp. 35-41).  After 
 
            reviewing the videotape of the physical therapy program 
 
            undertaken by claimant, Dr. Koontz was of the opinion that 
 
            the exercises could "contribute to a disc rupture."   (Jt. 
 
            Ex. B-5, p. 42).  This is especially true in light of the 
 
            fusion above the disc, which cause surrounding discs to 
 
            become more susceptible to herniation, and the degenerative 
 
            nature of claimant's disc at the C5-6 level. (Jt. Ex. D).
 
            
 
                 In April of 1993, the defendant employer terminated 
 
            claimant, stating that he was "no longer able to perform 
 
            duties as a Police Patrolman."  Claimant was given a 
 
            severance package of $2,000.00, a month of health insurance, 
 
            and best wishes from the mayor of Jefferson, Charles Davis.  
 
            (Jt. Ex. K).
 
            
 
                 Claimant has undertaken an extensive job search, and 
 
            currently holds a part-time position with the hospital.  His 
 
            job duties include custodial work.  The undersigned believes 
 
            he secured this employment on his own.  Even though 
 
            Intracorp representatives tried to help claimant identify 
 
            transferable skills and appropriate positions, most of their 
 
            efforts were directed at commission sales positions, in 
 
            which claimant had no interest.  
 
            
 
                 Other evidence submitted and reviewed includes 
 
            voluminous records from Intracorp, Nye Consulting, 
 
            claimant's answers to interrogatories; various test results 
 
            from Mercy Hospital and Methodist Hospital; a videotape of 
 
            the exercises performed by claimant at physical therapy; and 
 
            a listing of the City of Jefferson's personnel needs.  (Jt. 
 
            Exs. B-8, B-9, B-12, B-13, C, H and J).
 
            
 
                         ANALYSIS AND CONCLUSIONS OF LAW
 
            
 
                 The first issue to address is whether claimant is 
 
            entitled to temporary total or healing period benefits from 
 
            April 19, 1989 through December 7, 1992. 
 
            
 
                 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. App. P. 14(f).
 
            
 
                 As claimant has sustained a work-related injury, the 
 
            next issue to be addressed is entitlement to temporary total 
 
            or healing period benefits and/or permanent partial or total 
 
            disability benefits.
 
            
 
                 In order for claimant to be awarded temporary total 
 
            disability benefits, he must meet the criteria set out in 
 
            Iowa Code section 85.33, which states, in relevant part:
 
            
 

 
            
 
            Page   6
 
            
 
            
 
                    Except as provided in subsection 2 of this 
 
                 section, the employer shall pay to an employee for 
 
                 injury producing temporary total disability weekly 
 
                 compensation  benefits,...until the employee has 
 
                 returned to work or is medically capable of 
 
                 returning to employment substantially similar to 
 
                 the employment in which the employee was engaged 
 
                 at the time of injury, whichever occurs first.
 
            
 
                 In order to be awarded healing period benefits, 
 
            claimant must prove that he falls within the provisions of 
 
            Iowa Code section 85.34(1), which states in pertinent part:
 
            
 
                    If an employee has suffered a personal injury 
 
                 causing permanent partial disability..., the 
 
                 employer shall pay to the employee compensation 
 
                 for a healing period,...beginning on the date of 
 
                 injury, and until the employee has returned to 
 
                 work or it is medically indicated that significant 
 
                 improvement from the injury is not anticipated or 
 
                 until the employee is medically capable of 
 
                 returning to employment substantially similar to 
 
                 the employment in which the employee was engaged 
 
                 at the time of injury, whichever occurs first.
 
            
 
                 Healing period benefits are generally characterized as 
 
            that period during which there is a reasonable expectation 
 
            of improvement of a disabling condition  which ends when 
 
            maximum medical improvement is reached.  Armstrong Tire & 
 
            Rubber Co. v. Kubli, 312 N.W.2d 60, 65 (Ia. Ct. App. 1984).   
 
            
 
                 Claimant has endured a long, slow healing process.  
 
            While he has been seen by numerous healthcare providers, the 
 
            primary physicians associated with his case include Dr. 
 
            Koontz, Dr. Neff and Dr. Hayne.  Throughout the case, 
 
            claimant has undergone treatment to both his neck and 
 
            shoulders.  After the final surgery to the neck, claimant 
 
            was released to return to work, with restrictions, on 
 
            December 7, 1992.  Not only does claimant have severe 
 
            restrictions, but he also has permanent impairments to the 
 
            body as a whole which are substantial.  
 
            
 
                 The greater weight of the evidence supports a finding 
 
            that claimant sustained a permanent injury which arose out 
 
            of and in the course of his employment.  The record also 
 
            shows by a preponderance of the evidence that during April 
 
            19, 1989 through December 7, 1992, claimant was in a healing 
 
            period and undergoing treatment for his injuries.  
 
            
 
                 As a result, claimant is awarded healing period 
 
            benefits from April 19, 1989 through December 7, 1992. 
 
            
 
                 The next issue to address is claimant's industrial 
 
            disability. 
 
            
 
                 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 
 

 
            
 
            Page   7
 
            
 
            
 
            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 
 
            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).
 
            
 
                 Currently, claimant is 49 years old with a high school 
 
            diploma.  Additional education has centered on classes taken 
 
            at the Law Enforcement Academy.  
 
            
 
                 Claimant's work history is interesting.  It appears his 
 
            job as a patrolperson has provided him with the most steady 
 
            work and income during his working years.  
 
            
 
                 He appeared to possess above average intelligence, and 
 
            claimant demonstrated motivation to return to a suitable job 
 
            once he completed his courses of treatment.  He was amenable 
 

 
            
 
            Page   8
 
            
 
            
 
            to recommendations made by the physicians and physical 
 
            therapists associated with his care.  
 
            
 
                 Claimant has permanent restrictions and impairments 
 
            related to the neck injury.  Dr. Neff did not assign any 
 
            restrictions with respect to his shoulders, yet claimant 
 
            continues to feel pain between the shoulder blades and his 
 
            lower neck.  According to claimant, the three fusions to the 
 
            cervical spine have hampered claimant's ability to drive, 
 
            look over his shoulder, look up and down, and affected the 
 
            fine motor sensitivity of the left hand.  Claimant is able 
 
            to walk and ride a bike for exercise.  
 
            
 
                 Claimant has severe restrictions with respect to 
 
            activities he can perform.  Almost every job requires 
 
            frequent turning and twisting of the neck.  Even the most 
 
            sedentary of jobs, such as a desk job, requires on to bend 
 
            the neck on a somewhat repetitive basis.  Claimant's current 
 
            position, which he secured on his own, allows him to work at 
 
            his own pace and within his restrictions.  His hourly rate 
 
            is substantially lower than his wages as a police officer.  
 
            
 
                 After considering all of the factors outlined above, 
 
            including the employer's termination of claimant; the 
 
            numerous surgeries undergone by claimant; claimant's 
 
            inability to return to work as a police officer; his 
 
            motivation to return to work; the length of the healing 
 
            period; the nature of the injuries; claimant's past 
 
            earnings; and, his ability to perform his current job 
 
            duties, it is found that he has sustained an 85 percent 
 
            industrial disability. 
 
            
 
                 The next issue to address is whether claimant is 
 
            entitled to payment of certain medical benefits totalling 
 
            $31,122.74.    Apparently, these bills are associated with 
 
            the final fusion, performed in December of 1991.  
 
            
 
                 Defendants argue that these costs are not casually 
 
            related to the original injury.  They also raise the 
 
            affirmative defense that the requested expenses were not 
 
            authorized by them.  
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury is a proximate 
 
            cause of the disability on which the claim is based.  A 
 
            cause is proximate if it is a substantial factor in bringing 
 
            about the result; it need not be the only cause.  A 
 
            preponderance of the evidence exists when the causal 
 
            connection is probable rather than merely possible.  
 
            Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 
 
            1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 
 
            (Iowa 1974).
 
            
 
                 The question of causal connection is essentially within 
 
            the domain of expert testimony.  The expert medical evidence 
 
            must be considered with all other evidence introduced 
 
            bearing on the causal connection between the injury and the 
 
            disability.  The weight to be given to any expert opinion is 
 
            determined by the finder of fact and may be affected by the 
 
            accuracy of the facts relied upon by the expert as well as 
 

 
            
 
            Page   9
 
            
 
            
 
            other surrounding circumstances.  The expert opinion may be 
 
            accepted or rejected, in whole or in part.  Sondag v. Ferris 
 
            Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar 
 
            Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, 
 
            Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
 
            
 
                 The undersigned is compelled to rely upon expert 
 
            opinion to determine this issue.  Dr. Koontz, who became 
 
            claimant's treating physician after the first failed fusion, 
 
            believes that the exercises performed during the physical 
 
            therapy could aggravate a preexisting condition, in this 
 
            case a herniated disc and cause it to become symptomatic.  
 
            
 
                 Dr. Neff at one time stated emphatically that the 
 
            exercises could not cause a herniated disc.  Dr. Neff 
 
            treated claimant for his shoulder problems, and later 
 
            deferred to Dr. Koontz's opinions.
 
            
 
                 The undersigned feels compelled to accept Dr. Koontz's 
 
            explanation of the factors that led to the herniation of the 
 
            disc at C5-6.  While treating physicians' opinions are not, 
 
            in all instances, offered greater weight, Dr. Koontz treated 
 
            claimant for all but the first surgery to the cervical 
 
            spine.  He is familiar with claimant's condition prior to 
 
            the course of physical therapy directed at claimant's 
 
            shoulder.  He was also shown most of the exercises claimant 
 
            performed during the physical therapy sessions.  Both he and 
 
            Dr. Neff believed claimant, who stated to both that the 
 
            symptoms associated with the C5-6 herniation appeared 
 
            following a therapy session.  Both physicians are 
 
            well-qualified and provided detailed testimony, explaining 
 
            the mechanics and causes of herniated discs.  In the final 
 
            analysis, one's testimony complements the others, and Dr. 
 
            Neff deferred to Dr. Koontz's final determinations regarding 
 
            causation of the C5-6 herniation. 
 
            
 
                 As a result, it is determined that claimant is to be 
 
            reimbursed for medical expenses totaling $31,122.74.00 
 
            associated with the final surgeries.
 
            
 
                 Defendants' argument that the expenses were not 
 
            authorized will not be addressed, as they denied liability 
 
            for this particular condition.  As stated many times by the 
 
            agency, the defendants must admit compensability before they 
 
            can direct the course of a claimant's medical treatment.  
 
            See, Hameister V. Park View Manor (App. Decsn., file 
 
            #721585, filed October 31, 1986).
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendants shall pay claimant healing period 
 
            benefits from April 19, 1989 through December 7, 1992.
 
            
 
                 That defendant shall pay claimant permanent partial 
 
            disability benefits for four hundred twenty-five (425) weeks 
 
            beginning December 8, 1992, at the rate of two hundred 
 
            thirty-five and 93/100 dollars ($235.93) per week.
 
            
 

 
            
 
            Page  10
 
            
 
            
 
                 That defendants shall pay the costs of claimant's 
 
            medical benefits, as provided by Iowa Code section 85.27.
 
            
 
                 That defendants shall pay accrued weekly benefits in a 
 
            lump sum.
 
            
 
                 That defendants shall pay interest on benefits awarded 
 
            herein as set forth in Iowa Code section 85.30.
 
            
 
                 That defendants shall pay the costs of this action, 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 That defendants shall file an activity report upon 
 
            payment of this award as required by this agency, pursuant 
 
            to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of November, 1993.
 
            
 
            
 
            
 
            
 
                                          
 
                                        ________________________________
 
                                          PATRICIA J. LANTZ
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr Harry W Dahl
 
            Attorney at Law
 
            974 73rd St  Ste 16
 
            Des Moines IA 50312
 
            
 
            Mr David L Jenkins
 
            Attorney at Law
 
            801 Grand Ave  Ste 3700
 
            Des Moines IA 50309-2727
 
            
 
            
 
 
            
 
 
 
 
 
 
 
                                            5-1803
 
                                            Filed November 3, 1993
 
                                            Patricia J. Lantz
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            GARY HARBAUGH,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :        File No. 912866
 
            CITY OF JEFFERSON,            :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            EMPLOYERS MUTUAL COMPANIES,   :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-1803
 
            Claimant was a police officer covered by the City of 
 
            Jefferson's workers' compensation policy.
 
            He was involved in a fight, and during the next three years 
 
            underwent six surgeries.
 
            He was fired from the city, and eventually found part-time 
 
            employment as a janitor.
 
            Claimant, 49 years of age with a high school diploma, was 
 
            awarded 85 percent industrial disability .
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
            _____
 
                                            :
 
            FLOYD J. ELLIOTT,               :
 
                                            :
 
                 Claimant,                  :
 
                                            :
 
            vs.                             :
 
                                            :       File No. 912957
 
            FIRESTONE TIRE & RUBBER CO.,    :
 
                                            :          A P P E A L
 
                 Employer,                  :
 
                                            :        D E C I S I O N
 
            and                             :
 
                                            :
 
            CIGNA,                          :
 
                                            :
 
                 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
 
            
 
                 Those portions of the proposed agency decision 
 
            pertaining to issues not raised on appeal are adopted as a 
 
            part of this appeal decision.  The issue raised on appeal is 
 
            whether or not the evidence at hearing supports the finding 
 
            of a 30 percent industrial disability award to the claimant.
 
            
 
                                 findings of fact
 
            
 
                 The findings of fact contained in the proposed agency 
 
            decision filed May 6, 1991 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.
 
            
 
                 Claimant testified both in person and through his 
 
            deposition taken on August 23, 1990.  Claimant is a 
 
            37-year-old who left high school in the twelfth grade but 
 
            shortly thereafter obtained his GED.  Claimant has had no 
 
            other formal education.
 
            
 
                 Claimant described his work history up to his 
 
            employment with defendant employer beginning in February 
 
            1988.  This history involved working as a bottle sorter, 
 
            stocker and grocery deliverer, painting houses, working as a 
 
            mechanic on trucks, driving trucks for the city of Windsor 
 
            Heights, gas station mechanic, operating his own insulation 
 
            business, and repairing and cleaning air conditioners.  
 
            Claimant indicated his mechanic ability was self-taught and 
 
            by observing his father as his father worked on machinery.  
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            He said the current autos with computers are beyond his 
 
            knowledge to repair (Joint Exhibit 7, page 5).  This exhibit 
 
            sets out in more detail claimant's work history generally 
 
            referred to above.
 
            
 
                 Claimant describe his jobs and their nature while 
 
            working for defendant employer (Jt. Ex. 10, pp. 14, 15).
 
            
 
                 Claimant said he started having shoulder problems and 
 
            left hand pain up his arms into his shoulder on May 6, 1988.  
 
            He was given medicine and then a shot and put on light duty.  
 
            He said his pain became worse and also started in his right 
 
            shoulder.  Claimant said he worked right up to a month 
 
            before his surgery.  Claimant had carpal tunnel left hand 
 
            surgery on September 7, 1988.  He was off two days and 
 
            returned to work with a half-cast on his hand.  His job at 
 
            that time was to pull rejected tires.
 
            
 
                 On November 11, 1988, claimant was pulling tread off a 
 
            tire with a hook which pulled through the rubber causing 
 
            claimant to fall back and hit his low back on a guardrail.  
 
            He reported this on November 11, 1988 to defendant employer 
 
            (Jt. Ex. 1, p. 75A).  Claimant hurt but continued to work.  
 
            Claimant said one of the company doctors told him there was 
 
            nothing wrong with him while another said there was a 
 
            problem (Jt. Ex. 10, p. 24).  Claimant said defendant 
 
            employer finally transferred him approximately one month 
 
            later to the fork lift position.  Claimant received therapy, 
 
            ice packs and ultrasound.  Claimant worked until the end of 
 
            June 1988, but he said the pain in his left leg was so 
 
            severe that he fell twice as his leg would go to sleep.
 
            
 
                 Thomas A. Carlstrom, M.D., performed a lumbar 
 
            laminectomy L5-S1 on claimant on July 21, 1989 (Jt. Ex. 1, 
 
            p. 44).  Claimant was off eight weeks.
 
            
 
                 Claimant said his left leg got better but his back did 
 
            not.  The pain eventually shifted to his right side.  
 
            Claimant indicated his job with defendant employer upon his 
 
            return to work was driving a jeep fork lift and he could not 
 
            keep up with the work.
 
            
 
                 Claimant worked until October 24, 1989, at which time 
 
            he was terminated for having falsified his application.
 
            
 
                 Claimant went to work for Harkin Glass Company as a 
 
            driver in January 1990 to May 1990.  He said his pain was so 
 
            bad all the time and was becoming worse, so he quit.  He did 
 
            not file for workers' compensation against that company.  
 
            Claimant then worked driving a semi to Fort Dodge and back 
 
            delivering mail once or twice a week.  This required no 
 
            loading or unloading.  Claimant said he could not do this 
 
            anymore due to his condition.  Claimant found no other work 
 
            so he went back to defendant employer to see about a job in 
 
            November 1990.
 
            
 
                 Claimant said Dr. Carlstrom did another MRI and more 
 
            therapy was prescribed in November 1990 until the end of 
 
            January 1991, when he was released from therapy.  Claimant 
 
            indicated it was recommended he sign up for swimming and 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            whirlpool three times a week for six weeks.  Claimant 
 
            emphasized the insurance company would not pay for this.
 
            
 
                 Dr. Carlstrom was called to Saudi Arabia so claimant 
 
            couldn't see him again.  Claimant said the insurance would 
 
            not pay for another doctor so claimant attempted to find his 
 
            own doctor.  Claimant said he tried to find several doctors 
 
            but no one wanted to dispute Dr. Carlstrom.  Claimant 
 
            eventually called Robert Jones, M.D., who called back two 
 
            weeks later and agreed to see claimant.  He said Dr. Jones 
 
            recommended another MRI and after his second visit 
 
            recommended claimant go to a pain clinic or Sister Kenney 
 
            Hospital, in Minneapolis.
 
            
 
                 Claimant was asked about his prior injuries or 
 
            accidents.  He related a 1973 hernia when he got kicked, but 
 
            he had no surgery.  In 1974, he was struck in the head and 
 
            appeared to have had a workers' compensation settlement but 
 
            he remembers nothing about this incident.  He said it 
 
            appears his signature is on the paper.  In January 1979, 
 
            claimant was off work five weeks due to pain in his lower 
 
            back caused by a tow truck accident.  He described his 1979 
 
            injury in his deposition as a hip injury involving a socket.  
 
            He said he had back problems for one and one-half years 
 
            thereafter.
 
            
 
                 Claimant was asked about the Firestone medical records 
 
            and history that he filled out and in which he answered "no" 
 
            to all the medical questions (Jt. Ex. 1, pp. 65, 66).  
 
            Claimant said he denied any prior problems in order to get a 
 
            job.  He said he felt good and was having no problem or back 
 
            pain at that time.  He said Firestone did a physical and 
 
            took x-rays and found no problems.
 
            
 
                 On cross-examination, claimant acknowledged he also had 
 
            a 1977 auto accident causing neck and right shoulder injury, 
 
            which he doesn't recall, and a 1978 minor right elbow 
 
            injury.  Claimant's records reflect that he hurt his right 
 
            elbow on January 7, 1989, at work (Jt. Ex. 1, pp. 176, 185, 
 
            217 and 223).  It appears to the undersigned that there is 
 
            no evidence in the record of any residual permanent 
 
            impairment or lingering problems from these injuries.
 
            
 
                 Claimant was asked about a herniated disc determination 
 
            of a  Douglas W. Brenton, M.D., in a 1987 low back problem 
 
            in which a CT scan on March 11, 1987 showed a herniated disc 
 
            at L5-S1 (Jt. Ex. 1, pp. 21-24).  Claimant eventually 
 
            remembered the event but not the herniation.  Although at 
 
            times it seemed unbelievable that claimant would forget 
 
            certain injuries, it is noted that claimant had retrograde 
 
            amnesia, as noted in the January 1979 medical record (Jt. 
 
            Ex. 1, p. 219).
 
            
 
                 Claimant said that when he returned to the fork lift 
 
            light duty job on September 13, 1989, he was making $11.00 
 
            per hour and anticipated continuing that job to the current 
 
            day if he had not been terminated due to his false 
 
            application.  At the time of his November 1988 injury, 
 
            claimant was making $11.00 per hour.
 
            
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                 Claimant acknowledged that defendants had Lorraine 
 
            Hackett attempt to help him with a vocational rehabilitation 
 
            plan, which he agreed to.  He said he changed his plan 
 
            because defendants were not paying his medical bills.  He 
 
            also related his wife did not want him to go to a woman 
 
            vocational rehabilitation person.  Jack Reynolds was then 
 
            assigned to the case.
 
            
 
                 Claimant's complaints basically are sore shoulders, 
 
            left more than right, and the feeling gone in his two lower 
 
            fingers of his left hand.  Claimant acknowledged he did not 
 
            check with defendant insurance company before he went to Dr. 
 
            Jones.
 
            
 
                 Lorraine Hackett, a rehabilitation consultant, 
 
            testified her first contact with claimant was in September 
 
            1990.  She related the history, records and test results she 
 
            had.  She said claimant had an excellent mechanical aptitude 
 
            and good communication skills.  She concluded and targeted 
 
            the job areas for claimant which ranged from $7.00 up to 
 
            $10.50 per hour.  She gave claimant job leads and he was 
 
            also to seek jobs on his own.  She said claimant seemed 
 
            enthusiastic and followed up.  Her last contact with 
 
            claimant was on November 5, 1990, and she understood 
 
            claimant's wife objected to him working with a woman so his 
 
            case was transferred to Jack Reynolds.  Claimant was called 
 
            on January 4, 1991, and he said he would not cooperate until 
 
            his bills were paid.  She said the state rehabilitation 
 
            became involved but claimant did not keep his appointment.
 
            
 
                 Ms. Hackett helped claimant with his resume but she did 
 
            not recommend claimant become a mechanic due to his 
 
            restrictions nor does she recommend painting due to working 
 
            overhead or heavy lifting.  Dr. Carlstrom had told him to 
 
            avoid heights.  Ms. Hackett said claimant could do the fork 
 
            lift job today and that Dr. Carlstrom also said he could 
 
            return to that job.  Jack Reynolds' report of March 1, 1991 
 
            (Jt. Ex. 3), indicates claimant did not wish to accept any 
 
            vocational rehabilitation services.  Claimant complained of 
 
            problems but it doesn't appear he was helping himself to the 
 
            extent that he could (Jt. Ex. 3, p. 79).
 
            
 
                 Joint Exhibit 4 reflects some of claimant's job search 
 
            efforts.  Joint Exhibit 6, page 13, is a letter from 
 
            defendant employer's manager of the heavy duty tire building 
 
            department regarding claimant's attendance record.  Page 15 
 
            shows claimant as one of several persons on said exhibit who 
 
            have injuries.  It indicates these people would serve 
 
            defendant employer in another capacity and add value to 
 
            their products.
 
            
 
                 Thomas A. Carlstrom, M.D., saw claimant on June 21, 
 
            1989, at which time claimant had symptoms of left L5 
 
            radiculopathy with pain in back and left leg radiating to 
 
            the lateral portion of claimant's foot.  He indicated this 
 
            was similar to claimant's symptoms six to eight months ago 
 
            and also two years ago.  The doctor indicated claimant's CT 
 
            scan in 1987 also shows a small herniated disc at L5-S1, but 
 
            on the 1989 CT scan it was larger.  A CT scan on April 1, 
 
            1983 shows the same thing as the 1987 CT scan (Jt. Ex. 1, p. 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            192).
 
            
 
                 On July 21, 1989, claimant had a laminectomy for a 
 
            herniated disc at L5-S1 left.  A very large herniated disc 
 
            was found at that level (Jt. Ex. 1, p. 43).
 
            
 
                 On November 16, 1990, Dr. Carlstrom wrote a letter 
 
            which is confusing in part, as he refers to an injury in the 
 
            early part of 1989.  Looking at all the evidence and taking 
 
            Dr. Carlstrom's medical as a whole, it is concluded that the 
 
            injury he was referring to was, in fact, on November 11, 
 
            1988, rather than an injury in the early part of 1989.  
 
            There is no other evidence or record.  Dr. Carlstrom 
 
            referred to claimant as having an old history of a herniated 
 
            lumbar disc and that he had some persistent symptoms 
 
            throughout his history even though he was able to work.  He 
 
            then opined that approximately one-third of claimant's 
 
            impairment should be referred back to his prior injury.  As 
 
            it is concluded, the doctor is referring to claimant's 
 
            injury prior to November 1988, therefore, claimant would 
 
            have an approximate eight percent impairment from his 
 
            November 11, 1988 injury.  There appears to be attached to 
 
            this letter, and marked as Joint Exhibit 1, pages 3 and 4, 
 
            the apparent restrictions that Dr. Carlstrom placed on 
 
            claimant.  There is no evidence that these were ever 
 
            removed.  Apparently, these restrictions, in part, are that 
 
            claimant is limited to occasional lifting or carrying of 30 
 
            pounds and frequently 20 pounds, and restricted from 
 
            heights.  He indicated claimant could not return to his 
 
            former job, but that he could return to other work with 
 
            restrictions defined herein.  It is apparent from the record 
 
            and from the rehabilitation consultant that Dr. Carlstrom 
 
            did approve of claimant returning to his lighter duty fork 
 
            lift job that he was doing at the time he was terminated.  
 
            On this same report, the doctor indicated claimant's total 
 
            impairment was 12 percent.  By reducing that one-third, he 
 
            arrived at the eight percent referred to above.
 
            
 
                 Claimant attended the Iowa Methodist Low Back Institute 
 
            and received physical therapy there several days between 
 
            September 20, 1990 and December 7, 1990.  Upon his release, 
 
            the institute's assessment of claimant was that they could 
 
            see little benefit to claimant from pursuing additional 
 
            physical therapy intervention and they found little 
 
            improvement in function.
 
            
 
                 A.B. Grundberg, M.D., on May 8, 1990, opined that 
 
            claimant had a three percent permanent impairment of his 
 
            left hand from claimant's left carpal tunnel syndrome and 
 
            that the healing period ended on November 20, 1989 (Jt. Ex. 
 
            1, pp. 29 and 30).  Claimant's medical indicates he was 
 
            having problems with his left hand with pain in his 
 
            shoulders.  Dr. Grundberg diagnosed on September 15, 1988 
 
            that claimant had a left carpal tunnel syndrome and bursitis 
 
            in his left shoulder (Jt. Ex. 1, p. 34).  He later 
 
            determined that claimant also had a narrowing between C6 and 
 
            7 (Jt. Ex. 1, p. 39).
 
            
 
                 On May 6, 1988, claimant complained to defendant 
 
            employer that his right shoulder was getting sore from 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            building tires on the B-3 tire machine (Jt. Ex. 1, p. 73).  
 
            On May 13, 1988, claimant told defendant employer his left 
 
            shoulder was bothering him from throwing stock while 
 
            building tires on a B-3 tire machine (Jt. Ex. 1, p. 78).
 
            
 
                 There is no dispute involving any injury herein as to 
 
            the healing period.  As mentioned earlier, and as discussed 
 
            by the parties, the May 6, 1988 and September 5, 1988 
 
            alleged injuries involved one injury and the parties agreed 
 
            that the September 5, 1988 injury is encompassed within the 
 
            May 6, 1988 injury.  For that reason, there will be no 
 
            further reference to the September 5, 1988 injury, 
 
            represented by file No. 923688, until the conclusion and 
 
            order.
 
            
 
                 Regarding the May 6, 1988 injury, the parties are 
 
            basically arguing over whether this injury was to claimant's 
 
            body as a whole or was solely a scheduled member injury to 
 
            claimant's left hand.  Although there is reference in the 
 
            record as to claimant's shoulder bothering him, claimant has 
 
            the burden of proof to show there is a permanent 
 
            work-related injury to his shoulder which would involve his 
 
            body as a whole.  The greater weight of medical evidence 
 
            does not show any permanent impairment or injury to 
 
            claimant's shoulder or body as a whole as a result of a May 
 
            6, 1988 injury.  Although there is some reference in the 
 
            record as to claimant's right elbow, there likewise is no 
 
            evidence of any permanent impairment or injury as a result 
 
            of a May 6, 1988 injury.  There is reference that claimant 
 
            hurt his right elbow on January 7, 1989, at work (Jt. Ex. 1, 
 
            p. 76).  It is found that the claimant incurred, as found by 
 
            Dr. Grundberg, a three percent permanent impairment to his 
 
            left hand resulting from his carpal tunnel syndrome (Jt. Ex. 
 
            1, pp. 29 and 30).
 
            
 
                 As to the other issue concerning this injury, 
 
            defendants are questioning the causal connection of the 
 
            injury to any permanent impairment.  It would appear from 
 
            the record and statements of counsel that the causal 
 
            connection dispute is really regarding the causal connection 
 
            of any permanency to the body as a whole or any greater 
 
            permanency than the three percent found by Dr. Grundberg.  
 
            It is found that there is no causal connection to claimant's 
 
            alleged body as a whole injury to a May 6, 1988 injury nor 
 
            any greater permanent impairment than three percent to his 
 
            left hand.  It is also found that there is a causal 
 
            connection between claimant's three percent permanent 
 
            impairment to his left hand and his May 6, 1988 injury.  
 
            Therefore, claimant is entitled to 5.7 weeks of permanent 
 
            partial disability benefits (190 x 3% = 5.7 weeks).
 
            
 
                 As to claimant's November 11, 1988 injury, all the 
 
            healing period has been paid so the only dispute is whether 
 
            there is a causal connection to claimant's alleged permanent 
 
            disability and the injury and if there is any permanent 
 
            disability, the extent, thereof, if any.  Claimant has had a 
 
            history of back problems as reflected in the records of Dr. 
 
            Brenton, neurologist, dated March 13, 1987, in which he 
 
            refers to claimant's lumbar spine CT scan.  It shows a 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            herniated disc at L5-S1 centrally and on the left (Jt. Ex. 
 
            1, p. 22).  The department of radiology at the Iowa 
 
            Methodist Medical Center, on March 11, 1987, refers to a 
 
            "mild herniation or protrusion of disc material." (Jt. Ex. 
 
            1, p. 63)
 
            
 
                 There is no evidence that claimant was unable to work 
 
            or that his work was hampered by any herniated disc problem 
 
            prior to his November 11, 1988 injury.  Although the company 
 
            doctors initially had claimant continue on with work and 
 
            even though they attempted to accommodate claimant, the 
 
            greater weight of medical evidence and other facts in this 
 
            case show that claimant was bothered and hampered by a back 
 
            condition after his November 11, 1988 injury, and that he 
 
            had a laminectomy performed by Dr. Carlstrom in July 1989 at 
 
            L5-S1 at which time it was found that the condition was much 
 
            larger than the condition found in 1987.  There is no 
 
            indication of any surgery needed in 1987 to correct 
 
            claimant's condition.  Dr. Carlstrom opined that claimant 
 
            had a 12 percent permanent impairment of which he relates 
 
            1/3 or 4 percent to claimant's preexisting situation or 
 
            condition and eight percent to a subsequent injury.  As 
 
            referred to earlier, Dr. Carlstrom refers to an early 1989 
 
            injury and has no reference in any respect to a November 11, 
 
            1988 injury.  It is found that the doctor was referring to 
 
            the November 11, 1988 injury rather than an early 1989 
 
            injury.  The greater weight of medical testimony shows that 
 
            claimant's July 21, 1989 laminectomy was causally connected 
 
            to claimant's November 11, 1988 injury and that claimant's 
 
            impairment was causally connected to said November 11, 1988 
 
            injury.  It is further found that claimant had a preexisting 
 
            condition at L5-S1 which involved a mild herniated disc 
 
            protrusion which had not prevented claimant from working and 
 
            did not need surgical intervention.  It is found that 
 
            claimant's November 11, 1988 injury substantially and 
 
            materially exacerbated and lighted up claimant's preexisting 
 
            condition, resulting in claimant incurring the July 1989 
 
            surgery and additional eight percent permanent impairment.  
 
            The undersigned finds that claimant has certain lifting and 
 
            climbing restrictions all set out in Joint Exhibit 1, pages 
 
            3 and 4, and these are causally connected to claimant's 
 
            November 11, 1988 injury.
 
            
 
                 *****
 
            
 
                 ***** The rehabilitation consultant acknowledges that 
 
            claimant could not return to the job he had on November 11, 
 
            1988, nor could he perform his painting jobs that he had 
 
            performed during his earlier work history.  Although 
 
            claimant has a mechanical aptitude, it is obvious from the 
 
            evidence that he picked this up by watching others and that 
 
            with the modern day machinery and vehicles and 
 
            computerization, claimant would be hampered by a lack of 
 
            education in that area even though he possibly could learn 
 
            it.  A letter from the manager of the heavy duty tire 
 
            building department indicates the manager believed that 
 
            claimant could make a meaningful contribution to the 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            commercial tire business and add value to Firestone's 
 
            products.  This is evidenced by the October 20, 1988 letter 
 
            which is an interdepartment correspondence (Jt. Ex. 6, p. 
 
            13).
 
            
 
                 Claimant is 37 years old but has limited skills and 
 
            permanent restrictions and his work history has basically 
 
            been involving labor and heavier duty work.  Taking into 
 
            consideration claimant's age, education, work experience 
 
            prior to the injury, transferable skills, his medical 
 
            history prior to the November 11, 1988 injury and subsequent 
 
            thereto, claimant's preexisting condition, the nature and 
 
            location of his injury, the extent of his healing period, 
 
            the functional impairment, the employer's refusal to 
 
            continue claimant's employment and claimant's inability to 
 
            find other suitable work after making some bona fide effort, 
 
            it is concluded that claimant has a 30 percent industrial 
 
            disability and that this disability was causally connected 
 
            to his November 11, 1988 injury.
 
            
 
                 The remaining issue is whether claimant is entitled to 
 
            have his Mercy Hospital bill and Dr. Jones' bill paid.  It 
 
            appears the bills in dispute are the Mercy Hospital bill set 
 
            out in Joint Exhibit 2, pages 1 through 7, and Dr. Jones' 
 
            bill that has not been received yet but is anticipated to be 
 
            in the amount of $144.  It would appear that claimant was 
 
            denied any further care for any permanency regarding his 
 
            back injury of November 11, 1988, and that at the time these 
 
            bills were incurred they were denying any further liability.  
 
            They were, in fact, denying that Dr. Carlstrom's July 1989 
 
            surgery was causally connected.  It is found that claimant 
 
            was entitled to obtain this medical to help solve his 
 
            problems and although there is not any evidence that he was 
 
            helped, there is likewise no evidence that this care didn't 
 
            help to determine if claimant could get additional recovery 
 
            from his complaints and condition caused by the November 11, 
 
            1988 injury.  Dr. Carlstrom was sent to Saudia Arabia and 
 
            defendants should have made another doctor available.  *****
 
            
 
                                conclusions of law
 
            
 
                 The conclusions of law contained in the proposed agency 
 
            decision filed May 6, 1991 are adopted as set forth below.  
 
            Segments designated by brackets ([ ]) indicate language that 
 
            is in addition to the language of the proposed agency 
 
            decision.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injuries of November 
 
            11, 1988 and May 6, 1988 are 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). 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            
 
                 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).
 
            
 
                 While a claimant is not entitled to compensation for 
 
            the results of a preexisting injury or disease, the mere 
 
            existence at the time of a subsequent injury is not a 
 
            defense.  Rose v. John Deere Ottumwa Works, 247 Iowa 900, 
 
            908, 76 N.W.2d 756, 760-61 (1956).  If the claimant had a 
 
            preexisting condition or disability that is aggravated, 
 
            accelerated, worsened or lighted up so that it results in 
 
            disability, claimant is entitled to recover.  Nicks v. 
 
            Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, 815 
 
            (1962).
 
            
 
                 When an aggravation occurs in the performance of an 
 
            employer's work and a causal connection is established, 
 
            claimant may recover to the extent of the impairment.  
 
            Ziegler v. United States Gypsum Co., 252 Iowa 613, 620, 106 
 
            N.W.2d 591, 595 (1960).
 
            
 
                 The Iowa Supreme Court cites, apparently with approval, 
 
            the C.J.S. statement that the aggravation should be material 
 
            if it is to be compensable.  Yeager v. Firestone Tire & 
 
            Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961); 100 C.J.S. 
 
            Workmen's Compensation sec. 555(17)a.
 
            
 
                 An employer takes an employee subject to any active or 
 
            dormant health impairments, and a work connected injury 
 
            which more than slightly aggravates the condition is 
 
            considered to be a personal injury.  Ziegler v. United 
 
            States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591 (1960), 
 
            and cases cited.
 
            
 
                 An employee is not entitled to recover for the results 
 
            of a preexisting injury or disease but can recover for an 
 
            aggravation thereof which resulted in the disability found 
 
            to exist.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 
            125 N.W.2d 251 (1963); Yeager, 253 Iowa 369, 112 N.W.2d 299; 
 
            Ziegler, 252 Iowa 613, 106 N.W.2d 591.  See also Barz v. 
 
            Oler, 257 Iowa 508, 133 N.W.2d 704 (1965); Almquist v. 
 
            Shenandoah Nurseries, 218 Iowa 724, 254 N.W. 35 (1934).
 
            
 
                 If a claimant contends he has industrial disability he 
 
            has the burden of proving his injury results in an ailment 
 
            extending beyond the scheduled loss.  Kellogg v. Shute and 
 
            Lewis Coal Co., 256 Iowa 1257, 130 N.W.2d 667 (1964).
 
            
 
                 If claimant has an impairment to the body as a whole, 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            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, 
 
            experience and inability to engage in employment for which 
 
            he is fitted.  Olson v. Goodyear Service Stores, 255 Iowa 
 
            1112, 1121, 125 N.W.2d 251, 257 (1963).
 
            
 
                 For example, a defendant employer's refusal to give any 
 
            sort of work to a claimant after he suffers his affliction 
 
            may justify an award of disability.  McSpadden v. Big Ben 
 
            Coal Co., 288 N.W.2d 181 (Iowa 1980).
 
            
 
                 Similarly, a claimant's inability to find other 
 
            suitable work after making bona fide efforts to find such 
 
            work may indicate that relief would be granted.  Id. at 181.
 
            
 
                 Apportionment of disability between a preexisting 
 
            condition and an injury is proper only when there was some 
 
            ascertainable disability which existed independently before 
 
            the injury occurred.  Varied Enterprises, Inc. v. Sumner, 
 
            353 N.W.2d 407 (Iowa 1984)
 
            
 
                 *****
 
            
 
                 It is further concluded that:
 
            
 
                 Regarding claimant's May 6, 1988 injury (file No. 
 
            936510), claimant incurred a work-related injury to his left 
 
            hand which caused a three percent permanent partial 
 
            impairment.
 
            
 
                 Claimant's May 6, 1988 injury did not result in an 
 
            injury to his shoulders or elbow, nor did it result in a 
 
            body as a whole injury.
 
            
 
                 Claimant is entitled to 5.70 weeks of permanent partial 
 
            disability benefits as a result of his May 6, 1988 injury.
 
            
 
                 Claimant's September 5, 1988 alleged injury (file No. 
 
            923688) is, in fact, the same and is encompassed in 
 
            claimant's May 6, 1988 injury represented by file No. 
 
            936510.  Claimant recovers nothing as a result of any 
 
            separate September 5, 1988 injury.
 
            
 
                 Regarding claimant's November 11, 1988 injury (file No. 
 
            912957), it is concluded that claimant incurred a 
 
            work-related permanent impairment to his body as a whole as 
 
            a result of a work-related November 11, 1988 injury to his 
 
            low back involving the L5-S1 disc.
 
            
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
                 Claimant had a preexisting injury to his low back in 
 
            the area of L5-S1 that resulted in a preexisting permanent 
 
            impairment but that said preexisting injury was 
 
            substantially and materially aggravated and lighted up by 
 
            claimant's November 11, 1988 injury, thereby resulting in a 
 
            greater impairment than was originally existing prior to 
 
            that November 11, 1988 injury.
 
            
 
                 Claimant incurred a July 21, 1989 laminectomy L5-S1 
 
            performed by Dr. Carlstrom, which surgery was the result of 
 
            and caused by claimant's November 11, 1988 work-related 
 
            injury.
 
            
 
                 Claimant was working without problems affecting his job 
 
            prior to his November 11, 1988 injury.
 
            
 
                 *****
 
            
 
                 Claimant has work restrictions limiting him to certain 
 
            weight and other restrictions as a result of his November 
 
            11, 1988 work injury.
 
            
 
                 Claimant has incurred a loss of income and loss of 
 
            earning capacity as a result of his November 11, 1988 
 
            injury.
 
            
 
                 Defendants have proved that there should be an 
 
            apportionment of disability between claimant's preexisting 
 
            condition and the 12 percent permanent impairment found by 
 
            Dr. Carlstrom.   Eight percent is the result of claimant's 
 
            November 11, 1988 injury, and that the other four percent 
 
            was the result of a preexisting condition.
 
            
 
                 Claimant is entitled to have his medical bills incurred 
 
            with Mercy Hospital and Dr. Jones paid by defendants, as 
 
            defendants were denying further medical care to claimant and 
 
            denied that there was any permanent disability or 
 
            impairment, and that claimant had a right to seek other 
 
            medical help to alleviate his problems.
 
            
 
                 Claimant incurred a work-related 30 percent industrial 
 
            disability as a result of his November 11, 1988 injury after 
 
            taking into consideration claimant's preexisting condition 
 
            and deducting its effect to arrive at claimant's net 
 
            industrial disability.
 
            
 
                 [Claimant's discharge by his employer was based on a 
 
            falsification of his employment application.  There is 
 
            insufficient evidence to establish that claimant's discharge 
 
            was motivated by his work injury.  There is no showing that 
 
            only employees who have suffered an injury have been 
 
            discharged under this policy, and therefore it must be 
 
            presumed that even employees who have not been injured but 
 
            who have falsified their employment applications are also 
 
            discharged.  Thus, although employer conduct such as 
 
            discharging an employee because they have suffered an injury 
 
            can be utilized as a factor in assessing industrial 
 
            disability, there is an insufficient showing in this case 
 
            that such circumstances exist.  Claimant's discharge will 
 
            not be considered in this de novo review.
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            
 
                 Claimant's motivation to return to work is a relevant 
 
            factor in industrial disability.  Claimant terminated his 
 
            vocational rehabilitation program, and failed to keep 
 
            appointments with the state vocational rehabilitation 
 
            office.  Claimant asserts his time was occupied with the 
 
            program of physical therapy he was engaged in.  Claimant 
 
            also offered as a reason for terminating the program that 
 
            his medical bills were not being paid by defendants.  
 
            Claimant has not shown good motivation to rehabilitate 
 
            himself or to find alternative employment.  
 
            
 
                 However, the greater weight of the evidence shows that 
 
            even a successful vocational rehabilitation program would 
 
            still have resulted in a loss of earnings for claimant.  The 
 
            vocational rehabilitation counselor predicted that any jobs 
 
            claimant might find would be from $.50 to $4 per hour less 
 
            than claimant was making at the time of his injury.]
 
            
 
                 WHEREFORE, the decision of the deputy is affirmed.
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That in regards to the May 6, 1988 injury (file No. 
 
            936510), defendants shall pay unto claimant five point 
 
            seventy (5.70) weeks of permanent partial disability 
 
            benefits at the stipulated weekly rate of two hundred 
 
            thirty-six and 83/100 dollars ($236.83), beginning on the 
 
            stipulated date of September 13, 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 as set forth in Iowa Code section 85.30.
 
            
 
                 That regarding the November 11, 1988 injury (file No. 
 
            912957), defendants shall pay unto claimant one hundred 
 
            fifty (150) weeks of permanent partial disability benefits 
 
            at the stipulated rate of two hundred twenty-eight and 
 
            16/100 dollars ($228.16) per week, beginning on the 
 
            stipulated date of September 13, 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 claimant's Mercy Hospital 
 
            bill and Dr. Jones' bill.
 
            
 
                 That defendants shall pay interest on benefits awarded 
 
            herein as set forth in Iowa Code section 85.30.
 
            
 
                 That as to the September 5, 1988 injury (file No. 
 
            923668), claimant takes nothing from that proceeding.
 
            
 
                 That defendants shall pay the costs of these actions, 
 

 
            
 
            Page  13
 
            
 
            
 
            
 
            
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 That defendants shall file an activity reports upon 
 
            payment of this award as required by this agency, pursuant 
 
            to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of February, 1993.
 
            
 
            
 
            
 
            
 
                                          
 
            ________________________________
 
                                                   BYRON K. ORTON
 
                                              INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. David D. Drake
 
            Attorney at Law
 
            West Towers Office
 
            1200 35th St., Ste 500
 
            W Des Moines, IA 50265
 
            
 
            Mr. Jeff M. Margolin
 
            Attorney at Law
 
            Terrace Ctr, Ste 111
 
            2700 Grand Ave
 
            Des Moines, IA 50312
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            5-2206; 5-1108; 5-2503; 1803
 
            5-1803.1; 5-1804; 5-1806
 
            Filed February 26, 1993
 
            Byron K. Orton
 
            BJO
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
            _____
 
                                            :
 
            FLOYD J. ELLIOTT,               :
 
                                            :
 
                 Claimant,                  :
 
                                            :
 
            vs.                             :
 
                                            :       File No. 912957
 
            FIRESTONE TIRE & RUBBER CO.,    :
 
                                            :          A P P E A L
 
                 Employer,                  :
 
                                            :        D E C I S I O N
 
            and                             :
 
                                            :
 
            CIGNA,                          :
 
                                            :
 
                 Insurance Carrier,         :
 
                 Defendants.                :
 
            ____________________________________________________________
 
            _____
 
            
 
            1803
 
            Claimant was discharged by his employer after suffering a 
 
            back injury because he had falsely asserted in his 
 
            employment application that he had not suffered a prior back 
 
            injury.  Claimant acknowledged he falsified the application 
 
            in order to get the job.  Held on appeal that, absent a 
 
            showing that only employees that were injured were 
 
            discharged under this policy, it must be presumed that the 
 
            policy is also applied to workers who do not suffer injuries 
 
            but are found to have falsified their applications.  Since 
 
            there is no showing the termination was based on the injury 
 
            and not based on an evenly applied company policy, the 
 
            termination was not a factor used in determining industrial 
 
            disability.  The deputy's award of industrial disability was 
 
            unchanged on appeal.
 
            
 
            5-1803.1
 
            Found claimant entitled to 5.70 weeks of permanent partial 
 
            disability benefits as a result of a work injury on May 6, 
 
            1988 to his left hand resulting in a three percent permanent 
 
            impairment.  This injury found not to involve claimant's 
 
            body as a whole.
 
            Claimant took nothing from a September 5, 1988 injury.  This 
 
            alleged injury actually was encompassed in claimant's May 6, 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            1988 work injury.
 
            As to a November 11, 1988 injury:
 
            
 
            5-1804
 
            Claimant awarded 30 percent industrial disability.
 
            
 
            5-1108
 
            Found claimant incurred a work injury which resulted in 
 
            claimant incurring a L5-S1 laminectomy, restrictions and an 
 
            additional eight percent permanent impairment to claimant's 
 
            preexisting four percent permanent back impairment.
 
            
 
            5-2502
 
            Claimant allowed additional medical defendants refused to 
 
            pay.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      5-2206; 5-1108; 5-2503
 
                      5-1803.1; 5-1804; 5-1806
 
                      1807
 
                      Filed May 6, 1991
 
                      Bernard J. O'Malley
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            FLOYD J. ELLIOTT,             :
 
                                          :
 
                 Claimant,                :     File Nos. 923668
 
                                          :               936510
 
            vs.                           :               912957
 
                                          :
 
            FIRESTONE TIRE & RUBBER CO.,  :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            CIGNA,                        :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-1803.1
 
            Found claimant entitled to 5.70 weeks of permanent partial 
 
            disability benefits as a result of a work injury on May 6, 
 
            1988 to his left hand resulting in a 3 percent permanent 
 
            impairment.  This injury found not to involve claimant's 
 
            body as a whole.
 
            Claimant took nothing from a September 5, 1988 injury.  This 
 
            alleged injury actually was encompassed in claimant's May 6, 
 
            1988 work injury.
 
            As to a November 11, 1988 injury:
 
            
 
            5-1804
 
            Claimant awarded 30 percent industrial disability.
 
            
 
            5-1108
 
            Found claimant incurred a work injury which resulted in 
 
            claimant incurring a L5-S1 laminectomy, restrictions and an 
 
            additional 8 percent permanent impairment to claimant's 
 
            preexisting 4 percent permanent back impairment.
 

 
            
 
 
 
 
 
 
 
 
 
 
 
            
 
            1807
 
            Claimant was fired from his job eleven months after his 
 
            November 11, 1988 work injury.  Defendants contend it was 
 
            because of his work application which was falsely filled 
 
            out.  Deputy found that this was not the sole reason for 
 
            firing claimant and that claimant's work injury was the 
 
            major reason claimant was fired.
 
            
 
            5-2502
 
            Claimant allowed additional medical defendants refused to 
 
            pay.
 
            
 
            
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                 BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
       ________________________________________________________________
 
       ROSA IBARRA,     
 
               
 
          Claimant, 
 
               
 
       vs.                                   File Nos. 913028
 
                                                      1037262
 
               
 
       H. J. HEINZ CO.,                   A R B I T R A T I O N
 
               
 
          Employer,                         D E C I S I O N
 
               
 
       and          
 
               
 
       LIBERTY MUTUAL,  
 
               
 
          Insurance Carrier,  
 
          Defendants.    
 
       _______________________________________________________________
 
                             STATEMENT OF THE CASE
 
            
 
            These are proceedings in arbitration upon the petitions of 
 
       claimant, Rosa Ibarra, against her employer, H. J. Heinz, Co., 
 
       and its insurance carrier, Liberty Mutual Insurance Company, 
 
       defendants.  The files were consolidated for purposes of the 
 
       hearing which took place on January 18, 1995, at the United 
 
       States Courthouse in Davenport, Iowa.  The record consists of the 
 
       testimony of claimant.  The record also consists of the testimony 
 
       of Kendall Kelly, Human Resources Coordinator for defendant-
 
       employer.  Additionally, the record is comprised of joint 
 
       exhibits A-J, claimant's exhibit 1 and defendants' exhibit 1.
 
            
 
            The administrative file for file number 913028 indicates 
 
       that claimant filed her petition before the Iowa Industrial 
 
       Commissioner on March 29, 1993.  On the face of the petition, 
 
       claimant alleged that she had sustained a work-related injury on 
 
       February 22, 1989.  A first report of injury was properly filed 
 
       by defendant-employer on September 13, 1993.
 
            
 
            The administrative file for file number 1037262 reveals that 
 
       claimant filed her petition before the Iowa Industrial 
 
       Commissioner on March 29, 1993.  She alleged she sustained a 
 
       work-related injury on October 20, 1991.  The official file also 
 
       indicates a first report of injury was filed on November 1, 1993.
 

 
 
 
 
 
 
 
       
 
                                ISSUES
 
            
 
            The issues to be determined are:
 
            
 
            With respect to file number 913028:  The sole issue is the 
 
       nature and extent of any permanent partial disability benefits.
 
            
 
            With respect to file number 1037262 the issues are:  1) 
 
       whether claimant sustained a work-related injury on October 20, 
 
       1991; 2) whether the alleged injury is the cause of temporary or 
 
       permanent disability; 3) whether claimant is entitled to any 
 
       permanent partial disability benefits, and if so, the extent of 
 
       those benefits; and 4) whether claimant served timely notice of 
 
       the alleged work injury on defendants pursuant to section 85.23, 
 
       Iowa Code, as amended.
 
       
 
                  FINDINGS OF FACT AND CONCLUSIONS OF LAW
 
            
 
            The deputy, having heard the testimony and considered all 
 
       the evidence, makes the following findings of fact and 
 
       conclusions of law:
 
            
 
            Claimant is a 37-year-old married worker.  She is right hand 
 
       dominant.  Claimant completed the sixth grade in Mexico.  She 
 
       obtained her GED in 1976 through the Community College in 
 
       Muscatine.  Claimant has no formalized training beyond her GED.
 
            
 
            Claimant commenced her employment with the present defendant 
 
       on January 17, 1977.  Prior to her employment, she had engaged in 
 
       no significant jobs, other than several weeks of employment with 
 
       Louis Rich.  
 
            
 
            Initially, claimant was hired to work as a packer in 
 
       defendant's packaging plant.  She was required to reach, to lift 
 
       above her head, and to use her hands to pack, grab, lift and 
 
       wrap.  All of the duties were repetitive in nature, however, the 
 
       job was rotated among several employees.
 
            
 
            Throughout the duration of her employment claimant held 
 
       various positions within the plant.  Many of the positions 
 
       required the use of one or both of her upper extremities.  Some 
 
       of the positions included:  label cage job, utility job, relief 
 
       person, label inspector, fork lift truck driver, "feed packer," 
 
       and "bright line packer."
 
            
 
            Claimant's personnel records were admitted as evidence in 
 
       the case.  According to exhibit A, claimant experienced a painful 
 
       right shoulder as early as February 16, 1989 (Exhibit A-85).  
 
       According to the nursing notes of the plant nurse, claimant 
 
       complained of right shoulder pain after she engaged in pushing 
 
       and packing boxes (Ex. A-22).  The box pushing incident is the 
 
       incident which the parties stipulated as the work injury which 
 
       involved claimant's right shoulder.
 
            
 
            William Catalona, M.D., the plant physician, examined 
 
       claimant for right shoulder complaints on February 28, 1989 (Ex. 
 
       B-1).  Dr. Catalona diagnosed claimant's condition as an overuse 
 
       syndrome (Ex. B-1).  He treated claimant conservatively by  
 
       prescribing medication, rest, and physical therapy.
 
            
 
            Claimant's condition did not improve to the satisfaction of 
 
       the plant physician and he referred claimant to Richard L. 
 
       Kreiter, M.D.  Dr. Kreiter examined claimant on March 20, 1989.  
 
       He diagnosed claimant as having "[p]robable rotator cuff 
 
       tendonitis with possible cuff injury vs biceps strain" (Ex. D-1).  
 

 
 
 
 
 
 
 
 
 
 
 
 
 
       He ordered an arthrogram, which was normal (Ex. D-1).  Dr. 
 
       Kreiter ordered physical therapy and work hardening at the Work 
 
       Fitness Center (Ex. C).  Dr. Kreiter injected claimant's 
 
       supraspinatous tendon with Aristospan and Xylocaine (Ex. D-2).  
 
       He continued to follow claimant's progress.  Nevertheless, 
 
       claimant did not progress satisfactorily, and Dr. Kreiter 
 
       recommended surgery on the right shoulder.  On July 23, 1990, he 
 
       did a resection of the lateral clavicle and anterior 
 
       acromionectomy and release of the coracoacromial ligament (Ex.  
 
       D-3).  
 
            
 
            Postoperatively, claimant engaged in exercises and extensive 
 
       physical therapy.  Dr. Kreiter released claimant to return to 
 
       work effective November 12, 1990, with restrictions of limited 
 
       overhead work and no lifting in excess of 30 pounds with the 
 
       right arm (Ex. D-6).
 
            
 
            On June 17, 1991, Dr. Kreiter examined claimant for purposes 
 
       of rendering an impairment rating.  In his report of June 21, 
 
       1991, Dr. Kreiter opined:
 
            
 
               I think she is getting along better.  She has less 
 
            pain than she did preoperatively.  She continues to 
 
            have symptoms.  It is very difficult to know the extent 
 
            of such.  She rarely takes any analgesics for 
 
            discomfort.  She does have permanent disability in the 
 
            shoulder as a result of the surgery and this would 
 
            basically be a 5% physical impairment loss of physical 
 
            function of the whole arm as result of resection of the 
 
            distal clavicle.  She certainly has reached her maximum 
 
            healing, although, she believes that physical therapy 
 
            as prescribed by Dr. Catalona continues to be helpful.  
 
            I would believe she needs to stay away from overhead 
 
            work or work that requires repeated pulling, pushing or 
 
            polishing type activity.  She should not have any 
 
            problem lifting objects weighing up to 20 to 25 lb.
 
       
 
       (Ex. D-8)
 
            
 
            Several months later, Dr. Catalona medically qualified 
 
       claimant to perform the "labeler" job.  The company physician 
 
       determined the job would be better suited to claimant due to her 
 
       right shoulder pain (Ex. B-16).  As a consequence, claimant 
 
       returned to work as a grade 4 worker rather than to the previous 
 
       job which was a grade 6 job.  There was a difference in pay of 
 
       less than $.50 per hour.  
 
            
 
            Claimant began experiencing difficulties with her hands and 
 
       wrists.  In February of 1993, she sought chiropractic treatments 
 
       for her hand pain.  In the course of approximately one month, 
 
       claimant visited M. R. Mally, D.C., on numerous occasions (Ex.  
 
       G-5-6).
 
            
 
            Pursuant to a request by claimant, Robert J. Chesser, M.D., 
 
       examined and evaluated claimant on October 1, 1991.  The 
 
       evaluating physician noted in his report of the same date:
 
            
 
               On examination, she presents in no acute distress.  
 
            On inspection, cervical active range of motion is full, 
 
            although she does complain of pain in the right upper 
 
            trapezius with all movements.  There are no specific 
 
            radiating symptoms.  When testing strength there is 
 
            diffuse pain inhibition throughout the entire right 
 
            upper extremity.  It does not follow any specific 
 
            distribution.  She complains of pain in the shoulder 
 
            joint with active abduction and external rotation.  
 

 
 
 
 
 
 
 
 
 
 
 
 
 
            With elbow flexion and extension she also complains of 
 
            right shoulder pain with forearm pronation and wrist 
 
            extension she complains of right wrist pain.  Her 
 
            reflexes are symmetrical.  Initially there was a 
 
            question of a reduction of the right triceps reflex, 
 
            but on further evaluation these were symmetrical.  
 
            Pinprick sensation demonstrated a diffuse reduction to 
 
            pinprick sensation in the right hand, but in no 
 
            specific distribution.  There was a positive Tinel sign 
 
            over the right carpal tunnel.
 
            
 
               The following range of motion measurements were 
 
            obtained using a goniometer with the patient in a 
 
            seated position.
 
            
 
               Shoulder flexion         120o      4% impairment
 
               Shoulder abduction       110o      3% impairment
 
               External rotation         45o      1% impairment
 
               Internal rotation         45o      2% impairment
 
               Adduction                 15o      1% impairment
 
               Extension                 50o      0% impairment
 
            
 
               ASSESSMENT:  At this time there are findings 
 
            consistent with a residual right shoulder pain related 
 
            to an impingement syndrome and the degenerative changes 
 
            in the right shoulder.  She is post surgical release.  
 
            At this time I would agree that in regards to the 
 
            shoulder she has reached maximal medical improvement, 
 
            and I would have no recommendations for further 
 
            treatment.
 
            
 
               Based on today's evaluation, in regards to the 
 
            restricted range of motion of the right shoulder, there 
 
            is an 11% impairment of the upper extremity based on 
 
            restricted shoulder range of motion, and this would 
 
            translate into a 7% whole person impairment.
 
            
 
               In addition, with the diffuseness of the pain of her 
 
            right upper extremity, although this may represent an 
 
            early reflex sympathetic dystrophy as a result of the 
 
            shoulder pain, I do feel that further diagnostic 
 
            evaluation would be in order, specifically an MRI of 
 
            her cervical spine, as well as MEG and NCV studies to 
 
            the right upper extremity.  These tests would be 
 
            ordered in order to investigate the possibility of a 
 
            radiculitis or carpal tunnel entrapment producing the 
 
            symptoms, which would not be attributed to the shoulder 
 
            injury, per se.
 
       
 
       (Ex. F-2-3)
 
            
 
            In April of 1993, Dr. Chesser again evaluated claimant's 
 
       right shoulder.  He also examined and evaluated claimant's right 
 
       and left hands for bilateral carpal tunnel syndrome.  Dr. Chesser 
 
       revised his previous evaluation because he noted improvement in 
 
       claimant's right shoulder.  In his report of April 7, 1993, Dr. 
 
       Chesser opined:
 
            
 
               ASSESSMENT:  Based on today's evaluation I continue 
 
            to feel that Mrs. Ibarra will require permanent 
 
            restrictions in regards to the right shoulder.  I would 
 
            recommend that she be limited to 15 to 20 lb. [sic] of 
 
            weight and no repetitive overhead lifting or repetitive 
 
            reaching.  I would also suggest that she have a 
 
            functional capacity evaluation performed to see whether 
 
            we cannot get more specific details of what her 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
            physical capacity would be in regards to the right 
 
            shoulder.  It may be that the patient is capable of 
 
            performing more or less than what I have indicated 
 
            above, and this may help to give a better documentation 
 
            of this.
 
            
 
               In regards to impairment rating, there is noted 
 
            improvement in the range of motion of the shoulder.  
 
            The impairment rating would equal an 8% impairment to 
 
            the upper extremity compared to 11% when I saw her in 
 
            October of 1991.
 
            
 
               In regards to her carpal tunnel entrapments, from a 
 
            clinical standpoint she does appear to have findings 
 
            consistent with carpal tunnel entrapment.  I do not 
 
            feel that it would be specifically related to the 
 
            incident that she described where she was lifting the 
 
            boxes and then developed pain in the volar aspect of 
 
            the wrist.  This may have produced some strain of the 
 
            tendons, but there was a suspicion of carpal tunnel 
 
            when I saw her October 1, 1991.  I suspect that the 
 
            development of bilateral carpal tunnel entrapments is 
 
            work-related and is cumulative in nature due to the 
 
            repetitive use of her hands throughout the years.  I do 
 
            not see any additional risk factors in regards to her 
 
            past medical history or hobbies that would be 
 
            contributing to her developing carpal tunnel 
 
            entrapment.
 
       
 
       (Ex. F-5-6)
 
            
 
            Claimant continued to complain of bilateral hand pain.  
 
       Defendants referred claimant to William R. Whitmore, M.D., (Ex. 
 
       J-1).  The initial examination occurred on April 13, 1994.  Dr. 
 
       Whitmore diagnosed claimant as having:  "Symptoms compatible with 
 
       carpal tunnel syndrome, bilateral, right worse than left" (Ex.  
 
       J-1).  He injected claimant with Lidocaine into the right carpal 
 
       tunnel (Ex. J-1).  The pain in her right hand lessened, but Dr. 
 
       Whitmore noted claimant had a positive bilateral Phalen's test 
 
       with numbness in the tips of the fingers (Ex. J-2).  Dr. Whitmore 
 
       ordered an EMG exam of both wrists.
 
            
 
            EMG studies of both hands were conducted in April of 1994.  
 
       According to Stephen C. Rasmus, M.D., the studies demonstrated:
 
            
 
               IMPRESSION:  This study shows mild to moderate 
 
            axonal and demyelinating injury to the median nerve 
 
            bilaterally.  The site of the injury could not be 
 
            determined, as nerve conductions through the carpal 
 
            tunnel were normal.  Symptoms were improved following 
 
            Cortisone injection in the wrist, suggesting that that 
 
            is the site of injury.  No evidence of nerve entrapment 
 
            in the forearm was found.  Clinical correlation may be 
 
            required.
 
       
 
       (Ex. I)
 
            
 
            Following the results of the EMG, Dr. Whitmore determined 
 
       surgery was unnecessary.  He recommended another intra-carpal 
 
       tunnel injection in the left wrist but claimant declined (Ex.   
 
       J-2).
 
            
 
            Dr. Chesser evaluated claimant for a third time on January 
 
       10, 1995.  In a revised opinion, he opined:
 
            
 
               ASSESSMENT:  Based on today's evaluation there is 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
            loss of range of motion in the right shoulder 
 
            associated with the impingement and subsequent surgery.  
 
            Based on today's evaluation there would be an 11% 
 
            impairment due to loss of range of motion.
 
            
 
               In addition to the above, there are findings 
 
            consistent with bilateral carpal tunnel entrapments.  
 
            In regards to the left hand I do not see any specific 
 
            impairment associated with this at this time.  However, 
 
            in the right there is a loss of grip strength 
 
            associated with the carpal tunnel entrapment, and as 
 
            such I feel would represent a 10% upper extremity 
 
            impairment related to the carpal tunnel entrapment on 
 
            the right.
 
            
 
               Combining the right carpal tunnel entrapment with 
 
            the right shoulder impingement, there would be a total 
 
            of a 20% impairment to the upper extremity.
 
            
 
               In regards to work activity I have not seen the 
 
            physical capacity assessment.  Based on her 
 
            presentation today I feel that she is capable of full-
 
            time work.  I would recommend that she be maintained on 
 
            a 10 lb. weight limit, that she not do any repetitive 
 
            forceful grasping, or flexion or extension of the 
 
            wrists.
 
       
 
       (Ex. F-9)
 
            
 
            Kendall Kelly testified that at the time of the hearing, 
 
       claimant performed light factory work which was a grade 2 
 
       position.  He reported a wage level of $11.05 per hour.  Claimant 
 
       testified that had she remained in the same job which she held at 
 
       the time of her shoulder injury, claimant would have been earning 
 
       $11.99 per hour.
 
            
 
            The burden of proof is on the party asserting the 
 
       affirmative of an issue in an administrative proceeding; "on the 
 
       party who would suffer loss if the issue were not established.  
 
       Wonder Life Co. v. Liddy, 207 N.W.2d 27 (Iowa 1973); Norland v. 
 
       Ides, 412 N.W.2d 904 (Iowa 1987).
 
            
 
            The primary purpose of workers' compensation statutes is to 
 
       benefit workers and their dependents insofar as the statute 
 
       permits, the statute should be interpreted with a view toward 
 
       that objective.  Caterpillar Tractor Co. v. Shook, 313 N.W.2d 
 
       503, 506, (Iowa 1981).
 
            
 
            When disability is found in the shoulder, a body as a whole 
 
       situation may exist.  Alm v. Morris Barick Cattle Co., 240 Iowa 
 
       1174, 38 N.W.2d 161 (1949).  In Nazarenus v. Oscar Mayer & Co., 
 
       II Iowa Industrial Comm'r Report 281 (App. 1982), a torn rotator 
 
       cuff was found to cause disability to the body as a whole.
 
            
 
            In Lauhoff Grain v. McIntosh, 395 N.W.2d 834 (Iowa 1986), 
 
       the Iowa Supreme Court determined that the Industrial 
 
       Commissioner is not required to follow the permanent impairment 
 
       evaluation guide published by the American Medical Association to 
 
       determine whether an injury is a scheduled member injury or an 
 
       injury to the body as a whole.
 
            
 
            In Lauhoff, the Court cited Professor Larson at 2 A.  
 
       Larson, Workmen's Compensation Law  58.21, at 10-222 to 10-243 
 
       (1979).  Professor Larson wrote:
 
            
 
            [t]he great majority of modern decisions agree that, if 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
            the effects of the loss of the member extend to other 
 
            parts of the body and interfere with their efficiency, 
 
            the schedule allowance for the lost member is not 
 
            exclusive.  A common example of the kind of decision is 
 
            that in which an amputation of a leg causes pain 
 
            shooting into the rest of the body, general debility, 
 
            stiffening of the hip socket or other extended effects 
 
            resulting in greater interference with ability to work 
 
            than would be expected from a simple and uncomplicated 
 
            loss of the leg.  An increasingly common application of 
 
            this rule involves schedule-type injuries that produce 
 
            mental and nervous injury, such as traumatic neurosis; 
 
            these have generally been found to call for awards 
 
            going beyond the schedule.
 
            
 
               . . . .
 
            
 
               Courts in several other jurisdictions have addressed 
 
            the question of whether injuries to hips and shoulders 
 
            are to be compensated solely as injuries to the leg or 
 
            arm or as disabilities to the body as a whole.  Most 
 
            cases have resolved the question in favor of the whole-
 
            body compensation under statutes which are very similar 
 
            to ours. . . . (citations omitted)
 
       
 
       Lauhoff at 838
 
            
 
            In file number 913028, claimant's permanent injury is an 
 
       injury to the body as a whole.  Since it is an injury which 
 
       affects the body as a whole, claimant is entitled to have the 
 
       disability calculated by the industrial method.
 
            
 
            Functional impairment is an element to be considered in 
 
       determining industrial disability which is the reduction of 
 
       earning capacity, but consideration must also be given to the 
 
       injured employee's age, education, qualifications, experience and 
 
       inability to engage in employment for which the employee is 
 
       fitted.  Olson v. Goodyear Serv. Stores, 255 Iowa 1112, 125 
 
       N.W.2d 251 (1963); Barton v. Nevada Poultry, 253 Iowa 285, 110 
 
       N.W.2d 660 (1961).
 
            
 
            A finding of impairment to the body as a whole found by a 
 
       medical evaluator does not equate to industrial disability.  
 
       Impairment and disability are not synonymous.  The degree of 
 
       industrial disability can be much different than the degree of 
 
       impairment because industrial disability references to loss of 
 
       earning capacity and impairment references to anatomical or 
 
       functional abnormality or loss.  Although loss of function is to 
 
       be considered and disability can rarely be found without it, it 
 
       is not so that a degree of industrial disability is 
 
       proportionally related to a degree of impairment of bodily 
 
       function.
 
            
 
            Factors to be considered in determining industrial dis
 
       ability include the employee's medical condition prior to the 
 
       injury, immediately after the injury, and presently; the situs of 
 
       the injury, its severity and the length of the healing period; 
 
       the work experience of the employee prior to the injury and after 
 
       the injury and the potential for rehabilitation; the employee's 
 
       qualifications intellectually, emotionally and physically; 
 
       earnings prior and subsequent to the injury; age; education; 
 
       motivation; functional impairment as a result of the injury; and 
 
       inability because of the injury to engage in employment for which 
 
       the employee is fitted.  Loss of earnings caused by a job 
 
       transfer for reasons related to the injury is also relevant.  
 
       Likewise, an employer's refusal to give any sort of work to an 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
       impaired employee may justify an award of disability.  McSpadden 
 
       v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980).  These are 
 
       matters which the finder of fact considers collectively in 
 
       arriving at the determination of the degree of industrial 
 
       disability.
 
            
 
            There are no weighting guidelines that indicate how each of 
 
       the factors are to be considered.  Neither does a rating of 
 
       functional impairment directly correlate to a degree of 
 
       industrial disability to the body as a whole.  In other words, 
 
       there are no formulae which can be applied and then added up to 
 
       determine the degree of industrial disability.  It therefore 
 
       becomes necessary for the deputy or commissioner to draw upon 
 
       prior experience as well as general and specialized knowledge to 
 
       make the finding with regard to degree of industrial disability.  
 
       See Christensen v. Hagen, Inc., Vol. 1 No. 3 State of Iowa 
 
       Industrial Commissioner Decisions 529 (App. March 26, 1985); 
 
       Peterson v. Truck Haven Cafe, Inc., Vol. 1 No. 3 State of Iowa 
 
       Industrial Commissioner Decisions 654 (App. February 28, 1985).
 

 
 
 
 
 
 
 
 
 
 
 
 
 
            
 
            Compensation for permanent partial disability shall begin at 
 
       the termination of the healing period.  Compensation shall be 
 
       paid in relation to 500 weeks as the disability bears to the body 
 
       as a whole.  Section 85.34.
 
            
 
            Well respected surgeons have calculated claimant's permanent 
 
       impairment rating in the 5 percent to 11 percent range.  Claimant 
 
       is restricted from engaging in overhead work.  She is to watch 
 
       repetitive pushing and pulling.  She is not to lift more than 25 
 
       pounds.  Her restrictions are severe and they will affect the 
 
       types of jobs she can perform both in and outside the plant 
 
       setting.  
 
            
 
            Defendant-employer has accommodated claimant in the 
 
       workplace.  Nevertheless, claimant's actual earnings have been 
 
       reduced as a result of this work injury.  Claimant is now a grade 
 
       2 employee.  At the time of her shoulder injury, claimant was a 
 
       grade 6 employee.  Effective September 1, 1993, claimant earned 
 
       approximately $.85 per hour less than what she would have earned 
 
       if she had stayed a grade 6 employee.  Effective September 1, 
 
       1994, claimant earned $.94 per hour less than a grade 6 employee.  
 
       Claimant has sustained an actual loss of earnings.  
 
            
 
            In addition,  claimant is no longer able to bid into higher 
 
       paying jobs which are outside her work restrictions.  Her earning 
 
       capacity has been affected by her right shoulder injury.  As was 
 
       the situation in Thilges v. Snap-On Tools, 528 N.W.2d 614 (Iowa 
 
       1995), this claimant's loss of earning capacity must be viewed in 
 
       terms of her present ability to earn in the competitive job 
 
       market without regard to the accommodation furnished by her 
 
       present employer.  Id. at 617.
 
            
 
            An employer's accommodation for claimant's permanent 
 
       impairments and restrictions will not necessarily transfer to the 
 
       competitive labor market as a whole.  Id. at 617.
 
            
 
            In the current competitive job market as a whole, claimant 
 
       is not likely to find other employers in the competitive job 
 
       market as understanding, cooperative and helpful as this employer 
 
       has been.  Claimant is entitled to an industrial disability 
 
       allowance in excess of her permanent impairment ratings.  Id. at 
 
       617.
 
            
 
            In light of the foregoing, it is the determination of the 
 
       undersigned that claimant has sustained a 15 percent permanent 
 
       partial disability.  She is entitled to 75 weeks of permanent 
 
       partial disability benefits at the stipulated rate of $224.34 per 
 
       week and commencing from June 21, 1991.
 
            
 
            The remaining issues to address deal with file number 
 
       1037262.  
 
            
 
            The claimant has the burden of proving by a preponderance of 
 
       the evidence that the alleged injury actually occurred and that 
 
       it arose out of and in the course of employment.  McDowell v. 
 
       Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. 
 
       Cent. Tel. Co., 261 Iowa 352, 154 N.W.2d 128 (1967).  The words 
 
       "arising out of" refer to the cause or source of the injury.  The 
 
       words "in the course of" refer to the time, place and 
 
       circumstances of the injury.  Sheerin v. Holin Co., 380 N.W.2d 
 
       415 (Iowa 1986); McClure v. Union County, 188 N.W.2d 283 (Iowa 
 
       1971).
 
            
 
            The claimant has the burden of proving by a preponderance of 
 
       the evidence that the injury is a proximate cause of the 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
       disability on which the claim is based.  A cause is proximate if 
 
       it is a substantial factor in bringing about the result; it need 
 
       not be the only cause.  A preponderance of the evidence exists 
 
       when the causal connection is probable rather than merely 
 
       possible.  Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 
 
       1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 (Iowa 
 
       1974).
 
            
 
            The question of causal connection is essentially within the 
 
       domain of expert testimony.  The expert medical evidence must be 
 
       considered with all other evidence introduced bearing on the 
 
       causal connection between the injury and the disability.  The 
 
       weight to be given to any expert opinion is determined by the 
 
       finder of fact and may be affected by the accuracy of the facts 
 
       relied upon by the expert as well as other surrounding 
 
       circumstances.  The expert opinion may be accepted or rejected, 
 
       in whole or in part.  Sondag v. Ferris Hardware, 220 N.W.2d 903 
 
       (Iowa 1974); Anderson v. Oscar Mayer & Co., 217 N.W.2d 531 (Iowa 
 
       1974); Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 
 
       (1965).
 
            
 
            Claimant has proven by a preponderance of the evidence that 
 
       she has sustained a bilateral work-related injury to her hands.  
 
       The date of the work injury is October 22, 1991.  Claimant 
 
       testified she experienced difficulties with her wrists in October 
 
       of 1991.  At the time, claimant was opening many cartons of 
 
       gravy.  Exhibit A-28 indicates claimant reported difficulties 
 
       with one wrist on October 22, 1991.  However, claimant testified 
 
       she not only reported problems with both wrists but she was also 
 
       prescribed wrist splints for each wrist.  The nurse's note of 
 
       December 18, 1991, corroborates claimant's testimony (Ex. A-28).  
 
       Claimant's rendition of the events involving her wrists is 
 
       credible.  Claimant has sustained bilateral work-related injuries 
 
       involving both wrists.
 
            
 
            The next issue to address is whether claimant has sustained 
 
       any disability as a result of the work injury on October 22, 
 
       1991.  The medical records indicate claimant received medical 
 
       treatment for both hands.  The treatment involved chiropractic 
 
       manipulation, injections, and wrist splints.  There is some 
 
       objective test results to establish claimant's condition (Ex. I).  
 
       It is the determination of the deputy that claimant has sustained 
 
       a temporary disability as a result of the work injury of October 
 
       22, 1991.  Claimant has made no request for temporary disability 
 
       benefits.  Consequently, no temporary disability benefits are 
 
       awarded.
 
            
 
            Claimant requests permanent disability benefits for her 
 
       injury of October 22, 1991.  There is absolutely no medical 
 
       evidence in the record which will support a conclusion that 
 
       claimant's left hand/wrist condition is permanent in nature.
 
            
 
            The only physician who rated claimant's condition as 
 
       permanent was Dr. Chesser, the evaluating physician.  He noted a 
 
       loss of grip strength and he rated claimant as having a 10 
 
       percent loss of the right upper extremity.  The other two medical 
 
       practitioners, who were treating claimant at some point, did not 
 
       provide impairment ratings for claimant's right hand.  They did 
 
       not impose permanent work restrictions.  At the time of the 
 
       hearing, claimant was engaged in no active treatment.  It is the 
 
       determination of the undersigned that the greater weight of the 
 
       evidence supports a conclusion that claimant did not suffer any 
 
       permanent disability as a result of the work injury on October 
 
       22, 1991.
 
            
 
            Defendants did not provide evidence which would support the 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
       affirmative defense whether there was untimely notice under 
 
       section 85.23 of the Iowa Code.  Their defense is without merit.
 
       
 
                                  ORDER
 
            
 
            THEREFORE, IT IS ORDERED:
 
            
 
            With respect to file number 913028:
 
            
 
            Defendants shall pay unto claimant seventy-five (75) weeks 
 
       of permanent partial disability benefits at the stipulated weekly 
 
       benefit rate of two hundred twenty-four and 34/l00 dollars 
 
       ($224.34) per week and commencing from June 21, 1991.
 
            
 
            Accrued benefits are to be paid in a lump sum together with 
 
       statutory interest at the rate of ten percent (10%) per year 
 
       pursuant to section 85.30, Iowa Code as amended.
 
            
 
            Costs are taxed to defendants pursuant to rule 343 IAC 4.33.
 
            
 
            Defendants shall file a claim activity report as requested 
 
       by this division and pursuant to rule 343 IAC 4.33.
 
            
 
            With respect to file number 1037262:
 
            
 
            Claimant takes nothing further from these proceedings.
 
            
 
            Costs are taxed to defendants pursuant to rule 343 IAC 4.33.
 
       
 
       
 
       
 
          Signed and filed this ____ day of June, 1995.
 
       
 
       
 
       
 
                                ______________________________          
 
                                MICHELLE A. McGOVERN
 
                                DEPUTY INDUSTRIAL COMMISSIONER
 
       
 
       Copies To:
 
       
 
       Mr. Nick J. Avgerinos
 
       Attorney at Law
 
       30 N LaSalle St
 
       Chicago  IL  60602
 
       
 
       Mr. Greg A. Egbers
 
       Attorney at Law
 
       600 Union Arcade Bldg
 
       111 E Third St
 
       Davenport  IA  52801-1596
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                             5-1800
 
                                             Filed June 21, 1995
 
                                             MICHELLE A. McGOVERN
 
         
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         ____________________________________________________________
 
         ROSA IBARRA,   
 
               
 
          Claimant, 
 
               
 
         vs.                              File Nos. 913028
 
                                                   1037262
 
               
 
         H. J. HEINZ CO.,              A R B I T R A T I O N
 
               
 
          Employer,                       D E C I S I O N
 
               
 
         and        
 
               
 
         LIBERTY MUTUAL,     
 
               
 
          Insurance Carrier,  
 
          Defendants.    
 
         ____________________________________________________________
 
        5-1800
 
         Claimant was awarded a 15% permanent partial disability 
 
         benefit as a result of a work injury which involved her 
 
         right shoulder.
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
            _____
 
                                          :
 
            RONALD LEE MEYERS,            :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File Nos. 881251
 
            HOLIDAY EXPRESS CORPORATION,  :       913213 & 913214
 
                                          :
 
                 Employer,                :         A P P E A L
 
                                          :
 
            and                           :       D E C I S I O N
 
                                          :
 
            LIBERTY MUTUAL INSURANCE CO., :
 
                                          :
 
                 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 September 30, 1991 is affirmed and is adopted as the 
 
            final agency action in this case with the following 
 
            additional analysis:
 
            In Farmer's Elevator Co., Kingsley v. Manning, 286 N.W.2d 
 
            174 (Iowa 1979), at 180 the Iowa Supreme Court Said:
 
            
 
                 Section 85.30 expresses legislative intent that 
 
                 interest on unpaid compensation be computed from 
 
                 the date each payment comes due, starting with the 
 
                 eleventh day after the injury....Interest is 
 
                 therefore payable on such installment from that 
 
                 due date, and similarly with the following weekly 
 
                 payments.
 
            
 
            Interest is computed according to the longstanding rule that 
 
            partial payments are applied first to accrued interest and 
 
            the remainder to reduce the permanent partial disability 
 
            award.  McNeal v. Iowa Department of Transportation, Order 
 
            Nunc Pro Tunc, May 31, 1990.  Also see Clausen v. Carmar 
 
            Farms, Ltd., Vol. 1, No. 3 State of Iowa Industrial 
 
            Commissioner Decisions 540 (1985).
 
            The parties are directed to calculate interest on any weekly 
 
            benefits not paid when due based on Iowa Code section 85.30 
 
            and the above cited authority.  If a dispute exists between 
 
            the parties on how the interest should be calculated, the 
 
            parties can then bring the question before this agency for 
 
            resolution.
 
            Claimant shall pay the costs of the appeal, including the 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            preparation of the hearing transcript.
 
            Signed and filed this ____ day of March, 1992.
 
            
 
            
 
            
 
            
 
                      ________________________________
 
                               BYRON K. ORTON
 
                          INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Mark S. Soldat
 
            Attorney at Law
 
            714 East State Street
 
            Algona, Iowa 50511
 
            
 
            Mr. Tito Trevino
 
            Attorney at Law
 
            P.O. Box 1680
 
            Fort Dodge, Iowa 50501
 
            
 
 
            
 
            
 
            
 
            
 
            
 
            
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                           :
 
            TERRI L. WEST,                 :
 
                                           :
 
                 Claimant,                 :
 
                                           :
 
            vs.                            :
 
                                           :       File No. 913221
 
            PIONEER HI-BRED INTERNATIONAL, :
 
                                           :    A R B I T R A T I O N
 
                 Employer,                 :
 
                                           :       D E C I S I O N
 
            and                            :
 
                                           :
 
            THE HARTFORD,                  :
 
                                           :
 
                 Insurance Carrier,        :
 
                 Defendants.               :
 
            ___________________________________________________________
 
            
 
            
 
                          STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Terri L. 
 
            West, claimant, against Pioneer Hi-Bred International, 
 
            employer, hereinafter referred to as Pioneer, and the 
 
            Hartford, insurance carrier, defendants, for workers' 
 
            compensation benefits as a result of an alleged injury on 
 
            June 25, 1987.  On July 30, 1992, a hearing was held on 
 
            claimant's petition and the matter was considered fully 
 
            submitted at the close of this hearing.
 
            
 
                 The parties have submitted a prehearing report of 
 
            contested issues and stipulations which was approved and 
 
            accepted as a part of the record of this case at the time of 
 
            hearing.  The oral testimony and written exhibits received 
 
            during the hearing are set forth in the hearing transcript.
 
            
 
                 According to the prehearing report, the parties have 
 
            stipulated to the following matters:
 
            
 
                 1.  On June 25, 1987, claimant received an injury 
 
            arising out of and in the course of her employment with 
 
            Pioneer.
 
            
 
                 2. Claimant is not seeking additional temporary total 
 
            or healing period benefits in this proceeding.
 
            
 
                 3.  The injury is a cause of a permanent industrial 
 
            disability to the body as a whole, the extent of which 
 
            remains at issue.  Permanent disability benefits are to 
 
            begin as of August 8, 1990.
 
            
 
                 4.  At the time of injury claimant's gross rate of 
 
            weekly compensation was $450.00; she was single; and she was 
 
            entitled to 2 exemptions.  Therefore, claimant's weekly rate 
 
            of compensation is $264.70 according to the Industrial 
 
            Commissioner's published rate booklet. 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
                 5.  With reference to the requested medical benefits, 
 
            it was stipulated that the providers of the requested 
 
            medical expenses would testify as to their reasonableness 
 
            and defendants are not offering contrary evidence.  It was 
 
            also stipulated that all of the expenses are causally 
 
            connected to the work injury.  Only authorization is at 
 
            issue.
 
            
 
                                      ISSUES
 
            
 
                 The parties submitted the following issues for 
 
            determination in this proceeding:
 
            
 
                  I.  The extent of claimant's entitlement to permanent 
 
            disability benefits; and,
 
            
 
                 II.  The extent of claimant's entitlement to medical 
 
            benefits.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 Having heard the testimony and considered all of the 
 
            evidence, the deputy industrial commissioner finds as 
 
            follows:
 
            
 
                 A credibility finding is necessary to this decision as 
 
            defendants placed claimant's credibility at issue during 
 
            cross-examination as to the reasons for leaving employment 
 
            at Pioneer.  From her demeanor while testifying, claimant is 
 
            found credible.
 
            
 
                 Claimant worked for Pioneer from July 1983 until March 
 
            1991.  Although initially claimant was employed as an 
 
            accounting clerk, she acquired computer skills over the 
 
            years and was eventually promoted to a salaried position in 
 
            which she provided computer hardware and software services 
 
            to other Pioneer employees nation-wide.  This job involved 
 
            use of a computer terminal and keyboard for specialized 
 
            programing and spread sheet development.  Claimant conducted 
 
            in-house training programs and worked to resolve hardware 
 
            and software problems.  To accomplish these tasks, she was 
 
            required to travel 30-35 percent of the time to Pioneer 
 
            production facilities located throughout the nation.  
 
            Claimant earned approximately $30,000 annually when she 
 
            resigned her position in March 1990.
 
            
 
                 Claimant's work injury occurred during one of her trips 
 
            to a Pioneer facility in the state of Indiana.  Claimant 
 
            hurt her neck and knee from whiplash when the vehicle in 
 
            which she was riding was struck from the rear by another 
 
            vehicle.  Claimant initially had no symptoms but on the 
 
            plane ride home she began to feel stiffness in the neck.  
 
            The next day she began to experience extensive pain in the 
 
            neck and shoulders with tingling and numbness in the hands.  
 
            She first sought treatment from a family physician, C. 
 
            Ganske, M.D., but soon thereafter began receiving 
 
            chiropractic adjustments from Daniel Hannan, D.C.  
 
            Defendants initially concurred and paid for these 
 
            chiropractic treatments but then notified claimant that 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            further treatment should be transferred to Joseph Doro, 
 
            D.O., a neurologist.  Dr. Doro then treated claimant with 
 
            medication upon a diagnosis of myofascial pain.  He 
 
            recommended a gradual resumption of activity.  Scott Neff 
 
            D.O., an orthopedic surgeon, evaluated claimant in November 
 
            1987 and found no evidence of disc problems.  In February 
 
            1988, claimant was first evaluated by Thomas Carlstrom, 
 
            M.D., a neurosurgeon.  Dr. Carlstrom gave no treatment 
 
            recommendations at the time and felt that the problem was 
 
            myofascial and that she should steadily improve.  He also 
 
            felt at that time that any activity restrictions or 
 
            permanent impairment would be mild.  However, claimant 
 
            continued to have problems during the balance of 1988.  In 
 
            February 1989, claimant sought and received treatment for 
 
            chronic neck and shoulder pain at the Mercy Medical Center 
 
            pain center.  Although claimant states that this program was 
 
            of some benefit in helping to live with her pain, the pain 
 
            continued.  In June 89, Dr. Doro concluded that claimant 
 
            suffered a 15 percent permanent partial impairment to the 
 
            whole body due to her continuing neck and shoulder problems.
 
            
 
                 During the pain center treatment and for over a year 
 
            thereafter, claimant received regular manipulative care from 
 
            David Musgrave, D.O.  Defendants refuse to pay for this care 
 
            stating it was not authorized.  Claimant testified that Dr. 
 
            Blessman at the pain center referred her to Dr. Musgrave.  A 
 
            review of the pain center reports fails to show any record 
 
            of such a referral.  On the contrary, there is a reference 
 
            in the discharge note by one of the pain center nurses 
 
            (Joint Exhibit 12, page 22) that continued manipulations 
 
            were not recommended.  Consequently, it is concluded that 
 
            claimant must have been mistaken as to the referral.  
 
            Therefore, she has failed to show that the care of Dr. 
 
            Musgrave was authorized.
 
            
 
                 Claimant fell at home in March 1990.  A month later she 
 
            returned to Dr. Carlstrom with increased pain.  He then 
 
            performed an MRI test which revealed a herniated disc at one 
 
            level of claimant's upper spine.  This was treated 
 
            surgically.  Following recovery from surgery, Dr. Carlstrom 
 
            opined that claimant suffered from a 7-10 percent permanent 
 
            partial impairment to the body as a whole.  In December 
 
            1990, Dr. Carlstrom found another herniated disc in 
 
            claimant's cervical spine but this time he did not recommend 
 
            surgery.  Dr. Carlstrom believes that both herniations are 
 
            largely due to the 1987 auto accident at Pioneer, although 
 
            claimant had a previous neck injury in 1984 from an auto 
 
            accident and the subsequent injury from the fall at home in 
 
            March 1990.
 
            
 
                 Despite the various forms of treatment since 1987, 
 
            claimant continued to have chronic neck and shoulder pain 
 
            and numbness in the hands in early 1991.  Consequently, Dr. 
 
            Carlstrom concluded that more severe restrictions on 
 
            activity was needed and suggested a change in jobs.  
 
            Specifically, in April 1991, the doctor recommended against 
 
            repetitive work activity, especially with the hands and 
 
            wrists; avoidance of prolonged sitting or standing; and, 
 
            avoidance of activity requiring continuous turning of the 
 
            head.  In October 1991, claimant on her own and without 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            concurrence from defendants, sought another evaluation by 
 
            another neurosurgeon, Scott Erwood, M.D.  Dr. Erwood offered 
 
            no further treatment recommendations and rated claimant's 
 
            impairment at 11 percent.
 
            
 
                 Based upon the views of treating physicians, the work 
 
            injury of June 25, 1987 was a cause of a 10-15 percent 
 
            permanent impairment to the body as a whole.  However, work 
 
            restrictions are more important to an industrial 
 
            disability/loss of earning capacity analysis.  It is found 
 
            that the work restrictions imposed by Dr. Carlstrom are 
 
            consistent with claimant's disability and her credible 
 
            testimony.
 
            
 
                 Claimant's medical condition before the work injury was 
 
            good.  Although she had a serious neck injury in 1984 
 
            requiring extensive treatment, claimant's testimony that she 
 
            recovered is unrebutted.  Whether or not she had occasional 
 
            flareups of neck pain from this prior injury, it must be 
 
            concluded that she had no functional impairments or 
 
            ascertainable industrial disability before the work injury 
 
            herein.  Claimant was able to fully perform physical tasks 
 
            involving continuous use of her hand in working with her 
 
            computers.  She was able to sit or stand for prolonged 
 
            periods of time and fully engage in travel.  She was able to 
 
            lift computer equipment and handle luggage at the office and 
 
            while on the road.  Due to the activity restrictions now 
 
            imposed by her physicians, claimant is unable to perform 
 
            these tasks today.  She was able to continue to work between 
 
            1987 and 1991 only with chronic pain and constant medical 
 
            treatment and use of medications.  Although accommodations 
 
            were attempted, they failed to alleviate the problems.   
 
            None of these accommodations satisfied the prohibition 
 
            against repetitive use of her hands and continuous turning 
 
            of the neck.  Computer work using a keyboard requires 
 
            repetitive hand work and turning of the neck regardless of 
 
            the frequency of breaks.  Finally, no other work was offered 
 
            to claimant despite a wide variety of jobs at Pioneer.  All 
 
            of this is clear evidence that claimant has a serious 
 
            disability.
 
            
 
                  As a result of her inability to continue working at 
 
            Pioneer, claimant has suffered a major loss of earnings.  
 
            Claimant now has only a part-time job paying considerably 
 
            less than her wages at Pioneer.  In part, claimant has 
 
            chosen to work only part-time so that she can attend school.   
 
            She concludes, and rightly so, that retraining in education 
 
            is her best alternative in an effort to minimize the 
 
            economic effects of her disability.  Although claimant is 
 
            intelligent and has so far very good grades in school, it 
 
            would be too speculative to conclude that claimant will 
 
            successfully complete her training and obtain a job as a 
 
            teacher.  Even if she is able to keep up her grades, the 
 
            cost of a college education today is enormous as shown by 
 
            the evidence and claimant has very limited financial 
 
            resources.  Pioneer is not assisting in this retraining 
 
            effort.  If she is to continue in her education, she must 
 
            receive full scholarships.  It is pure speculation to 
 
            believe today that claimant will receive adequate 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            scholarships over the next four to five years.  
 
            Consequently, only claimant's current loss of earning 
 
            capacity will be evaluated.
 
            
 
                 Claimant is 38 years of age.  Claimant's past 
 
            employment consists primarily of computer work which she can 
 
            no longer perform on a regular basis.  Vocational 
 
            consultants eliminate all but light duty work.  Consultants 
 
            even preclude sedentary work with her restrictions.  
 
            According to one consultant, 78 percent of all jobs are 
 
            closed to claimant.  She today is able to only work in light 
 
            duty jobs such as sales clerk that pay from minimum wage to 
 
            6.00/hour.  She probably would have to begin part-time in 
 
            any such light duty jobs according to the consultants.  
 
            Absent successful retraining, claimant has, indeed, a very 
 
            substantial loss of earnings potential with her current 
 
            disability.  
 
            
 
                 From examination of all of the factors of industrial 
 
            disability, it is found that the work injury of June 25, 
 
            1987 is a cause of a 50 percent loss of earning capacity.  
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 I.  As the claimant has shown that the work injury was 
 
            a cause a permanent physical impairment or limitation upon 
 
            activity involving the body as a whole, the degree of 
 
            permanent disability must be measured pursuant to Iowa Code 
 
            section 85.34(2)(u).  However, unlike scheduled member 
 
            disabilities, the degree of disability under this provision 
 
            is not measured solely by the extent of a functional 
 
            impairment or loss of use of a body member.  A disability to 
 
            the body as a whole or an "industrial disability" is a loss 
 
            of earning capacity resulting from the work injury.  
 
            Diederich v. Tri-City R. Co., 219 Iowa 587, 593, 258 N.W. 
 
            899 (1935).  A physical impairment or restriction on work 
 
            activity may or may not result in such a loss of earning 
 
            capacity.  Examination of several factors determines the 
 
            extent to which a work injury and a resulting medical 
 
            condition caused an industrial disability.  These factors 
 
            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.  See Peterson v. Truck Haven 
 
            Cafe, Inc., (Appeal Decision, February 28, 1985).
 
            
 
                 Defendants argue that it is likely that claimant's 
 
            earning capacity will increase upon completion of this 
 
            schooling.  This agency has decided that an assessment of 
 
            future success of retraining is improper in an industrial 
 
            disability case.  Except where clearly shown to the 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            contrary, such an assessment is too speculative.  It is only 
 
            claimant's present not future earning capacity which is to 
 
            be measured in awarding permanent disability benefits.  
 
            Stewart v. Crouse Cartage Co., file number 738644 (Appeal 
 
            Decision filed February 20, 1987); Umphress v. Armstrong 
 
            Rubber Co., file number 723184 (Appeal Decision filed August 
 
            27, 1987).  Therefore, only claimant's present, not future, 
 
            disability will be compensated in this proceeding.  
 
            Certainly, if claimant's educational efforts are eventually 
 
            successful, this agency is available upon proper application 
 
            to review this award at a later time.
 
            
 
                 In the case sub judice, it was found that claimant 
 
            suffered a 50 percent loss of her earning capacity as a 
 
            result of the work injury.  Such a finding entitles claimant 
 
            to 250 weeks of permanent partial disability benefits as a 
 
            matter of law under Iowa Code section 85.34(2)(u) which is 
 
            50 percent of 500 weeks, the maximum allowable number of 
 
            weeks for an injury to the body as a whole in that 
 
            subsection. 
 
            
 
                 II.  Pursuant to Iowa Code section 85.27, claimant is 
 
            entitled to payment of reasonable medical expenses incurred 
 
            for treatment of a work injury.  However, employers have the 
 
            right to chose the care.  If dissatisfied, claimant must 
 
            first ask the employer for alternative care and if that is 
 
            refused, file an application to change the care with this 
 
            office.  In the case at bar, liability was never at issue.  
 
            Although claimant has every right to chose who furnishes 
 
            care, such care is at claimant's own expense if defendants 
 
            are providing care and refuse to authorize alternatives to 
 
            this care. The medical claims are denied.  Defendants were 
 
            offering reasonable care and did not authorize the care 
 
            obtained by claimant.
 
            
 
                                      ORDER
 
            
 
                 1.  Defendants shall pay to claimant two hundred fifty 
 
            (250) weeks of permanent partial disability benefits at a 
 
            rate of two hundred sixty-four and 70/100 ($264.70) per week 
 
            from August 8, 1990.
 
            
 
                 2.  Defendants shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against this award for all 
 
            benefits previously paid.  
 
            
 
                 3.  Defendants shall pay interest on weekly benefits 
 
            awarded herein as set forth in Iowa Code section 85.30. 
 
            
 
                 4.  Defendants shall pay the costs of this action 
 
            pursuant to rule 343 IAC 4.33, including reimbursement to 
 
            claimant for any filing fee paid in this matter.
 
            
 
                 5.  Defendants shall file activity reports on the 
 
            payment of this award as requested by this agency pursuant 
 
            to rule 343 IAC 3.1.
 
            
 
            
 
                 Signed and filed this ____ day of September, 1992.
 
            
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Thomas P. Schlapkohl
 
            Attorney at Law
 
            1906 Ingersoll Avenue
 
            Suite E
 
            Des Moines, Iowa  50309
 
            
 
            Mr. George H. Capps
 
            Attorney at Law
 
            P O Box 971
 
            Des Moines, Iowa  50304
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                             5-1803
 
                                             Filed September 21, 1992
 
                                             LARRY P. WALSHIRE
 
 
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                       
 
            TERRI L. WEST,  
 
                       
 
                 Claimant,  
 
                       
 
            vs.        
 
                                                    File No. 913221
 
            PIONEER HI-BRED INTERNATIONAL, 
 
                                               A R B I T R A T I O N
 
                 Employer,  
 
                                                    D E C I S I O N
 
            and        
 
                       
 
            THE HARTFORD,   
 
                       
 
                 Insurance Carrier,   
 
                 Defendants.     
 
            ___________________________________________________________
 
            
 
            
 
            5-1803
 
             Non-precedential, extent of disability case.
 
           
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
                     
 
         ROBERT D. BEAMAN,     
 
                     
 
              Claimant,   
 
                     
 
         vs.         
 
                                              File Nos. 913228/803576
 
         THE ARMSTRONG RUBBER CO.,       
 
                                                   A P P E A L
 
              Employer,   
 
                                                D E C I S I O N
 
         and         
 
                     
 
         THE TRAVELERS INSURANCE CO.,    
 
                     
 
              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 
 
         March 26, 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 September, 1992.
 
         
 
         
 
         
 
         
 
                                      ________________________________
 
                                              BYRON K. ORTON
 
                                         INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. E. J. Kelly
 
         Mr. Gregory T. Racette
 
         Attorneys at Law
 
         2700 Grand Ave., Ste 111
 
         Des Moines, Iowa 50312
 
         
 
         Mr. Terry L. Monson
 
         Attorney at Law
 
         100 Court Ave., Ste 600
 
         Des Moines, Iowa 50309
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                             9998
 
                                             Filed September 29, 1992
 
                                             Byron K. Orton
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            ROBERT D. BEAMAN,     
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                                 File Nos. 913228/803576
 
            THE ARMSTRONG RUBBER CO.,       
 
                                                      A P P E A L
 
                 Employer,   
 
                                                    D E C I S I O N
 
            and         
 
                        
 
            THE TRAVELERS INSURANCE CO.,    
 
                        
 
                 Insurance Carrier,    
 
                 Defendants.      
 
            ____________________________________________________________
 
            
 
            9998
 
            
 
                 Summary affirmance of deputy's decision filed March 26, 
 
            1991.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           5-1803
 
                           Filed March 26, 1991
 
                           LARRY P. WALSHIRE
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            ROBERT D. BEAMAN,   :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :    File Nos. 913228 & 803576
 
            THE ARMSTRONG RUBBER CO.,     :
 
                      :      A R B I T R A T I O N
 
                 Employer, :
 
                      :         D E C I S I O N
 
            and       :
 
                      :
 
            THE TRAVELERS INSURANCE CO.,  :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            
 
            5-1803
 
            
 
            Extent of permanent disability benefits.