BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            DAVID BROWN,                  :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 913559
 
            SCHOON CONSTRUCTION,          :
 
                                          :          A P P E A L
 
                 Employer,                :
 
                                          :        D E C I S I O N
 
            and                           :
 
                                          :
 
            WAUSAU INSURANCE,             :
 
                                          :
 
                 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 issues raised on appeal 
 
            are:  "(1) whether Deputy Industrial Commissioner Walshire 
 
            erred in concluding that Claimant sustained a permanent 
 
            impairment beyond the schedule, and (2) whether Deputy 
 
            Industrial Commissioner Walshire erred in concluding that 
 
            Claimant had suffered a 100 percent or total loss of his 
 
            earning capacity."
 
            
 
                                 FINDINGS OF FAC
 
            
 
                 The findings of fact contained in the proposed agency 
 
            decision filed July 10, 1992 are adopted as set forth below.  
 
            Segments designated by asterisks (*****) indicate portions 
 
            of the language from the proposed agency decision that have 
 
            been intentionally deleted and do not form a part of this 
 
            final agency decision.
 
            
 
                 *****
 
            
 
                 Claimant worked for Schoon from August 1976 until May 
 
            1990, at which time claimant left work and to date he has 
 
            not returned.  At the time of his injury claimant was a 
 
            working foreman over a crew of 2-3 persons.  Claimant's crew 
 
            installed underground cables.  This was medium to heavy work 
 
            in the manhandling of cable and equipment.
 
            
 
                 Before the injury herein, claimant had no serious 
 
            health problems.  Prior injuries involved broken bones and a 
 
            twisted ankle from which claimant fully recovered.  This 
 
            finding is based upon claimant's credible testimony.
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                 Claimant's injury on April 4, 1989 involved the 
 
            traumatic amputation of claimant's right arm.  His arm 
 
            became entangled in a horizontal auger used to install cable 
 
            under roadways.  Claimant's arm was pulled into the auger 
 
            almost to the shoulder until claimant was able to push a 
 
            reverse button on the machine.  Surgery at the hospital 
 
            completed the amputation process as the arm was too badly 
 
            damaged to save.
 
            
 
                 Since the injury, claimant has been plagued by chronic 
 
            pain in the remaining stump of the arm, shoulder and upper 
 
            back area.  John Dougherty, M.D., claimant's orthopedic 
 
            surgeon since the injury, was initially perplexed as to the 
 
            cause of the continuing pain which failed to respond to 
 
            various treatment modalities including physical therapy.  It 
 
            was suspected that claimant injured his brachial plexus in 
 
            the incident, a system of nerves extending from the neck, 
 
            across the shoulder and into the arm.  Claimant underwent a 
 
            second surgery in July 1990 which removed some spurring on 
 
            the stump but this failed to alleviate the pain.  Finally, 
 
            after evaluation by the orthopedic department at the 
 
            University Hospitals and Clinics in the summer of 1990, it 
 
            was concluded that claimant had indeed suffered a traction 
 
            injury to the brachial plexus in addition to the loss of his 
 
            arm on April 4, 1989 and this was the cause of claimant's 
 
            chronic and continuing neck, back, shoulder and arm pain.  
 
            ***** Unfortunately, as noted by the University Hospital 
 
            physicians and Dr. Dougherty, there is little that can be 
 
            done for the brachial plexus problem and that claimant must 
 
            learn to live with the resulting chronic pain.
 
            
 
                 ***** Claimant attempted to return to work to a lighter 
 
            duty, one-handed job for a few days in January 1990 and 
 
            again from February through May 1990.  Claimant was able to 
 
            work only part-time and had to rest after each work period.  
 
            Claimant was unable to continue after May 1990 due to this 
 
            pain.
 
            
 
                 *****
 
            
 
                 To date no vocational rehabilitation assistance has 
 
            been sought by claimant.  On the other hand, none has been 
 
            offered by defendants.  Claimant to date remains unemployed 
 
            with no strategy for re-employment.  It is found, based upon 
 
            the views of Dr. Dougherty and other physicians that 
 
            claimant's permanent impairment is 100 percent of the arm.  
 
            *****  In his most recent reports, Dr. Dougherty has 
 
            released claimant to only light duty.  Dr. Dougherty states 
 
            that if claimant is unable to tolerate work at Schoon, he 
 
            should be retrained.
 
            
 
                 Based upon the views of the only medical practitioner 
 
            to evaluate claimant's functional capabilities, Pat Luse, 
 
            D.C., claimant is found to be able to stand or walk over an 
 
            8 hour period only 2 hours and must limit occasional lifting 
 
            to 20 pounds with frequent lifting limited to 10 pounds.
 
            
 
                 *****
 
            
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                 Finally, it is found that although Schoon contributed 
 
            to an insurance plan for its employees including claimant, 
 
            the policy paid benefits to claimant and other employees 
 
            regardless of whether or not the injury arose out of or in 
 
            the course of employment.  This finding is based upon the 
 
            uncontroverted testimony of Schoon's president.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 The conclusions of law contained in the proposed agency 
 
            decision filed July 10, 1992 are adopted as set forth below.  
 
            Segments designated by asterisks (*****) indicate portions 
 
            of the language from the proposed agency decision that have 
 
            been intentionally deleted and do not form a part of this 
 
            final agency decision.  Segments designated by brackets ([ 
 
            ]) indicate language that is in addition to the language of 
 
            the proposed agency decision.
 
            
 
                 *****
 
            
 
                 [The record shows that claimant's arm amputation did 
 
            result in damage to the brachial plexus, which is on the 
 
            body side of the juncture between the arm and the body.  
 
            However, although damage did occur beyond the scheduled 
 
            member, there is no showing that any impairment resulted 
 
            from the damage.  It is the situs of the disability caused 
 
            by the injury or impairment which determines whether or not 
 
            to apply the schedules.  Lauhoff Grain Co. v. McIntosh, 395 
 
            N.W.2d 834 (Iowa 1986).
 
            
 
                 When an injury results in impairment of the shoulder, 
 
            the situs of the impairment is controlling and the injury is 
 
            to the body as a whole.  Snyder v. Sioux Transportation, III 
 
            Iowa Industrial Commissioner Report 240 (1982-1983).  
 
            However, subjective pain beyond the arm into the body does 
 
            not extend the injury to the body as a whole.  Weishaar v. 
 
            Snap-On Tools, Appeal Decision, June 28, 1991. 
 
            
 
                 The impairment resulting from claimant's work injury is 
 
            confined to the arm.  Although claimant relates subjective 
 
            pain extending beyond the arm into the body, pain alone does 
 
            not extend what would otherwise be a scheduled member injury 
 
            into an injury to the body as a whole.  There is no showing 
 
            of impairment beyond the scheduled member.  Claimant's 
 
            injury is to the scheduled member only and does not 
 
            constitute an injury to the body as a whole.  Claimant's 
 
            injury will be compensated on a functional basis.
 
            
 
                 Claimant's healing period began at the time of his 
 
            injury, and continued until May 1990.  The record does not 
 
            indicate an exact date when further medical improvement was 
 
            no longer expected, but rather the record indicates that 
 
            claimant attempted to return to work but quit his job in May 
 
            1990 due to pain.  It is determined that further medical 
 
            improvement was not expected after May 1990, and claimant's 
 
            healing period ended on May 31, 1990.  However, claimant's 
 
            healing period was intermittent and claimant will not 
 
            receive healing period benefits for any periods in which he 
 
            had attempted a return to work.
 
            
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                 Claimant has suffered a 100 percent loss of his arm.  
 
            This entitles claimant to 250 weeks of benefits.  The 
 
            conclusion that claimant's injury was a scheduled member 
 
            injury makes the other appeal issues moot.]
 
            
 
                 Pursuant to Iowa Code section 85.27, claimant is 
 
            entitled to payment of reasonable medical expenses incurred 
 
            for treatment of a work injury.  Claimant is entitled to an 
 
            order of reimbursement if he has paid those expenses.  
 
            Otherwise, claimant is entitled only to an order directing 
 
            the responsible defendants to make such payments directly to 
 
            the provider.  See Krohn v. State, 420 N.W.2d 463 (Iowa 
 
            1988).
 
            
 
                 *****
 
            
 
                 Defendants are not entitled to a credit for benefits 
 
            paid to claimant as a result of the injury under Schoon's 
 
            group disability insurance plan.  Iowa Code section 85.38(2) 
 
            provides a credit against workers' compensation liability 
 
            for payments made to injured workers under group plans only 
 
            if the plan excludes payments for work-related injuries.  It 
 
            was found to the contrary.
 
            
 
                 WHEREFORE, the decision of the deputy is affirmed and 
 
            modified.
 
            
 
                           
 
            
 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                                       ORDER
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendants are to pay unto claimant healing period 
 
            benefits from April 4, 1989 until May 31, 1990, at the rate 
 
            of two hundred five and 38/100 dollars ($205.38) per week, 
 
            except for any periods of time in January 1990 and February 
 
            through May 31, 1990 that claimant was working.
 
            
 
                 That defendants are to pay unto claimant 250 weeks of 
 
            permanent partial disability benefits at the rate of two 
 
            hundred five and 38/100 dollars ($205.38) per week from June 
 
            1, 1990.
 
            
 
                 That defendants shall pay the medical expenses listed 
 
            in the prehearing report.  Claimant shall be reimbursed for 
 
            any of these expenses paid by him.  Otherwise, defendants 
 
            shall pay the provider directly along with any lawful late 
 
            payment penalties imposed upon the account by the provider.
 
            
 
                 That defendants shall pay interest on any unpaid weekly 
 
            benefits awarded herein as set forth in Iowa Code section 
 
            85.30. 
 
            
 
                 That defendants shall pay the costs of this matter 
 
            including the transcription of the hearing.  
 
            
 
                 That 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 December, 1992.
 
            
 
            
 
            
 
            
 
                                          
 
                                      ________________________________
 
                                                   BYRON K. ORTON
 
                                              INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Harry H. Smith
 
            Attorney at Law
 
            P.O. Box 1194
 
            Sioux City, Iowa  51102
 
            
 
            Mr. Frank T. Harrison
 
            Attorney at Law
 
            2700 Grand Avenue, Ste 111
 
            Des Moines, Iowa  50312
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          1803.1
 
                                          Filed December 31, 1992
 
                                          Byron K. Orton
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER            
 
            ____________________________________________________________
 
            DAVID BROWN,                  :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 913559
 
            SCHOON CONSTRUCTION,          :
 
                                          :          A P P E A L
 
                 Employer,                :
 
                                          :        D E C I S I O N
 
            and                           :
 
                                          :
 
            WAUSAU INSURANCE,             :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
            1803.1
 
            Claimant with amputated arm awarded 100 percent scheduled 
 
            member benefits.  Claimant had subjective pain beyond the 
 
            stump, but held that pain does not extend an injury to the 
 
            body as a whole.  Lauhoff Grain and other cases cited for 
 
            proposition that situs of impairment controls treatment of 
 
            injury.  Claimant's impairment was confined to the scheduled 
 
            member.  Deputy affirmed and modified.
 
            
 
 
            
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            DAVID BROWN,                  :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 913559
 
            SCHOON CONSTRUCTION,          :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            WAUSAU INSURANCE,             :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                          STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by David 
 
            Brown, claimant, against Schoon Construction, employer, 
 
            hereinafter referred to as Schoon, and Wausau Insurance 
 
            Company, insurance carrier, defendants, for workers' compen
 
            sation benefits as a result of an alleged injury on April 4, 
 
            1989.  On June 3, 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 or about April 4, 1989, claimant received an 
 
            injury arising out of and in the course of employment with 
 
            Schoon.
 
            
 
                 2.  Claimant is seeking temporary total or healing 
 
            period benefits from October 5, 1990.
 
            
 
                 3.  At the time of injury claimant's gross rate of 
 
            weekly compensation was $312.00; he was married; and he was 
 
            entitled to 3 exemptions.  Therefore, claimant's weekly rate 
 
            of compensation is $205.38 according to the Industrial 
 
            Commissioner's published rate booklet for FY 89.
 
            
 
                 4.  It was stipulated that the providers of the 
 
            requested medical expenses would testify as to the reason
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            
 
            ableness of their fees and defendants are not offering con
 
            trary evidence.
 
            
 
                                      ISSUES
 
            
 
                 The parties submitted the following issues for determi
 
            nation in this proceeding:
 
            
 
                   I.  The extent of claimant's entitlement to disabil
 
            ity benefits;
 
            
 
                  II.  The extent of claimant's entitlement to medical 
 
            benefits; and,
 
            
 
                 III.  The extent of defendant employer's entitlement to 
 
            credit for money paid to claimant under a group disability 
 
            insurance plan at Schoon.
 
            
 
                                 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 nature and extent of the injury 
 
            and disability.  From his demeanor while testifying, 
 
            claimant is found credible.
 
            
 
                 Claimant worked for Schoon from August 1976 until May 
 
            1990, at which time claimant left work and to date he has 
 
            not returned.  At the time of his injury claimant was a 
 
            working foreman over a crew of 2-3 persons.  Claimant's crew 
 
            installed underground cables.  This was medium to heavy work 
 
            in the manhandling of cable and equipment.
 
            
 
                 Before the injury herein, claimant had no serious 
 
            health problems.  Prior injuries involved broken bones and a 
 
            twisted ankle from which claimant fully recovered.  This 
 
            finding is based upon claimant's credible testimony.
 
            
 
                 Claimant's injury on April 4, 1992 involved the trau
 
            matic amputation of claimant's right arm.  His arm became 
 
            entangled in a horizontal auger used to install cable under 
 
            roadways.  Claimant's arm was pulled into the auger almost 
 
            to the shoulder until claimant was able to push a reverse 
 
            button on the machine.  Surgery at the hospital completed 
 
            the amputation process as the arm was too badly damaged to 
 
            save.
 
            
 
                 Since the injury, claimant has been plagued by chronic 
 
            pain in the remaining stump of the arm, shoulder and upper 
 
            back area.  John Dougherty, M.D., claimant's orthopedic sur
 
            geon since the injury, was initially perplexed as to the 
 
            cause of the continuing pain which failed to respond to var
 
            ious treatment modalities including physical therapy.  It 
 
            was suspected that claimant injured his brachial plexus in 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            the incident, a system of nerves extending from the neck, 
 
            across the shoulder and into the arm.  Claimant underwent a 
 
            second surgery in July 1990 which removed some spurring on 
 
            the stump but this failed to alleviate the pain.  Finally, 
 
            after evaluation by the orthopedic department at the 
 
            University Hospitals and Clinics in the summer of 1990, it 
 
            was concluded that claimant had indeed suffered a traction 
 
            injury to the brachial plexus in addition to the loss of his 
 
            arm on April 4, 1989 and this was the cause of claimant's 
 
            chronic and continuing neck, back, shoulder and arm pain.  
 
            This injury of April 4, 1989 consequently extended beyond 
 
            the arm and into the shoulder, neck or upper torso of the 
 
            body as a whole.  Unfortunately, as noted by the University 
 
            Hospital physicians and Dr. Dougherty, there is little that 
 
            can be done for the brachial plexus problem and that 
 
            claimant must learn to live with the resulting chronic pain.
 
            
 
                 According to claimant's credible testimony, the pain 
 
            from the brachial plexus and upper torso is quite disabling.  
 
            Claimant attempted to return to work to a lighter duty, 
 
            one-handed job for a few days in January 1990 and again from 
 
            February through May 1990.  Claimant was able to work only 
 
            part-time and had to rest after each work period.  Claimant 
 
            was unable to continue after May 1990 due to this pain.
 
            
 
                 Claimant's chronic pain and resulting disability has 
 
            lead to psychological problems in the form of a major 
 
            depressive disorder according to University Hospital physi
 
            cians in their report of August 31, 1990.  This diagnosis 
 
            was confirmed in an evaluation in January 1992 by two psy
 
            chiatrists, Robert Stern, D.O., and Peter Johannson, M.D.  
 
            Treatment of his disorder and at a pain clinic to help 
 
            claimant deal with his pain to date has not been helpful in 
 
            returning claimant to work.  The dispute as to medical 
 
            expenses involves treatment of this condition and at the 
 
            pain clinic.  It is found that the disputed expenses, 
 
            exhibits 37-39, are causally related to the work injury of 
 
            April 4, 1989.  As the treatment was prescribed by licensed 
 
            physicians and defendants have not offered contrary evi
 
            dence, it is found that the treatment is reasonable and 
 
            necessary.
 
            
 
                 To date no vocational rehabilitation assistance has 
 
            been sought by claimant.  On the other hand, none has been 
 
            offered by defendants.  Claimant to date remains unemployed 
 
            with no strategy for reemployment.  It is found, based upon 
 
            the views of Dr. Dougherty and other physicians that 
 
            claimant's permanent impairment is 100 percent of the arm 
 
            which converts to 60 percent of the whole man.  In his most 
 
            recent reports, Dr. Dougherty has released claimant to only 
 
            light duty.  Dr. Dougherty states that if claimant is unable 
 
            to tolerate work at Schoon, he should be retrained.
 
            
 
                 Based upon the views of the only medical practitioner 
 
            to evaluate claimant's functional capabilities, Pat Luse, 
 
            D.C., claimant is found to be able to stand or walk over an 
 
            8 hour period only 2 hours and must limit occasional lifting 
 
            to 20 pounds with frequent lifting limited to 10 pounds.
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                 Claimant's medical condition before the work injury was 
 
            excellent and he had no ascertainable functional impairments 
 
            or ascertainable disabilities.  Claimant was able to fully 
 
            perform physical tasks involving heavy and repetitive lift
 
            ing with only limited standing and walking.  Due to his cur
 
            rent physical limitations, claimant's medical condition pre
 
            vents him from returning to his former work or any other 
 
            work claimant has performed in the past such as elevator and 
 
            feed mill construction, maintenance work, and 
 
            cement/carpentry work.  All of his past employment required 
 
            physical activity which now exceeds his current physical 
 
            abilities.
 
            
 
                 Claimant is in his mid-forties.  Claimant has only a 
 
            seventh grade formal education.  Claimant has trouble read
 
            ing and was a special education student while in school.  
 
            Claimant has very low potential for vocational retraining 
 
            given his background and educational abilities.  It is found 
 
            that claimant is unemployable at the present time and it is 
 
            likely this situation will not change in the future.
 
            
 
                 Therefore, the work injury of April 4, 1989 was a cause 
 
            of a 100 percent loss of earning capacity.
 
            
 
                 Finally, it is found that although Schoon contributed 
 
            to an insurance plan for its employees including claimant, 
 
            the policy paid benefits to claimant and other employees 
 
            regardless of whether or not the injury arose out of or in 
 
            the course of employment.  This finding is based upon the 
 
            uncontroverted testimony of Schoon's president.
 
            
 
                    
 
            
 
            
 
            Page   5
 
            
 
            
 
            
 
                               CONCLUSIONS OF LAW
 
            
 
                   I.  It was found that the evidence demonstrated that 
 
            the injury was not confined to the arm.  Consequently, this 
 
            work injury constitutes an injury and permanent impairment 
 
            to the body as a whole because it involves a loss or loss of 
 
            use of more portions of the human body than those specifi
 
            cally scheduled in Iowa Code sections 85.34(2)(a-t).  See 
 
            Lauhoff Grain v. McIntosh, 395 N.W.2d 834 (Iowa 1986); 
 
            Blacksmith v. All-American, Inc., 290 N.W.2d 348 (1980); 
 
            Dailey v. Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 569 
 
            (1943); Nazarenus v. Oscar Mayer & Co., II Iowa Indus. 
 
            Comm'r Rep. 281 (Appeal December 1982); Godwin v. Hicklin, 
 
            II Iowa Indus. Comm'r Rep. 170 (Appeal Decision 1981).
 
            
 
                 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 perma
 
            nent disability must be measured pursuant to Iowa Code sec
 
            tion 85.34(2)(u).  However, unlike scheduled member disabil
 
            ities, 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, immedi
 
            ately 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).
 
            
 
                 In the case sub judice, it was found that claimant suf
 
            fered a 100 percent or total loss of his earning capacity as 
 
            a result of the work injury.  Such a finding entitles 
 
            claimant to permanent total disability benefits as a matter 
 
            of law under Iowa Code section 85.34(3) which consists of 
 
            benefits for an indefinite period into the future.  Absent a 
 
            change of condition, these benefits will continue for the 
 
            rest of claimant's life.
 
            
 
                  II.  Pursuant to Iowa Code section 85.27, claimant is 
 
            entitled to payment of reasonable medical expenses incurred 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            for treatment of a work injury.  Claimant is entitled to an 
 
            order of reimbursement if he has paid those expenses.  
 
            Otherwise, claimant is entitled only to an order directing 
 
            the responsible defendants to make such payments directly to 
 
            the provider.  See Krohn v. State, 420 N.W.2d 463 (Iowa 
 
            1988).
 
            
 
                 In the case at bar, all of the requested benefits were 
 
            found work-related and compensable.  Also, as defendants 
 
            have denied causal connection or liability of the requested 
 
            expenses, lack of authorization is no defense.  This agency 
 
            has held that it is inconsistent to deny liability and the 
 
            obligation to furnish care on one hand and at the same time 
 
            claim a right to choose the care.  Kindhart v. Fort Des 
 
            Moines Hotel, I Iowa Industrial Commissioner Decisions 3, 
 
            611 (Appeal Decision 1985); Barnhart v. MAQ Incorporated, I 
 
            Iowa Industrial Commissioner Report 16 (Appeal Decision 
 
            1981).
 
            
 
                 III.  Defendants are not entitled to a credit for bene
 
            fits paid to claimant as a result of the injury under 
 
            Schoon's group disability insurance plan.  Iowa Code section 
 
            85.38(2) provides a credit against workers' compensation 
 
            liability for payments made to injured workers under group 
 
            plans only if the plan excludes payments for work-related 
 
            injuries.  It was found to the contrary.
 
            
 
                                      ORDER
 
            
 
                 1.  Defendants shall pay to claimant permanent total 
 
            disability benefits at a rate of two hundred five and 38/l00 
 
            dollars ($205.38) per week indefinitely from April 4, 1989 
 
            during the period of claimant's disability, less benefits 
 
            already paid.
 
            
 
                 2.  Defendants shall pay the medical expenses listed in 
 
            the prehearing report.  Claimant shall be reimbursed for any 
 
            of these expenses paid by him.  Otherwise, defendants shall 
 
            pay the provider directly along with any lawful late payment 
 
            penalties imposed upon the account by the provider.
 
            
 
                 3.  Defendants shall pay interest on any unpaid weekly 
 
            benefits awarded herein as set forth in Iowa Code section 
 
            85.30. 
 
            
 
                 4.  Defendants shall pay the costs of this action pur
 
            suant 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 pay
 
            ment of this award as requested by this agency pursuant to 
 
            rule 343 IAC 3.1.
 
            
 
            
 
            
 
                 Signed and filed this ____ day of July, 1992.
 
            
 
            
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Harry H. Smith
 
            Attorney at Law
 
            P O Box 1194
 
            Sioux City, Iowa  51102
 
            
 
            Mr. Frank T. Harrison
 
            Attorney at Law
 
            Terrace Center  STE 111
 
            2700 Grand Avenue
 
            Des Moines, Iowa  50312
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                  5-1803
 
                                                  Filed July 10, 1992
 
                                                  LARRY P. WALSHIRE
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            DAVID BROWN,   
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                                  File No. 913559
 
            SCHOON CONSTRUCTION,     
 
                                             A R B I T R A T I O N
 
                 Employer, 
 
                                                 D E C I S I O N
 
            and       
 
                      
 
            WAUSAU INSURANCE,   
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            
 
            5-1803
 
             Non-precedential, extent of disability case.
 
            
 
 
            
 
            
 
            
 
            
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER 
 
            ____________________________________________________________
 
            DAVID BROWN,     
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                                File No. 913559
 
            SCHOON CONSTRUCTION,       
 
                                                  R E M A N D
 
                 Employer,   
 
                                                D E C I S I O N
 
            and         
 
                        
 
            WAUSAU INSURANCE,     
 
                        
 
                 Insurance Carrier,    
 
                 Defendants.      
 
            ____________________________________________________________
 
            
 
            This case has been remanded to the Iowa Industrial 
 
            Commissioner by order of the Iowa District Court.  The order 
 
            of remand finds that claimant's work injury has resulted in 
 
            pain extending beyond the amputated scheduled member into 
 
            the body as a whole, and that such pain is disabling.  The 
 
            industrial commissioner is ordered to make fact findings and 
 
            apply the applicable statute.
 
            
 
                               FINDINGS OF FACT
 
            
 
            Claimant is in his mid-forties.  He has only a seventh grade 
 
            education, was in special education, and cannot read well.  
 
            He later obtained his GED.  As a result of losing his arm, 
 
            he has a rating of 60 percent body as a whole impairment.  
 
            He has restrictions against standing more than two hours out 
 
            of eight; he cannot lift more than 20 pounds occasionally, 
 
            and not more than 10 pounds frequently.  Claimant tried to 
 
            return to work but found he cannot go back to his old job, 
 
            or to any positions he held before this job.  He is 
 
            relegated to light duty only.  Claimant also has a 
 
            depressive disorder as a result of his injury.
 
            
 
                              CONCLUSIONS OF LAW
 
            
 
            Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, expe
 
            rience and inability to engage in employment for which he is 
 
            fitted.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 
            125 N.W.2d 251 (1963).  Barton v. Nevada Poultry, 253 Iowa 
 
            285, 110 N.W.2d 660 (1961).
 
            A finding of impairment to the body as a whole found by a 
 
            medical evaluator does not equate to industrial disability.  
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            This is so as impairment and disability are not synonymous.  
 
            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, 1985).
 
            Claimant is not completely restricted from working, but 
 
            rather has been medically released to light duty.  
 
            Nevertheless, claimant's amputated arm, mental condition and 
 
            disabling pain in the neck and shoulders severely restricts 
 
            his ability to obtain and maintain employment.  It is found 
 
            that as a result of his work injury, claimant has an 
 
            industrial disability of 95 percent.
 
                                   
 
                                   ORDER
 
            
 
            Defendants shall pay to claimant permanent partial 
 
            disability benefits at a rate of two hundred five and 38/100 
 
            dollars ($205.38) per week for a period of four hundred 
 
            seventy-five (475) weeks from April 4, 1989.
 
            Defendants shall pay the medical expenses listed in the 
 
            prehearing report.  Claimant shall be reimbursed for any of 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            these expenses paid by him.  Otherwise, defendants shall pay 
 
            the provider directly along with any lawful late payment 
 
            penalties imposed upon the account by the provider.
 
            Defendants shall pay interest on any unpaid weekly benefits 
 
            awarded herein as set forth in Iowa Code section 85.30.
 
            
 
                 Defendants shall pay the costs of this matter including 
 
            transcription of the hearing and shall reimburse claimant 
 
            for the filing fee if previously paid by claimant.
 
            Signed and filed this ____ day of July, 1994.
 
            
 
            
 
            
 
            
 
                                       ________________________________
 
                                       BYRON K. ORTON
 
                                       INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Harry H. Smith
 
            Attorney at Law
 
            P.O. Box 1194
 
            Sioux City, Iowa 51102
 
            
 
            Mr. Frank T. Harrison
 
            Attorney at Law
 
            2700 Grand Ave., Ste 111
 
            Des Moines, Iowa 50312
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                1803
 
                                                Filed July 28, 1994
 
                                                Byron K. Orton
 
            
 
                         BEFORE THE IOWA INDUSTRIAL COMMISSIONER 
 
            ____________________________________________________________
 
            DAVID BROWN,     
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                                File No. 913559
 
            SCHOON CONSTRUCTION,       
 
                                                  R E M A N D
 
                 Employer,   
 
                                                D E C I S I O N
 
            and         
 
                        
 
            WAUSAU INSURANCE,     
 
                        
 
                 Insurance Carrier,    
 
                 Defendants.      
 
            ____________________________________________________________
 
            1803
 
            
 
            On remand, claimant with arm amputation, phantom pain, 
 
            impairment of the shoulder, a rating of 60 percent body as a 
 
            whole impairment, restrictions against standing more than 
 
            two hours out of eight, lifting not more than 20 pounds 
 
            occasionally or 10 pounds frequently, and a depressive 
 
            disorder stemming from the injury, was awarded 95 percent 
 
            industrial disability.  Claimant was in his mid-forties, had 
 
            a seventh grade education but later obtained a GED, and 
 
            could not read well.  Claimant was not prohibited from 
 
            returning to his job but was relegated to light duty only.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DIANE L. KING,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 913565
 
            MERCY HOSPITAL,               :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            ALEXSIS,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Diane L. 
 
            King against her former employer Mercy Hospital based upon 
 
            an alleged injury of March 20, 1989.  Claimant asserts that 
 
            she is entitled to either a running award of healing period 
 
            compensation or an award of permanent total disability.  
 
            Claimant also seeks to recover expenses of medical treatment 
 
            in the nature of a $90.00 charge from Michael Egger, M.D.
 
            
 
                 The case was heard at Council Bluffs, Iowa on May 23, 
 
            1991.  The evidence consists of testimony from Diane L. 
 
            King, Robert King and Alfred J. Marchisio, Jr.  The record 
 
            also contains joint exhibits 1 through 22, 25, 27, 28, 32 
 
            through 35 and 40.
 
            
 
                                 findings of fact
 
            
 
                 Having considered all the evidence received, together 
 
            with the appearance and demeanor of the witnesses, the 
 
            following findings of fact are made.
 
            
 
                 Diane L. King is a 34-year-old married lady who lives 
 
            at Council Bluffs, Iowa with her husband and two children.  
 
            Diane obtained a GED at age 19 after having dropped out of 
 
            school at age 18.  She then completed a medical assistant 
 
            program.  After working four years, she decided to be a 
 
            nurse and returned to school at Iowa Western Community 
 
            College where she graduated with a two-year associates 
 
            degree in nursing.
 
            
 
                 Diane's pertinent work history includes four years of 
 
            work as a medical assistant for Pediatric Associates and 
 
            three years of work as a registered nurse for Mercy 
 
            Hospital.
 
            
 
                 Diane did not have any back problems prior to March 20, 
 
            1989.  On March 20, 1989, while repositioning a patient, she 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            felt a pop and severe pain in her back together with 
 
            radiating pain down her left leg.  Diane reported the 
 
            injury.  She completed her work shift that day, but was 
 
            unable to work the following day.  She has not since 
 
            returned to work at Mercy Hospital despite having made 
 
            inquiries.
 
            
 
                 Diane was initially treated at the Mercy Hospital 
 
            emergency room.  She treated briefly with James R. Rochelle, 
 
            M.D., and then her treatment moved to Patrick W. Bowman, 
 
            M.D., an Omaha orthopaedic surgeon.  She was also referred 
 
            to Charles Taylon, M.D., an orthopaedic specialist at St. 
 
            Joseph Hospital.  Extensive diagnostic testing was 
 
            performed, but no objective abnormalities were identified. 
 
            Diane has received physical therapy and other conservative 
 
            treatment, but remains symptomatic.  Drs. Rochelle and 
 
            Bowman have diagnosed her condition as being a chronic 
 
            lumbar strain (exhibits 9 and 10).  Dr. Taylon characterized 
 
            it as mechanical musculoligamentous injury due to the March 
 
            20, 1989 incident (exhibits 4 and 35).  None of the 
 
            physicians dispute that Diane's back problems resulted from 
 
            the March 20, 1989 patient handling incident.  Dr. Taylon 
 
            provided a three percent impairment rating (exhibit 35).  
 
            Dr. Bowman rated the impairment at five percent (exhibit 7).  
 
            Dr. Rochelle rated the impairment at 7-8 percent (exhibit 
 
            6).  Dr. Taylon reported that claimant could work with 
 
            restrictions such as a 20-pound lifting limit and that she 
 
            should avoid pushing, pulling or bending.  He felt she could 
 
            sit or stand for two hours (exhibit 35).  Dr. Bowman 
 
            indicated that claimant had reached maximum medical 
 
            improvement in his November 27, 1989 report (exhibit 7).  He 
 
            had last seen claimant on October 5, 1989.  In the notes 
 
            from that last visit, Dr. Bowman also specifically 
 
            recognized that claimant was having psychological problems 
 
            and that her future prognosis was not good if those 
 
            psychological problems were not treated (exhibit 11).  When 
 
            Dr. Taylon issued his report on February 1, 1990, he 
 
            likewise reported that claimant had reached maximum medical 
 
            improvement (exhibit 35).  Claimant underwent functional 
 
            capacity assessment tests on August 1 and 2, 1989.  The 
 
            reports indicate that she was generally uncooperative, 
 
            exhibited crying and pain behavior and performed at a quite 
 
            low level (exhibits 12, 13 and 14).  It is found that the 
 
            functional capacity assessment was not a valid measurement 
 
            of the claimant's actual physical capacity.  Her actual 
 
            capacity is found to be considerably higher than the 
 
            capacity indicated by the tests.
 
            
 
                 Diane also has been assessed by Michael L. Egger, M.D., 
 
            as being extremely depressed.  He had seen her in late 1989 
 
            and again on March 22, 1990 (exhibits 1 and 3).  According 
 
            to a bill which is in evidence, he saw claimant again on 
 
            October 22, 1990 (exhibit 22).  Diane would not cooperate 
 
            with Dr. Egger and he was therefore unable to treat her 
 
            depression.  When testifying at hearing, Diane admitted that 
 
            she had been depressed, but stated that she had recovered.  
 
            In his report, vocational consultant James T. Rogers 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            recognized that claimant appeared to have a psychological 
 
            problem (exhibit 5).  Diane unreasonably refused to 
 
            cooperate with the efforts which were made by Dr. Bowman and 
 
            others to arrange psychological treatment for her.
 
            
 
                 Diane's case has been evaluated by two vocational 
 
            consultants, James T. Rogers and Alfred J. Marchisio.  Both 
 
            feel that claimant could continue to work as a nurse, but 
 
            not as a general nurse on a hospital floor.  They found that 
 
            other forms of nursing work were available such as office 
 
            nurse, school nurse, industrial nurse or work as a 
 
            utilization review nurse for an insurance company.  Claimant 
 
            had earned approximately $27,000 during her last full year 
 
            of employment as a registered nurse at Mercy Hospital.  
 
            According to Marchisio and Rogers, her earnings would likely 
 
            be reduced if she were to move into one of the alternate 
 
            forms of nursing (exhibits 2 and 5).  According to 
 
            Marchisio, it could take approximately six months in order 
 
            to actually place Diane in a suitable position.  Marchisio 
 
            also recognized that she needs counseling in order to make 
 
            the required career change.
 
            
 
                 At hearing, Diane was adamant in stating that she did 
 
            not want to work as a desk-type of nurse.  She wanted to 
 
            work in a hands-on capacity with patients.  Diane was not 
 
            willing to admit that she has physical limitations.  Her 
 
            entire focus was on obtaining further medical treatment 
 
            which would identify whatever it is that is physiologically 
 
            wrong with her back so that it could be remedied.  In view 
 
            of all the testing which has previously been conducted, 
 
            Diane's views are unrealistic.  She has the capacity to move 
 
            to other forms of nursing where her training and experience 
 
            can be effectively utilized.  Those positions would 
 
            certainly be suitable for her in view of her physical 
 
            condition.  Her insistence upon obtaining a complete 
 
            recovery and working only as a nurse who performs direct 
 
            patient care is unrealistic.  It cannot control her 
 
            vocational future.
 
            
 
                 Diane clearly had serious psychological problems at 
 
            approximately the time she was undergoing the functional 
 
            capacity assessment and also when she was seen by Dr. Egger 
 
            in March 1990.  It appears probable that her back injury 
 
            precipitated the psychological problems as indicated by Dr. 
 
            Bowman in his October 5, 1989 notes.  Diane did not, 
 
            however, take reasonable efforts to obtain treatment for 
 
            that condition.  The record made in this case does not 
 
            contain any medical evidence of any psychological treatment 
 
            which she may have received.
 
            
 
                 In assessing this case, it is found that Drs. Bowman 
 
            and Taylon are correct.  There is no substantial variance 
 
            between their opinions.  It is further found that Dr. Egger 
 
            is correct in his statement that claimant was extremely 
 
            depressed but would not cooperate with treatment.  The 
 
            assessments made by vocational consultants Rogers and 
 
            Marchisio are likewise found to be generally correct.  
 
            Claimant is capable of working as a nurse, although not as a 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            hospital floor nurse.  If she changes into one of the other 
 
            types of nursing, she will likely experience approximately a 
 
            20 percent reduction in her actual earnings.
 
            
 
                 It is further found that Diane has not made reasonable 
 
            efforts in order to obtain treatment for her psychological 
 
            condition as would be likely to enable her to recover from 
 
            her depression and resume working as a nurse.  She has 
 
            performed some services for her husband at his body shop.  
 
            Diane has not made reasonable efforts to make the best of 
 
            her unfortunate situation.  Based upon viewing the record 
 
            which has been made as a whole, together with the claimant's 
 
            appearance and demeanor at hearing, in particular the fact 
 
            that Diane's failure to carry on with her life is quite 
 
            inconsistent with the extremely high level of motivation she 
 
            had exhibited prior to this injury, leads the undersigned to 
 
            suspect that she may still be medically depressed and in 
 
            need of treatment.  That cannot, however, be determined from 
 
            the record made in this decision.
 
            
 
                                conclusions of law
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that she received an injury on March 20, 
 
            1989 which arose out of and in the course of her 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). 
 
            
 
                 Diane's testimony is uncontroverted and quite 
 
            reasonable.  From her appearance and demeanor exhibited at 
 
            hearing, she is deemed credible.  She has carried her burden 
 
            of proving that she injured her back on March 20, 1989 while 
 
            handling patients at her place of employment.  The injury 
 
            therefore arose out of and in the course of her employment.
 
            
 
                 Since claimant's psychological condition resulted from 
 
            physical trauma, it would be compensable.  Defendants are 
 
            responsible for the $90.00 bill with Dr. Egger.  Coghlan v. 
 
            Quinn Wire & Iron Works, 164 N.W.2d 848 (Iowa 1969); Gosek 
 
            v. Garmer & Stiles Co., 158 N.W.2d 731, 733 (Iowa 1968).
 
            
 
                 An injured employee has a legal obligation in the 
 
            nature of mitigating damages.  If an employee seeks to 
 
            recover healing period compensation, the employee must be 
 
            actively engaged in obtaining medical treatment for the 
 
            condition.  McKeever Custom Cabinets v. Smith, 379 N.W.2d 
 
            368 (Iowa 1985); Stufflebean v. City of Fort Dodge, 233 Iowa 
 
            438, 9 N.W.2d 281 (1943).  There is no reason to believe 
 
            that treatment from Dr. Egger, or some other psychological 
 
            health professional, would not have been successful.  
 
            Claimant still appears to be in need of some type of 
 
            counseling in order to make the career shift which is 
 
            necessary for her to resume work.  The type of counseling 
 
            needed appears to be more in the nature of psychological 
 
            counseling than actual vocational counseling, though some of 
 
            both types of counseling appear to be warranted in this 
 
            case.  It is concluded that Diane King's entitlement to 
 
            healing period compensation under section 85.34 of The Code 
 
            terminated when she failed to cooperate with Dr. Egger when 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            he evaluated her in approximately October of 1989.  The date 
 
            of that evaluation is found to have been October 19, 1989 as 
 
            shown in exhibit 27, the rehabilitation report authored by 
 
            Gayleen M. Kuehn, R.N.  It is therefore concluded that, 
 
            since the claimant unreasonably failed to proceed with 
 
            appropriate psychological treatment, her healing period 
 
            entitlement ended October 19, 1989.  Her last appointment 
 
            with Dr. Bowman had been on October 5, 1989.  Diane's 
 
            unreasonable refusal to cooperate with appropriate treatment 
 
            was confirmed on March 22, 1990.
 
            
 
                 The claimant is not charged with the burden of proving 
 
            how much of her current disability is related to her refusal 
 
            to accept reasonable treatment.  That burden rests on the 
 
            defendants.  Knauss v. City of Des Moines, 357 N.W.2d 573 
 
            (Iowa 1984); Vorthman v. Keith E. Myers Enterprises, 296 
 
            N.W.2d 772, 14 A.L.R.4th 1085 (Iowa 1980); Becker v. D & E 
 
            Distrib. Co., 247 N.W.2d 727, 731 (Iowa 1976).  The evidence 
 
            in this case from Rogers and Marchisio is sufficiently 
 
            strong to show that claimant could probably obtain work as a 
 
            registered nurse at only a small loss in earnings when 
 
            compared to her level of earnings as a nurse at Mercy 
 
            Hospital.  Claimant's degree of industrial disability is 
 
            therefore to be based upon what that disability would likely 
 
            be if she had cooperated with treatment and obtained the 
 
            recovery which likely would have been expected.  According 
 
            to her testimony, she has recovered despite the absence of 
 
            treatment.  The undersigned is not, however, satisfied that 
 
            her own assessment is correct.  Nevertheless, since the lack 
 
            of treatment is a result of the claimant's own choice, it is 
 
            appropriate to assess her degree of disability.
 
            
 
                 Since claimant has an impairment to the body as a 
 
            whole, an industrial disability has been sustained.  
 
            Industrial disability was defined in Diederich v. Tri-City 
 
            Railway Co., 219 Iowa 587, 593, 258 N.W.2d 899, 902 (1935) 
 
            as follows: "It is therefore plain that the legislature 
 
            intended the term `disability' to mean `industrial 
 
            disability' or loss of earning capacity and not a mere 
 
            `functional disability' to be computed in the terms of 
 
            percentages of the total physical and mental ability of a 
 
            normal man."
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, 
 
            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).
 
            
 
                 Industrial disability or loss of earning capacity is a 
 
            concept that is quite similar to impairment of earning 
 
            capacity, an element of damage in a tort case.  Impairment 
 
            of physical capacity creates an inference of lessened 
 
            earning capacity.  The basic element to be determined, 
 
            however, is the reduction in value of the general earning 
 
            capacity of the person, rather than the loss of wages or 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            earnings in a specific occupation.  Post-injury earnings 
 
            create a presumption of earning capacity.  The earnings are 
 
            not synonymous with earning capacity and the presumption may 
 
            be rebutted by evidence showing the earnings to be an 
 
            unreliable indicator.  DeWall v. Prentice, 224 N.W.2d 428, 
 
            435 (Iowa 1974); Carradus v. Lange, 203 N.W.2d 565 (Iowa 
 
            1973); Holmquist v. Volkswagon of America, Inc., 261 N.W.2d 
 
            516 (Iowa App. 1977) A.L.R.3d 143; Michael v. Harrison 
 
            County, Thirty-fourth Biennial Report of the Industrial 
 
            Commissioner 218 (1979); 2 Larson Workmen's Compensation 
 
            Law, sections 57.21 and 57.31.
 
            
 
                 The undersigned relies heavily upon the assessments 
 
            made by Rogers and Marchisio.  In view of the reduction in 
 
            actual earnings which could be expected and the loss of 
 
            access to jobs as well as the other factors of industrial 
 
            disability which have been considered in this case, it is 
 
            determined that Diane L. King has a 20 percent permanent 
 
            partial disability which entitles her to receive 100 weeks 
 
            of compensation for permanent partial disability.  The same 
 
            is payable commencing October 20, 1989, the date that the 
 
            healing period is deemed to have ended.  This determination 
 
            does not foreclose the possibility of an entitlement to 
 
            further healing period compensation should additional 
 
            medical treatment be properly received.
 
            
 
                                      order
 
            
 
                 IT IS THEREFORE ORDERED that defendants pay Diane L. 
 
            King thirty and four-sevenths (30 4/7) weeks of compensation 
 
            for healing period at the stipulated rate of three hundred 
 
            twenty and 67/100 dollars ($320.67) per week payable 
 
            commencing March 20, 1989.
 
            
 
                 IT IS FURTHER ORDERED that defendants pay Diane L. King 
 
            one hundred (100) weeks of compensation for permanent 
 
            partial disability at the stipulated rate of three hundred 
 
            twenty and 67/100 dollars ($320.67) per week payable 
 
            commencing October 20, 1989.  Defendants are entitled to 
 
            credit for all amounts previously paid.  In the event that 
 
            any accrued amounts are unpaid, defendants shall pay them in 
 
            a lump sum together with interest pursuant to section 85.30.
 
            
 
                 IT IS FURTHER ORDERED that defendants pay claimant's 
 
            medical expenses incurred with Michael L. Egger, M.D., in 
 
            the amount of ninety and 00/100 dollars ($90.00).
 
            
 
                 IT IS FURTHER ORDERED that the costs of this action are 
 
            assessed against defendants pursuant to rule 343 IAC 4.33.
 
            
 
                 IT IS FURTHER ORDERED that defendants file claim 
 
            activity reports as requested by this agency pursuant to 
 
            rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ______ day of ____________, 1991.
 
            
 
                 
 
            
 
                 
 
                 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Sheldon M. Gallner
 
            Attorney at Law
 
            803 Third Avenue
 
            P.O. Box 1588
 
            Council Bluffs, Iowa  51502
 
            
 
            Mr. Richard A. Crotty
 
            Attorney at Law
 
            305 First Federal Savings & Loan
 
            Council Bluffs, Iowa  51501
 
            
 
            Mr. Robert V. Roach
 
            Attorney at Law
 
            800 Exchange Building
 
            1905 Harney Street
 
            Omaha, Nebraska  68102
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           1403.30; 1803; 1806; 2204
 
                           Filed August 7, 1991
 
                           MICHAEL G. TRIER
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            DIANE L. KING, :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :         File No. 913565
 
            MERCY HOSPITAL,     :
 
                      :      A R B I T R A T I O N
 
                 Employer, :
 
                      :         D E C I S I O N
 
            and       :
 
                      :
 
            ALEXSIS,  :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ____________________________________________________________
 
            
 
            1403.30; 1803; 1806; 2204
 
            Claimant, a nurse, injured her back handling a patient.  
 
            While off work for the injury, she developed depression.  
 
            She refused, however, to seek appropriate treatment for her 
 
            depression, despite efforts to arrange treatment by her 
 
            authorized orthopaedic physician and a vocational 
 
            consultant.  It was held that the employer was liable for 
 
            the psychological condition.
 
            It was recognized that the employer has the burden of 
 
            proving how much of the disability results from the 
 
            unreasonable refusal to obtain medical care.  In this case, 
 
            it was held that the employer had met the burden of showing 
 
            that, if the claimant had received medical care for her 
 
            depression, she would likely have recovered.  There was some 
 
            evidence in the record to indicate that she had nevertheless 
 
            recovered in any event.  The healing period was terminated 
 
            at the time the claimant refused to cooperate with the 
 
            psychiatrist who evaluated her.  The permanent partial 
 
            disability was evaluated as though the back injury were the 
 
            claimant's only permanent ailment.
 
            Claimant was not entitled to insist upon obtaining a 
 
            complete recovery before she resumed nursing.  She was held 
 
            to be required to move into other forms of nursing 
 
            consistent with her training and abilities.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
            _____
 
                                          :
 
            ROBERT A. PICKERING,          :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 913614
 
            SQUEALER FEEDS,               :
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INSURANCE      :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            _____
 
            The record, including the transcript of the hearing before 
 
            the deputy and all exhibits admitted into the record, has 
 
            been reviewed de novo on appeal.  
 
            findings of fact
 
            The findings of fact of the deputy's proposed decision filed 
 
            April 30, 1991 are affirmed and adopted.
 
            conclusions of law
 
            The conclusions of law in the deputy's proposed decision are 
 
            affirmed and adopted with the following modifications.
 
            Claimant proved that he sustained an injury arising out of 
 
            and in the course of his employment on December 16, 1988.  
 
            Claimant's position as a sales person required him drive 
 
            many miles.  Claimant testified that he had been driving 
 
            when he experienced low back pain.  Claimant testified that 
 
            he was unable to complete his route as a result of his back 
 
            pain.  Claimant's physicians opined that claimant's work 
 
            which required him to drive from 500 to 800 miles in a month 
 
            aggravated his preexisting back condition.  Claimant proved 
 
            that he sustained an injury arising out of and in the course 
 
            of his employment on December 16, 1988.
 
            Claimant proved a causal connection between his December 18, 
 
            1988 work injury and medical expenses incurred.  
 
            The final issue on appeal is the extent of claimant's 
 
            industrial disability as a result of his December 16, 1988 
 
            work injury.
 
            Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            experience and inability to engage in employment for which 
 
            he is fitted,  Olson v. Goodyear Service Stores, 255 Iowa 
 
            1112, 125 N.W.2d 251 (1963).  Barton v. Nevada Poultry Co., 
 
            253 Iowa 285, 100 N.W.2d 660 (1961).
 
            Factors to be considered in determining industrial 
 
            disability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  These are matter which the 
 
            finder of fact considers collectively in arriving at the 
 
            determination of the degree of industrial disability.
 
            Claimant was forty-two years old at the time of his work 
 
            injury on December 16, 1988.  Claimant is at the peak of his 
 
            earning capacity, therefore his work injury has a greater 
 
            impact upon him compared to a younger employee.  Becke v. 
 
            Turner-Busch, Inc., Thirty-forth Biennial Report of the Iowa 
 
            Industrial Commissioner, 34 (Appeal Decision 1979).
 
            Claimant has a high school education.  Claimant testified 
 
            that his work experience includes farming from 1964 until 
 
            1981.  Claimant obtained his real estate sales license and a 
 
            real estate brokers license after leaving farming.  Claimant 
 
            testified that he was a "million dollar" seller in his first 
 
            year of real estate sales with Skogman Realty.  Claimant 
 
            left real estate and became a sales person selling feed for 
 
            farm animals.  The position as a sales person required 
 
            claimant to drive many miles.  Claimant's restrictions 
 
            prohibit his return to his prior employment which required 
 
            claimant to drive more than one hour.  
 
            Claimant had a preexisting back condition which required 
 
            hospitalization in 1979 and September 1987.  Claimant was 
 
            released to return to full duty following the September 1987 
 
            injury and remained symptom free until his December 16, 1988 
 
            work injury.  Following the December 16, 1988 work injury, 
 
            Richard F. Neiman, M.D., placed severe restrictions upon 
 
            claimant's activities.  Dr. Neiman opined that claimant 
 
            sustained a 15 percent permanent impairment, five of which 
 
            he apportioned to claimant's preexisting condition and the 
 
            remaining 10 percent he attributed to the aggravation of 
 
            claimant's preexisting condition.  (Joint exhibit L, p. 14.)  
 
            Apportionment is not applied in this case as claimant's 
 
            preexisting back condition had no effect upon his earning 
 
            capacity prior to the December 16, 1988 work injury.  
 
            Defendants take claimant subject to any active or dormant 
 
            health impairments incurred prior to employment.  Defendants 
 
            are liable for the entire result of the aggravation of 
 
            claimant's preexisting back condition.  Bearce v. FMC 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            Corporation, 464 N.W.2d 531 (Iowa 1991).  Zeigler v. United 
 
            States Gypsum Co., 252 Iowa 613, 106 N.W.2d 591 (1960).
 
            All of claimant's physician's opined that claimant's weight 
 
            affected his back condition.  Claimant's physicians have 
 
            repeatedly encouraged claimant to lose weight.  Claimant's 
 
            failure to loss weight as recommended by his physicians 
 
            adversely impacts upon his motivation.  In addition, 
 
            claimant failed to exercise as directed, this also adversely 
 
            impacts upon his motivation.
 
            Claimant was terminated from his position with the 
 
            defendant-employer as a result of low productivity.  
 
            Claimant failed to apply for any employment or continue 
 
            vocational rehabilitation.  This factor impacts adversely 
 
            upon claimant's motivation.  
 
            Based upon these facts and those set out in the deputy's 
 
            proposed decision, it is determined that claimant proved 
 
            entitlement to 35 percent permanent partial disability 
 
            benefits as a result of his December 16, 1988 work injury.
 
            Claimant waived the issue of the proper commencement date of 
 
            benefits, therefore, it is not considered.
 
            WHEREFORE, the decision of the deputy is affirmed and 
 
            modified.
 
            order
 
            THEREFORE, it is ordered:
 
            That defendants shall pay claimant one hundred seventy-five 
 
            (175) weeks of permanent partial disability benefits at the 
 
            rate of two hundred eighty-five and 13/100 dollars ($285.13) 
 
            per week commencing on July 6, 1989 as stipulated to by the 
 
            parties.
 
            That defendants shall pay healing period benefits from 
 
            January 16, 1989 through July 5, 1989 as stipulated at the 
 
            rate of two hundred eighty-five and 13/100 dollars ($285.13) 
 
            per week.
 
            That defendants shall pay medical bills in the sum of three 
 
            thousand three hundred eighty and 50/100 dollars ($3,380.50) 
 
            and medical mileage in the sum of one hundred forty-seven 
 
            and 63/100 dollars ($147.63) per week.
 
            That interest will accrue pursuant to Iowa Code section 
 
            85.30.
 
            That defendants shall pay the cost of appeal, including the 
 
            preparation of the hearing transcript.
 
            That defendant shall file a claim activity report pursuant 
 
            to rule 343 IAC 3.1.
 
            Signed and filed this ____ day of December, 1991.
 
            
 
            
 
            
 
            
 
                      ________________________________
 
                               BYRON K. ORTON
 
                          INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            Mr. Thomas M. Wertz
 
            Attorney at Law
 
            4089 21st Ave. SW, Ste 114
 
            Cedar Rapids, Iowa 52404
 
            
 
            Mr. Greg A. Egbers
 
            Attorney at Law
 
            600 Union Arcade Bldg.
 
            111 E. Third St.
 
            Davenport, Iowa 5280l-1596
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            5-1108.5  5-1803  5-1806
 
            Filed December 24, 1991
 
            Byron K. Orton
 
            MAM
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
            _____
 
                                          :
 
            ROBERT A. PICKERING,          :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 913614
 
            SQUEALER FEEDS,               :
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INSURANCE      :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            _____
 
            
 
            5-1108.5
 
            Held that claimant proved that he sustained an injury 
 
            arising out of and in the course of his employment on 
 
            December 16, 1988.  Claimant's physicians opined that 
 
            claimant's work which required him to drive 500 to 800 miles 
 
            in a month aggravated his preexisting back condition.
 
            
 
            5-1803  5-1806
 
            Held that claimant proved entitlement to 35 percent 
 
            permanent partial disability benefits as a result of his 
 
            December 16, 1988 work injury.  Claimant was 42 years old at 
 
            the time of his work injury on December 16, 1988 and a high 
 
            school graduate.  Claimant worked as a farmer and in real 
 
            estate sales prior to becoming a sales person for the 
 
            defendant-employer.  Claimant had poor motivation.  Claimant 
 
            failed to loss weight as recommend by physicians.  In 
 
            addition, claimant failed to exercise as directed.  Claimant 
 
            was terminated from his position with the defendant-employer 
 
            for reasons unrelated to his work injury.  Claimant failed 
 
            to seek other employment.
 
            Claimant had a preexisting back condition which required 
 
            hospitalization in 1979 and September 1987.  Claimant was 
 
            released to return to full duty following the September 1987 
 
            injury and remained symptom free until his December 16, 1988 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            work injury.  Claimant's physician opined that claimant 
 
            sustained a 15 percent permanent impairment, five of which 
 
            he apportioned to claimant's preexisting condition and the 
 
            remaining 10 percent he attributed to the aggravation of 
 
            claimant's preexisting back condition.  Apportionment is not 
 
            applied in this case as claimant's preexisting back 
 
            condition had no effect upon his earning capacity prior to 
 
            the December 16, 1988 work injury.  Defendants take claimant 
 
            subject to any active or dormant health impairments incurred 
 
            prior to employment.  Defendants are liable for the entire 
 
            result of the aggravation of claimant's preexisting back 
 
            condition.  Bearce v. FMC Corporation, 464 N.W.2d 531 (Iowa 
 
            1991).  Zeigler v. United States Gypsum Co., 252 Iowa 613, 
 
            106 N.W.2d 591 (1960).
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            ROBERT A. PICKERING,          :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 913614
 
            SQUEALER FEEDS,               :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INSURANCE      :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                              statement of the case
 
            
 
                 This is a bifurcated proceeding in arbitration upon the 
 
            petition of claimant, Robert A. Pickering, against his 
 
            employer, Squealer Feeds, and its insurance carrier, Liberty 
 
            Mutual Insurance Company, defendants.  The case was heard on 
 
            October 25, 1990, in Cedar Rapids, Iowa at the Linn County 
 
            Courthouse.  The record consists of the testimony of 
 
            claimant and the testimonies of Bill Hahn, Director of 
 
            Personnel with International Multi-Foods, Ann Pickering, and 
 
            Ted Wilson of Balanced Energy Company.  Additionally, the 
 
            record consists of joint exhibits A-P.
 
            
 
                                      issues
 
            
 
                 The issues to be determined are:  1) whether claimant 
 
            received an injury which arose out of and in the course of 
 
            employment; 2) whether there is a causal relationship 
 
            between the alleged injury and the disability; 3) whether 
 
            claimant is entitled to temporary disability/healing period 
 
            benefits or permanent partial disability benefits; and, 4) 
 
            whether claimant is entitled to medical benefits pursuant to 
 
            section 85.27.
 
            
 
                                 findings of fact
 
            
 
                 The deputy, having heard the testimony and considered 
 
            all the evidence, finds:
 
            
 
                 Claimant is 44 years old.  He has a high school 
 
            diploma.  For approximately 20 years claimant had engaged in 
 
            farming.  When the economic crisis hit the farming industry, 
 
            claimant left the business.  He successfully completed a 
 
            course in real estate sales and became a licensed agent and 
 
            later a licensed broker.  Claimant had only limited success 
 
            in the real estate business.  After several years, claimant 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            was hired by International Multi-Foods to sell feed products 
 
            under the name of Professional Swine Feeds.
 
            
 
                 Claimant's position with International Multi-Foods 
 
            involved selling feed products on a direct basis to the 
 
            producer.  The product was new; the territory was new.  
 
            Claimant covered Benton, Iowa and Cedar counties.  He made 
 
            cold calls in order to develop his territory.  Because of a 
 
            competitive market, claimant made very few sales.  
 
            Eventually, the product was discontinued.  Squealer Feeds 
 
            then took over the territory of Professional Swine Feeds.
 
            
 
                 Claimant began selling Squealer Feeds.  These were 
 
            feeds for swine, cattle, sheep and poultry.  Claimant 
 
            testified the position required driving 500 to 800 miles per 
 
            week.  Records submitted show an average of 478 miles per 
 
            week were driven by claimant from January 9, 1988 through 
 
            December 31, 1988.
 
            
 
                 In September of 1987, claimant, then president of the 
 
            LaSalle High School Boosters' Club, was lifting a hot dog 
 
            machine when he felt a severe pain in his lower back.  
 
            Several days later claimant sought medical attention at 
 
            Mercy Hospital in Cedar Rapids for low back pain.  X-rays 
 
            were taken on September 22, 1987.  The report from the 
 
            radiologist, R. L. Kundel, M.D., indicated:
 
            
 
                 AP & Lateral Lumbar Spine:  There is narrowing of 
 
                 the intervertebral disc spaces throughout the 
 
                 lumbar region.  Small vertebral spurs are present, 
 
                 especially at the L2-3 and L3-4 levels.  Vertebral 
 
                 body height throughout the lumbar region is well 
 
                 maintained.  Very slight curvature of the lumbar 
 
                 spine, convexity to the right, is present.  The 
 
                 pedicles, spinous processes and transverse 
 
                 processes are grossly intact.  The Sl joints are 
 
                 unremarkable.
 
            
 
                 Impression:  Degenerative disease and mild 
 
                 scoliosis, lumbar spine, convexity to the right, 
 
                 otherwise negative study.
 
            
 
                 Claimant was hospitalized from September 24, 1987 to 
 
            October 1, 1987.  Mary Ann Nelson, M.D., treated claimant 
 
            for lumbar disc protrusion at L-4, 5 and L5, S-l interspace.  
 
            He was treated conservatively with traction, physical 
 
            therapy and a home exercise program.
 
            
 
                 Claimant returned to Mercy Hospital on December 17, 
 
            1987, with acute back pain.  He was prescribed a home care 
 
            program.
 
            
 
                 On December 19, 1988, one year later, claimant again 
 
            sought medical treatment at Mercy Hospital.  He experienced 
 
            pain while working.  He was calling on customers.  Dr. 
 
            Nelson treated claimant.  She prescribed physical therapy.  
 
            In the physical therapy report of December 19, 1988, the 
 
            physical therapist wrote the following relative to 
 
            claimant's medical history:
 
            
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                 S [sic] Pt states he was just discharged from the 
 
                 hospital.  Has had a reactivation of the low back 
 
                 pain that he experienced 1 year to a 1Æ  years ago 
 
                 when he was placed in the hospital and placed in 
 
                 traction.  Wanted to avoid a repeat of that 
 
                 intensity of that discomfort.  This episode came 
 
                 on rather gradually but not allowed to get to the 
 
                 intensity that the one of a 1Æ years ago.  States 
 
                 that realizes that he is quite a bit over weight 
 
                 [sic].  Had lost over 40 pounds at that time but 
 
                 has regained approximately 20 of it in the 
 
                 interim.  Pt states that he was interested in 
 
                 getting some kind of a traction setup for use 
 
                 within the home for possible rental for 1 month.  
 
                 States that he has been instructed in ex and has 
 
                 been doing these quite consistently since 
 
                 discharge and these have definitely helped.  
 
                 States he works as a salesman with a lot of 
 
                 driving and getting in and out of the car which he 
 
                 realizes is quite difficult on back problems.
 
            
 
                 An MRI was later ordered.  It revealed:
 
            
 
                 MR LUMBAR SPINE:  done with coronal localizing 
 
                 images followed by sagittal and axial images.  The 
 
                 signal intensities from the vertebral bodies are 
 
                 normal [sic] We see degenerative disc disease from 
 
                 L2-L5.  The anterior posterior diameter of the 
 
                 spinal canal is somewhat less than we normally 
 
                 see.  There is some indentation on the anterior 
 
                 aspect of the thecal sac and this appears to be 
 
                 related more to changes of osteoarthritis than 
 
                 herniated disc disease.  Axial images show some 
 
                 changes of spinal stenosis,most [sic] marked at 
 
                 L2-3 and L3-4 and to a less degree, L4-5.  This is 
 
                 related primarily to a small canal with some 
 
                 associated osteoarthritic changes.  There is very 
 
                 little ligamentum flavum [sic] hypertrophy or 
 
                 superior articular facet hypertrophy.  No 
 
                 herniated discs are seen.
 
            
 
                 IMPRESSION:  There are some changes consistent 
 
                 with spinal stenosis, most marked at L2-3 and 
 
                 present to a lesser degree, at L3-4 and L4-5.  
 
                 This is primarily related to short pedicles.  No 
 
                 herniated discs are seen.  Osteoarthritic changes 
 
                 are present.
 
            
 
                 Lawrence Strathman, M.D., in his office notes of 
 
            January 18, 1989, opined:
 
            
 
                 18 Jan. 89: Robert Pickering is a 42 year old 
 
                 gentleman complaining of back pain, referred to 
 
                 the back of the legs on both sides, more on the 
 
                 right than on the left.  He had symptoms starting 
 
                 in 1987 after he had reached for a hot dog 
 
                 machine.  He responded to supportive and 
 
                 conservative measures and did quite well for about 
 
                 six months and then had recurrence of pain later 
 
                 in 1988.  He gets some relief with home traction.  
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                 He seems to think that does him more good than 
 
                 therapy, although he has had some therapy and some 
 
                 apparently neuroprobe.
 
            
 
                 EXAMINATION: He is significantly over-weight 
 
                 [sic].  He is short and stocky.  He stands erect.  
 
                 Flexion increases his pain.  It limits his flexion 
 
                 at about 35-40o.  He side bends a good 15o, extends 
 
                 a few degrees.  He states sometimes that makes his 
 
                 back feel better.  He walks on toes and heels 
 
                 without weakness.  When he is sitting and I have 
 
                 him dorsi flex [sic] his big toe it shows weakness 
 
                 on the right compared to the left, but when I have 
 
                 him stand on his heels I don't detect that 
 
                 weakness.  Reflexes are 2+ at the knee and ankle.  
 
                 No sensory deficit is noted.  Straight leg raising 
 
                 on the right is painful at 135o.  Calf and 
 
                 popliteal pain as well as low back pain.  On the 
 
                 left he comes up to about 110o at which point he 
 
                 gets some hamstring pain.
 
            
 
                 His plain film shows some degenerative changes but 
 
                 his MRI shows an increased amount of degenerative 
 
                 change and narrowing, particularly the upper part, 
 
                 L2-3, 3-4, but no definite herniated disc is 
 
                 noted.
 
            
 
                 IMPRESSION: This gentleman has a problem.  He is 
 
                 grossly over-weight [sic].  He has some 
 
                 degenerative changes and spinal stenosis and is 
 
                 getting some radicular pain although there is no 
 
                 gross neurologic change at this time save for the 
 
                 straight leg raising pain.  I think he is too 
 
                 uncomfortable to work at this point.  He drives 
 
                 and I am sure that sitting is going to aggravate 
 
                 his symptoms.
 
            
 
                 We are going to contact Vocational Rehab and get 
 
                 him in the back school and see if we can get this 
 
                 guy started on a rehab program.  I do not think 
 
                 surgery is indicated at this time.(Lawrence C. 
 
                 Strathman, M. D.) (RN)sw
 
            
 
                 Claimant was referred by Dr. Nelson to Richard F. 
 
            Neiman, M.D., a neurologist.  Dr. Neiman examined claimant 
 
            on April 4, 1989.  Dr. Neiman opined in relative portion:
 
            
 
                 I have reviewed the x-rays of the back which 
 
                 indicate some degenerative arthritis at the L2, 3, 
 
                 4, and 5 level.  Bone spurs were noted.  This 
 
                 obviously goes back to the time of the original 
 
                 injury in 1987.  In addition, the CAT scan at that 
 
                 time indicated perhaps a slight bulging disc at 
 
                 L4-5.  The recent MRI scan was likewise reviewed.  
 
                 There is loss of water content of the disc at the 
 
                 L2-3, L3-4, and L4-5 level.  There is no evidence 
 
                 of any disc protrusion at these levels.  However, 
 
                 at the L5-S1 level there appears to be a disc 
 
                 protrusion.  This looks like a bulging disc or 
 
                 mild herniation.
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
                 At the present time, I think he has probably 
 
                 developed an L5-Sl disc as the cause of his 
 
                 difficulty.  I do think this condition has been 
 
                 aggravated by the driving.  It is hard to tell 
 
                 whether the disc was originally herniated at the 
 
                 time of the injury in 1987 or has developed since 
 
                 that time.  Frankly the CAT scan does not help us 
 
                 in this issue.
 
            
 
                 Recommendations at this time would be additional 
 
                 weight reduction.  I would like to aim for around 
 
                 180-185 pounds.  Ideally it would be wise to get 
 
                 him into some sort of weight reduction clinic.  
 
                 Number two, a swimming exercise program.  He could 
 
                 try such through the YMCA or similar program in 
 
                 Cedar Rapids.  Although Robert cannot swim, he 
 
                 certainly can get into the water up to his chest 
 
                 level and start moving around trying to increase 
 
                 the flexibility of his back.  An exercise program 
 
                 designed to increase stretching and increase 
 
                 abdominal tone would be helpful.  Number three, I 
 
                 would like to try an epidural injection of 
 
                 steroids.  I think this could help alleviate the 
 
                 pain and reduce overall discomfort.  I would 
 
                 suggest we check him again in approximately one 
 
                 month or so.  I would continue the Nalfon as well.  
 
                 If he would run into difficulties prior to this 
 
                 time, he was asked to contact us.
 
            
 
                 I do think this injury is at least aggravated by 
 
                 his work condition.  I think he has a reasonable 
 
                 claim for workman's compensation and advised that 
 
                 he seek perhaps an attorney so that he can appeal 
 
                 the decision regarding his workman's compensation.
 
            
 
                 As of June 26, 1989, Dr. Neiman opined:
 
            
 
                 He has a fair amount of paravertebral muscle 
 
                 spasm.  He has to walk with the use of a cane.  At 
 
                 the present time, I think he is capable of 
 
                 sedentary work with lifting a maximum of up to 15 
 
                 pounds.  Unfortunately, standing, lifting or 
 
                 riding in a car for over an hour would be next to 
 
                 impossible.  He is required to change positions 
 
                 quite frequently.  He is not able to stoop, climb, 
 
                 kneel or crawl.  Frequent changes of temperature 
 
                 would be counterproductive.  I think he could 
 
                 probably work two hours a day at maximum since 
 
                 further working tends to aggravate the problem 
 
                 with the back.  These are rather severe 
 
                 restrictions but I think commensurate with his 
 
                 medical problem.  It I can provide additional 
 
                 information, please advise.
 
            
 
                 On July 5, 1989, Dr. Neiman provided an impairment 
 
            rating.  He opined:
 
            
 
                 It is my contention that he has indeed suffered a 
 
                 permanent physical impairment due to his back 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
                 condition.  I enclose a copy of the note sent to 
 
                 Diana Schneider regarding his level of impairment 
 
                 and limitations.  based [sic] upon the Manual for 
 
                 Orthopaedic Surgeons, low lumbar healed sprain 
 
                 contusion persistent muscle spasm, rigidity and 
 
                 pain substantiated by demonstrable degenerative 
 
                 changes moderate osteoarthritic lipping revealed 
 
                 by xray [sic] combined trauma and pre-existing 
 
                 factors, 10% with section C same as B with more 
 
                 extensive oseoarthritic [sic] changes 15%.  I 
 
                 would think that Mr. Pickering probably fits low 
 
                 lumbar C much better than low lumbar B, healed 
 
                 sprained contusion.  The level of impairment of 
 
                 the whole person based upon the Manual for 
 
                 Orthopaedic Surgeons would be 15%.  I would 
 
                 estimate a 5% pre-existing disability based upon 
 
                 the degree of osteoarthritis.  Therefore total 
 
                 disability rating of the whole person would be 
 
                 10%.  I think it is more important however, to 
 
                 state that the limitations as far as lifting up to 
 
                 15 pounds, standing, lifting, riding in a car for 
 
                 one hour his ability to stoop, climb, kneel or 
 
                 crawl have been directly altered by the driving of 
 
                 the automobile.  I think this was the final 
 
                 condition which literally has rendered him 
 
                 disabled for all types of sedentary positions.  
 
                 Please advise if you have any questions regarding 
 
                 this dictation.
 
            
 
                 Claimant did not return to work with defendant-employer 
 
            subsequent to December 19, 1988.  In the early part of 
 
            January of 1989, claimant was notified that his production 
 
            level was poor and that he would be terminated effective 
 
            January 15, 1989.  Claimant acknowledged his termination was 
 
            due to his poor performance.  Bill Hahn testified claimant 
 
            could not meet production goals.
 
            
 
                 Claimant has not worked since December of 1988.  He is 
 
            receiving social security income benefits.
 
            
 
                                conclusions of law
 
            
 
                 This agency has jurisdiction of the subject matter of 
 
            this proceeding and its parties.
 
            
 
                 The first issue to address is whether claimant has 
 
            sustained an injury which arose out of and in the course of 
 
            his employment.
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that he received an injury on December 19, 
 
            1988, which arose out of and in the course of his 
 
            employment.  McDowell v. Town of Clarksville, 241 N.W.2d 904 
 
            (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 
 
            352, 154 N.W.2d 128 (1967). 
 
            
 
                 An employee is entitled to compensation for any and all 
 
            personal injuries which arise out of and in the course of 
 
            the employment.  Section 85.3(1).
 
            
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
                 The injury must both arise out of and be in the course 
 
            of the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 
 
            Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 
 
            of the Iowa Report.  See also Sister Mary Benedict v. St. 
 
            Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (l963) and Hansen 
 
            v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958).
 
            
 
                 The words "out of" refer to the cause or source of the 
 
            injury.  Crowe, 246 Iowa 402, 68 N.W.2d 63 (1955). 
 
            
 
                 The words "in the course of" refer to the time and 
 
            place and circumstances of the injury.  McClure v. Union 
 
            et al. Counties, 188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 
 
            402, 68 N.W.2d 63 (1955).
 
            
 
                 "An injury occurs in the course of the employment when 
 
            it is within the period of employment at a place the 
 
            employee may reasonably be, and while he is doing his work 
 
            or something incidental to it."  Cedar Rapids Comm. Sch. 
 
            Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979), McClure, 188 
 
            N.W.2d 283 (Iowa 1971); Musselman, 261 Iowa 352, 154 N.W.2d 
 
            128 (1967). 
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of December 
 
            19, 1988, is causally related to the disability on which he 
 
            now bases his claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 
 
            133 N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 
 
            296, 18 N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 The opinions of experts need not be couched in 
 
            definite, positive or unequivocal language.  Sondag v. 
 
            Ferris Hardward, 220 N.W.2d 903 (Iowa 1974).  An opinion of 
 
            an expert based upon an incomplete history is not binding 
 
            upon the commissioner, but must be weighed together with the 
 
            other disclosed facts and circumstances.  Bodish, 257 Iowa 
 
            516, 133 N.W.2d 867 (1965).  The expert medical evidence 
 
            must be considered with all other evidence introduced 
 
            bearing on the causal connection between the injury and the 
 
            disability.  Burt, 247 Iowa 691, 73 N.W.2d 732 (1955).  In 
 
            regard to medical testimony, the commissioner is required to 
 
            state the reasons on which testimony is accepted or 
 
            rejected.  Sondag, 220 N.W.2d 903 (1974).
 
            
 
                 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).
 
            
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
                 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.
 
            
 
                 Our supreme court has stated many times that a claimant 
 
            may recover for a work connected aggravation of a 
 
            preexisting condition.  Almquist v. Shenandoah Nurseries, 
 
            218 Iowa 724, 254 N.W. 35 (1934).  See also Auxier v. 
 
            Woodward State Hosp. Sch., 266 N.W.2d 139 (Iowa 1978); Gosek 
 
            v. Garmer and Stiles Co., 158 N.W.2d 731 (Iowa 1968); Barz 
 
            v. Oler, 257 Iowa 508, 133 N.W.2d 704 (1965); Olson v. 
 
            Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 
 
            (1963); Yeager, 253 Iowa 369, 112 N.W.2d 299 (1961); 
 
            Ziegler, 252 Iowa 613, 106 N.W.2d 591 (1960).
 
            
 
                 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, 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, 255 Iowa 1112, 125 N.W.2d 251 (1963); 
 
            Yeager, 253 Iowa 369, 112 N.W.2d 299 (1961); Ziegler, 252 
 
            Iowa 613, 106 N.W.2d 591 (1960).  See also Barz, 257 Iowa 
 
            508, 133 N.W.2d 704 (1965); Almquist, 218 Iowa 724, 254 N.W. 
 
            35 (1934).
 
            
 
                 Claimant has proven that he has sustained a work 
 
            related injury.  There is no question that claimant had a 
 
            preexisting back condition.  As early as 1979, claimant was 
 
            hospitalized for back problems.  From 1979 through September 
 
            of 1987, claimant was relatively symptom free.  Then in 
 
            September of 1987, claimant reinjured himself while lifting 
 
            a hot dog machine.  The injury was not work related.  Again 
 
            he was hospitalized.  His condition improved gradually.  
 
            Within three weeks claimant had returned to his full level 
 
            of activity.  He was able to return to his employment with 
 
            defendant-employer for approximately one year without 
 
            incident.  It was not until December of 1988 that claimant 
 
            again experienced back pain.  This time he was calling upon 
 
            a client when he felt sharp pains in his back.  He was 
 
            unable to continue calling on other clients.  He was forced 
 
            to drive home.  Later he was hospitalized.  His condition 
 
            was such that he felt he was unable to return to work.  He 
 
            was given certain work restrictions.
 
            
 
                 Claimant's physicians support his allegation that 
 
            claimant's condition is aggravated by his work.  Dr. Neiman 
 
            has opined:  "I do think this injury is at least aggravated 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            by his work condition..."  Dr. Neiman also wrote in his 
 
            report of July 5, 1989:  "Based upon the review of these 
 
            records it is still my opinion that his work in 1988 
 
            aggravated an already present back condition..."
 
            
 
                 Dr. Strathman too attributes claimant's condition to 
 
            his driving at work.  He writes in his notes of January 18, 
 
            1989:
 
            
 
                 IMPRESSION:  This gentleman has a problem.  He is 
 
                 grossly over-weight [sic].  He has some 
 
                 degenerative changes and spinal stenosis and is 
 
                 getting some radicular pain although there is no 
 
                 gross neurologic change at this time save for the 
 
                 straight leg raising pain.  I think he is too 
 
                 uncomfortable to work at this point.  He drives 
 
                 and I am sure that sitting is going to aggravate 
 
                 his symptoms.
 
            
 
                 It is the determination of the undersigned that 
 
            claimant has established the requisite causal connection 
 
            between claimant's condition and his work situation.  
 
            Claimant's preexisting condition was aggravated by the 
 
            December 1988 work incident to the point where he would not 
 
            work for at least a period of time.  He was also given 
 
            restrictions.  He was consequently restricted to sedentary 
 
            work with a maximum lifting restriction of 15 pounds.  
 
            Claimant, as a result of the December 1988 incident, was 
 
            restricted to one hour of standing, lifting or riding in a 
 
            car.  He was precluded from stooping, climbing, kneeling or 
 
            crawling.  Claimant was allowed to work a maximum of two 
 
            hours per day.  He was not under any of these restrictions 
 
            until he had injured himself at work.  The work injury 
 
            worsened claimant's condition to the point that he was 
 
            unable to work full time or to perform the same type of work 
 
            as before the work injury.
 
            
 
                 The next issue to address is the nature and extent of 
 
            claimant's disability, if any.
 
            
 
                 Industrial disability or loss of earning capacity is a 
 
            concept that is quite similar to impairment of earning 
 
            capacity, an element of damage in a tort case.  Impairment 
 
            of physical capacity creates an inference of lessened 
 
            earning capacity.  The basic element to be determined, 
 
            however, is the reduction in value of the general earning 
 
            capacity of the person, rather than the loss of wages or 
 
            earnings in a specific occupation.  Post-injury earnings 
 
            create a presumption of earning capacity.  The earnings are 
 
            not synonymous with earning capacity and the presumption may 
 
            be rebutted by evidence showing the earnings to be an 
 
            unreliable indicator.  Carradus v. Lange, 203 N.W.2d 565 
 
            (Iowa 1973); Holmquist v. Volkswagon of America, Inc., 261 
 
            N.W.2d 516 (Iowa App. 1977) A.L.R.3d 143; Michael v. 
 
            Harrison County, Thirty-fourth Biennial Report of the 
 
            Industrial Commissioner 218 (1979); 2 Larson Workmen's 
 
            Compensation Law, sections 57.21 and 57.31.
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            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, 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).
 
            
 
                 As mentioned previously, claimant is now permanently 
 
            restricted.  In January of 1989, claimant was advised to 
 
            seek vocational rehabilitation.  Dr. Neiman did not advise 
 
            claimant to return to a driving position.  Claimant 
 
            initiated contact with the State Department of Vocational 
 
            Rehabilitation.  He completed several tests.  However, 
 
            claimant voluntarily determined he was too disabled to 
 
            continue with vocational rehabilitation.  No physician 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            advised claimant to discontinue with his vocational 
 
            retraining.  The decision was purely claimant's own and was 
 
            made after claimant began receiving social security income 
 
            benefits.
 
            
 
                 Claimant's treating physician, Dr. Neiman, has assessed 
 
            a 15 percent permanent partial impairment rating to 
 
            claimant's condition.  Five percent of the impairment is 
 
            attributed to claimant's preexisting condition.  Claimant 
 
            has some functional impairment.
 
            
 
                 Claimant is not motivated to return to work.  He has 
 
            discontinued his swimming and exercise program.  He is 
 
            overweight but he has not successfully lost weight.  He has 
 
            not actively participated in retraining.
 
            
 
                 After reviewing the above and in light of agency 
 
            expertise, it is the determination of the undersigned that 
 
            claimant has a 20 percent permanent partial disability 
 
            directly attributable to his work injury of December 19, 
 
            1988.  He is entitled to weekly benefits for 100 weeks 
 
            commencing on July 6, 1989.
 
            
 
                 Claimant is also entitled to healing period benefits 
 
            for the period of January 16, 1989 through July 5, 1989.  
 
            These benefits are awarded pursuant to section 85.34(1).
 
            
 
                 Section 85.34(1), Code of Iowa, provides that healing 
 
            period benefits are payable to an injured worker who has 
 
            suffered permanent partial disability until (1) he has 
 
            returned to work; (2) is medically capable of returning to 
 
            substantially similar employment; or (3) has achieved 
 
            maximum medical recovery.  The industrial commissioner has 
 
            recognized that healing period benefits can be interrupted 
 
            or intermittent.  Willis v. Lehigh Portland Cement Co., Vol. 
 
            2-1, State of Iowa Industrial Commissioner Decisions 485 
 
            (1984).
 
            
 
                 Finally, there is the issue of medical expenses 
 
            pursuant to section 85.27.  This section provides that:
 
            
 
                 The employer, for all injuries compensable under 
 
                 this chapter or chapter 85A, shall furnish 
 
                 reasonable surgical, medical, dental, osteopathic, 
 
                 chiropractic, podiatric, physical rehabilitation, 
 
                 nursing ambulance and hospital services and 
 
                 supplies therefor and shall allow reasonably 
 
                 necessary transportation expenses incurred for 
 
                 such services.  The employer shall also furnish 
 
                 reasonable and necessary crutches, artificial 
 
                 members and appliances but shall not be required 
 
                 to furnish more than one set of permanent 
 
                 prosthetic devices.
 
            
 
                     ...
 
            
 
                 For purposes of this section, the employer is 
 
                 obliged to furnish reasonable services and 
 
                 supplies to treat an injured employee, and has the 
 
                 right to choose the care.  The treatment must be 
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
                 offered promptly and be reasonably suited to treat 
 
                 the injury without undue inconvenience to the 
 
                 employee.  If the employee has reason to be 
 
                 dissatisfied with the care offered, the employee 
 
                 should communicate the basis of such 
 
                 dissatisfaction to the employer, in writing if 
 
                 requested, following which the employer and the 
 
                 employee may agree to alternate care reasonably 
 
                 suited to treat the injury.  If the employer and 
 
                 employee cannot agree on such alternate care, the 
 
                 commissioner may, upon application and reasonable 
 
                 proofs of the necessity therefor, allow and order 
 
                 other care.  In an emergency, the employee may 
 
                 choose the employee's  care at the employer's 
 
                 expense, provided the employer or the employer's 
 
                 agent cannot be reached immediately.
 
            
 
                 This division has held that it is inconsistent to deny 
 
            liability and the obligation to furnish care on one hand, 
 
            and at the same time, to claim a right to choose the care.  
 
            Therefore, a denial of liability precludes an employer from 
 
            selecting the medical care.  Lewis E. Jones v. R. M. Boggs 
 
            Company, Inc., File No. 655193 (Arbitration Decision - July 
 
            22, 1986):  Kindhart v. Fort Des Moines Hotel, (Appeal 
 
            Decision, March 27, 1985); Barnhart v. MAQ Incorporated, I 
 
            Iowa Industrial Commissioner Report 16 (Appeal Decision 
 
            1981).
 
            
 
                 Claimant prepared an itemized statement concerning his 
 
            medical bills.  The charges listed are reasonable and 
 
            necessary.  They are causally related to claimant's work 
 
            injury.  The total charges are $3,380.50.  Claimant is 
 
            entitled to be reimbursed for $457.45 of those expenses 
 
            which he paid.  Defendants are responsible for paying the 
 
            balance.  Additionally, claimant is entitled to medical 
 
            mileage for 703 miles at $.21 per mile for a total of 
 
            $147.63.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Defendants are to pay one hundred (100) weeks of 
 
            permanent partial disability benefits from July 6, 1989, at 
 
            the stipulated rate of two hundred eighty-five and 13/l00 
 
            dollars ($285.13) per week.
 
            
 
                 Defendants are to pay twenty-four and four-two-nine 
 
            (24.429) weeks of healing period benefits from January 16, 
 
            1989 through July 5, 1989 at the stipulated rate of two 
 
            hundred eighty-five and 13/l00 dollars ($285.13) per week.
 
            
 
                 Defendants are responsible for the payment of medical 
 
            bills in the sum of three thousand three hundred eighty and 
 
            50/l00 dollars ($3,380.50) and medical mileage in the sum of 
 
            one hundred forty-seven and 63/l00 dollars ($147.63) per 
 
            week.
 
            
 
                 Interest shall be paid pursuant to section 85.30.
 
            
 

 
            
 
            Page  13
 
            
 
            
 
            
 
            
 
                 Defendants are responsible for costs with the exception 
 
            of Pickering deposition transcript pursuant to rule 343 IAC 
 
            4.33.
 
            
 
                 Defendants shall file a claim activity report as 
 
            requested by this division pursuant to rule 343 IAC 3.l.
 
            
 
            
 
            
 
                 Signed and filed this ____ day of April, 1991.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________               
 
            MICHELLE A. McGOVERN
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Thomas M. Wertz
 
            Attorney at Law
 
            4089 21st Ave SW
 
            Suite 114
 
            Cedar Rapids  IA  52404
 
            
 
            Mr. Greg A. Egbers
 
            Attorney at Law
 
            600 Union Arcade Bldg
 
            111 E 3rd St
 
            Davenport  IA  52801
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           5-1803
 
                           Filed April 30, 1991
 
                           MICHELLE A. McGOVERN
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            ROBERT A. PICKERING,          :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 913614
 
            SQUEALER FEEDS,               :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INSURANCE      :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            
 
            5-1803
 
            Claimant sustained a 20 percent permanent partial disability 
 
            to the body as a whole because of a work related injury.
 
            
 
 
         
 
         
 
         
 
         
 
         
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
                     
 
         RONNY HUGHES,    
 
                     
 
              Claimant,                      File No. 913718
 
                     
 
         vs.                                 A P P E A L
 
                     
 
         CLOW VALVE CORPORATION,            D E C I S I O N
 
                     
 
              Employer,   
 
              Self-Insured,    
 
              Defendant.       
 
         _________________________________________________________________
 
         The record, including the transcript of the hearing before the 
 
         deputy and all exhibits admitted into the record, has been 
 
         reviewed de novo on appeal.
 
 
 
                                 ISSUES
 
 
 
         Claimant states the following issue on appeal:  The Deputy erred 
 
         in finding that the claimant's disability is a cause of only 15 
 
         percent loss of earning capacity.
 
 
 
                              FINDINGS OF FACT
 
 
 
         The findings of fact contained in the proposed agency decision 
 
         filed June 25, 1992 are adopted as set forth below.  Segments 
 
         designated by asterisks (*****) indicate portions of the language 
 
         from the proposed agency decision that have been intentionally 
 
         deleted and do not form a part of this final agency decision.  
 
         Segments designated by brackets ([ ]) indicate language that is 
 
         in addition to the language of the proposed agency decision.
 
         
 
              *****
 
         Claimant has worked for Clow since 1982 as an assembler and fork 
 
         lift truck driver.  Claimant continues to be employed by Clow at 
 
         the present time in a light duty clerical job putting labels on 
 
         books and making copies.  This job appears to have been made for 
 
         him as an accommodation for his disability.  Claimant's wife 
 
         testified that he is making less money in this job than the job 
 
         he had at the time of the injury herein, but she did not state 
 
         how much less.
 
         On or about March 21, 1989, claimant injured his low back while 
 
         attempting to lift a large valve.  Neither claimant nor his wife 
 
         testified as to the particulars of the injury.  Apparently, 
 
         claimant's attorney was under the impression that Clow was 
 
         admitting to the work injury.  This is not the case according to 
 
         the prehearing report submitted to the undersigned prior to 
 
         hearing.  However, the medical records in evidence all show a 
 
         consistent report of the same injury to physicians and this 
 
         history has not been challenged by evidence offered by defendant.  
 
         Therefore, the evidence shows a work injury as reported.
 
         As a result of the injury of March 21, 1989, claimant was absent 
 
         from his job on two occasions.  The first period of absence began 
 

 
         
 
         Page   2
 
         
 
         
 
         
 
         
 
         on the date of injury until July 17, 1989 at which time claimant 
 
         returned to work in a light duty status.  During this absence, 
 
         claimant received treatment for low back and right leg pain, 
 
         including back surgery, primarily from Bradley Adams, D.O., an 
 
         orthopedic surgeon.  After returning to work, claimant's back and 
 
         leg pain returned and he left work a second time on October 15, 
 
         1990 (Exhibit 2, page 3).  At this time, Dr. Adams referred 
 
         claimant to William Boulden, M.D.  Dr. Boulden treated claimant 
 
         with a second back surgery after which claimant again returned to 
 
         work at Clow on April 8, 1991.  This return to work was also to 
 
         light duty.  Following a work hardening program, claimant was 
 
         given activity restrictions from Dr. Boulden and Thomas W. Bower, 
 
         a licensed physical therapist, limiting activity to medium work 
 
         with lifting up to 50 pounds but only 25 pounds repetitively. 
 
         It is found that the work injury of March 21, 1989 was a cause of 
 
         ***** permanent impairment.  ***** In this case, the analysis [of 
 
         industrial disability] is frustrated by several aspects.  First, 
 
         physical therapist Bower, who treated and evaluated claimant 
 
         under the direction of Dr. Boulden, states that claimant was 
 
         exaggerating his disability and not giving a full effort during 
 
         his testing.  Second, video surveillance tapes were introduced 
 
         showing that claimant is capable of driving his tractor, crawling 
 
         under his mobile home and carrying heavy cement blocks with 
 
         relative ease contrary to many of the capability assessments 
 
         which appear to restrict claimant to lifting under 20 pounds.  
 
         Furthermore, claimant did not appear credible at hearing, 
 
         especially in explaining his activities depicted on the tape.  
 
         Clearly, claimant is capable of the medium work.
 
         However, the importance of claimant's lack of credibility and the 
 
         surveillance tapes should not be overemphasized.  There is no 
 
         question that claimant did in fact undergo two fusion surgeries 
 
         and there is no dispute that only one of the two attempted 
 
         fusions actually worked to fuse the troublesome spinal area.  
 
         Even Dr. Boulden who viewed the video tape still opines that 
 
         claimant has at least a 14 percent permanent partial impairment.  
 
         Claimant clearly can no longer physically perform heavy work 
 
         according to all physicians in this case.  Heavy physical labor 
 
         was certainly not shown on the tapes.  It should be noted that no 
 
         weight or consideration was given to the views of a Robert Jones 
 
         who purports to be a "vocational evaluator" at Mercy Hospital, 
 
         whatever that position may entail.  Jones performed a functional 
 
         capabilities assessment upon claimant and rendered certain 
 
         opinions as to claimant's disability after viewing the 
 
         surveillance tapes.  It was never shown that Jones possesses the 
 
         necessary qualifications to medically assess functional 
 
         capabilities or to render medical opinions. 
 
         Finally, there is yet another complication to the analysis of 
 
         disability in this case.  Claimant has been recently diagnosed as 
 
         suffering from a major depressive disorder by qualified 
 
         psychiatrists and is currently 50 percent disabled from this 
 
         mental disorder.  The only psychiatrist who has rendered an 
 
         opinion on the matter has opined that although this depression is 
 
         not related to the work injury, the effects of the work injury 
 

 
         
 
         Page   3
 
         
 
         
 
         
 
         
 
         such as pain and physical impairment, aggravates the symptoms of 
 
         the disorder.  Therefore, it is found that treatment of the 
 
         symptoms of this depressive disorder is work-related.  As all of 
 
         the physicians have stated that this depression and resulting 
 
         disability is correctable with treatment and not permanent, it 
 
         will not be found that this condition increases claimant's 
 
         permanent disability herein.  No additional healing period is 
 
         found as well as the condition does not and has not prevented 
 
         claimant from working.
 
         Claimant is 31 years old and has only completed the seventh 
 
         grade.  Claimant's only employment experience has been as an 
 
         laborer and production worker requiring heavy manual labor.  
 
         Claimant performs mechanical work on cars but the extent of this 
 
         knowledge or whether this is a marketable skill is unknown.  
 
         Therefore, his work injury and resulting surgeries prevent a 
 
         return to the type of work for which he is best suited given his 
 
         work history and lack of education.  At hearing, claimant did not 
 
         appear to be a good candidate for retraining into intellectually 
 
         demanding work.  However, retraining is unnecessary as long as he 
 
         continues working at Clow.  Claimant has suffered to some extent 
 
         a loss of actual earnings in his new job at Clow.
 
         Therefore, it is found from consideration of all of the relevant 
 
         factors, that the work injury of March 21, 1989 was a cause of a 
 
         15 percent loss of earning capacity.  This finding is based upon 
 
         his current employment at Clow.  Should this change, this would 
 
         be a material change in one of the factors upon which the award 
 
         is made.
 
 
 
                               CONCLUSIONS OF LAW
 
 
 
         The conclusions of law contained in the proposed agency decision 
 
         filed June 25, 1992 are adopted as final agency action.
 
         WHEREFORE, the decision of the deputy is affirmed.
 
 
 
                                  ORDER
 
 
 
         THEREFORE, it is ordered:
 
         That defendant shall pay to claimant seventy-five (75) weeks of 
 
         permanent partial disability benefits at a rate of two hundred 
 
         twenty-five and 66/l00 dollars ($225.66) per week from April 8, 
 
         1991.
 
         That in addition to temporary partial disability payments already 
 
         made, defendant shall pay to claimant healing period benefits 
 
         from March 21, 1989 through July 16, 1989 and from October 15, 
 
         1990 through April 7, 1991 at the rate of two hundred twenty-five 
 
         and 66/l00 dollars ($225.66) per week.
 
         That defendant shall pay accrued weekly benefits in a lump sum 
 
         and shall receive credit against this award for all benefits 
 
         previously paid.
 
         That defendant shall pay interest on unpaid weekly benefits 
 
         awarded herein as set forth in Iowa Code section 85.30. 
 
         That claimant shall pay the costs of the appeal including the 
 
         transcription of the hearing.  That defendant shall pay all other 
 
         costs including reimbursement to claimant for any filing fee paid 
 
         in this matter.
 
         That defendant shall file activity reports on the payment of this 
 
         award as requested by this agency pursuant to rule 343 IAC 3.1.
 

 
         
 
         Page   4
 
         
 
         
 
         
 
         
 
         Signed and filed this ____ day of November, 1992.
 
         
 
         
 
         
 
         
 
                                   ________________________________
 
                                           BYRON K. ORTON
 
                                     INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Harold B. Heslinga
 
         Attorney at Law
 
         118 North Market Street
 
         Oskaloosa, Iowa  52577
 
         
 
         Mr. Paul C. Thune
 
         Attorney at Law
 
         218 6th Avenue STE 300
 
         P O Box 9130
 
         Des Moines, Iowa  50306
 
         
 
 
            
 
 
 
 
 
 
 
 
 
                                             5-1803
 
                                             Filed November 17, 1992
 
                                             Byron K. Orton
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            RONNY HUGHES,    
 
                        
 
                 Claimant,                      File No. 913718
 
                        
 
            vs.                                  A P P E A L
 
                        
 
            CLOW VALVE CORPORATION,            D E C I S I O N
 
                        
 
                 Employer,   
 
                 Self-Insured,    
 
                 Defendant.       
 
            ____________________________________________________________
 
            
 
            5-1803
 
            Non-precedential, extent of disability case.  Claimant's 
 
            work injury was a cause of a 15 percent loss of earning 
 
            capacity.  Deputy's award affirmed.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            RONNY HUGHES,                 :
 
                                          :        File No. 913718
 
                 Claimant,                :
 
                                          :     A R B I T R A T I O N
 
            vs.                           :
 
                                          :        D E C I S I O N
 
            CLOW VALVE CORPORATION,       :
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
            
 
                          STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Ronny 
 
            Hughes, claimant, against Clow Valve Company, employer, 
 
            hereinafter referred to as Clow, a self-insured defendant, 
 
            for workers' compensation benefits as a result of an alleged 
 
            injury on March 21, 1989.  On May 8, 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 con
 
            tested 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.  
 
            The extension for filing briefs submitted by defendant were 
 
            approved.  All briefs were considered in rendering this 
 
            decision.
 
            
 
                 According to the prehearing report, the parties have 
 
            stipulated to the following matters:
 
            
 
                 1.  An employee-employer relationship existed between 
 
            claimant and Clow at the time of the alleged injury.
 
            
 
                 2.  At the time of alleged injury, claimant's gross 
 
            rate of weekly compensation was $347.00; he was married; and 
 
            he was entitled to 3 exemptions.  Therefore, claimant's 
 
            weekly rate of compensation is $225.66 according to the 
 
            Industrial Commissioner's published rate booklet for FY 89.
 
            
 
                 3.  All requested medical benefits have been or will be 
 
            paid by defendant. 
 
            
 
                          
 
            
 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                                    ISSUES
 
            
 
                 The parties submitted the following issues for determi
 
            nation in this proceeding:
 
            
 
                 I.  Whether claimant received an injury arising out of 
 
            and in the course of employment; and, 
 
            
 
                 II. The extent of claimant's entitlement to disability 
 
            benefits.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 Having heard the testimony and considered all of the 
 
            evidence, the deputy industrial commissioner finds as 
 
            follows:
 
            
 
                 Claimant has worked for Clow since 1982 as an assembler 
 
            and fork lift truck driver.  Claimant continues to be 
 
            employed by Clow at the present time in a light duty cleri
 
            cal job putting labels on books and making copies.  This job 
 
            appears to have been made for him as an accommodation for 
 
            his disability.  Claimant's wife testified that he is making 
 
            less money in this job than the job he had at the time of 
 
            the injury herein, but she did not state how much less.
 
            
 
                 On or about March 21, 1989, claimant injured his low 
 
            back while attempting to lift a large valve.  Neither 
 
            claimant nor his wife testified as to the particulars of the 
 
            injury.  Apparently, claimant's attorney was under the 
 
            impression that Clow was admitting to the work injury.  This 
 
            is not the case according to the prehearing report submitted 
 
            to the undersigned prior to hearing.  However, the medical 
 
            records in evidence all show a consistent report of the same 
 
            injury to physicians and this history has not been chal
 
            lenged by evidence offered by defendant.  Therefore, the 
 
            evidence shows a work injury as reported.
 
            
 
                 As a result of the injury of March 21, 1989, claimant 
 
            was absent from his job on two occasions.  The first period 
 
            of absence began on the date of injury until July 17, 1989 
 
            at which time claimant returned to work in a light duty 
 
            status.  During this absence, claimant received treatment 
 
            for low back and right leg pain, including back surgery, 
 
            primarily from Bradley Adams, D.O., an orthopedic surgeon.  
 
            After returning to work, claimant's back and leg pain 
 
            returned and he left work a second time on October 15, 1990 
 
            (Exhibit 2, page 3).  At this time, Dr. Adams referred 
 
            claimant to William Boulden, M.D.  Dr. Boulden treated 
 
            claimant with a second back surgery after which claimant 
 
            again returned to work at Clow on April 8, 1991.  This 
 
            return to work was also to light duty.  Following a work 
 
            hardening program, claimant was given activity restrictions 
 
            from Dr. Boulden and Thomas W. Bower, a licensed physical 
 
            therapist, limiting activity to medium work with lifting up 
 
            to 50 pounds but only 25 pounds repetitively. 
 
            
 
                 It is found that the work injury of March 21, 1989 was 
 
            a cause of significant permanent impairment.  A finding of 
 
            an exact percentage is not helpful in an industrial disabil
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            ity case.  More important to a loss of earning capacity 
 
            analysis are the work restrictions or reduction in work 
 
            capabilities.  In this case, the analysis is frustrated by 
 
            several aspects.  First, physical therapist Bower, who 
 
            treated and evaluated claimant under the direction of Dr. 
 
            Boulden, states that claimant was exaggerating his disabil
 
            ity and not giving a full effort during his testing.  
 
            Second, video surveillance tapes were introduced showing 
 
            that claimant is capable of driving his tractor, crawling 
 
            under his mobile home and carrying heavy cement blocks with 
 
            relative ease contrary to many of the capability assessments 
 
            which appear to restrict claimant to lifting under 20 
 
            pounds.  Furthermore, claimant did not appear credible at 
 
            hearing, especially in explaining his activities depicted on 
 
            the tape.  Clearly, claimant is capable of the medium work.
 
            
 
                 However, the importance of claimant's lack of credibil
 
            ity and the surveillance tapes should not be overemphasized.  
 
            There is no question that claimant did in fact undergo two 
 
            fusion surgeries and there is no dispute that only one of 
 
            the two attempted fusions actually worked to fuse the trou
 
            blesome spinal area.  Even Dr. Boulden who viewed the video 
 
            tape still opines that claimant has at least a 14 percent 
 
            permanent partial impairment.  Claimant clearly can no 
 
            longer physically perform heavy work according to all physi
 
            cians in this case.  Heavy physical labor was certainly not 
 
            shown on the tapes.  It should be noted that no weight or 
 
            consideration was given to the views of a Robert Jones who 
 
            purports to be a "vocational evaluator" at Mercy Hospital, 
 
            whatever that position may entail.  Jones performed a func
 
            tional capabilities assessment upon claimant and rendered 
 
            certain opinions as to claimant's disability after viewing 
 
            the surveillance tapes.  It was never shown that Jones pos
 
            sesses the necessary qualifications to medically assess 
 
            functional capabilities or to render medical opinions. 
 
            
 
                 Finally, there is yet another complication to the anal
 
            ysis of disability in this case.  Claimant has been recently 
 
            diagnosed as suffering from a major depressive disorder by 
 
            qualified psychiatrists and is currently 50 percent disabled 
 
            from this mental disorder.  The only psychiatrist who has 
 
            rendered an opinion on the matter has opined that although 
 
            this depression is not related to the work injury, the 
 
            effects of the work injury such as pain and physical impair
 
            ment, aggravates the symptoms of the disorder.  Therefore, 
 
            it is found that treatment of the symptoms of this depres
 
            sive disorder is work-related.  As all of the physicians 
 
            have stated that this depression and resulting disability is 
 
            correctable with treatment and not permanent, it will not be 
 
            found that this condition increases claimant's permanent 
 
            disability herein.  No additional healing period is found as 
 
            well as the condition does not and has not prevented 
 
            claimant from working.
 
            
 
                 Claimant is 31 years old and has only completed the 
 
            seventh grade.  Claimant's only employment experience has 
 
            been as an laborer and production worker requiring heavy 
 
            manual labor.  Claimant performs mechanical work on cars but 
 
            the extent of this knowledge or whether this is a marketable 
 
            skill is unknown.  Therefore, his work injury and resulting 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            surgeries prevent a return to the type of work for which he 
 
            is best suited given his work history and lack of education.  
 
            At hearing, claimant did not appear to be a good candidate 
 
            for retraining into intellectually demanding work.  However, 
 
            retraining is unnecessary as long as he continues working at 
 
            Clow.  Claimant has suffered to some extent a loss of actual 
 
            earnings in his new job at Clow.
 
            
 
                 Therefore, it is found from consideration of all of the 
 
            relevant factors, that the work injury of March 21, 1989 was 
 
            a cause of a 15 percent loss of earning capacity.  This 
 
            finding is based upon his current employment at Clow.  
 
            Should this change, this would be a material change in one 
 
            of the factors upon which the award is made.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                   I.  Claimant has the burden of proving by a prepon
 
            derance of the evidence that claimant received an injury 
 
            which arose out of and in the course of employment.  The 
 
            words "out of" refer to the cause or source of the injury.  
 
            The words "in the course of" refer to the time and place and 
 
            circumstances of the injury.  See Cedar Rapids Community 
 
            Sch. v. Cady, 278 N.W.2d 298 (Iowa 1979); Crowe v. DeSoto 
 
            Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955).  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 
 
            therein.
 
            
 
                 In the case sub judice, claimant was able to show from 
 
            the medical reports that he suffered a work injury.
 
            
 
                 II.  Claimant must next establish by a preponderance of 
 
            the evidence the extent of weekly benefits for permanent 
 
            disability to which claimant is entitled.  As the claimant 
 
            has shown that the work injury was a cause of 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 
 
            Railway 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.  The 
 
            extent to which a work injury and a resulting medical condi
 
            tion has resulted in an industrial disability is determined 
 
            from examination of several factors.  These factors include 
 
            the employee's medical condition prior to the injury, imme
 
            diately 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 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            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.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 
            1121, 125 N.W.2d 251, 257 (1963).  See Peterson v. Truck 
 
            Haven Cafe, Inc., (Appeal Decision, February 28, l985).
 
            
 
                 A showing of substantial loss of earnings is not a con
 
            ditional precedent to a finding of industrial disability. 
 
            See Michael v. Harrison County, 34 Biennial Report, Iowa 
 
            Industrial Commissioner 218, 220 (Appeal Decision 1979) 
 
            Bearce v. FMC Corp., 465 N.W.2d 531 (Iowa 1991) only held 
 
            that continued employment with no loss of earnings is sig
 
            nificant evidence that should not be overlooked in measuring 
 
            loss of earning capacity.
 
            
 
                 In the case sub judice, it was found that claimant suf
 
            fered a 15 percent loss of his earning capacity as a result 
 
            of the work injury.  Such a finding entitles claimant to 75 
 
            weeks of permanent partial disability benefits as a matter 
 
            of law under Iowa Code section 85.34(2)(u) which is 15 per
 
            cent of 500 weeks, the maximum allowable number of weeks for 
 
            an injury to the body as a whole in that subsection. 
 
            
 
                 Claimant's entitlement to permanent partial disability 
 
            also entitles him to weekly benefits for healing period 
 
            under Iowa Code section 85.34 from the date of injury until 
 
            claimant returns to work; until claimant is medically capa
 
            ble of returning to substantially similar work to the work 
 
            he was performing at the time of injury; or, until it is 
 
            indicated that significant improvement from the injury is 
 
            not anticipated, whichever occurs first.
 
            
 
                 In the case at bar, claimant has shown entitlement to 
 
            healing period benefits from the date of injury until his 
 
            first return to work on July 17, 1989 and again from October 
 
            15, 1990 until his second return to work on April 8, 1991.  
 
            The prehearing report identifies a period of temporary par
 
            tial disability from April 8, 1991 until June 9, 1991 but no 
 
            evidence was offered upon which to make any findings or 
 
            orders with reference to this period of partial disability.  
 
            Therefore, only the healing period will be awarded and it 
 
            will be assumed that claimant was paid his correct entitle
 
            ment to temporary partial disability. 
 
            
 
                                      ORDER
 
            
 
                 1.  Defendant shall pay to claimant seventy-five (75) 
 
            weeks of permanent partial disability benefits at a rate of 
 
            two hundred twenty-five and 66/l00 dollars ($225.66) per 
 
            week from April 8, 1991.
 
            
 
                 2.  In addition to temporary partial disability pay
 
            ments already made, defendant shall pay to claimant healing 
 
            period benefits from March 21, 1989 through July 16, 1989 
 
            and from October 15, 1990 through April 7, 1991 at the rate 
 
            of two hundred twenty-five and 66/l00 dollars ($225.66) per 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            week.
 
            
 
                 3.  Defendant shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against this award for all 
 
            benefits previously paid.
 
            
 
                 4.  Defendant shall pay interest on unpaid weekly bene
 
            fits awarded herein as set forth in Iowa Code section 85.30. 
 
            
 
                 5.  Defendant shall pay the costs of this action pur
 
            suant to rule 343 IAC 4.33, including reimbursement to 
 
            claimant for any filing fee paid in this matter.
 
            
 
                 6.  Defendant shall file activity reports on the pay
 
            ment of this award as requested by this agency pursuant to 
 
            rule 343 IAC 3.1.
 
            
 
            
 
            
 
                 Signed and filed this ____ day of June, 1992.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr. Harold B. Heslinga
 
            Attorney at Law
 
            118 North Market Street
 
            Oskaloosa, Iowa  52577
 
            
 
            Mr. Paul C. Thune
 
            Attorney at Law
 
            218 6th Avenue STE 300
 
            P O Box 9130
 
            Des Moines, Iowa  50306
 
 
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                5-1803
 
                                                Filed June 25, 1992
 
                                                LARRY P. WALSHIRE
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            RONNY HUGHES,  
 
                                              File No. 913718
 
                 Claimant, 
 
                                           A R B I T R A T I O N
 
            vs.       
 
                                             D E C I S I O N
 
            CLOW VALVE CORPORATION,  
 
                      
 
                 Employer, 
 
                 Self-Insured,  
 
                 Defendant.     
 
            ___________________________________________________________
 
            
 
            
 
            5-1803
 
            Non-precedential, extent of disability case.