Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            RON BARRY,                    :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :        File No. 916763
 
            FRUEHAUF DRIVEWAY COMPANY     :
 
            d/b/a FRUEHAUF TRAILER,       :     A R B I T R A T I O N
 
                                          :
 
                 Employer,                :        D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            CNA INSURANCE COMPANIES,      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Ron 
 
            Barry, claimant, against Fruehauf Driveway Company d/b/a 
 
            Fruehauf Trailer, employer (hereinafter referred to as 
 
            Fruehauf), and CNA Insurance Companies, insurance carrier, 
 
            defendants, for workers' compensation benefits as a result 
 
            of an alleged injury on January 9, 1989.  On April 20, 1990, 
 
            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.  Oral testimony and written exhibits were received 
 
            during the hearing from the parties.  The exhibits offered 
 
            into the evidence are listed in the prehearing report.
 
            
 
                 According to the prehearing report, the parties have 
 
            stipulated to the following matters:
 
            
 
                 1.  On January 9, 1989, claimant received an injury 
 
            which arose out of and in the course of his employment with 
 
            Fruehauf.
 
            
 
                 2.  Claimant is seeking temporary total disability or 
 
            healing period benefits only from January 13, 1989 through 
 
            December 9, 1989 and defendants agree that he was not work
 
            ing at this time.
 
            
 
                 3.  If the injury is found to have caused permanent 
 
            disability, the type of disability is an industrial disabil
 
            ity to the body as a whole.
 
            
 
                 4.  Claimant's rate of weekly compensation in the event 
 
            of an award of weekly benefits from this proceeding shall be 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            $457.80.
 
            
 
                 5.  All requested medical benefits have been or will be 
 
            paid by defendants.
 
            
 
                                      issue
 
            
 
                 The only issue submitted by the parties for determina
 
            tion in this proceeding is the causal connection and extent 
 
            of permanent partial disability.
 
            
 
                                 findings of fact
 
            
 
                 Having heard the testimony and considered all the evi
 
            dence, this deputy industrial commissioner finds as follows:
 
            
 
                 A credibility finding is necessary to this decision as 
 
            defendants place claimant's credibility at issue during 
 
            cross-examination as to the nature and extent of the dis
 
            ability.  From his demeanor while testifying, claimant is 
 
            found credible.
 
            
 
                 Claimant worked for Fruehauf from March 1986 until the 
 
            day of the hearing in this matter, at which time he was laid 
 
            off along with three other employees at Fruehauf for eco
 
            nomic reasons.  Claimant's duties consisted of over-the-road 
 
            truck driving.
 
            
 
                 On or about January 9, 1989, claimant injured his back 
 
            while unloading his truck in Dayton, Ohio.  After attempting 
 
            to pick up one end of a heavy piece of freight, claimant 
 
            felt immediate pain in his right low back.  This pain radi
 
            ated into his legs.  Claimant was not able to continue work
 
            ing and he sought initial treatment from the company doctor.  
 
            After a few weeks, he was referred to an orthopedist, Edward 
 
            Herrmann, D.O.  Dr. Herrmann treated claimant conservatively 
 
            for bulging intervertebral discs in the low back.  This 
 
            treatment included bed rest, manipulation under anesthesia 
 
            and epidural injections of morphine and steroids.  Claimant 
 
            failed to significantly improve from this treatment and he 
 
            was referred to Walid Hafez, M.D., specialty unknown, who 
 
            recommended that claimant be evaluated for surgery and that 
 
            if surgery is not advisable that claimant be treated at a 
 
            pain clinic with physical therapy and epidural injections.  
 
            In May 1989, claimant was evaluated by D. L. Abernathie, 
 
            M.D., an orthopedic surgeon.  Dr. Abernathie treated 
 
            claimant over the next several months.  This treatment 
 
            included physical therapy and medication.  Claimant began to 
 
            improve in August 1989.  In December 1989, Dr. Abernathie 
 
            released claimant to return to work without restrictions.  
 
            However, claimant was told to work only within his 
 
            capabilities.
 
            
 
                 Claimant said that he tries not to lift over 25 to 30 
 
            pounds but on occasion is required to do so.  Claimant was 
 
            off work due to the injury from January 13, 1989 through 
 
            December 9, 1989.  Prior to the return to work, Dr. 
 
            Abernathie stated that he did not know if claimant was able 
 
            to return to truck driving and he recommended that claimant 
 
            consider alternative work.  Claimant has not done so stating 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            that he is not trained for anything else.  Also, claimant 
 
            indicated to Dr. Abernathie that he is close to retirement 
 
            and would like to at least return to work long enough to 
 
            exercise his retirement rights.
 
            
 
                 Claimant then returned to work for almost five months 
 
            prior to the hearing in this matter.  Claimant stated that 
 
            his back and legs continued to hurt while he was performing 
 
            his driving duties and that if he "over does it" the pain 
 
            worsens.  Claimant states that he now has difficulty working 
 
            on his 340 acre farm as he has difficulty operating and 
 
            working on farm equipment.  He states that he now must hire 
 
            someone to perform much of the farm work which has reduced 
 
            his farm income.  Until the time of hearing, claimant had 
 
            been performing the same driving job that he had before the 
 
            injury and was working in excess of 10 hours per day.  
 
            Claimant said that the long hours is deceiving as much of 
 
            the time is spent waiting to load and unload trucks.  
 
            Claimant had no chronic back problems before the injury 
 
            herein.  Claimant was seen by a chiropractor four times in 
 
            1973 and once in 1979.
 
            
 
                 As a result of the injury of January 9, 1989, claimant 
 
            has suffered a 10 percent permanent partial impairment to 
 
            the body as a whole.  Dr. Abernathie had opined that he 
 
            would rate claimant at this percentage but stated that he 
 
            was using a Missouri standard in the rating process.  Dr. 
 
            Abernathie never explained this Missouri standard.  However, 
 
            in the experience of this agency, such a rating is rather 
 
            typical for chronic back strain as diagnosed by Dr. 
 
            Abernathie.  Claimant has continuing difficulty with heavy 
 
            and repetitive lifting, climbing stairs, operating and 
 
            repairing farm equipment and prolonged driving.
 
            
 
                 As a result of the injury of January 9, 1989, claimant 
 
            has suffered a 20 percent loss of earning capacity.  
 
            Claimant's medical condition before the work injury was 
 
            excellent and he had no functional impairments or ascertain
 
            able disabilities.  Claimant was able to fully perform phys
 
            ical tasks involving heavy lifting, repetitive lifting and 
 
            prolonged driving.  Due to his physical limitations, 
 
            claimant's medical condition restricts him from fully 
 
            returning to all the duties of his prior work.  Claimant is 
 
            50 years of age and he is a high school graduate.  His age 
 
            deters from his ability to be vocationally retrained.  
 
            Claimant's past employment primarily consists of truck driv
 
            ing.  However, claimant was able to return to work and work 
 
            without any loss of income subsequent to the work injury for 
 
            at least a period of five months.  Although claimant has 
 
            expressed an interest in retirement to his physicians, there 
 
            is no showing that claimant had retirement plans before the 
 
            work injury.  Apparently, there has been some accommodation 
 
            by his employer for claimant's disability as he is not fully 
 
            capable of heavy and repetitive lifting as he was in the 
 
            past.  Apart from his absence from work while recovering 
 
            from the injury, claimant has suffered no permanent loss of 
 
            earnings.  His current unemployment is due to normal 
 
            economic trends as he had been laid off previously by the 
 
            same employer.
 
            
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                                conclusions of law
 
            
 
                   I.  Claimant must establish by a preponderance of the 
 
            evidence the extent of weekly benefits for permanent dis
 
            ability to which claimant is entitled.  As the claimant has 
 
            shown that the work injury was a cause of a permanent physi
 
            cal 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 
 
            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).
 
            
 
                 In the case sub judice, it was found that claimant has 
 
            suffered a 20 percent loss of earning capacity as a result 
 
            of the work injury.  Based on such a finding, claimant is 
 
            entitled as a matter of law to 100 weeks of permanent par
 
            tial disability benefits under Iowa Code section 85.34(2)(u) 
 
            which is 20 percent of 500 weeks, the maximum allowable num
 
            ber of weeks for an injury to the body as a whole in that 
 
            subsection.  As it was found that claimant returned to work 
 
            on December 10, 1989, permanent partial disability benefits 
 
            will be awarded from that date.
 
            
 
                 As claimant has established entitlement to permanent 
 
            partial disability, claimant is entitled to weekly benefits 
 
            for healing period under Iowa Code section 85.34(1) from the 
 
            date of injury until claimant returns to work or until 
 
            claimant is medically capable of returning to substantially 
 
            similar 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 sub judice, it was found that claimant was off work due 
 
            to the work injury for the period of time stipulated in the 
 
            prehearing report.  Healing period benefits will be awarded 
 
            accordingly.
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
                                      order
 
            
 
                 1.  Defendants shall pay to claimant one hundred (100) 
 
            weeks of permanent partial disability benefits at the rate 
 
            of four hundred fifty-seven and 80/l00 dollars ($457.80) 
 
            from December 10, 1989.
 
            
 
                 2.  Defendants shall pay to claimant healing period 
 
            benefits from January 13, 1989 through December 9, 1989, at 
 
            the rate of four hundred fifty-seven and 80/l00 dollars 
 
            ($457.80).
 
            
 
                 3.  Defendants shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against this award for 
 
            weekly benefits previously paid.
 
            
 
                 4.  Defendants shall pay the interest on weekly bene
 
            fits awarded herein as set forth in Iowa Code section 85.30.
 
            
 
                 5.  Defendants shall pay the cost of this action pur
 
            suant to Division of Industrial Services Rule 343-4.33.
 
            
 
                 6.  Defendants shall file activity reports on the pay
 
            ment of this award as requested by this agency pursuant to 
 
            Division of Industrial Services Rule 343-3.1.
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                 Signed and filed this ____ day of August, 1990.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. James P. Hoffman
 
            Attorney at Law
 
            Middle Rd
 
            Keokuk  IA  52632-1066
 
            
 
            Mr. Elliott R. McDonald, Jr.
 
            Attorney at Law
 
            P O Box 2746
 
            Davenport  IA  52809
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                    5-1803
 
                                                    Filed August 3, 1990
 
                                                    LARRY P. WALSHIRE
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            RON BARRY,                    :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :        File No. 916763
 
            FRUEHAUF DRIVEWAY COMPANY     :
 
            d/b/a FRUEHAUF TRAILER,       :     A R B I T R A T I O N
 
                                          :
 
                 Employer,                :        D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            CNA INSURANCE COMPANIES,      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            5-1803 - Extent of permanent partial disability benefits
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            NEIL HOLLOWAY, :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :      File No. 916768
 
            RUGE ELECTRIC, :
 
                      :        A P P E A L
 
                 Employer, :
 
                      :      D E C I S I O N
 
            and       :
 
                      :
 
            GENERAL CASUALTY COMPANIES,   :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            The record, including the transcript of the hearing before 
 
            the deputy and all exhibits admitted into the record, has 
 
            been reviewed de novo on appeal.  The decision of the deputy 
 
            filed March 11, 1991 is affirmed and is adopted as the final 
 
            agency action in this case, with the following additional 
 
            analysis:
 
            Claimant raises two issues on appeal, the extent of 
 
            industrial disability and the rate of weekly benefits.  
 
            Claimant has not suffered any loss of earnings.  The 
 
            employer has commendably accommodated claimant's condition.  
 
            There is no requirement that the percentage of industrial 
 
            disability exceed the percentage of impairment.  Claimant 
 
            does not have any medically imposed work restrictions.  
 
            Claimant is unable to perform certain job tasks at work, and 
 
            these limitations may affect his future ability to be hired 
 
            by other employers.  However, an award of seven percent 
 
            industrial disability reflects this loss of earning 
 
            capacity.  Based on these and all the other factors of 
 
            industrial disability, claimant is found to have an 
 
            industrial disability of seven percent.
 
            The pay period of November 10, 1988, was incorrectly 
 
            utilized in the calculation of claimant's rate.  Claimant 
 
            worked only two days that week, then underwent surgery and 
 
            recovery.  Claimant worked 40 hours or slightly less for 
 
            each of the other 12 weeks preceding his injury.  The week 
 
            of his surgery, claimant only worked 16 hours.  The week of 
 
            November 10, 1988, is not representative of claimant's 
 
            actual wages and should be disregarded.  In order to obtain 
 
            13 representative weeks prior to claimant's injury, the pay 
 
            period of July 21, 1988 should be considered.  Applying 
 
            claimant's $578 in wages earned during that pay period, 
 
            yields a gross weekly wage of $574.62 per week.  The parties 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            stipulated that claimant was married and entitled to two 
 
            exemptions.  For an injury occurring on November 8, 1988, 
 
            this results in a weekly compensation rate of $350.58.
 
            Defendants have pointed out a numerical error in the 
 
            statement of medical expenses and amounts paid by insurance.  
 
            Central Iowa Orthopaedics is found to have been paid 
 
            $1,905.60 in insurance payments.  Total insurance payments 
 
            are $5,794.37.  Defendants are entitled to a credit in that 
 
            amount.
 
            The decision of the deputy is affirmed and modified.       
 
            Defendants are to pay the costs of this action, including 
 
            the costs of the hearing transcript.
 
            Signed and filed this ____ day of June, 1991.
 
            
 
            
 
            
 
            
 
                      ________________________________
 
                               CLAIR R. CRAMER
 
                       ACTING INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Tito Trevino
 
            Attorney at Law
 
            801 Carver Bldg.
 
            P.O. Box 1680
 
            Fort Dodge, Iowa 50501
 
            
 
            Ms. Claire F. Carlson
 
            Attorney at Law
 
            P.O. Box 957
 
            Fort Dodge, Iowa 50501
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            1803 - 3001
 
            Filed June 28, 1991
 
            Clair R. Cramer
 
            EAN
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            NEIL HOLLOWAY, :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :      File No. 916768
 
            RUGE ELECTRIC, :
 
                      :        A P P E A L
 
                 Employer, :
 
                      :      D E C I S I O N
 
            and       :
 
                      :
 
            GENERAL CASUALTY COMPANIES,   :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            1803
 
            Claimant did not suffer any loss of earnings, and the 
 
            employer accommodated claimant's injury.  Claimant had no 
 
            medical restrictions.  Claimant had a whole body impairment 
 
            rating of ten percent.  Affirmed deputy's award of seven 
 
            percent industrial disability.  
 
            
 
            3001
 
            Modified the deputy's calculation of claimant's rate, in 
 
            that a week in which claimant worked part of the week, then 
 
            underwent surgery and recovery, was utilized in the 
 
            calculation of gross weekly wages.  The week in which 
 
            claimant missed days due to his surgery was disregarded as 
 
            unrepresentative, and another prior week utilized for the 13 
 
            required weeks.  Claimant's rate modified accordingly.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            NEIL HOLLOWAY,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 916768
 
            RUGE ELECTRIC,                :
 
                                          :   A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            GENERAL CASUALTY COMPANIES,   :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                 
 
            
 
                 This is a proceeding in arbitration brought by Neil 
 
            Holloway, (claimant) commenced with the filing of a petition 
 
            on August 16, 1989 against Ruge Electric (Ruge), employer 
 
            and General Casualty Companies,(General 
 
            Casualty),(collectively defendants) Ruge's insurer for 
 
            worker's compensation benefits as a result of an alleged 
 
            injury to claimant's shoulder occurring on November 8, 1988.  
 
            On November 1, 1990, the matter came on for hearing in Fort 
 
            Dodge, Iowa.  The parties appeared as follows:  the claimant 
 
            in person and by his counsel Tito Trevino of Fort Dodge, 
 
            Iowa and Ruge and General Casualty by their counsel Claire 
 
            F. Carlson of Fort Dodge, Iowa.  
 
            
 
                 The record in this proceeding consisted of the 
 
            following:
 
            
 
                 1.  The testimony of the claimant and the testimony of 
 
            Richard Ruge.
 
            
 
                 2.  Claimant's exhibits 1, 3, 5-7; defendants' exhibits 
 
            A and B and joint exhibits 2 and 4.
 
            
 
                 At the close of all evidence, the case was deemed fully 
 
            submitted.
 
            
 
                                   stipulations
 
            
 
                 The parties stipulated to the following matters at the 
 
            time of the hearing:
 
            
 
                 The extent of entitlement to weekly compensation for 
 
            temporary total disability or healing period, is stipulated 
 
            to be from November 8, 1988 to February 22, 1989. 
 
            
 
                 That the type of permanent disability, if the injury is 
 
            found to be a cause of permanent disability, is industrial 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            disability to the body as a whole.
 
            
 
                 The commencement date for permanent partial disability 
 
            is February 22, 1989.
 
            
 
                 Claimant is married.  He is entitled to two exemptions.
 
            
 
                 The fees charged for medical services are fair and 
 
            reasonable and the expenses were incurred for reasonable and 
 
            necessary medical treatment.
 
            
 
                 The amount of a credit for the payment of medical 
 
            benefits under a non-occupational group plan is $5,696.37.
 
            
 
                 That there are no bifurcated claims.
 
            
 
                 The amount of the costs total $69.00.
 
            
 
                                      issues
 
            
 
                 1.  Whether an employer-employee relationship existed 
 
            between claimant and Ruge at the time of the alleged injury.
 
            
 
                 2.  Whether the claimant sustained an injury on 
 
            November 8, 1988 which arose out of and in the course of his 
 
            employment.
 
            
 
                 3.  Whether the alleged injury is a cause of temporary 
 
            disability or permanent disability and if so the extent of 
 
            entitlement to benefits including healing period benefits.
 
            
 
                 4.  The amount of claimant's gross weekly earnings and 
 
            the rate of compensation claimant is entitled to in the 
 
            event of an award.
 
            
 
                 5.  Entitlement to medical benefits under Iowa Code 
 
            section 85.27 (1989) including determinations that there is 
 
            a causal connection to the work injury; a causal connection 
 
            between the medical expenses incurred and the medical 
 
            condition upon which claimant is now basing his claim; and 
 
            whether the expenses were authorized by the employer.
 
            
 
                 6.  Whether the defendants are entitled to a credit for 
 
            medical and hospitalization expenses in the amount of 
 
            $5,696.37.
 
            
 
                     
 
            
 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            FINDINGS OF FACT
 
            
 
                 After considering all of the evidence and the arguments 
 
            of counsel, the undersigned makes the following findings of 
 
            fact and conclusions of law.
 
            
 
                 1.  Claimant at the time of the hearing was 60 years 
 
            old.  He earns his livelihood as an electrician.  He carries 
 
            a master electrician/contractors license as required by the 
 
            city code for Fort Dodge.  He has lived in Fort Dodge for 30 
 
            years.  He attended Rockwell City High School and quit 
 
            during the middle of the 10th grade in 1948.  The claimant 
 
            does not have a GED.  When he left high school, claimant 
 
            joined the service and was a combat photographer.  When he 
 
            left the service, claimant returned to Rockwell City and 
 
            worked for the Rural Electrification Administration (REA).  
 
            He took some home study courses and learned television 
 
            repair.
 
            
 
                 2.  Claimant left REA and joined his father in his 
 
            father's electrical repair shop.  He had learned the 
 
            electrical trade from his father as he grew and had 
 
            increased his expertise with the home study course and his 
 
            work with the REA.  
 
            
 
                 3.  After the death of his father, claimant began to 
 
            work for Essinger Electric in Fort Dodge in 1960.  He worked 
 
            there for approximately three or four years.  Essinger 
 
            Electric was a general contractor and focused on the new 
 
            construction end of the market.
 
            
 
                 4.  Claimant's next employment was with Collins 
 
            Sargano.  In this employment, claimant worked on new 
 
            construction and did service work.  He left this employment 
 
            in 1974.  
 
            
 
                 5.  Shortly thereafter, claimant began to work for Paul 
 
            Electric.  He worked for this employer for 14 years.  His 
 
            duties with Paul Electric included service work, elevator 
 
            installation, trouble shooting, and other installation work.
 
            
 
                 6.  On February 21, 1979, claimant injured his left 
 
            shoulder.  He was carrying a five (5) horsepower motor 
 
            weighing 50-60 pounds when he fell on the ice and landed on 
 
            his left shoulder.  He saw Charles L. Dagle, M.D., on 
 
            February 22, 1979 regarding significant pain and swelling in 
 
            his left shoulder.  Dr. Dagle took x-rays to determine if 
 
            there was a fracture.  There was none.  Dr. Dagle concluded 
 
            that claimant had suffered a severe contusion of the left 
 
            shoulder.  Dr. Dagle saw claimant twice more after that and 
 
            reported that his last exam of the left shoulder on April 
 
            22, 1979 was normal.
 
            
 
                 7.  In November of 1983, claimant again visited Dr. 
 
            Dagle complaining of popping, cracking and pain in both 
 
            shoulders.  X-rays were taken and showed degenerative 
 
            changes in both the left and right shoulders.  Claimant 
 
            attributed the pain to the "old injury" he had suffered in 
 
            1979.  Dr. Dagle treated claimant with aspirin.
 
            
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                 8.  Claimant was next seen by Dr. Dagle for pain in his 
 
            left shoulder experienced while at work and night numbness 
 
            on the right side on November 25, 1987.  Claimant complained 
 
            that he had been experiencing the symptoms in his left 
 
            shoulder for the past six months.  Dr. Dagle gave claimant 
 
            Feldene to treat the pain.
 
            
 
                 9.  Claimant, in the meantime, had changed employers.  
 
            He began working for Ruge on approximately February 22, 
 
            1987.  Ruge is an electrical contractor.  Ruge's business 
 
            consists of 80 percent commercial work and 20 percent 
 
            residential work.  The residential work consists of 
 
            reception repair, service repair, fuse box installations and 
 
            repair and general household service.  The commercial work 
 
            varies but consists of installing new service or new 
 
            equipment.  Claimant's employment arrangement with Ruge was 
 
            governed by a collective bargaining agreement between the 
 
            International Brotherhood of Electrical Workers and 
 
            Electrical Contractors.  Ruge belongs to the National 
 
            Electrical Contractors Association,(NECA).  NECA administers 
 
            various funds set up under the collective bargaining 
 
            agreement.  The collective bargaining agreement governs the 
 
            rate of pay and the benefits received by union members 
 
            employed by union contractors.  Claimant's total wage and 
 
            benefit package is approximately $22.00 per hour.  Ruge 
 
            contributed to various funds maintained under the collective 
 
            bargaining agreement, including a fund for medical insurance 
 
            and vacation or holiday pay.  Claimant's gross wage on 
 
            October 27, 1988 for a 40 hour week equaled $578.80.  
 
            Claimant's hourly wage was $14.17 per hour.  Claimant worked 
 
            on an hourly basis as long as there was an account to charge 
 
            the work to.  If there was a slow time, or no work to do, 
 
            claimant could be sent home.  Claimant was not paid by Ruge 
 
            for holidays or vacations.  These funds were received from 
 
            the funds set up by the collective bargaining agreement and 
 
            administered by NECA.  On average, claimant worked a 40 hour 
 
            week.  However, there were slow times during his employment 
 
            with Ruge, most notably during March, July, late August and 
 
            early September and December in 1987 and during June in 
 
            1988.  Claimant was never laid off by Ruge though others 
 
            were during 1987 and 1988.  
 
            
 
                 10. For the thirteen weeks prior to claimant's injury 
 
            he earned the following amounts: 
 
            
 
                 
 
            DATE                               WAGE      HOURS WORKED    
 
            
 
            28-Jul-88                          $578.80        40
 
             4-Aug-88                          $578.80        40
 
            18-Aug-88                          $578.80        40
 
            25-Aug-88                          $539.00        37.25
 
             1-Sep-88                          $578.80        40
 
            15-Sep-88                          $578.80        40
 
            22-Sep-88                          $578.80        40
 
            29-Sep-88                          $578.80        40
 
             6-Oct-88                          $578.80        40
 
            13-Oct-88                          $578.80        40
 
            27-Oct-88                          $578.80        40
 
             3-Nov-88                          $564.33        39
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            10-Nov-88                          $231.52        16
 
             
 
            TOTAL:                             $547.91.
 
            
 
                 Three weeks were excluded from this wage calculation.  
 
            They are August 11, 1988, September 9, 1988, and October 20, 
 
            1988.  These weeks include vacation days for the claimant 
 
            and sick days for the claimant.  Partial weeks are not 
 
            included in the wage calculation. Anderson v. High Rise 
 
            Construction Specialists, Inc., File No. 850996, Slip op. at 
 
            3, (Iowa Ind. Comm'r Appeal Dec. July 31, 1990).  Based on 
 
            the above calculation, claimant's compensation rate is 
 
            $335.49 (married with 2 exemptions) Guide to Iowa Workers' 
 
            Compensation Claim Handling, page 55, July 1, 1988; Iowa 
 
            Code section 85.36(6) (1989).
 
            
 
                 11. In October of 1988, claimant was assigned by Ruge 
 
            to go wire a pole barn.  This job required him to climb a 
 
            tall fiberglass ladder several times to install overhead 
 
            lighting.  The installation required him to move the ladder 
 
            several times.  His left shoulder was painful and he could 
 
            not handle the ladder with one arm and he dropped it.  
 
            Thereafter, he had a conversation with Richard Ruge about 
 
            the pain in his shoulder.  Mr. Ruge suggested that claimant 
 
            go see Robert Weatherwax, M.D.
 
            
 
                 12. Upon examination and review of x-rays, Dr. 
 
            Weatherwax found that claimant was suffering from severe 
 
            acromioclavicular arthritis and chronic impingement.  After 
 
            an arthrogram study, Dr. Weatherwax expanded his diagnosis 
 
            to indicate that claimant had a thickness tear of the 
 
            rotator cuff of his left shoulder.  His final preoperative 
 
            impression was chronic impingement syndrome with full 
 
            thickness tear rotator cuff tendon and acromioclavicular 
 
            arthritis.
 
            
 
                 13. Prior to his surgery, claimant stopped working on 
 
            November 7, 1988.  
 
            
 
                 14. On November 8, 1988, Dr. Weatherwax performed 
 
            decompression surgery on the left shoulder to repair the 
 
            rotator cuff tear and resection of the joint to relieve the 
 
            acromioclavicular arthritis and eliminate chronic 
 
            impingement.  Claimant was discharged on November 9, 1988.  
 
            
 
                 15. On February 21, 1989, claimant was released to 
 
            return to work on light duty.  He was restricted to lifting 
 
            20 to 25 pounds and limit as much as possible overhead 
 
            activity.  Claimant was subsequently checked by Dr. 
 
            Weatherwax in April and August and November 1989.  After the 
 
            final check of claimant's shoulder, in November of 1989, Dr. 
 
            Weatherwax, found a 12 percent functional impairment of 
 
            claimant's upper extremity.  However, there is no evidence 
 
            in the record that Dr. Weatherwax imposed any restrictions 
 
            on claimant.  Moreover, claimant testified that he was not 
 
            under any restrictions from Dr Weatherwax.
 
            
 
                 16. Dr. Weatherwax has, throughout his contacts with 
 
            claimant and General Casualty, consistently opined that 
 
            claimant's employment has materially aggravated and 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            contributed to the chronic impingement that resulted in the 
 
            tear of the rotator cuff tendon in his left shoulder.  
 
            Moreover, he indicated that claimant's symptoms are related 
 
            to the repetitive overhead activities required by his 
 
            profession.  He also indicated however, that the arthritis 
 
            found in the acromioclavicular joint which is just above the 
 
            shoulder joint played a part in wearing and rupturing the 
 
            rotator cuff since the arthritis creates bony spurs that 
 
            often pinch into the tendon.  See, Correspondence between 
 
            Dr. Weatherwax and General Casualty dated December 15, 1988, 
 
            February 17, 1989, and July 24, 1989.
 
            
 
                 17. Claimant currently works at the same job and for 
 
            the same employer he had prior to his surgery.  He works 40 
 
            hours a week as an electrician.  Moreover, claimant is doing 
 
            the same amount of work that he did before the surgery.  He 
 
            does service work, repair work, and trouble shooting.  
 
            Claimant earns more per hour now than he did prior to his 
 
            injury.  Claimant is able to do all the tasks assigned to 
 
            him by Ruge.  Claimant is not foreclosed from going to work 
 
            for another electrical contractor and pursuing the work he 
 
            does now.  Claimant engages in all of his hobbies that he 
 
            had prior to the injury and surgery.  
 
            
 
                 18. At the time claimant saw Dr. Weatherwax for his 
 
            shoulder, claimant's right foot was bothering him.  There is 
 
            no evidence in the record that indicates that claimant's 
 
            foot problem is in any way connected with his work.  Dr. 
 
            Weatherwax gave no opinion regarding the cause of claimant's 
 
            foot problem and did not attribute the condition to a work 
 
            related incident.  At the time of claimant's decompression 
 
            surgery, Dr. Weatherwax also performed surgery on claimant's 
 
            foot.  
 
            
 
                 19. As part of the evidence in this matter, claimant 
 
            submitted medical expenses and a mileage expense report in 
 
            connection with his claim for medical benefits.  Portions of 
 
            these bills have been paid by insurance.  These amounts are 
 
            as follows:
 
            
 
     
 
            
 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
               PROVIDER                        AMOUNT         INSURANCE
 
            
 
                 Central Iowa Orthopaedics     $2,000.00      $1,905.00
 
            
 
                 DM Anesthesiologists             384.00         384.00
 
            
 
                 Humboldt Co. Hospital            149.00         143.00
 
            
 
                 Trinity Reg. Hospital            949.00         602.16
 
            
 
                 Iowa Lutheran Hospital         2,785.01       2,477.01
 
            
 
                 Raymond Schamel, M.D.             46.00          36.80
 
            
 
                 Ft. Dodge Med. Center            261.50          194.80
 
            
 
                 Roger Vogt, M.D.                  51.00           51.00
 
            
 
                             TOTAL:            $6,626.21      $5,696.37
 
            
 
                             BALANCE:            $929.84
 
            
 
                 Mileage    884 miles            $185.64
 
            
 
                 There is no evidence of apportionment between the 
 
            procedure for the shoulder and the procedure for the ankle.  
 
            There is a notation on the billing statement of November 30, 
 
            1988 that claimant was charged for a shoulder cuff repair.  
 
            There is no separate charge for the work performed on the 
 
            right foot even though it is clear from the operative notes 
 
            dictated by Dr. Weatherwax that he removed large osteophytes 
 
            of the dorsal aspect of the talonavicular joint.  The 
 
            postoperative office visit notes also indicate that time and 
 
            attention was paid to the right foot surgery.  In the office 
 
            notes dictated on November 22, 1988, December 6, 1988, 
 
            December 20, 1988, January 3, 1989, and January 31, 1989, 
 
            mention is made each time of the procedures used to reduce 
 
            swelling in the right foot and take care of fluid 
 
            accumulation in the surgical area.  There was no separate 
 
            charge made for the attention given to the right foot during 
 
            each office visit.
 
            
 
                                conclusions of law
 
            
 
                 1.  Whether an employer-employee relationship existed 
 
            between claimant and Ruge at the time of the alleged injury.
 
            
 
                 Ruge has urged that claimant was not in an 
 
            employee-employer relationship at the time of the injury.  
 
            The term "employment" in Iowa Code section 85.71 (1989) 
 
            refers to the employment relationship between the claimant 
 
            and the employer against whom the claim is made.   Factors 
 
            to be considered in determining whether an employer-employee 
 
            relationship exists include: (1) the right of selection, or 
 
            to employ at will; (2) responsibility for payment of wages 
 
            by the employer; (3) the right to discharge or terminate the 
 
            relationship; (4) the right to control the work; (5) 
 
            identity of the employer as the authority in charge of the 
 
            work or for whose benefit it is performed. The overriding 
 
            issue is the intention of the parties. McClure v. Union 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            County, 188 N.W.2d 283, 285 (Iowa 1971).  There is no 
 
            requirement that claimant preponderate on each of the 
 
            elements, a majority of the elements or only certain 
 
            elements.  Funk v. Bekins Van Lines Co., I Iowa Industrial 
 
            Commissioner Reports 82, 83 (Appeal Decision 1980).
 
            
 
                 There is ample evidence in the record to support 
 
            claimant's position that he was a Ruge employee at the time 
 
            he could no longer work.  Ruge controlled all aspects of his 
 
            work.  Ruge had the right to select claimant for employment 
 
            within the framework of a collective bargaining agreement.  
 
            Ruge was responsible for the payment of claimant's wages.  
 
            Ruge could terminate claimant or lay him off.  Finally, Ruge 
 
            was ultimately responsible for all the work claimant 
 
            performed.  It is clear that claimant was a Ruge employee at 
 
            the time he stopped working and had surgery on his shoulder.
 
            
 
                 2.  Whether claimant suffered an injury arising out of 
 
            and in the course of his employment with Ruge that occurred 
 
            on November 8, 1988.
 
            
 
                 Claimant's next contention is that he suffered a 
 
            cumulative injury working as an electrician for Ruge.  Ruge 
 
            urges that claimant suffered an injury with Paul Electric 
 
            and it plagued him until the day he left Ruge's employ and 
 
            had surgery on his shoulder.
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that he received an injury on November 8, 
 
            1988 which arose out of and in the course of his employment. 
 
            McDowell v. Town of Clarksville, 241 N.W.2d 904, 908 (Iowa 
 
            1976); Musselman v. Central Telephone Co., 154 N.W.2d 128, 
 
            130 (Iowa 1967).  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 the employee 
 
            is doing work assigned by the employer or something 
 
            incidental to it.  Cedar Rapids Community School District v. 
 
            Cady, 278 N.W.2d 298, 299 (Iowa 1979), McClure, 188 N.W.2d 
 
            at 287; Musselman, 154 N.W.2d at 130.  An injury arises out 
 
            of the employment if the injury is caused by the employment 
 
            or the employment is the source of the injury.  Crowe v. 
 
            DeSoto Consolidated School District, 68 N.W.2d 63, 65 (Iowa 
 
            1955).  A cumulative injury may occur over a period of time.  
 
            The injury in such cases occurs when, because of pain or 
 
            physical disability, the claimant is compelled to leave 
 
            work.  McKeever Custom Cabinets v. Smith, 379 N.W.2d 368, 
 
            374 (Iowa 1985).  Moreover, claimant's last employer becomes 
 
            liable for the cumulative injury, even if the incidents that 
 
            lead to the ultimate injury do not occur while a claimant is 
 
            employed with the last employer.  McKeever, 379 N.W.2d at 
 
            376; See also, Doerfer Division of CCA v. Nicol, 359 N.W.2d 
 
            428, 434-35.
 
            
 
                 In this instance, the evidence is clear that the pain 
 
            in claimant's shoulder became so persistent that he was 
 
            forced to stop work on October 7, 1988 for treatment of his 
 
            shoulder.  The evidence is uncontroverted on the issue of 
 
            the cause of the injury; the repetitive use of the shoulder 
 
            in claimant's trade as an electrician.  Dr. Weatherwax 
 
            indicated in at least three separate letters that the cause 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            of claimant's condition was his work.  Since Ruge was the 
 
            last employer, and there is clear evidence in the record 
 
            that claimant's injury was caused by the repetitive use of 
 
            his shoulder in connection with his work, the injury arose 
 
            out of and in the course of employment with Ruge.  This 
 
            conclusion does not change if claimant's arthritis in his 
 
            shoulder is considered.  There is no evidence in the record 
 
            that suggests that claimant's arthritis was the primary 
 
            culprit in causing claimant's shoulder injury.  Dr. 
 
            Weatherwax said as much in his letter of February 17, 1989.  
 
            There is no other medical evidence to the contrary.  
 
            Consequently, claimant suffered a cumulative injury on 
 
            November 8, 1988 while in the employ of Ruge.
 
            
 
                 3.  Whether the alleged injury is a cause of temporary 
 
            disability or permanent disability and if so the extent of 
 
            entitlement to benefits.
 
            
 
                 Claimant next contends that this injury has caused a 
 
            permanent disability which entitles him to industrial 
 
            disability benefits.  Claimant must show by a preponderance 
 
            of the evidence that the injury of November 8, 19887, is 
 
            causally related to the disability on which he now bases his 
 
            claim.  Bodish v. Fischer, Inc., 133 N.W.2d 867, 868 (Iowa 
 
            1965);  Lindahl v. L. O. Boggs, 18 N.W.2d 607, 613-14 (Iowa 
 
            1945).  A possibility is insufficient; a probability is 
 
            necessary.  Burt v. John Deere Waterloo Tractor Works, 73 
 
            N.W.2d 732,738 (Iowa 1955).  The question of causal 
 
            connection is essentially within the domain of expert 
 
            testimony.  Bradshaw v. Iowa Methodist Hospital, 101 N.W.2d 
 
            167,171 (Iowa 1960). 
 
            
 
                 If the claimant is successful in establishing a casual 
 
            connection between the injury and a permanent condition the 
 
            next question that must be answered is whether the permanent 
 
            injury has caused a loss in earning capacity.  The essence 
 
            of an earning capacity inquiry is not how much has the 
 
            claimant been functionally impaired, but whether that 
 
            impairment, in combination with the claimant's age, 
 
            education, work experience, pre and post injury wages, 
 
            motivation and ability to get a job within his restrictions, 
 
            if any restrictions have been imposed, have caused a loss of 
 
            earning capacity.  Olson v. Goodyear Service Stores, 125 
 
            N.W.2d 251, 257 (Iowa 1963); Diederich v. Tri-City Railway 
 
            Co., 258 N.W. 899, 902 (Iowa 1935);  Peterson v. Truck Haven 
 
            Cafe, Inc., 1 Iowa Industrial Comm'r Dec. No. 3, 654, 658 
 
            (1985); Christensen v. Hagen, Inc., 1 Iowa Ind. Comm'r Dec. 
 
            No. 3, 529, 534-535 (1985). 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 the total, 
 
            motivation five percent of the total, work experience thirty 
 
            percent of the total etc.  Neither does a rating of 
 
            functional impairment directly correlate to the 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 to 
 
            the body as a whole.  It therefore becomes necessary for the 
 
            deputy or commissioner to draw upon prior experience, and 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            general and specialized knowledge to make the finding with 
 
            regard to the degree of industrial disability.  See, 
 
            Peterson, 1 Iowa Industrial Comm'r Dec. No. 3, at 658; 
 
            Christensen, 1 Iowa Ind. Comm'r Dec. No. 3, at 535.
 
            
 
                 The evidence shows that claimant has suffered an injury 
 
            caused by his work that has left him with a 12 percent 
 
            impairment to his upper extremity.  The parties agree that 
 
            this injury is an injury to the body as a whole.  
 
            Consequently, claimant has sustained an industrial 
 
            disability.
 
            
 
                 However, the extent of the disability is not great.  
 
            Claimant's only restriction is the functional impairment 
 
            found by Dr. Weatherwax.  Claimant works without any other 
 
            restrictions.  He has returned to work with Ruge, and he is 
 
            working as an electrician doing the same things he was doing 
 
            prior to the injury.  Claimant has not given up his hobby as 
 
            a pilot.  If claimant leaves his current employment to go 
 
            work for another contractor, claimant would still be working 
 
            as an electrician making service calls on commercial and 
 
            residential accounts.  Claimant has not shown that he has 
 
            suffered any significant loss of earning capacity and his 
 
            industrial disability is found to be 7%.
 
            
 
                 In connection with healing period benefits, claimant 
 
            established that his inability to work from November 8, 1988 
 
            to February 22, 1989 was causally related to his shoulder 
 
            injury and subsequent surgery.  Healing period benefits may 
 
            be characterized as that period during which there is a 
 
            reasonable expectation of improvement of a disabling 
 
            condition and ends when maximum medical improvement is 
 
            reached.  Armstrong Tire and Rubber Co. v. Kubli, 312 N.W. 
 
            2d 60, 65 (Iowa App. 1981).  The healing period generally 
 
            terminates at the time the attending physician determines 
 
            that the employee has recovered as far as possible from the 
 
            effects of the injury.  Armstrong, 312 N.W. 2d at 65.  In 
 
            this instance, the parties agreed that claimant's healing 
 
            period ended when he returned to work on February 22, 1989..  
 
            Consequently, he will be compensated for that time period at 
 
            the rate set out in paragraph 10 above.
 
            
 
                 4.  Entitlement to medical benefits under Iowa Code 
 
            section 85.27 (1989) including determinations as to whether 
 
            there is a causal connection to the work injury; a causal 
 
            connection between the medical expenses incurred and the 
 
            medical condition upon which claimant is now basing his 
 
            claim; and authorization by the employer.
 
            
 
                 Claimant has the burden of demonstrating that the 
 
            medical services obtained were related to the injury in 
 
            order to have the expenses reimbursed or paid.  Auxier v. 
 
            Woodward State Hospital, 266 N.W.2d 139, 144 (1978).  
 
            Claimant has shown by a clear preponderance of the evidence 
 
            that he was injured while working for Ruge.  Claimant's 
 
            shoulder, though painful, did not prevent him from 
 
            completing his job tasks prior to November 7, 1988.  When 
 
            claimant's shoulder became so painful that he could no 
 
            longer work, he was working for Ruge in his capacity as an 
 
            electrician.  As a consequence the necessary nexus has been 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            established and Ruge must provide medical benefits to 
 
            claimant.  Iowa Code section 85.27 (1989).
 
            
 
                 With regard to which amounts Ruge must pay, a recent 
 
            decision of the Industrial Commissioner is instructive.  
 
            See, Anderson v. High Rise Construction Specialists, Inc., 
 
            File No 850096, Slip Op. at 3 (Iowa Ind. Comm'r Appeal July 
 
            31, 1990).  In this decision, the Industrial Commissioner 
 
            identified one of the issues for appeal as the sufficiency 
 
            of the proof that items contained in the hospital statement 
 
            are related to the injury claimant received.  The 
 
            Commissioner held that where the reasonableness and the 
 
            necessity of claimant's medical bills were put into issue, 
 
            and the claimant offered no evidence of reasonableness, the 
 
            employer was not liable for the medical expenses incurred.  
 
            
 
                 In applying these principals to the case at hand, Ruge 
 
            agreed that the fees and expenses including the mileage 
 
            expense were reasonable and necessary even where there had 
 
            been no apportionment between the procedure for the foot and 
 
            the procedure for claimant's shoulder.  Since reasonableness 
 
            of the fees and expenses was not an issue, claimant has 
 
            satisfied his burden in showing that the medical expenses 
 
            and the claim for mileage incurred were causally related to 
 
            the medical condition upon which he is basing his claim.  
 
            Ruge must pay the medical expenses and mileage expenses 
 
            enumerated in paragraph 19 above.
 
            
 
                 The final medical benefit issue for resolution is 
 
            whether Ruge authorized claimant to obtain medical care for 
 
            his shoulder.  Under Iowa Code section 85.27 (1989) an 
 
            employer has the responsibility to provide an injured worker 
 
            with reasonable medical care and has the right to select the 
 
            care the worker will receive.  In order for the employer to 
 
            be held responsible for claimant's medical expenses, 
 
            claimant must show that the treatment sought was either 
 
            emergency care, was authorized.  Templeton v. Little Giant 
 
            Crane & Shovel, 1 State of Iowa Industrial Commissioner 
 
            Decisions No. 3, 702, 704 (Iowa Ind. Comm'r Appeal 1985).  
 
            If the treatment is unauthorized a claimant may still 
 
            recover if the treatment improves the claimant's condition 
 
            and the treatment ultimately mitigates defendants' 
 
            liability.  Thomas v. Broadlawns Medical Center, File No. 
 
            81240, Slip op. at pp. 6-8 (Iowa Ind. Comm'r October 31, 
 
            1990);  Butcher v. Valley Sheet Metal, IV Iowa Industrial 
 
            Commissioner Report 49 (1983); Rittgers v. United Parcel 
 
            Service, III Iowa Industrial Commissioner Report 210 (1982).  
 
            Moreover, an employee may engage medical services if the 
 
            employer has expressly or impliedly conveyed to the employee 
 
            the impression that the employee has authorization to 
 
            proceed in this fashion.  2 Larson's Workmen's Compensation 
 
            Law, section 61.12(g) (1990).  It is clear from the evidence 
 
            given at trial that Ruge authorized the medical treatment 
 
            for the claimant.  Richard Ruge suggested that claimant see 
 
            Dr. Weatherwax for his shoulder.  The claimant could 
 
            reasonably rely on this advice from his employer that he had 
 
            its authority to seek medical treatment for his shoulder.
 
            
 
                 6.  Whether the defendants are entitled to a credit for 
 
            medical and hospitalization expenses in the amount of 
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            $5,696.37.
 
            
 
                 The parties have disputed whether Ruge is entitled to a 
 
            credit for amounts paid to claimant's medical service 
 
            providers.  Pursuant to Iowa Code section 85.38(2) (1989) if 
 
            the employee receives any benefits, including medical, 
 
            surgical or hospital benefits under any group plan covering 
 
            nonoccupational disabilities contributed to wholly or 
 
            partially by the employer, and the benefits should not have 
 
            been paid if any rights of recovery existed under the Iowa 
 
            Worker's Compensation Law, the employer is entitled to a 
 
            credit for the amounts paid.  
 
            
 
                  Under the terms of the union contract, Ruge is 
 
            responsible for contributing to the Health and Welfare fund 
 
            administered by NECA.  Since Ruge has contributed to the 
 
            Health and Welfare fund, it is entitled to a credit for 
 
            amounts paid to claimant's medical service providers in the 
 
            amount of $5,696.37.
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
 
 
                 1.  Ruge Electric and General Casualty Companies shall 
 
            pay to claimant healing period benefits for the period of 
 
            time on November 8, 1988 and ending on February 22, 1989, at 
 
            the rate of three hundred thirty-five and 49/100 dollars 
 
            ($335.49).  As these benefits have accrued, they shall be 
 
            paid in a lump sum together with statutory interest thereon 
 
            pursuant to Iowa Code section 85.30. 
 
 
 
                 2.  Ruge Electric and General Casualty Companies shall 
 
            pay to claimant permanent total disability benefits in the 
 
            amount of seven percent (7%) with payment commencing on 
 
            February 23, 1989.  As these benefits have accrued, they 
 
            shall be paid in a lump sum together with statutory interest 
 
            thereon pursuant to Iowa Code section 85.30. 
 
 
 
                 3.  Ruge Electric and General Casualty Companies shall 
 
            pay the following medical providers:
 
            
 
                 Central Iowa Orthopaedics             $2,000.00
 
 
 
                 DM Anesthesiologists                     384.00
 
 
 
                 Humboldt Co. Hospital                    149.00 
 
            
 
                 Trinity Reg. Hospital                    949.00 
 
            
 
                 Iowa Lutheran Hospital                 2,785.01 
 
            
 
                 Raymond Schamel, M.D.                     46.00
 
            
 
                 Ft. Dodge Med. Center                    261.50
 
            
 
                 Roger Vogt, M.D.                          51.00
 
            
 
                             TOTAL:                    $6,626.21
 
            
 
                 Ruge shall have a credit for all amounts paid 
 
            
 
                 4.  Ruge shall pay to claimant mileage expenses in the 
 
            amount of one hundred eighty-five and 64/100 dollars 
 
            ($185.64).
 

 
            
 
            Page  13
 
            
 
            
 
            
 
            
 
            
 
                 5.  The costs of this action totaling sixty-nine 
 
            dollars ($69.00) shall be assessed to Ruge Electric and 
 
            General Casualty Companies pursuant to rule 343 IAC 4.33. 
 
 
 
                 6.  Ruge Electric and General Casualty Companies shall 
 
            file claim activity reports as required by rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of March, 1991.
 
            
 
            
 
            
 
            
 
                                          
 
            ________________________________
 
                                          ELIZABETH A. NELSON
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr Tito Trevino
 
            Attorney at Law
 
            503 Snell Bldg
 
            PO Box 1680
 
            Ft Dodge Iowa 50501
 
            
 
            Ms Claire F Carlson
 
            Attorney at Law
 
            Seventh Floor Snell Bldg
 
            PO Box 957
 
            Ft Dodge Iowa 50501
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
                      5-2503; 5-1403.20; 5-1701; 5-3001;
 
                      5-1802; 5-1803; 5-2209
 
                      Filed March 11, 1991
 
                      ELIZABETH A. NELSON
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            NEIL HOLLOWAY, :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :      File No. 916768
 
            RUGE ELECTRIC, :
 
                      :   A R B I T R A T I O N
 
                 Employer, :
 
                      :      D E C I S I O N
 
            and       :
 
                      :
 
            GENERAL CASUALTY COMPANIES,   :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            5-1803, 5-2209
 
            Claimant suffered a 7 percent industrial disability with a 
 
            cumulative injury to his shoulder.  Claimant, an 
 
            electrician, was found to have a 12 percent functional 
 
            impairment to the upper extremity.  However, claimant 
 
            returned to his job as an electrician.  He had no loss in 
 
            wages.  He was released to work without any restrictions.  
 
            He gave up no hobbies and had no lifestyle changes.
 
            
 
            5-1802
 
            Claimant was awarded healing period benefits for the period 
 
            of time from the injury occurrence date fixed by the 
 
            reasoning in McKeever Custom Cabinets v. Smith, 379 N.W.2d 
 
            368 (Iowa 1985) until he returned to work on February 22, 
 
            1989.
 
            
 
            5-3003
 
            Claimant's rate was calculated by excluding the partial 
 
            weeks he worked that included vacation and medical leave.
 
            
 
            5-2503, 5-1403.20
 
            Since the employer did not object to the necessity and 
 
            reasonableness of the medical expenses incurred by claimant, 
 
            even though the expenses were not apportioned between the 
 
            work related injury and a non work related injury, the 
 
            employer bears the entire cost of the expenses.  See, 
 
            Anderson v. High Rise Construction Specialists, Inc. File 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            No. 850096, Slip op. at 3 (Iowa Ind. Comm'r Appeal July 31, 
 
            1990)
 
            
 
            5-1701
 
            Where the employer contributes to a health and welfare fund 
 
            established under a collective bargaining agreement, the 
 
            employer is entitled to a credit for the amounts paid by the 
 
            funds for the claimant's benefit.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            RUSSELL GENE BROWN, JR.,      :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 916776
 
            KERRY SPURLIN,                :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            FERREN INSURANCE SERVICES     :
 
            LTD,                          :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Russell 
 
            Gene Brown, Jr., against his employer, Kerry Spurlin, and 
 
            against the employer's insurance agent, Ferren Insurance 
 
            Services Ltd.  Claimant seeks compensation for temporary 
 
            total disability, permanent partial disability and payment 
 
            of medical expenses based upon an injury to his left leg 
 
            that occurred on April 15, 1989.
 
            
 
                 The case was heard at Ottumwa, Iowa on February 7, 
 
            1991.  The evidence in the proceeding consists of testimony 
 
            from Russell Gene Brown, Jr., Teri Brown and Kerry Spurlin.  
 
            The evidence also contains claimant's exhibits 1 through 6.  
 
            The only disputed bill was the chest x-ray charges in the 
 
            amount of $19.38 shown on the last page of exhibit 2.  
 
            Spurlin acknowledged responsibility for the other bills.
 
            
 
                                 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.
 
            
 
                 Russell Gene Brown, Jr., is a young man who has worked 
 
            as a farmhand for Kerry Spurlin at some point during each of 
 
            the preceding four years.  The bulk of the work has been 
 
            performed in the spring and in the fall of the year, 
 
            although the record shows him to have received pay checks at 
 
            some point during each of the 12 calendar months of the 
 
            year.
 
            
 
                 On or about April 15, 1989, while working on Spurlin's 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            farm near Moulton, Iowa, Russell slipped and fell, hitting 
 
            his left knee on a disc.  The knee became sore and he sought 
 
            medical treatment from Dr. Fraser at Centerville, Iowa on 
 
            April 17.  The doctor prescribed medication.  Russell 
 
            returned to work, but became unable to work and returned to 
 
            Dr. Fraser.  On April 21, Russell was admitted to St. Joseph 
 
            Mercy Hospital where he underwent surgery on his left knee 
 
            in order to remove the large amount of pus and infection 
 
            which had developed in the knee (exhibit 1, page 1b).  
 
            Russell testified at hearing that, following the surgery, he 
 
            was released by his surgeon to return to work on June 23, 
 
            1989.  Russell also stated that he worked prior to the 
 
            surgery until one or two days before being admitted to the 
 
            hospital.  It is found that Russell was disabled on account 
 
            of the surgery from April 20, 1989 through June 22, 1989, a 
 
            span of nine and one-seventh weeks.  Russell did work on May 
 
            11 and May 29, 1989 when work was made available, even 
 
            though he had not completely recovered.
 
            
 
                 Russell has continuing problems with his knee.   He is 
 
            unable to crawl on his hands and knees.  His ability to bear 
 
            weight with the left knee is limited by pain.  The knee 
 
            aches when it is stressed or with weather changes.  Vincent 
 
            E. Sullivan, M.D., his treating surgeon, in a report dated 
 
            July 23, 1990, states, "On physical exam, I see minimal 
 
            impairment."  A subsequent report dated February 4, 1991 
 
            states that the doctor feels the patient may be slightly 
 
            limited.  The evidence from Dr. Sullivan when combined with 
 
            Russell's own credible testimony clearly establishes that 
 
            there is some permanent impairment of the knee, albeit 
 
            minimal.  Five percent is a minimal amount of impairment.  
 
            It is found that Russell has experienced a five percent loss 
 
            of his ability to use his left leg as a result of the 
 
            residual problems which exist in his left knee, all as a 
 
            result of the April 15, 1989 injury.
 
            
 
                 Claimant incurred medical expenses in obtaining 
 
            treatment for the knee as follows:
 
            
 
                 Vincent E. Sullivan, M.D.          $  575.00
 
                 St. Joseph Mercy Hospital           7,688.20
 
                 Centerville Medical Clinic            527.00
 
                 Rural Diagnostic Radiology             34.68
 
                 Total                              $8,824.88
 
            
 
                 The evidence in this case does not specifically show 
 
            the purpose for the April 21, 1989 chest x-ray for which 
 
            charges in the amount of $19.38 were made.  It is noted, 
 
            however, from the record itself that the test was ordered by 
 
            Dr. Fraser.  The evidence shows claimant to have been 
 
            treating with Dr. Fraser for his knee and not for any other 
 
            medical problem.  The test was performed on the same date as 
 
            the date Russell was admitted to the hospital.  It is common 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            for patients to have a chest x-ray when they are admitted to 
 
            a hospital for surgery as part of the pre-surgery 
 
            preparatory process.  Since the test was ordered by a 
 
            licensed physician, there is an inference that the test was 
 
            reasonable to conduct.  Claimant's testimony and the state 
 
            of the records show no medical purpose for conducting any 
 
            type of medical treatment other than the knee condition.  It 
 
            is therefore found that the chest x-ray does constitute 
 
            reasonable treatment for the knee injury.  The record is 
 
            devoid of any indication that the x-ray was conducted for 
 
            any other purpose.
 
            
 
                 Claimant's earnings are accurately reflected on 
 
            exhibits 3, 4, 5 and 6.  It is found that Russell's work was 
 
            not seasonal and that the work of a farmhand is not 
 
            exclusively seasonal, even though it is somewhat seasonal 
 
            with busy times and times when there is little work to be 
 
            performed.  It is further found that, when Russell was 
 
            working, his earnings were not less than the earnings of the 
 
            regular, full-time adult laborer in the farming industry in 
 
            the southern Iowa locality.  The 13 weeks preceding the 
 
            injury involve the periods shown on exhibits 4 and 5.  It is 
 
            particularly noted that it was customary for Russell not to 
 
            work a full 40 hours each and every week.  Further, the pay 
 
            periods varied and there is no standard work week to be 
 
            employed.  Since the day of injury was April 15, 1989 and 
 
            claimant did not leave work on that day, the 13-week period 
 
            preceding that day commences with January 15, 1989.  Since 
 
            the claimant did not work during one of those intervening 
 
            weeks, it is necessary to move on to January 8, 1989 in 
 
            order to obtain 13 representative weeks.  The argument of 
 
            facts and computations shown in the post-hearing brief filed 
 
            on behalf of the employer is found to be correct.  
 
            Claimant's total gross wages for the 13 weeks which are 
 
            included compute to $1,207.48.  The average weekly wage is 
 
            $92.88.
 
            
 
                 Ferren Insurance Services, Ltd., is not an insurance 
 
            carrier.  It is an insurance agency.  It is not the employer 
 
            of Russell Gene Brown, Jr.
 
            
 
                    
 
            
 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            conclusions of law
 
            
 
                 The Iowa workers' compensation statutes deal with the 
 
            method by which employees are to be compensated for injuries 
 
            which arise out of and in the course of their employment.  
 
            Code sections 85.3 and 85.1 specify that employers are 
 
            subject to the chapter.  Section 85.20 makes chapter 85 the 
 
            exclusive remedy for the employee.  The statute does not 
 
            contain any provision which makes any entity other than the 
 
            employee and the employer subject to the jurisdiction of the 
 
            industrial commissioner, except for insurance carriers as 
 
            provided by section 87.10.  Since the workers' compensation 
 
            statutes are special statutes with limited jurisdiction, it 
 
            is concluded that this agency does not have jurisdiction to 
 
            enter an award against Ferren Insurance Services, Ltd.  
 
            Spurlin may have a remedy in the district court to obtain 
 
            reimbursement for the award made in this decision from 
 
            Ferren Insurance Services, Ltd., but that cannot be 
 
            determined or addressed in this decision.
 
            
 
                 Russell is entitled to recover healing period 
 
            compensation commencing April 20, 1989 and running through 
 
            June 22, 1989, except for the days May 11 and May 29, 1989.  
 
            The total span is eight and six-sevenths weeks.
 
            
 
                 It was stipulated that the injury was limited to 
 
            Russell's left leg.  He is therefore entitled to recover 11 
 
            weeks of permanent partial disability under the provisions 
 
            of Code section 85.34(2)(o) representing a five percent loss 
 
            of use of the leg.
 
            
 
                 Since claimant was single and had no other exemptions 
 
            except for himself, his rate of compensation is based upon 
 
            average weekly wages of $92.88 under the provisions of 
 
            section 85.36(6), and the 1988 benefit booklet, as 
 
            corrected, reflects that weekly wages of $93.00 for a single 
 
            worker with one exemption provide a weekly rate of $77.35.  
 
            In arriving at the rate, weeks in which no work was 
 
            performed were not counted.  Lewis v. Aalf's Mfg. Co., I 
 
            Iowa Industrial Commissioner Report 206 (App. Decn. 1980).
 
            
 
                 The employer is responsible for all the claimed medical 
 
            expenses in the total amount of $8,824.88.
 
            
 
                                      order
 
            
 
                 IT IS THEREFORE ORDERED that the employer, Kerry 
 
            Spurlin, pay Russell Gene Brown, Jr., eight and six-sevenths 
 
            (8 6/7) weeks of compensation for healing period at the rate
 
            
 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            of seventy-seven and 35/100 dollars ($77.35) per week 
 
            payable commencing April 20, 1989 with said payments being 
 
            interrupted for the days claimant actually worked, namely 
 
            May 11 and May 29, 1989.
 
            
 
                 IT IS FURTHER ORDERED that the employer, Kerry Spurlin, 
 
            pay Russell Gene Brown, Jr., eleven (11) weeks of 
 
            compensation for permanent partial disability at the rate of 
 
            seventy-seven and 35/100 dollars ($77.35) per week payable 
 
            commencing June 23, 1989.
 
            
 
                 IT IS FURTHER ORDERED that all past due amounts of 
 
            weekly compensation be paid to Russell Gene Brown, Jr., in a 
 
            lump sum together with interest pursuant to Code section 
 
            85.30 computed from the date each weekly payment came due 
 
            until the date of actual payment.
 
            
 
                 IT IS FURTHER ORDERED that the employer, Kerry Spurlin, 
 
            pay the following medical expenses:
 
            
 
                 Vincent E. Sullivan, M.D.          $  575.00
 
                 St. Joseph Mercy Hospital           7,688.20
 
                 Centerville Medical Clinic            527.00
 
                 Rural Diagnostic Radiology             34.68
 
                 Total                              $8,824.88
 
            
 
            Kerry Spurlin shall pay to Russell Gene Brown, Jr., any 
 
            amounts Brown has paid toward those bills.  Spurlin shall 
 
            receive full credit for amounts he has previously paid 
 
            toward those same medical expenses.
 
            
 
                 IT IS FURTHER ORDERED that the costs of this proceeding 
 
            are assessed against the employer, Kerry Spurlin, pursuant 
 
            to rule 343 IAC 4.33.
 
            
 
                 IT IS FURTHER ORDERED that the employer, Kerry Spurlin, 
 
            file claim activity reports as requested by this agency 
 
            pursuant to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ______ day of ____________, 1991.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr. Vern M. Ball
 
            Attorney at Law
 
            207 South Washington
 
            P.O. Box 129
 
            Bloomfield, Iowa  52537
 
            
 
            Mr. Wayne Fraser
 
            Attorney at Law
 
            Edina, Missouri  63537
 
            
 
            Mr. William D. Scherle
 
            Attorney at Law
 
            803 Fleming Building
 
            Des Moines, Iowa  50309
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           1402.60; 1803; 2300; 2302
 
                           2501
 
                           Filed April 1, 1991
 
                           MICHAEL G. TRIER
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            RUSSELL GENE BROWN, JR., :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :         File No. 916776
 
            KERRY SPURLIN, :
 
                      :      A R B I T R A T I O N
 
                 Employer, :
 
                      :         D E C I S I O N
 
            and       :
 
                      :
 
            FERREN INSURANCE SERVICES     :
 
            LTD,      :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ____________________________________________________________
 
            
 
            2300; 2302
 
            This agency has no jurisdiction to enter an award against an 
 
            insurance agency which was neither an employer nor an 
 
            insurance carrier, despite the fact that it had been served 
 
            with original notice and took no action to defend.
 
            
 
            1803
 
            Claimant awarded five percent permanent partial disability 
 
            where doctor termed the impairment to the leg as "minimal" 
 
            and claimant had complaints, which were found to be 
 
            credible, of loss of ability to make full use of the leg.
 
            
 
            1402.60; 2501
 
            An inference exists that whenever treatment is administered 
 
            under the direction of a licensed physician, that the 
 
            treatment is reasonable for the condition being treated.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            RUTH M. MEAD,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 916787
 
            FRUEHAUF CORPORATION,         :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            CNA INSURANCE COMPANIES,      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration upon the petition 
 
            of claimant, Ruth M. Mead, against her employer, Fruehauf 
 
            Corporation, and its insurance carrier, CNA Insurance 
 
            Corporation, defendants.  The case was heard on November 15, 
 
            1990, in Burlington, Iowa at the Des Moines County 
 
            Courthouse.  The record consists of the testimony of 
 
            claimant.  Additionally, the record consists of joint 
 
            exhibits 1-21 and defendants' exhibit A.
 
            
 
                                      issues
 
            
 
                 The issues to be determined are: 1) whether claimant is 
 
            entitled to medical benefits for sex therapy; and, 2) 
 
            whether claimant is entitled to permanent partial disability 
 
            benefits.
 
            
 
                                 findings of fact
 
            
 
                 The deputy, having heard the testimony and considered 
 
            all the evidence, finds:
 
            
 
                 Claimant is 52 years old.  She sustained a work related 
 
            injury on March 18, 1985, when she lifted a fiberglass wall.  
 
            Claimant sustained a tear in the lower groin area.  On 
 
            September 14, 1987, claimant had a right inguinal 
 
            herniorrhaphy.  The procedure was performed by E. J. 
 
            DeLashmutt.  Claimant returned to work on November 9, 1987.
 
            
 
                 Subsequent to her hernia repair, claimant began 
 
            experiencing numbness in the right lower groin area.  She 
 
            reported the numbness to Dr. DeLashmutt in June, 1989 when 
 
            she was examined at the Fort Madison Community Hospital.  
 
            Claimant maintained she had reported the numbness prior to 
 
            that time.  However, Dr. DeLashmutt had no recollection of 
 
            such a complaint.
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                 Dr. DeLashmutt, in his report of June 12, 1989, wrote:
 
            
 
                 There is no recurrence of the hernia at this time.  
 
                 The patient does have an area of numbness to 
 
                 needle prick along the incision and a portion of 
 
                 the lateral upper thigh.  However, she has sharp 
 
                 pain over the right labia majora.  While the 
 
                 distribution does not follow the entire 
 
                 innervation of either the ileo inguinal or 
 
                 genito-femoral [sic] nerves, it does correspond to 
 
                 an area that is innervated by branches of both 
 
                 these nerves.  The area is in no way concerned 
 
                 with sexual organs or sexual stimulation.
 
            
 
                 This may represent entrapment of a branch of 
 
                 either of these nerves by scar tissue, however I 
 
                 would expect the entire area of innervation 
 
                 including the labia to be involved if this is the 
 
                 etiology of her problem.
 
            
 
                 Ruth informed me of the findings of her 
 
                 gynecologist and their recommendations.  I concur 
 
                 with their findings.  However, I believe that she 
 
                 probably should be seen by someone who can asses 
 
                 any nerve entrapment better than by "pin prick" 
 
                 exam.  I would suggest that she see Dr. Burton 
 
                 Stone at Klein Hospital in Burlington for more 
 
                 sophisticated studies.  If his findings concur 
 
                 with mine, I believe the remainder of her 
 
                 gyneocologist's [sic] findings be implemented.
 
            
 
                 Claimant voiced the same numbness complaints to her 
 
            personal gynecologist, Lourdes A. Marquez, M.D.  Dr. Marquez 
 
            diagnosed claimant as having:
 
            
 
                   This certifies that Ruth Mead has been to our 
 
                 office with her complaints.  After examination I 
 
                 found her to be free of any Gynecologic organic 
 
                 problem.
 
            
 
                   I feel she may need to be referred to a 
 
                 neurologist or later a psychosexual therapist.
 
            
 
                 Dr. Marquez then referred claimant to Laura Goldstein, 
 
            M.D., a neurologist at the University of Iowa.  Dr. 
 
            Goldstein examined claimant.  The physician opined:
 
            
 
                 Your patient, Ruth Mead, was seen on 7/13/89, in 
 
                 the Neurology Outpatient Clinic.
 
            
 
                 Our diagnostic impressions were 1) sensory loss in 
 
                 the left genitofemoral ilioinguinal distribution 
 
                 2) sexual dysfunction of psychological etiology.
 
            
 
                 Our recommendations include  1) sexual counseling.
 
            
 
                 Ms. Mead is a 50 year old, left-handed woman who 
 
                 complained of numbness of the right external 
 
                 vulvar area, subsequent to herniorrhaphy in 1987.  
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                 The patient had injured her abdominal musculature 
 
                 while on the job in 1985, and subsequently 
 
                 underwent surgical correction of an inguinal 
 
                 hernia.  She has had intercourse infrequently 
 
                 since her surgery and on last occasion noted pain 
 
                 with penetration.  She denied loss of sensation 
 
                 internal to the labia, yet remains sexually 
 
                 unresponsive.  She notes some pain on occasion 
 
                 with crossing of legs, but this is not a 
 
                 persistent problem.  She denied bowel/bladder 
 
                 incontinence or loss of lower extremity strength.
 
            
 
                 Physical exam was entirely normal.  Neurological 
 
                 exam was significant for an area of numbness and 
 
                 decreased pinpoint sensation in an area extending 
 
                 from the anterior midpoint of the labia forward, 
 
                 medial to the inguinal area.  She had normal 
 
                 sphincter tone and good sensation.  She had 
 
                 symmetrical 5/5 strength throughout the lower 
 
                 extremities.  Gait was normal.
 
            
 
                 In conclusion, we believe Ms. Mead has a post 
 
                 surgical loss of sensation in the distribution of 
 
                 the ilioinguinal nerve causing sexual dysfunction.  
 
                 Her exam was negative for sacral neuropathy or 
 
                 radiculopathy.  We have discussed sexual function 
 
                 with the patient and would be happy to refer her 
 
                 to therapy here at the University of Iowa.
 
            
 
                 In addition, Dr. Goldstein elaborated in her report of 
 
            January 19, 1990:
 
            
 
                 I'm writing to summarize my medical opinion of 
 
                 Ruth Mead.  Mrs. Mead was evaluated in the 
 
                 Neurology Outpatient Clinic on July 13, 1989.  She 
 
                 is a 50-year-old woman who was referred because of 
 
                 numbness in the vulvar region since September 
 
                 1987.  She had undergone herniorrhaphy at that 
 
                 time.  Following this operation, she noted that 
 
                 the right vulvar region had lost sensation.  Since 
 
                 that time, she also had loss of libido and 
 
                 inability to achieve orgasm.  She has not had 
 
                 bowel or bladder, or lower extremity dysfunction.  
 
                 Her neurological examination of July 13, 1989 was 
 
                 remarkable for diminished appreciation of pinprick 
 
                 sensation on the right labia, with preserved 
 
                 rectal sphincter tone, perianal reflexes and 
 
                 sensation, but an otherwise normal neurological 
 
                 examination.
 
            
 
                 It is my opinion that Mrs. Mead has sensory loss 
 
                 in the genitofemoral or ilioinguinal nerve 
 
                 distributions.  Distinction between which of these 
 
                 two nerves is involved is not possible.  Both 
 
                 ilioinguinal and genital femoral nerves lie in the 
 
                 inguinal canal, and injury to these nerves is a 
 
                 well recognized complication of hernia repair.  I 
 
                 have recommended to Mrs. Mead that she undergo 
 
                 psychological counseling to assist with the 
 
                 recovery of her sexual function.
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
                 I hope this summary helps you in your 
 
                 representation of Mrs. Mead.  Please don't 
 
                 hesitate to contact me should you have further 
 
                 questions regarding her neurologic deficit.
 
            
 
                 To date, claimant has not engaged in psychosexual 
 
            therapy.  Defendants have denied liability for the same.
 
            
 
                                conclusions of law
 
            
 
                 If a claimant contends he has industrial disability he 
 
            has the burden of proving his injury results in an ailment 
 
            extending beyond the scheduled loss.  Kellogg v. Shute and 
 
            Lewis Coal Co., 256 Iowa 1257, 130 N.W.2d 667 (1964).
 
            
 
                 If claimant has an impairment to the body as a whole, 
 
            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."
 
            
 
                 The opinion of the supreme court in Olson v. Goodyear 
 
            Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251 (1963), 
 
            cited with approval a decision of the industrial 
 
            commissioner for the following proposition:
 
            
 
                    Disability * * * as defined by the Compensation 
 
                 Act means industrial disability, although 
 
                 functional disability is an element to be 
 
                 considered....In determining industrial 
 
                 disability, consideration may be given to the 
 
                 injured employee's age, education, qualifications, 
 
                 experience and his inability, because of the 
 
                 injury, to engage in employment for which he is 
 
                 fitted. * * * *
 
            
 
                 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, 255 Iowa 1112, 1121, 125 N.W.2d 251, 
 
            257 (1963).
 
            
 
                 In Parr v. Nash Finch Co., (appeal decision, October 
 
            31, 1980) the industrial commissioner, after analyzing the 
 
            decisions of McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 
 
            (Iowa 1980) and Blacksmith v. All-American, Inc., 290 N.W.2d 
 
            348 (Iowa 1980), stated:
 
            
 
                 Although the court stated that they were looking 
 
                 for the reduction in earning capacity it is 
 
                 undeniable that it was the "loss of earnings" 
 
                 caused by the job transfer for reasons related to 
 
                 the injury that the court was indicating justified 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                 a finding of "industrial disability."  Therefore, 
 
                 if a worker is placed in a position by his 
 
                 employer after an injury to the body as a whole 
 
                 and because of the injury which results in an 
 
                 actual reduction in earning, it would appear this 
 
                 would justify an award of industrial disability.  
 
                 This would appear to be so even if the worker's 
 
                 "capacity" to earn has not been diminished.
 
            
 
                 For example, a defendant employer's refusal to give any 
 
            sort of work to a claimant after he suffers his affliction 
 
            may justify an award of disability.  McSpadden, 288 N.W.2d 
 
            181 (Iowa 1980).
 
            
 
                 Similarly, a claimant's inability to find other 
 
            suitable work after making bona fide efforts to find such 
 
            work may indicate that relief would be granted.  McSpadden, 
 
            388 N.W.2d 181 (Iowa 1980).
 
            
 
                 The first issue to address is whether claimant is 
 
            entitled to medical benefits in the form of psychosexual 
 
            therapy.  Dr. DeLashmutt acknowledged claimant had numbness 
 
            along the hernia incision and along a portion of the lateral 
 
            upper thigh.  He concurred with the findings of claimant's 
 
            gynecologist.  He believed that if a neurologist concurred 
 
            with his findings, then the recommendations of the 
 
            gynecologist should be implemented.
 
            
 
                 Dr. DeLashmutt referred claimant to a neurologist by 
 
            the name of Burton Stone, M.D.  Claimant selected not to see 
 
            Dr. Stone.  Rather she chose to see Dr. Goldstein.  Dr. 
 
            Marquez, claimant's personal gynecologist, had referred 
 
            claimant to Dr. Goldstein.  Dr. Goldstein, like Dr. 
 
            DeLashmutt, opined there was numbness near the inguinal 
 
            area.  She attributed this to sensory loss in the 
 
            genitofemoral or ilioinguinal nerve distributions.  She also 
 
            noted that injury to the aforementioned nerves was a well 
 
            recognized complication of hernia repair.  Dr. Goldstein and 
 
            Dr. Marquez both recommended psychosexual therapy as a 
 
            treatment.  It appears Dr. DeLashmutt would not disagree 
 
            with this recommendation.  The undersigned finds that the 
 
            numbness is causally connected to claimant's hernia repair.  
 
            Therefore, in light of the aforementioned, it is the 
 
            determination of the undersigned that defendants are liable 
 
            for reasonable and necessary psychosexual therapy.  It is 
 
            well known in this state that the employer has the right to 
 
            select claimant's medical care.  Because claimant had 
 
            selected to see Dr. Goldstein, over Dr. Stone, the neurolo
 
            gist referred by the treating physician, defendants are not 
 
            liable for charges related to Dr. Goldstein's services at 
 
            the University of Iowa.
 
            
 
                 The next issue to address is whether claimant has 
 
            sustained any permanent partial disability as a result of 
 
            her injury on March 18, 1985.  No physician has supplied any 
 
            permanent functional impairment rating because of claimant's 
 
            hernia condition.  Claimant has been released to return to 
 
            work as of November 9, 1987.  No permanent restrictions have 
 
            been imposed upon claimant's activities.  Claimant's 
 
            numbness in the ilioinguinal nerve area does not interfere 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            with claimant's work duties.
 
            
 
                 Likewise, claimant has not lost work because of her 
 
            hernia repair since November 9, 1987.  Nor has claimant had 
 
            a loss of earning capacity attributable to her hernia 
 
            condition.  Claimant has testified she has received all 
 
            raises due to her.  She also has testified she has not taken 
 
            a lesser paying job because of her condition.  Therefore, in 
 
            light of the foregoing, it is the determination of the 
 
            undersigned that claimant has not proven by a preponderance 
 
            of the evidence that she has a permanent partial disability 
 
            attributable to her March 18, 1985 work injury.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Defendants are liable for claimant's reasonable and 
 
            necessary medical expenses, including psychosexual therapy.
 
            
 
                 Costs of the action shall be assessed to defendants 
 
            pursuant to Division of Industrial Services Rule 343 IAC 
 
            4.33.
 
            
 
                 Defendants shall file a claim activity report as 
 
            requested by this agency pursuant to Division of Industrial 
 
            Services Rule 343 IAC 3.1.
 
            
 
            
 
            
 
                 Signed and filed this ____ day of November, 1990.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________               
 
            MICHELLE A. McGOVERN
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. James P. Hoffman
 
            Attorney at Law
 
            Middle Rd
 
            Keokuk  IA  52632
 
            
 
            Mr. Elliott R. McDonald, Jr.
 
            Attorney at Law
 
            P O Box 2746
 
            Davenport  IA  52809
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           5-2500
 
                           Filed November 28, 1990
 
                           MICHELLE A. McGOVERN
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            RUTH M. MEAD,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 916787
 
            FRUEHAUF CORPORATION,         :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            CNA INSURANCE COMPANIES,      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            5-2500
 
            Claimant awarded reasonable and necessary medical expenses 
 
            including psychosexual therapy for a work related injury 
 
            involving a right inguinal hernia.