Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
            _____
 
                                          :
 
            EDWARD BANACH,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :          File No. 921076
 
            IOWA STATE UNIVERSITY,        :
 
                                          :            A P P E A L
 
                 Employer,                :
 
                                          :          D E C I S I O N
 
            and                           :
 
                                          :
 
            STATE OF IOWA,                :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            ____
 
            
 
                 The record, including the transcript of the hearing 
 
            before the deputy and all exhibits admitted into the record, 
 
            has been reviewed de novo on appeal.
 
            
 
                                      ISSUES
 
            
 
                 Those portions of the proposed agency decision 
 
            pertaining to issues not raised on appeal are adopted as a 
 
            part of this appeal decision.  Both parties failed to comply 
 
            with rule 343 IAC 4.28(4) requiring briefs on appeal to 
 
            state issues to be considered.  The appeal will be 
 
            considered generally and without regard to specific issues.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The findings of fact contained in the proposed agency 
 
            decision filed March 4, 1992 are adopted as final agency 
 
            action.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 The conclusions of law contained in the proposed agency 
 
            decision filed March 4, 1992 are adopted as set forth below.  
 
            Segments designated by asterisks (*****) indicate portions 
 
            of the language from the proposed agency decision that have 
 
            been intentionally deleted and do not form a part of this 
 
            final agency decision.  Segments designated by brackets ([ 
 
            ]) indicate language that is in addition to the language of 
 
            the proposed agency decision.
 
            
 
                 1.  The nature and extent of any entitlement to 
 
            benefits, if any.
 
            
 
                 The only issue for resolution in this case is the 
 
            nature and extent of claimant's industrial loss.  Claimant 
 
            contends that as a result of his injury, he has been 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            foreclosed from coaching the sport of wrestling at the 
 
            collegiate level and all the income potential that 
 
            accompanies a head coaching position.  Defendants urge that 
 
            claimant's injury does not prevent him from coaching.  It 
 
            only prevents him from taking part in a certain type of 
 
            coaching activity thereby limiting claimant's loss.  
 
            
 
                 Where 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., 258 N.W.2d 899, 902 (Iowa 1935) as 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 person.  The essence 
 
            of an earning capacity inquiry then, 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 her 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.2d 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 Industrial 
 
            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 is no 
 
            equation which can be applied and then calculated 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 general and 
 
            specialized knowledge to make a finding with regard to the 
 
            degree of industrial disability.  See, Peterson, 1 Iowa 
 
            Industrial Commissioner Decisions No. 3, at 658; 
 
            Christening, 1 Iowa Industrial Commissioner Decisions No. 
 
            3, at 535.
 
            
 
                 The evidence is clear that claimant had a bright future 
 
            in the field of wrestling.  His life story and his 
 
            accomplishments to date are a testament to his athletic 
 
            talent, hard work, discipline, and maturity.  Claimant is 
 
            clearly motivated to remain in the competitive labor force 
 
            with an eye toward being an athletic director at a Division 
 
            I university some day.  Claimant also has demonstrated an 
 
            ability to be retrained.  He is currently enrolled in a 
 
            masters program at ISU to enhance his chances to obtain a 
 
            position as an athletic director.  If the observations of 
 
            Coach Gibbons are accurate, claimant's job change was 
 
            fortuitous given his stated career goals and the rule 
 
            changes that would have impacted claimant's position as an 
 
            assistant coach with the ISU wrestling team.  Claimant's 
 
            relative age also plays a role.  Where the claimant is 
 
            young, the industrial disability is not as serious as it 
 
            would be for an older employee.  Mccoy v. Donaldson Company, 
 
            Inc., 1 IWAC Decisions of the Iowa Industrial Commissioner 
 
            400, 405 (Appeal 1989); Walton v. B & H Tank Corp., II Iowa 
 
            Industrial Commissioner Report 426, 429 (Arb. 1981); Becke 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            v. Turner-Busch, Inc., 34 Biennial Report Iowa Industrial 
 
            Commissioner 34, 36 (Appeal 1979).  
 
            
 
                 ISU clearly accommodated claimant's limitation after 
 
            claimant's injury.  Coach Gibbons had no complaints 
 
            regarding claimant's ability as a coach and he was satisfied 
 
            that claimant was meeting all the requirements of his job 
 
            duties while observing his restriction to avoid vigorous 
 
            physical activity.  Claimant concluded that this arrangement 
 
            was not satisfactory and sought the job change because 
 
            claimant did not believe that he was being as effective as a 
 
            coach given his restrictions.
 
            
 
                 The most significant dispute bearing on industrial loss 
 
            is the amount of income claimant has lost as a result of his 
 
            injury.  Prior to the injury claimant earned a base salary 
 
            as an employee of ISU and income from summer camps and 
 
            wrestling seminars.  The evidence in this record shows that 
 
            claimant earned between $11,000 and $12,000 in supplemental 
 
            income in the years before his injury.  In the year after 
 
            his injury claimant earned $9,000 from his appearances at 
 
            camps and seminars.  Claimant believes that this extra 
 
            income has been lost because he cannot demonstrate wrestling 
 
            techniques at these camps.  The advantage of being an 
 
            Olympic gold medalist and NCAA champion cannot be fully 
 
            exploited because he can no longer actively participate in 
 
            hands on training with either his college wrestlers or his 
 
            campers.  There was extensive testimony regarding what 
 
            claimant might have earned as a head coach and camp 
 
            director.  However, this evidence is too speculative to form 
 
            the basis of an award for industrial disability.  See, Burt 
 
            v. John Deere Waterloo Tractor Works, 73 N.W.2d 732, 737-38 
 
            (Iowa 1955) (The findings of the commissioner must be based 
 
            on testimony that tends to establish facts or upon proper 
 
            inferences that may be drawn therefrom.  The findings cannot 
 
            be predicated upon conjecture, speculation or mere surmise.)  
 
            This is particularly true where there is evidence of the 
 
            claimant's income loss in the year after the injury and in 
 
            light of claimant's job change.
 
            
 
                 On the other side of the equation, claimant has clearly 
 
            suffered a loss.  He is restricted from vigorous physical 
 
            activity and the hands on coaching techniques that have made 
 
            the claimant so successful as a wrestler and assistant 
 
            coach.  Additionally, claimant, upon the advice of two of 
 
            his treating physicians, sought and obtained other 
 
            employment in a related field.  
 
            
 
                 Based upon the foregoing factors, all of the factors 
 
            used to determine industrial disability, and employing 
 
            agency expertise, it is determined that claimant sustained a 
 
            40 percent industrial disability.
 
            
 
                 2.  The actual costs of this action are disputed.
 
            
 
                 Defendants are disputing the costs associated with the 
 
            deposition of Dr. Neiman and the costs associated with Coach 
 
            Gibbons.  Defendants contend that Dr. Neiman's deposition 
 
            was duplicative of his reports and Coach Gibbons testified 
 
            live, thus making his deposition unnecessary.
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
                 Rule 343 IAC 4.33 provides that the following shall be 
 
            taxed as costs:
 
            
 
                 1.  The cost of reporting the hearing.
 
            
 
                 2.  Transcription costs when appropriate
 
            
 
                 3.  Costs of service of the original notice and 
 
                 subpoenas
 
            
 
                 4.  Witness fees and expenses
 
            
 
                 5.  Doctor and practitioner deposition testimony, 
 
                 not to exceed the amounts provided for in Iowa 
 
                 Code 622.69 and 622.72
 
            
 
                 6.  The reasonable costs of obtaining no more than 
 
                 two doctors' or practitioners' reports.
 
            
 
                 7.  Filing fees when appropriate.
 
            
 
                 Witness costs under 4.33(5) are for testimony (or 
 
            deposition) only, not for a report.  Honeywell v. Allen 
 
            Drilling Co., File No. 833232, Slip op. (Iowa Ind. Comm'r 
 
            Appeal October 31, 1991).
 
            
 
                 Costs may be taxed for either the report from an expert 
 
            or the expert witness fee but not both because to tax both 
 
            as costs would be taxing for cumulative evidence.  Jones v. 
 
            R.M. Boggs Company, Inc., File No. 655193, Slip op. (Iowa 
 
            Ind. Comm'r Appeal June 29, 1988); Ballenger v. Lithcote 
 
            Company, File No. 755986, Slip op. (Iowa Ind. Comm'r Appeal 
 
            December 30, 1988)  
 
            
 
                 The costs of a doctor's deposition is limited to $150 
 
            per rule 343 IAC 4.33 and Iowa Code 622.72.  Dowell v. 
 
            Wagler, File No. 880145, Slip op. (Iowa Ind. Comm'r Appeal 
 
            November 26, 1991).
 
            
 
                 In this instance, the reports and the deposition of Dr. 
 
            Neiman were not duplicative.  The reports documented 
 
            claimant's progress.  Dr. Neiman's deposition provided a 
 
            functional impairment rating and the basis for claimant's 
 
            restrictions.  Dr. Neiman also had an opportunity to further 
 
            explain his restrictions for claimant.  Dr. Neiman's fee for 
 
            the deposition was $300.  Only $150 will be allowed pursuant 
 
            to Iowa Code section 622.72. and the authority cited above.  
 
            The reporter's fee will also be allowed as a cost of 
 
            $107.50.
 
            
 
                 The testimony and the deposition of Coach Gibbons was 
 
            cumulative.  Consequently, costs for the deposition will not 
 
            be allowed. 
 
            
 
                 WHEREFORE, the decision of the deputy is affirmed and 
 
            modified.
 
            
 
                                      order
 
            
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That Iowa State University and the State of Iowa shall 
 
            pay to claimant permanent partial disability benefits in the 
 
            amount of forty percent (40%) at the rate of three hundred 
 
            forty-four dollars ($344.00) per week for an injury to 
 
            claimant's head with payment commencing on September 22, 
 
            1987.  
 
            
 
                 That defendants shall pay accrued weekly benefits in a 
 
            lump sum.
 
            
 
                 That defendant shall pay interest on unpaid weekly 
 
            benefits awarded herein as set forth in Iowa Code section 
 
            85.30.
 
            
 
                 That the following costs have been allowed:
 
            
 
                 a.  Dr. Neiman witness fee         $150.00
 
                 b.  Reporter fee                    107.00
 
                 c.  Filing fee                       65.00
 
                                          
 
                                          TOTAL:    $322.00
 
            
 
                 That defendants shall pay the costs of this matter 
 
            including the transcription of the hearing.  
 
            
 
                 That the fees for the court reporter for Coach Gibbons' 
 
            deposition are disallowed.
 
            
 
                 That Iowa State University and the State of Iowa shall 
 
            file claim activity reports as required by rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of December, 1992.
 
            
 
            
 
            
 
            
 
                                          
 
            ________________________________
 
                                                   BYRON K. ORTON
 
                                              INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Jay P. Roberts
 
            Attorney at Law
 
            620 Lafayette Street
 
            PO Box 178
 
            Waterloo, Iowa 50704
 
            
 
            Mr. Robert D. Wilson
 
            Assistant Attorney General
 
            Tort Claims Division
 
            Hoover State Office Building
 
            Des Moines, Iowa 50319
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          1803
 
                                          Filed December 21, 1992
 
                                          BYRON K. ORTON
 
                                          EAN
 
            
 
                           before the iowa industrial 
 
                                   commissioner
 
            ____________________________________________________________
 
            _____
 
                                          :
 
            EDWARD BANACH,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :          File No. 921076
 
            IOWA STATE UNIVERSITY,        :
 
                                          :            A P P E A L
 
                 Employer,                :
 
                                          :          D E C I S I O N
 
            and                           :
 
                                          :
 
            STATE OF IOWA,                :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            ____
 
            
 
            
 
            1803
 
            Deputy's award of 20 percent industrial disability for 
 
            college wrestling coach raised to 40 percent industrial 
 
            disability.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            EDWARD BANACH,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 921076
 
            IOWA STATE UNIVERSITY,        :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            STATE OF IOWA,                :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                 On September 14, 1989, Edward Banach (claimant) filed a 
 
            petition for arbitration as a result of an injury to 
 
            claimant's head occurring on September 22, 1987.  Iowa State 
 
            University (ISU) was identified as employer and the State of 
 
            Iowa was identified as the workers compensation insurer for 
 
            ISU (collectively defendants).  On August 27, 1991, these 
 
            matters came on for hearing in Des Moines, Iowa.  The 
 
            parties appeared as follows:  the claimant in person and by 
 
            his counsel Jay P. Roberts of Waterloo Iowa and ISU and the 
 
            State of Iowa by their counsel Robert D. Wilson, Assistant 
 
            Attorney General of Des Moines, Iowa.  
 
            
 
                 The record in this proceeding consisted of the 
 
            following:
 
            
 
                 1.  The live testimony of the claimant, J. Robinson, 
 
            and James R. Gibbons.  
 
            
 
                 2.  Claimant's exhibits 1-3.
 
            
 
                                   stipulations
 
            
 
                 The parties stipulated to the following matters at the 
 
            time of the hearing:
 
            
 
                 a.  An employer-employee relationship existed between 
 
            claimant and employer at the time of the alleged injury.
 
            
 
                 b.  The claimant sustained an injury on September 22, 
 
            1987, which arose out of and in the course of employment.
 
            
 
                 c.  The alleged injury caused a permanent disability.
 
            
 
                 d.  There is no dispute regarding healing period 
 
            benefits.
 
            
 
                 e.  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.
 
            
 
                 f.  The commencement date for permanent partial 
 
            disability is September 22, 1987
 
            
 
                 g.  The rate of compensation, in the event of an award, 
 
            is $344.00 per week.  Claimant was married at the time of 
 
            the injury.  He is entitled to two exemptions.
 
            
 
                 h.  There is no dispute regarding medical benefits.
 
            
 
                                      Issues
 
            
 
                 The issues for resolution are as follows:
 
            
 
                 1.  The nature and extent of any entitlement to 
 
            benefits, if any.
 
            
 
                 2.  The actual costs of this action are disputed.
 
            
 
                                 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.  At the time of the hearing in this matter, claimant 
 
            was 31 years old.  Claimant is a high school graduate from 
 
            Port Jervis High School in New York.  Claimant graduated 
 
            from the University of Iowa with a degree in General 
 
            Studies.  Claimant graduated with a 2.67 grade point 
 
            average.
 
            
 
                 2.  Claimant is a gifted athlete.  While in high 
 
            school, he competed in football, wrestling, track and 
 
            baseball.  He was awarded a wrestling scholarship to the 
 
            University of Iowa and was an outstanding wrestler.  
 
            Claimant was a national champion in his weight three out of 
 
            the four years that he attended the University of Iowa and 
 
            he won an Olympic gold medal in wrestling in 1984.  After 
 
            claimant completed his academic eligibility at the 
 
            University of Iowa, he coached in the Hawkeye Wrestling Club 
 
            which was a postgraduate program for University of Iowa 
 
            wrestlers who wanted to compete nationally and 
 
            internationally.  Thereafter, claimant made application for 
 
            the head coaching position at the Iowa State University and 
 
            was not selected for that position.  The present coach, 
 
            James R. Gibbons, was selected.  However, claimant made 
 
            application to become Mr. Gibbons' assistant coach and was 
 
            selected for that position.  Claimant began his employment 
 
            with ISU in 1985.
 
            
 
                 3.  Prior to 1985, claimant had had various experiences 
 
            coaching with the United States wrestling team at Cerro 
 
            Pelato, Cuba, and with the USA wrestling team at the 
 
            Goodwill Games held in the former Soviet Union in 1986.  
 
            Claimant was an assistant coach for the Goodwill Games.  
 
            While coaching at ISU, claimant distinguished himself as an 
 
            assistant coach in 1987, when he was named the assistant 
 
            coach of the year by the National Wrestling Coaches 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            Association.  
 
            
 
                 4.  Claimant can be described as a goal oriented, 
 
            well-organized, over achiever.  In his career as a wrestler 
 
            and as an assistant wrestling coach he has demonstrated 
 
            maturity, integrity, discipline and intelligence; qualities 
 
            that are invaluable to a coach and a wrestler.  As an 
 
            assistant coach, claimant's duties included demonstrating 
 
            wrestling technique, preparing student athletes for 
 
            intercollegiate wrestling activities and recruiting.  During 
 
            the time period that claimant was an assistant coach at Iowa 
 
            State the program had national success.  In 1986, the team 
 
            was fourth in the NCAA championships.  In 1987, Iowa State 
 
            was the NCAA champion for division I schools.  In 1988 and 
 
            1989, Iowa State was third in the NCAA Division I 
 
            championships.
 
            
 
                 5.  Prior to the date of claimant's injury, claimant 
 
            had several concussions during the period between 1978 and 
 
            1988.  For the most part, these concussions were mild.  
 
            However, he did have a severe episode while he was wrestling 
 
            in college when he was seen in the emergency room at the 
 
            University of Iowa.
 
            
 
                 6.  On September 26, 1987, claimant was drilling with 
 
            an ISU wrestler when he was struck in the right frontal 
 
            region of his head.  Claimant saw stars and he collapsed.  
 
            He had no central focus and was taken to the emergency room.  
 
            After examination claimant was released.  Claimant held up 
 
            his workouts for three or four days after this incident and 
 
            then attempted to go back to normal activity.  However, when 
 
            he attempted to do that he suffered from severe headaches.  
 
            Additionally, he could not watch television as objects had a 
 
            tendency to veer to the left side and then return to normal.  
 
            Thereafter, he had cold sweats.  
 
            
 
                 7.  After experiencing these symptoms, claimant was 
 
            treated by Dr. Cliffinger at McFarland Clinic in Ames.  He 
 
            was advised to hold off on workouts for approximately 2 
 
            weeks and was given Midrin to treat his headaches.  Dr. 
 
            Cliffinger diagnosed claimant's condition as post concussion 
 
            syndrome(1).  After this two week period claimant resumed his 
 
            full time coaching duties.
 
            
 
                 8.  Claimant's symptoms did not abate.  In December of 
 
            1987, claimant was referred to Michael Kitchell, M.D., in 
 
            Des Moines who did a CT scan of his head and EMG studies.  
 
            Dr. Kitchell changed claimant's medication which seemed to 
 
            help his headaches but it was difficult for claimant to 
 
            return to full-time assistant coaching duties.  Every time 
 
            there was an increase of activity, claimant suffered 
 
            headache.
 
            (1).  Post concussion syndrome is a condition in which the 
 
            blood vessels of the brain are inordinately sensitized to 
 
            activity.  In some cases, this can cause severe pounding and 
 
            throbbing headaches which are quite disabling.  The cause of 
 
            a post concussion syndrome is an instability of the nervous 
 
            system as far as the blood vessels are concerned.  The 
 
            result of the instability produces a migraine-like 
 
            situation.  When an individual has suffered a series of 
 
            concussions, the continued aggravation to the brain can have 
 
            a cumulative effect.  The brain, after a series of 
 
            concussions, would probably have small areas of tears where 
 
            there have been microscopic hemorrhages.  The concussions 
 
            have changed the brainstem.  Once there has been a tearing 
 
            within the tissue itself it sensitizes the brain.  When an 
 
            individual with this syndrome does vigorous physical 
 
            activity the blood vessels dilate and the abnormal 
 
            sensitivity to the dilatation produces a headache.
 
            
 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
                 9.  On August 10, 1988, claimant was seen by Dr. Neiman 
 
            in Iowa City.  After examination, Dr. Neiman concluded that 
 
            claimant was suffering from post concussion syndrome.  
 
            
 
                 10. Throughout the remaining portion of 1988, claimant 
 
            continued to have difficulty with his coaching duties.  
 
            Claimant advised Dr. Neiman that every time he attempted to 
 
            work as an assistant coach, he would develop headaches.  On 
 
            November 1, 1988, claimant indicated to Dr. Neiman that he 
 
            really wished to get out of coaching and into something 
 
            else.  Claimant noted that if he continued to have problems 
 
            with the headaches he might have to leave coaching because 
 
            of the long term consequences of the recurring headaches and 
 
            exposure to repetitive concussions.
 
            
 
                 11. Dr. Neiman found that claimant was suffering from 
 
            an episodic neurological event that was permanent in nature 
 
            and had caused approximately a 10 percent functional 
 
            impairment caused by the injury to claimant's head.  As long 
 
            as claimant stays within certain parameters as far as his 
 
            activities are concerned he will not experience painful 
 
            headaches.  If claimant exceeds his exercise tolerance, he 
 
            will have recurrent headaches.  Dr. Neiman went on to 
 
            conclude that claimant would not be able to do hands-on 
 
            wrestling coaching techniques because of his injury.  Dr. 
 
            Neiman did find however that if a wrestling program had a 
 
            demonstration coaching style as opposed to a hands-on 
 
            coaching style, claimant would be able to perform that type 
 
            of work.
 
            
 
                 12. Claimant resigned from his position of an assistant 
 
            wrestling coach on May 1, 1989.  Coach Gibbons indicated 
 
            that the decision for claimant to change from an assistant 
 
            coach to an academic advisor was not a decision forced upon 
 
            him.  The coaching staff had made adjustments so that 
 
            claimant could continue in his position as an assistant 
 
            coach.  At the time of his change, claimant took a reduction 
 
            in salary from $26,100 to $25,353.  Claimant remains 
 
            employed as an athletic advisory council for Iowa State 
 
            University.  Claimant's duties include advising potential 
 
            student athletes and monitoring academic performance to 
 
            maintain eligibility standards for intercollegiate 
 
            competition.  In a letter of September 29, 1989, Dr. Neiman 
 
            wrote that with the change of positions to athletic advisor, 
 
            claimant had improved substantially.
 
            
 
                 13. Claimant had received good performance evaluations 
 
            from Coach Gibbons even after claimant's injury and his 
 
            accompanying inability to demonstrate hands on wrestling 
 
            technique to ISU wrestlers.  At the time of claimant's 
 
            resignation, Coach Gibbons had noted no decrease in 
 
            claimant's performance.  Coach Gibbons was satisfied with 
 
            the job that claimant was doing.  Claimant, however, felt 
 
            that he was not as effective because he could not 
 
            demonstrate wrestling technique.  Claimant believed that the 
 
            best coaching methodology was demonstrating technique as 
 
            opposed to explaining wrestling technique.  However, no one 
 
            connected with the Iowa State program felt that claimant was 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            being any less effective when he was coaching.  It was 
 
            important to claimant to be seen as masterful clinician as 
 
            opposed to a coach who could only explain wrestling 
 
            technique.  Coach Gibbons observed that claimant needed to 
 
            simply change the way he coached as opposed to leaving 
 
            coaching altogether in order to be a successful wrestling 
 
            coach.  Coach Gibbons indicated that claimant had to avoid 
 
            contact in order to avoid another injury to his head.  
 
            However, Coach Gibbons indicated that this change did not 
 
            mean claimant could not coach.  Coach Gibbons opined that 
 
            there were several things that one can do in coaching to 
 
            work around the limitations that had been imposed by 
 
            claimant's doctors.
 
            
 
                 14. Rule changes imposed by the NCAA were going to 
 
            reduce the number of assistant coaching positions available 
 
            at Iowa State University after 1991.  Coach Gibbons had 
 
            anticipated that claimant would remain as an assistant coach 
 
            but he could not guarantee his position based on the rule 
 
            changes.
 
            
 
                 15. After the time that claimant had suffered his 
 
            injury, claimant had applied for only one head coaching 
 
            position with the Air Force Academy.  He was advised that he 
 
            was over qualified for that position and was not offered the 
 
            job.  However, claimant did indicate that he had been 
 
            offered a job at Northwestern University with a base salary 
 
            in the mid-thirty thousand dollar range but he had decided 
 
            not to apply for that position because he felt that he could 
 
            not effectively coach a wrestling team when he could only 
 
            explain technique as opposed to demonstrating technique.  
 
            Northwestern had given claimant the opportunity to design 
 
            his own program and had not imposed any type of restrictions 
 
            on claimant's coaching style.  
 
            
 
                 16. Claimant's eventual goal is to become an athletic 
 
            director at a Division I school.  If claimant is successful 
 
            in achieving his goal and becomes an assistant athletic 
 
            director and then an athletic director for a Division I 
 
            university, claimant can anticipate that his annual income 
 
            will be in excess of $90,000.  Claimant's chances have 
 
            improved since he is in administration rather than coaching.  
 
            Coach Gibbons indicated that athletic directors in the Big 
 
            Ten generally come from administrative positions as opposed 
 
            to coaching positions.  He noted that Rick Bay, the athletic 
 
            director at Ohio State, had come from an administrative 
 
            position.  He noted that others had come from other athletic 
 
            disciplines including football and basketball.  Claimant 
 
            hopes to be an assistant athletic director by the time he is 
 
            in his mid 40's and be an athletic director by the time he 
 
            is in his late 40's or early 50's at a Division I school.
 
            
 
                 17. Claimant's salary was supplemented by his 
 
            participation in summer camps for wrestlers.  His past 
 
            income records reflect that claimant earned the following 
 
            supplemental income:
 
            
 
                           1986                $11,000
 
                      1987                $12,000
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
                      1988                 $9,000
 
            Additionally, claimant's base income as an assistant coach 
 
            improved.  Claimant's salary increased from $22,500 in 1986 
 
            to $26,000 in 1988.
 
            
 
                 18. There was substantial testimony regarding the 
 
            potential income that a head coach or an assistant coach 
 
            could earn while running wrestling camps during the summer.  
 
            The minimum return in some years could be as low as $12,00 
 
            while the high return could be as much as $50,000.  
 
            Additionally, head coaches are generally afforded other 
 
            perks which include free use of the athletic facilities at 
 
            the University where they are coaching, an automobile, and 
 
            all the income from summer camps after expenses.  The base 
 
            salary for the head wrestling coach at Iowa State University 
 
            is $38,500.  This salary is consistent with other head 
 
            wrestling coaching positions that claimant had applied for 
 
            including the job at Northwestern and the job at the Air 
 
            Force Academy.  Various openings for head coaching positions 
 
            have occurred during the time period while claimant was an 
 
            assistant coach at Iowa State and after he was injured.
 
            
 
                 19. Currently, claimant works twelve months per year as 
 
            an academic advisor.  He has regular vacation time and other 
 
            benefits accorded state employees.  Claimant is also working 
 
            on his master degree.  He expects to complete his degree 
 
            program in three years.
 
            
 
                 20. Currently, claimant is still working out and he is 
 
            jogging to maintain his physical condition.  He is able to 
 
            carry on his duties as an athletic advisor with no 
 
            difficulty.  
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 1.  The nature and extent of any entitlement to 
 
            benefits, if any.
 
            
 
                 The only issue for resolution in this case is the 
 
            nature and extent of claimant's industrial loss.  Claimant 
 
            contends that as a result of his injury, he has been 
 
            foreclosed from coaching the sport of wrestling at the 
 
            collegiate level and all the income potential that 
 
            accompanies a head coaching position.  Defendants urge that 
 
            claimant's injury does not prevent him from coaching.  It 
 
            only prevents him from taking part in a certain type of 
 
            coaching activity thereby limiting claimant's loss.  
 
            
 
                 Where 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., 258 N.W.2d 899, 902 (Iowa 1935) as 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 person.  The essence 
 
            of an earning capacity inquiry then, 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 her restrictions, 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            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 Industrial 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 is no 
 
            equation which can be applied and then calculated 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 general and 
 
            specialized knowledge to make a finding with regard to the 
 
            degree of industrial disability.  See, Peterson, 1 Iowa 
 
            Industrial Commissioner Decisions No. 3, at 658; 
 
            Christening, 1 Iowa Industrial Commissioner Decisions No. 
 
            3, at 535.
 
            
 
                 The evidence is clear that claimant had a bright future 
 
            in the field of wrestling.  His life story and his 
 
            accomplishments to date are a testament to his athletic 
 
            talent, hard work, discipline, and maturity.  Claimant is 
 
            clearly motivated to remain in the competitive labor force 
 
            with an eye toward being an athletic director at a Division 
 
            I university some day.  Claimant also has demonstrated an 
 
            ability to be retrained.  He is currently enrolled in a 
 
            masters program at ISU to enhance his chances to obtain a 
 
            position as an athletic director.  If the observations of 
 
            Coach Gibbons are accurate, claimant's job change was 
 
            fortuitous given his stated career goals and the rule 
 
            changes that would have impacted claimant's position as an 
 
            assistant coach with the ISU wrestling team.  Claimant's 
 
            relative age also plays a role.  Where the claimant is 
 
            young, the industrial disability is not as serious as it 
 
            would be for an older employee. Mccoy v. Donaldson Company, 
 
            Inc., 1 IWAC Decisions of the Iowa Industrial Commissioner 
 
            400, 405 (Appeal 1989); Walton v. B & H Tank Corp., II Iowa 
 
            Industrial Commissioner Report 426, 429 (Arb. 1981); Becke 
 
            v. Turner-Busch, Inc., 34 Biennial Report Iowa Industrial 
 
            Commissioner 34, 36 (Appeal 1979).  
 
            
 
                 ISU clearly accommodated claimant's limitation after 
 
            claimant's injury.  Coach Gibbons had no complaints 
 
            regarding claimant's ability as a coach and he was satisfied 
 
            that claimant was meeting all the requirements of his job 
 
            duties while observing his restriction to avoid vigorous 
 
            physical activity.  Claimant concluded that this arrangement 
 
            was not satisfactory and sought the job change because 
 
            claimant did not believe that he was being as effective as a 
 
            coach given his restrictions.
 
            
 
                 The most significant dispute bearing on industrial loss 
 
            is the amount of income claimant has lost as a result of his 
 
            injury.  Prior to the injury claimant earned a base salary 
 
            as an employee of ISU and income from summer camps and 
 
            wrestling seminars.  The evidence in this record shows that 
 
            claimant earned between $11,000 and $12,000 in supplemental 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            income in the years before his injury.  In the year after 
 
            his injury claimant earned $9,000 from his appearances at 
 
            camps and seminars.  Claimant believes that this extra 
 
            income has been lost because he cannot demonstrate wrestling 
 
            techniques at these camps.  The advantage of being an 
 
            Olympic gold medalist and NCAA champion cannot be fully 
 
            exploited because he can no longer actively participate in 
 
            hands on training with either his college wrestlers or his 
 
            campers.  There was extensive testimony regarding what 
 
            claimant might have earned as a head coach and camp 
 
            director.  However, this evidence is too speculative to form 
 
            the basis of an award for industrial disability.  See, Burt 
 
            v. John Deere Waterloo Tractor Works, 73 N.W.2d 732, 737-38 
 
            (Iowa 1955) (The findings of the commissioner must be based 
 
            on testimony that tends to establish facts or upon proper 
 
            inferences that may be drawn therefrom.  The findings cannot 
 
            be predicated upon conjecture, speculation or mere surmise.)  
 
            This is particularly true where there is evidence of the 
 
            claimant's income loss in the year after the injury and in 
 
            light of claimant's job change.
 
            
 
                 On the other side of the equation, claimant has clearly 
 
            suffered a loss.  He is restricted from vigorous physical 
 
            activity and the hands on coaching techniques that have made 
 
            the claimant so successful as a wrestler and assistant 
 
            coach.  Additionally, claimant, upon the advice of two of 
 
            his treating physicians, sought and obtained other 
 
            employment in a related field.  
 
            
 
                 Based upon the foregoing factors, all of the factors 
 
            used to determine industrial disability, and employing 
 
            agency expertise, it is determined that claimant sustained a 
 
            20 percent industrial disability.
 
            
 
                 2.  The actual costs of this action are disputed.
 
            
 
                 Defendants are disputing the costs associated with the 
 
            deposition of Dr. Neiman and the costs associated with Coach 
 
            Gibbons.  Defendants contend that Dr. Neiman's deposition 
 
            was duplicative of his reports and Coach Gibbons testified 
 
            live, thus making his deposition unnecessary.
 
            
 
                 Rule 343 IAC 4.33 provides that the following shall be 
 
            taxed as costs:
 
            
 
                 1.  The cost of reporting the hearing.
 
            
 
                 2.  Transcription costs when appropriate
 
            
 
                 3.  Costs of service of the original notice and 
 
                 subpoenas
 
            
 
                 4.  Witness fees and expenses
 
            
 
                 5.  Doctor and practitioner deposition testimony, 
 
                 not to exceed the amounts provided for in Iowa 
 
                 Code 622.69 and 622.72
 
            
 
                 6.  The reasonable costs of obtaining no more than 
 
                 two doctors' or practitioners'' reports.
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            
 
                 7.  Filing fees when appropriate.
 
            
 
                 Witness costs under 4.33(5) are for testimony (or 
 
            deposition) only, not for a report.  Honeywell v. Allen 
 
            Drilling Co., File No. 833232, Slip op. (Iowa Ind. Comm'r 
 
            Appeal October 31, 1991).
 
            
 
                 Costs may be taxed for either the report from an expert 
 
            or the expert witness fee but not both because to tax both 
 
            as costs would be taxing for cumulative evidence.  Jones v. 
 
            R.M. Boggs Company, Inc., File No. 655193, Slip op. (Iowa 
 
            Ind. Comm'r Appeal June 29, 1988);  Ballenger v. Lithcote 
 
            Company, File No. 755986, Slip op. (Iowa Ind. Comm'r Appeal 
 
            December 30, 1988)  
 
            
 
                 The costs of a doctor's deposition is limited to $150 
 
            per rule 343 IAC 4.33 and Iowa Code 622.72.  Dowell v. 
 
            Wagler, File No. 880145, Slip op. (Iowa Ind. Comm'r Appeal 
 
            November 26, 1991).
 
            
 
                 In this instance, the reports and the deposition of Dr. 
 
            Neiman were not duplicative.  The reports documented 
 
            claimant's progress.  Dr. Neiman's deposition provided a 
 
            functional impairment rating and the basis for claimant's 
 
            restrictions.  Dr. Neiman also had an opportunity to further 
 
            explain his restrictions for claimant.  Dr. Neiman's fee for 
 
            the deposition was $300.  Only $150 will be allowed pursuant 
 
            to Iowa Code section 622.72. and the authority cited above.  
 
            The reporter's fee will also be allowed as a cost of 
 
            $107.50.
 
            
 
                 The testimony and the deposition of Coach Gibbons was 
 
            cumulative.  Consequently, costs for the deposition will not 
 
            be allowed. 
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 1.  Iowa State University and the State of Iowa shall 
 
            pay to claimant permanent partial disability benefits in the 
 
            amount of twenty percent (20%) at the rate of three hundred 
 
            forty-four dollars ($344.00) per week for an injury to 
 
            claimant's head with payment commencing on September 22, 
 
            1987.  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 (1991).
 
            
 
                 2.  The following costs have been allowed:
 
            
 
                 a.  Dr. Neiman witness fee         $150.00
 
                 b.  Reporter fee                    107.00
 
                 c.  Filing fee                       65.00
 
                                          
 
                                          TOTAL:    $322.00
 
            
 
            
 
                 3.  The fees for the court reporter for Coach Gibbons' 
 
            deposition are disallowed.
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            
 
                 4.  Iowa State University and the State Of Iowa shall 
 
            file claim activity reports as required by rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of March, 1992.
 
            
 
            
 
            
 
                                          
 
                                          
 
            ________________________________
 
                                          ELIZABETH A. NELSON
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr Jay P Roberts
 
            Attorney at Law
 
            620 Lafayette Street
 
            PO Box 178
 
            Waterloo Iowa 50704
 
            
 
            Mr Robert D Wilson
 
            Assistant Attorney General
 
            Tort Claims Division
 
            Hoover State Office Building
 
            Des Moines Iowa 50319
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          5-1803
 
                                          Filed March 4, 1992
 
                                          ELIZABETH A. NELSON
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            EDWARD BANACH,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 921076
 
            IOWA STATE UNIVERSITY,        :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            STATE OF IOWA,                :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-1803
 
            Claimant, a 31 year old assistant wrestling coach, college 
 
            graduate and gifted athlete, elected to leave coaching after 
 
            an injury to his head.  Claimant's doctors indicated that 
 
            claimant could continue to wrestle as long as he did not 
 
            have contact with the wrestlers.  Claimant did not think he 
 
            could coach that way.  Claimant's employer accommodated 
 
            claimant's restrictions and provided alternate employment 
 
            when claimant left wrestling.  Claimant had a ten percent 
 
            functional impairment and was restricted from participating 
 
            in vigorous exercise.  Claimant was awarded a 20 percent 
 
            industrial disability award.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            RAMON D. COLLINS,   
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                                 File No. 921081
 
            K MART CORPORATION, 
 
                                            A R B I T R A T I O N
 
                 Employer, 
 
                 Self-Insured,                  D E C I S I O N
 
                 Defendant.     
 
                      
 
                      
 
            ___________________________________________________________
 
                                  INTRODUCTION
 
            
 
                 This is a proceeding in arbitration filed by Ramon D. 
 
            Collins, claimant, against K Mart Corporation, employer, and 
 
            self-insured defendant for benefits as a result of an injury 
 
            which occurred on July 10, 1989.  A hearing was held at 
 
            Sioux City, Iowa, on August 27, 1992 and the case was fully 
 
            submitted at the close of the hearing.  Claimant was 
 
            represented by Dennis J. Mahr.  Defendant was represented by 
 
            Joel T. S. Greer. 
 
            
 
                 The record consists of the testimony of Ramon D. 
 
            Collins, claimant, Patricia Collins, claimant's wife, 
 
            Patricia Thomas, personnel manager, claimant's exhibits 1 
 
            through 34 and 38 through 41 and employer's exhibits 35, 36 
 
            and 37.  Although the deputy excluded employer's exhibit 35 
 
            at the time of hearing, on his own initiative, because it 
 
            was a deposition of claimant and he was present in the 
 
            courtroom to testify in person, the deputy has subsequently 
 
            admitted employer's exhibit 35 and it was considered in the 
 
            determination of the issues in this case.  Claimant 
 
            presented a brief statement of contentions at the time of 
 
            the hearing.  Both attorneys submitted excellent 
 
            post-hearing briefs.  The deputy ordered a transcript of the 
 
            hearing.
 
            
 
                                      ISSUES
 
            
 
                 The parties submitted the following issues for 
 
            determination at the time of the hearing.
 
            
 
                 Whether the injury of July 10, 1989 was the cause of 
 
            either temporary or permanent disability.
 
            
 
                 Whether claimant is entitled to either temporary or 
 
            permanent disability benefits and if so the extent of 
 
            benefits to which claimant is entitled.
 
            
 
                 Whether claimant is entitled to medical benefits 
 
            pursuant to Iowa Code section 85.27
 
            
 
                 Whether claimant is entitled to medical benefits 
 
            pursuant to Iowa Code section 85.39.
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                 Whether claimant is entitled to penalty benefits 
 
            pursuant to Iowa Code section 86.13(4).
 
            
 
                                 FINDINGS OF FACT
 
            
 
              causal connection - temporary and permanent disability
 
            
 
                 Claimant, born October 8, 1958, was 30 years old at the 
 
            time of the injury.  He has been a mechanic since the age of 
 
            16.  A significant portion of his prior employment as a 
 
            mechanic included lifting up to 200 and 300 pounds 
 
            occasionally and 50 or 60 pounds frequently (Tran. pp. 26 & 
 
            27; Exhibit 20, page 9).  There was no evidence of any prior 
 
            injuries, accidents or workers' compensation claims (Ex. 35, 
 
            p. 29).  Claimant denied and there is no evidence of any 
 
            other back problems (Transcript p. 33; Ex. 35, pp. 68 & 69).  
 
            
 
                 Claimant started to work for employer as a general 
 
            mechanic on May 5, 1989, in the automotive shop (Ex. 3, p. 
 
            1).  Claimant testified that a hydraulic lift had been 
 
            leaking hydraulic oil on the floor.  Claimant related that 
 
            on July 10, 1989, "I stepped out of the vehicle and slipped 
 
            on grease and fell back into the door jam of the car."  
 
            (Tran. pp. 32, 78 & 79).  Claimant further related that when 
 
            he went to take the tire off of this car he felt a pinching 
 
            sensation in his back (Ex. 35, pp. 52 & 54).  
 
            
 
                  The injury was witnessed by a co-employee by the name 
 
            of Tom McKenzie (Tran. p. 23).  Mckenzie testified by 
 
            deposition on May 16, 1990 (Ex. 6).  The witness verified 
 
            that the hoist was leaking (Ex. 6, p. 6).  Mckenzie 
 
            testified, 
 
            
 
                 "He pulled it up, his car, and he went to get out 
 
                 of the door, and he slipped and he grabbed the 
 
                 door with his right hand.  He would have fell 
 
                 pretty hard if he would have hit the cement.  And 
 
                 he said, "Oh, my back." " (Ex. 6, p. 6).
 
            
 
                 Witness McKenzie did not see claimant hit his back 
 
            against anything but he did verify, "It was a pretty hard 
 
            fall."  (Ex. 6, p. 8 & 26).  
 
            
 
                 McKenzie thought that claimant had twisted his back 
 
            (Ex. 6, p. 16) because he was way off balance (Ex. 6, p. 
 
            26).  McKenzie told claimant it was lucky he didn't cut his 
 
            head open on the hoist (Ex. 6, p. 16).  Immediately after 
 
            the injury claimant told McKenzie that he was going to try 
 
            to ignore it and McKenzie stated that claimant did finish 
 
            out the day.  However, later in the afternoon when claimant 
 
            was underneath a car, McKenzie testified that claimant told 
 
            him, "Oh man, it's sore." (Ex. 6, p. 7).  McKenzie further 
 
            testified that on two other occasions that afternoon 
 
            claimant complained to him that his back was sore (Ex. 6, p. 
 
            9).
 
            
 
                 Claimant testified that the following morning on July 
 
            11, 1989, that he was very sore and had difficulty getting 
 
            out of bed.  Claimant testified that he came to work in 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            order to report the injury so that he could receive medical 
 
            care (Ex. 35, p. 51; Tran. pp. 85, 86 & 89).  A first report 
 
            of injury was filed by Jeff Pratt, the Loss Prevention 
 
            Manager, the day after the injury on July 11, 1989.  The 
 
            first report of injury corroborates claimant's description 
 
            of how the injury occurred (Tran. p. 122; Ex. 4).
 
            
 
                 Witness McKenzie stated that he also described the 
 
            injury to Patricia Thomas, the personnel manager, on July 
 
            11, 1989.  Thomas became suspicious about the injury because 
 
            (1) McKenzie did not see claimant hit his back against the 
 
            door jamb of the car and (2) because claimant and McKenzie 
 
            did some off duty work on a pickup truck owned by claimant 
 
            around this time (Tran. p. 12).  McKenzie acknowledged that 
 
            he did help paint the pickup truck which was owned by 
 
            claimant but his testimony did not indicate that claimant 
 
            performed any strenuous work at this time (Ex. 6, p. 7, & 
 
            13-17).  On the contrary, McKenzie testified that it was 
 
            because of this injury that claimant needed help to paint 
 
            the pickup truck (Ex. 6, p. 17).  Claimant denied that he 
 
            performed any strenuous activities working on this truck 
 
            (Ex. 35, p. 58).
 
            
 
                 Thomas admitted that there was not any question that 
 
            claimant slipped and pulled his back (Tran. p. 129).
 
            
 
                 Witness McKenzie also related that Stan Stille, their 
 
            supervisor, asked him if claimant had hurt his back coming 
 
            out of the hoist and McKenzie said, "Yes, he did.  He 
 
            slipped." (Ex. 6, p. 9).
 
            
 
                 It is determined that irrespective of whether claimant 
 
            hit his back against the door jamb or whether he simply 
 
            twisted his back in an off balance hard fall it is entirely 
 
            possible that either account of the injury could have caused 
 
            the injury which occurred in this case.
 
            
 
                 Claimant was sent to Morningside Family Practice Clinic 
 
            by employer the day after the injury on July 11, 1989 (Tran. 
 
            pp. 34 & 35).  
 
            
 
                 On July 11, 1989, Steven F. Gordon, M.D., at the 
 
            Morningside Clinic diagnosed low back pain from slipping on 
 
            grease which caused low back pain and a hot sensation in the 
 
            upper back and neck behind his ears.  He prescribed 
 
            medication and restricted claimant from lifting more than 20 
 
            pounds, stooping, bending and twisting (Ex. 7, p. 1).  Dr. 
 
            Gordon recorded that the injury was work-related (Ex. 2, p. 
 
            7).
 
            
 
                 On July 20, 1989, Daniel M. Rhodes, M.D., at the 
 
            Morningside Clinic noted that claimant lists to the left, is 
 
            tender over L4, L5, and his range of motion was limited in 
 
            various degrees.  The doctor said there appeared to be a 
 
            cortical defect in one of the vertebral bodies in the 
 
            inferior aspect.  He diagnosed lumbosacral strain, possible 
 
            posterior disc.  The doctor noted that claimant had been 
 
            performing light duty, but on this day, July 20, 1989, the 
 
            doctor said claimant was not to work at all Ex. 7, p. 1,; 
 
            Tran., p. 87).  Dr. Rhodes also recorded that this was a 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            work-related injury (Ex. 7, p. 3).  Thus, on claimant's 
 
            second visit to the doctor (chosen by employer) and only ten 
 
            days after the injury, Dr. Rhodes alerted employer to the 
 
            fact that claimant had sustained a possible disc injury 
 
            which was caused by his work which prevented him from 
 
            working.  
 
            
 
                 The Morningside Clinic records for July 21, 1989, show 
 
            that Richard L. Budensiek, D.O., recorded pain going down 
 
            claimant's left leg.  The doctor ordered bed rest, to avoid 
 
            sitting, and to avoid standing more than 20 minutes (Ex. 7, 
 
            p. 1).  Dr. Budensiek also recorded that the injury was 
 
            work-related (Ex. 7, p. 4).  
 
            
 
                 Claimant testified that after he saw Dr. Gordon on July 
 
            11, 1989, and was restricted from lifting more than 20 
 
            pounds, he was given light duty at work as the service 
 
            writer.  However, when Dr. Budensiek gave him bed rest on 
 
            July 21, 1989, that he was terminated (Tran. p. 37).  
 
            
 
                 On July 26, 1989, Michael A. Jennings at the 
 
            Morningside Clinic referred claimant to John J. Dougherty, 
 
            M.D., an orthopedic surgeon.  Dr. Jennings also indicated 
 
            that the injury was work-related (Ex. 7, p. 6).
 
            
 
                 On August 3, 1989, Dr. Budensiek also referred claimant 
 
            to Dr. Dougherty (Ex. 7, p. 5).  He also indicated again 
 
            that the injury was work-related (Ex. 7, p. 7).
 
            
 
                 Dr. Dougherty saw claimant on August 7, 1989 and noted 
 
            that claimant slipped and fell into the door jamb of a car 
 
            on July 10, 1989, which caused low back and leg pain.  His 
 
            admission form indicated that claimant had current neck and 
 
            low back pain but that he had not experienced these pains in 
 
            the past (Ex. 8, pp. 2 & 3).  On August 9, 1989, Dr. 
 
            Dougherty reported to Dr. Jennings that claimant had a 
 
            sprain superimposed on a degenerated disc, but he may have a 
 
            lumbar disc (Ex. 8, pp. 4 & 5).  Thus, only one month after 
 
            the injury and at the time of claimant's first examination 
 
            by an orthopedic surgeon, employer was again alerted to the 
 
            fact that a lumbar disc injury was a distinct possibility.  
 
            Dr. Dougherty ordered further tests to rule in or rule out a 
 
            disc injury. 
 
            
 
                 On August 21, 1989, Dr. Dougherty ordered a back brace, 
 
            an EMG and an MRI at Marian Health Center (Ex. 8, p. 25).  
 
            The MRI was performed on August 25, 1989 and disclosed (1) a 
 
            left L5-S1 HNP (herniated nucleus pulposus), (2) mild 
 
            bulging of the annulus at L4-5 and (3) degenerative disc 
 
            changes at L1-2 (Ex. 9, p. 5).  On September 5, 1989, Dr. 
 
            Dougherty ordered pelvic traction and stated " Will get an 
 
            EMG and then see what he does.  If that is positive, may go 
 
            for a myelogram, CT.  Might end up with an operation.  Says 
 
            he doesn't want that.  That is probably a possibility.  See 
 
            after the EMG." (Ex. 8, p. 6).  Thus, one and one-half 
 
            months after the injury the orthopedic surgeon's clinical 
 
            diagnosis of a disc injury was confirmed by the MRI and 
 
            clearly indicated that claimant had sustained a herniated 
 
            nucleus pulposus at L5-S1, a bulging annulus at L4-5 and 
 
            that surgery was probably a possibility (emphasis supplied).
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
                 The EMG performed on September 12, 1989 at Marian 
 
            Health Center confirmed the presence of L4 radiculopathy but 
 
            there was no indication of a superimposed L5 radiculopathy 
 
            (Ex. 10, p. 2).  
 
            
 
                 On September 19, 1989, Dr. Dougherty ordered a 
 
            myelogram (Ex. 8, p. 6).  Claimant was admitted to Marion 
 
            Health Center for the myelogram on September 28, 1989 (Ex. 
 
            11, p. 2).  The myelogram on September 29, 1989 disclosed an 
 
            extradural defect on the left side of L5, S1, consistent 
 
            with the herniated disc, and also some disc space narrowing 
 
            at the same level.  The S1 nerve root on the left side was 
 
            cut off (Ex. 11, p. 3).  The CT scan with contrast on the 
 
            same date demonstrated (1) minimal bulging at the L4-5 level 
 
            with no evidence of herniation, (2) disc material on the 
 
            left side of L5, S1 which was slightly indenting the thecal 
 
            sac (Ex. 11, p. 4).  Thus, approximately two to two and 
 
            one-half months after the injury the fact that claimant had 
 
            sustained a disc injury was also confirmed (a second time) 
 
            by the myelogram and the enhanced CT scan following the 
 
            myelogram.
 
            
 
                 On October 6, 1989, Dr. Dougherty indicated that 
 
            claimant's low back pain was caused by a previous 
 
            lumbosacral sprain.  The only previous lumbosacral strain of 
 
            record is this injury.  Dr. Dougherty's diagnosis to the 
 
            Department of Human Services reads as follows:  "Diagnosis:  
 
            low back pain, previous lumbosacral sprain, possible lumbar 
 
            disc syndrome, degenerated disc L-5, S-1." (Ex. 8, p. 8).  
 
            
 
                 On October 10, 1989, Dr. Dougherty wanted to see 
 
            claimant in two more weeks but actually claimant never saw 
 
            Dr. Dougherty again (Ex. 8, p. 7).  Claimant testified that 
 
            Dr. Dougherty refused to treat claimant because employer 
 
            refused to pay Dr. Dougherty's medical bills (Tran. p. 91).  
 
            Claimant further testified that employer never authorized 
 
            Dr. Dougherty to perform the surgery (Tran. p. 43).  
 
            Claimant asserted that after the myelogram on September 29, 
 
            1989, that employer refused to authorize any medical care of 
 
            any kind with Dr. Dougherty or anyone else until eight 
 
            months later on May 2, 1989.  At that time, claimant was 
 
            authorized to go to the University of Iowa for an evaluation 
 
            and a second opinion on his back (Tran. pp. 43, 44, & 91).  
 
            
 
                 Claimant was authorized to see Ernest M. Found Jr., 
 
            M.D., an orthopedic surgeon, on May 2, 1990, at the 
 
            University of Iowa Hospital and Clinics.  Claimant reported 
 
            no change from the lumbosacral pain and pain down his left 
 
            lower extremity since the date of injury.  Doctor Found's 
 
            physical examination disclosed  a limited range of lumbar 
 
            motion and a positive straight leg raising test on the left 
 
            (Ex. 13, p. 2).  Plain x-rays on May 2, 1990 showed only 
 
            minimal disc space narrowing at L4-5 (Ex. 13, p. 1).  Dr. 
 
            Found did examine Dr. Dougherty's previous tests and 
 
            diagnosed low back pain attributable to a herniated nucleus 
 
            pulposus at the L5, S1 disc space.  Dr. Found concluded that 
 
            the condition has persisted for over ten months and that the 
 
            patient would be an appropriate candidate for surgical 
 
            intervention at this time (Ex. 13, p. 2).
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
                 Claimant returned to the university for the surgery on 
 
            July 6, 1990 because of persistent, unrelenting, 
 
            incapacitating low back pain.  The risks were explained to 
 
            claimant and his wife and claimant elected to have the 
 
            surgery (Ex. 14, pp. 1 & 2).  A partial laminotomy and 
 
            diskectomy was performed on July 9, 1990 for a herniated 
 
            nucleus pulposus on the left at L5, S1 (Ex. 14, pp. 3-6).  
 
            Dr. Found attributed the surgery to this injury by stating, 
 
            "This is a 31-YO male who slipped and fell and has had 
 
            recalcitrant low back and more particularly left leg 
 
            discomfort.  Conservative treatment has been recalcitrant 
 
            including epidural steroid injection etc. and the patient 
 
            elected surgical intervention." (Ex. 14, p. 7).  
 
            
 
                 On January 22, 1991, following a functional capacity 
 
            examination at the university, Dr. Found wrote a report 
 
            attributing claimant's treatment to this injury.  He stated, 
 
            "You are a 32 year old mechanic who was injured 7/10/89 when 
 
            you slipped and fell on some grease while working for K-Mart 
 
            Auto Service in Sioux City." (Ex. 21, p. 1).  
 
            
 
                                   * * * * * *
 
            
 
                 "For worker's compensation purposes, we feel that you 
 
            were temporarily totally disabled as of 7/10/89 while 
 
            working when you slipped and fell." (Ex. 21, p. 2).  
 
            
 
                                   * * * * * * 
 
            
 
                 "It is our recommendation that you enter our 
 
                 2-week Low Back Pain Rehabilitation Program to get 
 
                 in the best possible physical condition for return 
 
                 to work.  Also, pain management and further 
 
                 vocational exploration can be done at that time.  
 
                 Following completion of the program, a permanent 
 
                 partial impairment rating will be assigned for 
 
                 your work-related injury of 7/10/89." (Ex. 21, p. 
 
                 3)."
 
            
 
                 On April 12, 1991, upon completion of the Low Back Pain 
 
            Rehabilitation Program Dr. Found gave claimant a permanent 
 
            impairment rating for this injury and a clear and 
 
            unequivocal termination of healing period.  He stated, "The 
 
            orthopaedic surgeon has determined your body as a whole 
 
            impairment rating is 10 percent.  Your healing period for 
 
            Worker's Compensation purposes will end following the 
 
            rehabilitation program, on April 8, 1991." (Ex. 24, p. 3).
 
            
 
                 Wherefore, it is determined that the injury of July 10, 
 
            1989 was the cause of both temporary and permanent 
 
            disability.  Claimant described how the injury occurred on 
 
            July 10, 1989.  The injury was witnessed and claimant's 
 
            description of the injury was corroborated by McKenzie.  
 
            Irrespective of whether claimant hit the door jamb with his 
 
            back or twisted it severely while falling hard and catching 
 
            himself off balance is immaterial.  Either event could 
 
            precipitate an intervertebral herniated disc.  
 
            
 
                 Claimant reported the injury to employer the following 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            day on July 11, 1989, after he could not get out of bed that 
 
            morning.  Employer filed a first report of injury on July 
 
            11, 1989, which corroborated claimant's description of the 
 
            injury.  Employer sent claimant to an employer selected 
 
            medical clinic.  On the first office visit the physician put 
 
            claimant on light duty.  On a second office visit the 
 
            physician stated that a herniated disc was suspected and he 
 
            took claimant off work completely.  Claimant was sent to an 
 
            orthopedic surgeon and a bulge at L4-5 and herniation at L5, 
 
            S1 was diagnosed and confirmed by MRI, myelogram and an 
 
            enhanced CT scan.  
 
            
 
                 Claimant was taken off work for the suspected disc 
 
            injury by an employer selected physician on July 21, 1989.  
 
            The orthopedic surgeon at the University of Iowa confirmed 
 
            the bulge at L4-5 and the herniation at L5, S1.  He also 
 
            determined the end of healing period and he gave a permanent 
 
            impairment rating based on this injury.  All of the doctors 
 
            proceeded on the history of this injury as given by 
 
            claimant.  None of the doctors suspected or mentioned any 
 
            other possible cause.  Defendant did not introduce one 
 
            scintilla of either medical or non-medical evidence that 
 
            there was any other cause of this injury or that the injury 
 
            was anything other than a herniated disc.  Dr. Gordon, Dr. 
 
            Rhodes, Dr. Budensiek, Dr. Jennings, Dr. Dougherty and Dr. 
 
            Found all stated that the temporary and permanent disability 
 
            was caused by this injury.
 
            
 
                 Defendant employer's position that they have always 
 
            believed that claimant suffered no more than (1) a simple 
 
            muscle sprain (Defendant's Brief, page 1) and (2) a mild 
 
            back strain (Def. Br., p. 7) is not supported by any of the 
 
            evidence in the record.  On the contrary, the medical and 
 
            non-medical evidence overwhelmingly supports the conclusion 
 
            that claimant sustained a herniated disc injury from the 
 
            outset on July 10, 1989, which was the cause of his 
 
            temporary and permanent disability.  
 
            
 
            
 
            
 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            entitlement - temporary disability
 
            
 
                 Claimant is entitled to 45.713 weeks of healing period 
 
            benefits for different periods of time determined as 
 
            follows.
 
            
 
                 The first period of healing is from July 21, 1989 
 
            through August 29, 1989.  Even though the injury occurred on 
 
            July 10, 1989, defendant provided claimant with light work 
 
            at the same pay until July 21, 1989.  Therefore, defendant 
 
            does not owe healing period benefits for this period of time 
 
            even though Iowa Code section 85.34(1) states that healing 
 
            period begins on the date of the injury.  
 
            
 
                 On July 21, 1989, Dr. Budensiek ordered bed rest for an 
 
            indefinite time and employer terminated claimant's 
 
            employment on that same date.  Employer contends that they 
 
            do not owe temporary disability benefits after July 21, 1989 
 
            because claimant was terminated on that date for misconduct 
 
            for falsifying his time card.  This legal contention of 
 
            defendant is incorrect, specious and not supported by 
 
            statute or case law.  Defendant cites no legal authority for 
 
            such a proposition.  Such a legal standard would be 
 
            dangerous, unfair to injured employees, and contrary to the 
 
            humanitarian purposes of the workers' compensation law.  
 
            
 
                 Iowa Code section 85.34(1) provides healing period 
 
            benefits for an injured employee irrespective of whether he 
 
            is discharged for misconduct or for any other reason.  Once 
 
            a compensable (permanent) injury is established then 
 
            claimant is entitled to temporary (healing period) benefits 
 
            until (1) claimant returns to work, (2) is medically capable 
 
            of returning to substantially similar work or (3) attains 
 
            maximum medical improvement.  None of these conditions 
 
            existed on July 21, 1989.  Conversely, the seriousness of 
 
            claimant's injury and disability was just beginning to 
 
            become apparent as can be seen from the summary of the 
 
            medical evidence set forth above.
 
            
 
                 It should be stated that claimant denied that he 
 
            falsified his time card, claimed that extenuating 
 
            circumstances existed and that there was a misunderstanding 
 
            about his entries on the time card by the personnel office.  
 
            Claimant further contended that he completed the time card 
 
            as he was instructed to do in the automotive repair shop 
 
            (Ex. 35, p. 44).  There was a conflict of testimony between 
 
            claimant and Thomas on how the time card was made out, which 
 
            cannot be resolved because employer did not introduce the 
 
            time card or a copy of it into evidence.
 
            
 
                 Furthermore, claimant's termination was not 
 
            contemporaneous with the alleged falsification of the time 
 
            card.  Claimant testified that the time card incident 
 
            occurred several days before his termination (Tran. p. 39; 
 
            Ex. 35, pp. 59 & 61).
 
            
 
                 McKenzie did not believe that the true reason for 
 
            claimant's termination was the alleged falsification of his 
 
            time card (Ex. 6, pp. 22, 24 & 25).  In any event, to 
 
            summarily terminate an employee's employment and his 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            livelihood over a misunderstanding about the time card 
 
            without an admonition, reprimand and progressive discipline 
 
            is a rather drastic reaction to a rather simple matter.  
 
            McKenzie said that no one had ever been terminated before in 
 
            the fashion that claimant was terminated (Ex. 6, p. 24).
 
            
 
                 Claimant testified, "to me, I feel I was pushed out of 
 
            the door because I was no good for them anymore." (Ex. 35, 
 
            p. 43).  Employer alleged also that claimant's termination 
 
            was because they had subsequently learned that claimant had 
 
            committed a felony several years ago but did not disclose it 
 
            on his application.  Claimant admitted that he was convicted 
 
            of false use of a financial instrument (Tran., p. 94; Ex. 
 
            35, pp. 37 & 38) about 10 years ago when he was about 20 
 
            years of age (Tran., pp. 105 & 106).  Employer did not 
 
            establish that the termination was contemporaneous with 
 
            acquiring this knowledge, but rather counsel for employer 
 
            indicated that this information was acquired sometime later 
 
            in the course of the investigation of this case for hearing.
 
            
 
                 There is definite proof, however, that claimant's 
 
            termination was contemporaneous, to the day, with the day 
 
            when claimant brought in the slip from Dr. Budensiek, which 
 
            took him off work for bed rest for an indefinite period of 
 
            time, after Morningside Clinic previously stated that they 
 
            suspected that claimant had sustained a disc injury.
 
            
 
                 Wherefore, it is determined that the first period of 
 
            time for which claimant is entitled to healing period 
 
            benefits begins on July 21, 1989, the day when Dr. Budensiek 
 
            took claimant off work, and ends on August 28, 1989 because 
 
            claimant testified he took a full time job with Bottjen 
 
            Implement beginning on September 29, 1989, as a general 
 
            mechanic.  This is a period of 5.571 weeks.
 
            
 
                 The second period of healing is from September 29, 1989 
 
            through October 2, 1989.  Claimant is also entitled to 
 
            healing period benefits for this period of hospitalization 
 
            at Marian Health Center by Dr. Dougherty from 8:54 a.m. on 
 
            September 29, 1989 through 12:30 p.m. on October 2, 1989 
 
            (Ex. 11; Ex. 30, p. 6; Ex. 35, p. 68).  It has been the long 
 
            term policy, practice and precedent of this agency to allow 
 
            temporary disability benefits for a period of 
 
            hospitalization for either tests or treatment.  Wherefore, 
 
            it is determined that claimant is entitled to four days or 
 
            .571 weeks of healing period benefits for this period of 
 
            hospitalization.  
 
            
 
                 Claimant alleged that he missed a few hours of work on 
 
            various days to keep doctor appointments and that he is 
 
            entitled to temporary disability for these periods of time.  
 
            The deputy can find no specific statutory authority or case 
 
            law authority for this proposition and claimant has cited 
 
            none.  Such a proposition would be compatible with and 
 
            complimentary to other provisions of the workers' 
 
            compensation law.  Interested parties may want to propose 
 
            such a provision to the legislature.  However, at this time 
 
            the deputy knows of no statutory or case law authority for 
 
            this proposition.  Wherefore, it is determined that claimant 
 
            is not entitled to healing period benefits for portions of a 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            day amounting to a few hours per day on various days in 
 
            order to keep doctor appointments.  Thilges v. Snap-On-Tools 
 
            Corporation, File Nos. 857208, 894337, 896606, 905195, 
 
            905196 (App. Decn., Feb. 10, 1993).  
 
            
 
                 Claimant is not entitled to temporary disability 
 
            benefits for the two day trip to Iowa City on May 1 and 2 of 
 
            1990 at employer's request for an evaluation but he is 
 
            entitled to recover his costs pursuant to the first 
 
            unnumbered paragraph of Iowa Code section 85.39 which will 
 
            be discussed later under the caption of Iowa Code section 
 
            85.39(1) - Medical Examinations.  
 
            
 
                 The third period of healing is from July 6, 1990 
 
            through April 8, 1991.  On July 6, 1990 claimant was 
 
            hospitalized at Iowa City for surgery (Ex. 14, p. 1).  This 
 
            third period of healing continues until Dr. Found determined 
 
            that the healing period ended on April 8, 1991 following 
 
            completion of the low back pain rehabilitation program (Ex. 
 
            24, p. 3).  This is true even though an unknown examiner 
 
            estimated to the Department of Human Services on July 11, 
 
            1991, that it would be two to three months before claimant 
 
            might be able to return to work (Ex. 15, p. 2).  This is 
 
            true even Dr. Found released claimant to return to work with 
 
            no restrictions at claimant's own request on September 24, 
 
            1990 because claimant was anxious to get back to work and to 
 
            be employed again by Bottjen Implement (Ex. 16, pp. 1 & 3; 
 
            Ex. 21, p. 2).  However, claimant found that Bottjen 
 
            Implement would not take him back to work because they felt 
 
            that he was unable to perform the job of general mechanic 
 
            and because it would jeopardize the employer's insurance 
 
            protection (Ex. 19, p. 2; Tran. p. 55, 96 & 97).
 
            
 
                 Pursuant to Iowa Code 85.34(1) healing period ends in 
 
            one of three ways --- return to work, capable of 
 
            substantially similar work or maximum medical improvement.  
 
            On September 24, 1990, claimant had not returned to work.  
 
            On September 24, 1990, he was not capable of performing 
 
            substantially similar work.  This is proven (1) by the fact 
 
            that his employer (Bottjen) would not take him back after 
 
            the surgery and (2) because the mechanical work he was 
 
            performing prior to the injury required lifting over 100 
 
            pounds occasionally and 50 pounds frequently (Ex. 20, p. 9) 
 
            in violation of Dr. Found's temporary restriction.  On 
 
            September 20, 1990, Dr. Found restricted claimant from 
 
            lifting more than 45 to 50 pounds and from repetitive 
 
            bending and stooping (Ex. 18).  Therefore, claimant had 
 
            neither returned to work nor was he capable of performing 
 
            substantially similar work.
 
            
 
                 A review of the evidence illustrates that claimant had 
 
            not attained maximum medical improvement on September 24, 
 
            1990.  Although claimant appeared to be doing well 
 
            immediately after his surgery at the time of the checkup on 
 
            August 30, 1990 (Ex. 16, p. 1), nevertheless, at his three 
 
            months checkup on October 10, 1990, Dr. Found reported that 
 
            claimant had suffered a recurrence of his back pain and leg 
 
            pain and continued to treat claimant in the hopes of further 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            improvement.  He ordered claimant to continue with his 
 
            exercise program and he scheduled claimant for a functional 
 
            capacity examination at the University of Iowa (Ex. 19, p. 
 
            2).  
 
            
 
                 The extensive functional capacity examination was 
 
            performed on January 8, 1991 and demonstrated that claimant 
 
            was in need of further rehabilitation before he would be 
 
            capable of full time regular employment (Ex. 20, pp. 1-12).  
 
            Therefore, Dr. Found recommended that claimant enter the low 
 
            back pain rehabilitation program (Ex. 21, p. 2).  Claimant 
 
            agreed to participate in the program (Ex. 22, pp. 1 & 2).  
 
            Employer paid for the cost of the program and also paid 
 
            claimant for weekly benefits during his treatment at the 
 
            University of Iowa.  The program lasted from March 25, 1991 
 
            to April 5, 1991 (Ex. 23, pp. 1-3).  Upon completion of the 
 
            program claimant demonstrated remarkable improvement in his 
 
            condition (Ex. 23, p. 4,5, & 6).  Dr. Found then determined 
 
            that claimant had reached maximum medical improvement by 
 
            finding that his healing period ended after he completed the 
 
            program on April 8, 1991 (Ex. 24, pp. 1-3).  Thus, the first 
 
            true medical indicator that claimant's healing period should 
 
            end was when Dr. Found, the primary treating physician and 
 
            surgeon, determined that healing period should end, which is 
 
            in effect saying that claimant had attained maximum medical 
 
            improvement on April 8, 1991.  
 
            
 
                 Although, (1) the date of a release to return to work, 
 
            (2) the date of an impairment rating, (3) the date a doctor 
 
            states maximum healing has occurred and (4) the date a 
 
            doctor says healing had ended have all been used at 
 
            different times to determine the termination of healing 
 
            period, this determination for any particular case requires 
 
            a practical application of the facts of each case the 
 
            existing law.  Sloan v. National Oats, File No. 900250 (App. 
 
            Decn., July 30, 1991).  Lawyer and Higgs, Iowa Workers' 
 
            Compensation--Law and Practice, (2d ed.) section 13-3, pages 
 
            120 and 121.
 
            
 
                 Wherefore, it is determined that claimant is entitled 
 
            to healing period benefits from July 6, 1990, when he was 
 
            hospitalized for surgery and the period continues through 
 
            April 8, 1991, when Dr. Found determined that healing period 
 
            had ended. Functional capacity examinations and low back 
 
            pain rehabilitation programs are typically included in the 
 
            healing period.  This is a period of 39.571 weeks.  
 
            
 
                 Claimant was re-evaluated at the University of Iowa on 
 
            July 24, 1991 and a permanent impairment rating of 10 
 
            percent was again determined to be reasonable even though 
 
            claimant said his attorney thought it should be higher.  Dr. 
 
            Found acknowledged that claimant had and would continue to 
 
            have chronic pain but emphasized that claimant had returned 
 
            to work three months ago operating his own business and was 
 
            working eight to twelve hours per day (Ex. 25, pp. 2-6 & Ex. 
 
            26).  Claimant is not entitled to healing period benefits 
 
            until July 24, 1991, the date of the impairment rating was 
 
            reconfirmed, because (1) Dr. Found specifically terminated 
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            his healing period on April 8, 1991, and (2) Dr. Found 
 
            stated claimant had returned to work full time three months 
 
            earlier operating his own business eight to twelve hours per 
 
            day.  
 
            
 
                 Therefore, adding up the separate periods of healing: 
 
            (1) July 21, 1989 through August 28, 1989, a period of 5.571 
 
            weeks, (2) September 29, 1989 through October 2, 1989 a 
 
            period of .571 weeks and (3) July 6, 1990 through April 8, 
 
            1991 a period of 39.571 weeks, it is determined that 
 
            claimant is entitled to 45.713 weeks of healing period 
 
            benefits.  
 
            
 
                        entitlement - permanent disability
 
            
 
                 It is determined that claimant sustained a 30 percent 
 
            industrial disability to the body as a whole and is entitled 
 
            to 150 weeks of permanent partial disability benefits.  As 
 
            related in the causation section of this decision it has 
 
            been established that claimant sustained a herniation of the 
 
            intervertebral disc on the left between L5 and S1 which 
 
            required a partial laminotomy and partial diskectomy, 
 
            functional capacity examinations and a low back pain 
 
            rehabilitation management program before it was determined 
 
            that claimant had achieved maximum medical improvement to 
 
            the point where the treating physician stated his healing 
 
            period had ended.  The injury is a serious injury.  The 
 
            recovery period was long.  Claimant contends that he still 
 
            suffers low back pain and left leg pain.  Dr. Found said 
 
            this pain will continue.
 
            
 
                 Horst G. Blume, M.D., a neurosurgeon and an independent 
 
            evaluator for claimant, determined that claimant sustained a 
 
            23 percent permanent impairment (Ex. 29, p. 3).  Dr. Found, 
 
            the primary treating physician, who performed the surgery at 
 
            the University of Iowa, determined that claimant had 
 
            sustained a 10 percent permanent impairment (Ex. 24, p. 3).  
 
            
 
                 Dr. Found said that claimant should not lift 100 pounds 
 
            more than four times an hour and that he could lift 50 
 
            pounds more than four times per hour as permanent 
 
            restrictions (Ex. 24, p. 2).  Dr. Blume restricted claimant 
 
            to no repetitive bending, stooping, twisting, turning, 
 
            pushing, pulling, crawling, kneeling and lifting no more 
 
            than 30 pounds occasionally with help (Ex. 29, p. 4).  
 
            
 
                 Claimant recited several things that he is no longer 
 
            able to do or else is limited in doing such as squatting, 
 
            sitting, standing, lifting no more than 25 to 50 pounds as 
 
            his own personal guideline, working under the dash of a car, 
 
            working on a creeper under a car, walking long distances, 
 
            bending down, swinging a hammer, using an air ratchet, 
 
            driving a car, playing baseball, playing basketball, playing 
 
            football, playing frisbee, roller skating, swimming, diving, 
 
            lifting weights, climbing stairs, drag racing, bicycling, 
 
            and wrestling with his children (Tran. pp. 50-73).  Claimant 
 
            admitted that he lifted 100 pounds during the functional 
 
            capacity examination on a one time basis to see what he 
 
            could do but contended that he was not able to do this on a 
 
            regular basis (Tran., pp. 47 & 48).
 

 
            
 
            Page  13
 
            
 
            
 
            
 
            
 
            
 
                 Claimant was able to perform accommodated work as a 
 
            mechanic for Bottjen Implement from August 29, 1989, until 
 
            his surgery in July of 1990 (Tran., pp. 53, 54 & 68).  
 
            Claimant was also able to operate his own mechanical 
 
            business with the help of his wife, other employees, hoists, 
 
            and work stands from approximately April of 1991 until just 
 
            a few months prior to this hearing on August 27, 1992.  
 
            Claimant indicated he was forced to close this business 
 
            because it was not financially successful and because he was 
 
            not physically able to perform the work himself (Tran., pp. 
 
            24, 109, 110, & 121).  Claimant has also worked as a 
 
            mechanic for an employer in Texas for a short time prior to 
 
            the hearing performing mostly light mechanical work but he 
 
            contended this job ended because he could not do the work.  
 
            
 
                 Claimant testified that he has worn a back brace ever 
 
            since it was prescribed by Dr. Dougherty on August 21, 1989 
 
            (Tran., pp. 25, 26, & 42) and that he had continued to wear 
 
            the back brace up until the time of the hearing (Tran., p. 
 
            50).
 
            
 
                 Claimant was 30 years old at the time of the injury and 
 
            33 years old at the time of the hearing.  Claimant's 
 
            industrial disability or earning capacity is reduced because 
 
            he has several more working years to develop other skills.  
 
            Becke v. Turner-Busch, Inc., Thirty-fourth Biennial Report 
 
            of the Industrial Commissioner 34 (1979).  Walton v. B & H 
 
            Tank Corp., II Iowa Industrial Commissioner Report 426 
 
            (1981).  McCoy v. Donaldson Company, Inc., file numbers 
 
            782670 & 805200 (App. Dec. 1989).    However, claimant has 
 
            insisted on continuing to do mechanical work.  He insisted 
 
            that he is a mechanic and that is what he attempts to 
 
            continue to do because this is all he knows how to do.  This 
 
            has been his career since age 16.  
 
            
 
                 However, other jobs are available to claimant at age 
 
            33.  Likewise, claimant is capable of retraining.  Conrad v. 
 
            Marquette School, Inc., IV Iowa Industrial Commissioner 
 
            Report 74, 89 (1984).  Claimant quit school in the eighth 
 
            grade to go to work.  Claimant testified that he can read 
 
            and write and calculate but that academics are not his 
 
            forte.  Claimant had never attained a GED (Tran., p. 19).  
 
            It would appear that claimant would be highly adaptable to 
 
            learning new skills especially manual skills from on-the-job 
 
            training.
 
            
 
                 With respect to actual wage loss, claimant was earning 
 
            $6.25 per hour for employer at the time of the injury and he 
 
            was able to earn approximately the same amount of money for 
 
            Bottjen Implement shortly after the injury.  If he is able 
 
            to find work as a mechanic he should be able to earn 
 
            approximately the same amount of money and therefore would 
 
            not suffer an identifiable actual loss of earnings.  
 
            
 
                 Claimant's largest loss of earning capacity is his loss 
 
            of employability and loss of access to the labor market as a 
 
            mechanic.  Mechanics are frequently required to lift heavy 
 
            weights and to work in awkward body positions and claimant 
 
            is limited in these two respects.  Thus, prospective 
 

 
            
 
            Page  14
 
            
 
            
 
            
 
            
 
            employers are more likely to select young healthy mechanics 
 
            over one who has sustained a herniated intervertebral disc 
 
            which required cervical correction and restricts claimant 
 
            from unlimited heavy work.  
 
            
 
                 Claimant's loss of employability was first demonstrated 
 
            by employer when claimant was terminated when employer 
 
            learned that claimant had a possible disc injury and was put 
 
            on bed rest for an indefinite period of time.  Employer 
 
            alleges the discharge was because claimant falsified his 
 
            time card and because they subsequently learned that he was 
 
            a felon.  However, the termination was not contemporaneous 
 
            with the falsification of the time card because it occurred 
 
            several days earlier.  Nor was it contemporaneous with the 
 
            knowledge that claimant was a felon because that was not 
 
            learned until sometime later.  Claimant's termination was 
 
            contemporaneous with learning that he had suffered a 
 
            possible disc injury and that he was taken off work for an 
 
            indefinite period of time because of a potentially very 
 
            serious injury.  It is inconsistent for employer to 
 
            terminate claimant because of a seriously injured back, 
 
            which occurred at work and was caused by work for employer, 
 
            and at the same time contend that claimant has not sustained 
 
            a very serious industrial disability.
 
            
 
                 Claimant's work performance for employer prior to his 
 
            termination was satisfactory.  McKenzie testified that even 
 
            though claimant was one of the newest employees he was the 
 
            highest producer in dollar volume in the automotive facility 
 
            (Tran., p. 31).  Thomas, the personnel director, denied any 
 
            knowledge of a pink slip system but claimant and McKenzie 
 
            said there was a pink slip ("write-up") system in the 
 
            automotive repair facility and that claimant had never 
 
            received a pink slip or a write-up (Tran., pp. 39, 40 & 77; 
 
            Ex. 6, p. 23).  
 
            
 
                 All indications were that Bottjen Implement liked 
 
            claimant and liked his work and accommodated his work prior 
 
            to the surgery but after his surgery they would not hire him 
 
            back even though claimant obtained a release to return to 
 
            work without restrictions for that very purpose.  Bottjen 
 
            feared that after the surgery claimant would not be able to 
 
            do the job and feared the adverse affect and effect that it 
 
            would have on their insurance coverage.  
 
            
 
                 Patricia G. Conway, M.S., C.V.E., a vocational 
 
            rehabilitation specialist retained by claimant, estimated 
 
            that claimant had lost 40 percent access to the labor 
 
            market.  She confirmed that the type of mechanical work that 
 
            claimant can perform and the amount of money he can earn is 
 
            limited by this injury (Ex. 33, p. 7).  She stated that 
 
            based on his income at the time of the injury claimant 
 
            sustained a 10 percent to 15 percent wage loss and based on 
 
            his past employments he had suffered a 35 to 40 percent wage 
 
            loss.  She estimated that claimant had suffered a 25 percent 
 
            loss of earning capacity (Ex. 33, p. 8).  Conway wrote an 
 
            addendum to this report on January 8, 1992, after reviewing 
 
            Dr. Blume's examination and evaluation and determined that 
 

 
            
 
            Page  15
 
            
 
            
 
            
 
            
 
            claimant has sustained a loss of earning capacity between 33 
 
            percent and 37 percent (Ex. 33, p. 11-13).  The expert 
 
            testimony of Conway is not controverted or contradicted by 
 
            any other rehabilitation specialist testifying on the behalf 
 
            of employer.  
 
            
 
                 Moreover, in case after case agency expertise 
 
            re-demonstrates that injured employees, especially those who 
 
            suffer back injuries in lines of work that require heavy 
 
            lifting find it difficult, if not impossible, to find work 
 
            without retraining and changing careers which is a very 
 
            expensive procedure for injured employees.  Retraining often 
 
            involves tuition, books, fees, and transportation.  Income 
 
            is either lost or reduced during training.  The retrained 
 
            employee enters the labor market at the entry level wages.  
 
            In this case, even though claimant is attempting to perform 
 
            mechanical work because that is all he has ever done, he 
 
            testified that his job searches in both Iowa and Texas were 
 
            not very fruitful (Tran., p. 55).  Claimant testified that 
 
            he was not qualified to do anything other than mechanic work 
 
            (Tran., p. 56).  Other factors may be involved in claimant's 
 
            inability to find full time regular employment as a mechanic 
 
            but it must also be stated that based upon his injury, 
 
            surgery, rehabilitation, age, education, and restrictions 
 
            from performing the unlimited duties of a mechanic that his 
 
            employability in the competitive labor market and his access 
 
            to jobs either as a mechanic or performing any heavy work 
 
            are substantially reduced.  
 
            
 
                 At the time of the hearing employer had not offered 
 
            claimant any vocational rehabilitation assistance for 
 
            training in a career different than he was performing for 
 
            employer at the time of the injury; nor had claimant sought 
 
            vocational rehabilitation on his own with the state of Iowa 
 
            or otherwise on his own initiative for employment in a 
 
            different career (Tran., p. 58).  
 
            
 
                 Wherefore, based upon (1) an injury of a herniated 
 
            lumbar disc at L4, S5 on the left that required a partial 
 
            laminectomy and partial discectomy and a lengthy and 
 
            difficult period of recovery, (2) a permanent impairment 
 
            rating from Dr. Found, the primary treating physician, in 
 
            the amount of 10 percent and a permanent impairment rating 
 
            from Dr. Blume, claimant's evaluating physician, in the 
 
            amount of 23 percent, (3) lifting permanent restrictions 
 
            from Dr. Found of 100 pounds four times in one hour and 50 
 
            pounds more than four times an hour and lifting restriction 
 
            of Dr. Blume of not lifting more than 30 pounds without 
 
            assistance, (4) that claimant is foreclosed from the 
 
            unlimited mechanic work that he was performing at the time 
 
            of this injury which requires heavy lifting and working in 
 
            awkward positions and claimant is now limited to light 
 
            mechanical work for the most part, bench work and stand work 
 
            where someone else is required to perform the heavy lifting, 
 
            (5) based upon the uncontroverted and uncontradicted opinion 
 
            of Conway that claimant has lost 40 percent access to the 
 
            labor market, a potential wage loss between 15 percent and 
 

 
            
 
            Page  16
 
            
 
            
 
            
 
            
 
            40 percent and a loss of earning capacity of 25 percent 
 
            which she later increased to between 33 percent and 37 
 
            percent, (6) based on claimant's age of 30 years old at the 
 
            time of the injury and his eighth grade education and no 
 
            GED, (7) based on claimant's capability of retraining and 
 
            the expense of retraining, (8) applying all the factors used 
 
            to determine industrial disability, Christensen v. Hagen, 
 
            Inc., vol. I, no. 3, State of Iowa Industrial Commissioner 
 
            Decisions 529 (App. Dec. March 26, 1985); Peterson v. Truck 
 
            Haven Cafe, Inc., vol. 1, no. 3 State of Iowa Industrial 
 
            Commissioner Decisions 654, 658 (App. Dec. February 28, 
 
            1985), (9) based upon a consideration of all the evidence of 
 
            record in this case, and (10) applying agency expertise, 
 
            Iowa Administrative Procedure Act 17 A.14(5), it is 
 
            determined that claimant has sustained a 30 percent 
 
            industrial disability to the body as a whole and is entitled 
 
            to 150 weeks of permanent partial disability benefits.  
 
            
 
                    Iowa Code Section 85.27 - Medical Expense
 
            
 
                 Claimant's medical expenses which were caused by this 
 
            injury are determined to be as follows in the amount of 
 
            $4,864.53.  These are the expenses incurred with Dr. 
 
            Dougherty, his tests at Marian Health Center and 
 
            prescriptions ordered at that time.  These expenses are 
 
            itemized as follows (Ex. 30, p. 1).:
 
            
 
                 Date        Provider                           Amount
 
            
 
                 
 
                 8/07/89  Dr. John Dougherty                  $ 544.00
 
                 8/25/89  Dr. John Dougherty (MRI)              610.00
 
                 8/25/89  Kingsley Pharmacy (reimburse Ramon)     6.97
 
                 8/25/89  Marian Health Center                1,000.00
 
                 9/12/89  Marian Health Center                  277.00
 
                 9/12/89  Woodbury Anesthesia                   170.00
 
                 9/29/89  Marian Health Center                2,084.18
 
                 9/29/89  Dr. John J. Dougherty                 140.00
 
                 10/6/89  Soo Thrifty Pharmacy (reimburse Ramon) 20.84
 
                 10/6/89  Kingsley Pharmacy (reimburse Ramon)    11.54
 
                                                    TOTAL    $4,864.53
 
            
 
                 Likewise, medical mileage for this period of time of 
 
            849 miles to Morningside Clinic, Dr. Dougherty and the 
 
            pharmacies is allowed at the rate of .21 cents per mile in 
 
            the total amount of $178. 29 (Ex. 30, p. 19).
 
            
 
                 The foregoing amounts are determined to be caused by 
 
            this injury and are further determined to be reasonable 
 
            medical expenses for this injury.  Iowa Code section 85.27.
 
            
 
                 The remaining claimed medical expenses in the amount of 
 
            $8,490.91 for Dr. Flume, Marian Health Center and St. Lukes 
 
            Medical Center are determined not to be caused by this 
 
            injury and they are determined not to be reasonable medical 
 
            expense for this injury (Ex. 30, p. 1).  Likewise, the 
 
            medical mileage for this treatment is not allowable as 
 
            related to this injury (Ex. 30, p. 20).
 
            
 
                 After a complete course of treatment at the University 
 

 
            
 
            Page  17
 
            
 
            
 
            
 
            
 
            of Iowa as described above it is determined that the 
 
            extensive examination of claimant by Dr. Blume was neither 
 
            reasonable medical treatment under Iowa Code section 85.27 
 
            nor were most of Dr. Blume's charges allowable as an 
 
            independent medical examination under Iowa Code section 
 
            85.39.  The independent medical examination expenses will be 
 
            discussed in the next section of this decision.
 
            
 
                 Dr. Blume performed an examination on August 7, 1991 
 
            (Ex. 27, pp. 4-7).  He performed a complete spinal myelogram 
 
            on August 21, 1991 at Marian Health Center followed by an 
 
            enhanced CT scan of the complete spine (Ex. 27, pp. 1-3, 10 
 
            & 16-39).  Dr. Blume then performed a discogram at Marian 
 
            Health Center on September 18, 1991 (Ex. 28, pp. 1-10).  
 
            This extensive hospitalization and testing in less than one 
 
            month which was not essentially different from that which 
 
            had already been performed over the previous two years, and 
 
            which cost twice as much as all of the treatment in the 
 
            previous two years, did not disclose any new condition that 
 
            was caused by this injury on July 10, 1989.  
 
            
 
                 At the time of the myelogram of the entire spine, the 
 
            radiologist found only possible minimal bulging of the 
 
            annulus at L4-5 which is not substantially different from 
 
            Dr. Dougherty's previous findings two years earlier (Ex. 27, 
 
            pp. 12 & 14).
 
            
 
                 Claimant's cervical problems, upper thoracic problems 
 
            and headaches for which he sought evaluation in September of 
 
            1991, are too remote in time to be determined to be caused 
 
            by this injury and the diagnostic procedures used are 
 
            determined not to be reasonable medical treatment.  These 
 
            complaints were all mentioned to the doctors in the previous 
 
            course of treatment beginning with the first office visit to 
 
            Dr. Gordon and were peripherally mentioned by Dr. Dougherty 
 
            and Dr. Found.  If they had been major problems caused by 
 
            this injury then claimant should have sought and the doctors 
 
            should have provided treatment for them at that time.
 
            
 
                  iowa code section 85.39 - medical examinations
 
            
 
                 Employer sent claimant to the University of Iowa on May 
 
            1 and 2, 1990, for an evaluation and second opinion on 
 
            whether claimant needed the surgery which was recommended by 
 
            Dr. Dougherty, even though Dr. Dougherty was also their own 
 
            choice of physician because claimant was referred to Dr. 
 
            Dougherty by the Morningside Clinic, Coleman v. Coleman 
 
            Industrial Cleaning, IV Iowa Industrial Commissioner Reports 
 
            67 (1984).  Limoges v. Meier Auto Salvage, I Iowa Industrial 
 
            Commissioner Reports 207 (1981); Kittrell v. Allen Memorial 
 
            Hospital, 34 Biennial Report of the Industrial Commissioner 
 
            164 ( 1979).  
 
            
 
                 Pursuant to the first unnumbered paragraph of Iowa Code 
 
            section 85.39, if an employer requests an examination and 
 
            evaluation it shall be without cost to the employee.  In 
 
            this case claimant is entitled to (1) his regular wage of 
 
            $6.25 per hour at Bottjen for eight hours per day, which is 
 
            $50 per day, on May 1, 1990 and May 2, 1990 in the total 
 
            amount of $100, (2) his mileage expense of 584 miles round 
 

 
            
 
            Page  18
 
            
 
            
 
            
 
            
 
            trip to Iowa City and return home (Ex. 30, p. 20; Ex. 16, p. 
 
            2) at the rate of .21 cents per mile in the total amount of 
 
            $122.64, (3) a minimum allowance of $16.50 per day for meals 
 
            for two days in the amount of $33 and (4) a minimum 
 
            allowance of $30 for overnight lodging for one night away 
 
            from home.  These expenses total $285.64.
 
            
 
                 Claimant requested and is entitled to an independent 
 
            medical examination pursuant to the second unnumbered 
 
            paragraph of Iowa Code section 85.39.  The following charges 
 
            of Dr. Blume are allowed for that examination.  This 
 
            itemization is taken from Dr. Blume's bill (Ex. 30, p. 17).
 
                 
 
                 8/07/91  Comprehensive Neurological Exam.    $ 200.00
 
                 8/07/91  Consult on x-rays made elsewhere       75.00
 
                 8/07/91  Review Myelogram                       50.00
 
                 8/07/91  Review MRI                             50.00
 
                 8/07/91  Range of Motion Measurements           50.00
 
                                                    TOTAL     $ 425.00
 
            
 
                 The second unnumbered paragraph of Iowa Code section 
 
            85.39 does not contemplate a complete spinal myelogram and a 
 
            subsequent discogram in the amount of approximately $8,000 
 
            as a "reasonable fee for a subsequent examination by a 
 
            physician of the employee's own choice."
 
            
 
                 Claimant then is allowed $285.64 for the independent 
 
            medical examination requested by employer and $425 for the 
 
            independent medical examination from a doctor of claimant's 
 
            own choice.  These two amounts total an allowance of $710.64 
 
            for Iowa Code section 85.79 examinations.  
 
            
 
      
 
            
 
            
 
            Page  19
 
            
 
            
 
            
 
            
 
            iowa code section 86.13(4) - penalty benefits 
 
            
 
                 This section of the Code provides if there is a delay 
 
            in the commencement of benefits which occurs without 
 
            probable cause or excuse then the industrial commissioner 
 
            shall award penalty benefits up to 50 percent of the amount 
 
            of the benefits that were unreasonably delayed or denied 
 
            Iowa Code section 86.13(4).  In this case it is determined 
 
            that claimant is entitled to the maximum penalty in the 
 
            amount of 50 percent of the weekly benefits which were 
 
            unreasonably delayed or denied.
 
            
 
                 More specifically, claimant is entitled to penalty 
 
            benefits in the amount of 50 percent for the period from 
 
            July 21, 1989, when claimant was taken off work by Dr. 
 
            Budensiek to August 29, 1989, when claimant started to work 
 
            for Bottjen Implement.  This is a period of 5.571 weeks.  
 
            The 50 percent rate of compensation is $96.815.  The total 
 
            penalty for this period of time is $539.36.  The 
 
            overwhelming evidence from claimant, witness McKenzie, and 
 
            the various physicians at Morningside Clinic was that 
 
            claimant had sustained an injury which arose out of and in 
 
            the course of employment which was the cause of temporary 
 
            disability.  Claimant was clearly entitled to healing period 
 
            benefits for this period and employer has never specifically 
 
            paid claimant any healing period benefits for this period of 
 
            time.
 
            
 
                 The fact that employer believed that claimant had 
 
            falsified his time card prior to the injury or that they 
 
            learned after the injury that he was a felon and had not 
 
            disclosed that on his employment application was not 
 
            reasonable or probable cause or excuse to deprive an injured 
 
            worker of his statutory right to healing period benefits 
 
            when the injured employee was unable to work on account of 
 
            the work-related injury.  Such a construction of this code 
 
            section would deprive the workers' compensation law from 
 
            accomplishing the humanitarian purposes for which it was 
 
            enacted.  Employer has supplied no justification or excuse 
 
            for not paying claimant healing period benefits for this 
 
            period of time other than the erroneous and incorrect legal 
 
            argument that they did not owe claimant healing period 
 
            benefits because he was discharged for misconduct.
 
            
 
                 In recent case where employer terminated claimant's 
 
            employment as a pretext to avoid payment of healing period 
 
            benefits, defendants were assessed a 50 percent penalty, 
 
            Schmitz v. Umthun Trucking Co, File No. 835114 decided 
 
            August 15, 1989.
 
            
 
                 Likewise, claimant is entitled to penalty benefits for 
 
            the period of time claimant was hospitalized by Dr. 
 
            Dougherty for four days from September 29, 1989 through 
 
            October 2, 1989 at the 50 percent penalty rate of $96.815 
 
            cents times .571 weeks in the total amount of $55.28.
 
            
 
                 Claimant is likewise entitled to an additional 50 weeks 
 
            of penalty benefits for failure to commence permanent 
 
            partial disability benefits either (1) after they had 
 
            received a permanent impairment rating of 10 percent from 
 

 
            
 
            Page  20
 
            
 
            
 
            
 
            
 
            the primary treating physician of their own selection on 
 
            April 12, 1991 or after they had received a permanent 
 
            impairment rating of 23 percent from claimant's evaluating 
 
            physician on December 27, 1991.  Employer did not request 
 
            any other examinations by any other evaluators.  Employer 
 
            did not dispute either one of the impairment ratings which 
 
            had been provided, nevertheless, refused to make any payment 
 
            whatsoever to claimant after all of the evidence with 
 
            respect to permanent impairment and restrictions were 
 
            obtained for this case.  
 
            
 
                 Neither did employer pay any permanent partial 
 
            disability benefits to claimant after they received the 
 
            evaluation of 25 percent of loss of earning capacity from 
 
            Conway on December 17, 1991 or when they received her 
 
            evaluation of a loss of earning capacity of between 33 
 
            percent and 37 percent on January 8, 1992.  Nor did employer 
 
            retain a vocational rehabilitation specialist of their own 
 
            to dispute the opinion of Conway.
 
            
 
                 It was obvious that claimant would be awarded permanent 
 
            partial disability of at least 10 percent and probably more.  
 
            In addition to the permanent functional impairment ratings 
 
            both doctors had imposed lifting limitations on claimant.  
 
            
 
                 Employer knew that a general mechanic who had 
 
            previously performed medium and heavy work was forced into 
 
            the competitive labor market after a lumbosacral injury of 
 
            an intervertebral herniated disc which required surgery to 
 
            compete in the job market with other mechanics with no 
 
            previous injuries or limitations of any kind.  Employer knew 
 
            that Bottjen had refused to take claimant back as a general 
 
            mechanic.  Employer did not take the employee back at the 
 
            same pay and accommodate his injury with modified work which 
 
            might have enabled employer to contend that claimant lost no 
 
            earning capacity.  On the contrary, employer terminated the 
 
            employee contemporaneous to the day when he brought in a 
 
            slip taking him off work for an indefinite period of time 
 
            because of a possible disc injury.  
 
            
 
                 Defendant has offered no reasonable or probable cause 
 
            or excuse for not commencing permanent partial disability 
 
            benefits at the time they received the 10 percent rating 
 
            from their own physician.  The 15 reasons asserted by 
 
            employer for not paying permanent disability benefits in 
 
            their post-hearing brief simply add up to the fact that they 
 
            were suspicious about claimant and they did not trust 
 
            claimant.  The medical evidence was overwhelming that 
 
            claimant would be entitled to an award of industrial 
 
            disability of at least 10 percent and probably more.  As it 
 
            turned out claimant is now awarded industrial disability of 
 
            30 percent.  Employer's suspicious opinion of claimant's 
 
            character on several points is not reasonable or probable 
 
            cause or excuse not to pay workers' compensation weekly 
 
            benefits to which the claimant is entitled to by statute 
 
            based upon overwhelming medical and nonmedical evidence in 
 
            his favor.  
 
            
 
                 The parties stipulated that employer paid claimant 50 
 

 
            
 
            Page  21
 
            
 
            
 
            
 
            
 
            weeks of weekly benefits prior to hearing.  The total award 
 
            of temporary benefits was 45.713 weeks.  This would have 
 
            allowed a credit of 4.287 weeks "provided that the employer 
 
            or the employer's representative has acted in good faith in 
 
            determining and notifying an employee when the temporary 
 
            total disability, healing period, or temporary partial 
 
            disability benefits are terminated."  Iowa Code section 
 
            85.34(4).  There is no evidence in the record that the 
 
            employer or the employer's representative acted in good 
 
            faith in determining and notifying the employee when the 
 
            healing period benefits were terminated.  Claimant testified 
 
            that benefits were terminated without any explanation.
 
            
 
                 Claimant testified that the workers' compensation 
 
            benefits which he did receive were quite erratic (Tran., pp. 
 
            43-45; Ex. 35, p. 72) which required him to use the small 
 
            amount of sick pay he had accumulated, to borrow money and 
 
            to go on welfare (Tran., pp. 40-41) and to move to a 
 
            different house with less rent (Tran., p. 61).  Claimant's 
 
            counsel argued that claimant did not receive any benefits 
 
            after he quit going to Iowa City in June of 1991 without any 
 
            explanation from employer (Tran., p. 10).  In fact, claimant 
 
            testified that his weekly benefits were cut off in June of 
 
            1991 even before he was discharged by Dr. Found on July 24, 
 
            1991 (Tran., p. 63 & 64).
 
            
 
                 Wherefore, it is determined that defendants cannot 
 
            conscientiously and justifiably state that there was a 
 
            legitimate dispute on either causation or the extent of 
 
            impairment of at least 10 percent on April 12, 1991 and at 
 
            all times subsequent to that.  Juste v. HyGrade Food 
 
            Products Corp., IV Iowa Industrial Commissioner Reports, 190 
 
            (App. Dec. 1984).  
 
            
 
                 Likewise, and in more recent times it has been 
 
            determined that penalty benefits are not due where 
 
            defendants assert a claim that is fairly debatable.  It is 
 
            determined that claimant's entitlement to permanent partial 
 
            disability benefits in this case as of April 12, 1991 and on 
 
            various subsequent dates was not fairly debatable.  
 
            Defendant has never paid claimant any permanent partial 
 
            disability benefits which were described or earmarked as 
 
            permanent partial disability benefits.   Seydel v. 
 
            University of Iowa Physical Plant, file number 818849 (App. 
 
            Dec. 1989); Stanley v. Wilson Foods, file number 753405 
 
            (App. Dec. 1990); Heidt v. Lynn Photo Company, file number 
 
            916737 (App. Dec. 1992);  Place v. Giest Construction 
 
            Company, file numbers 931185, 891539 (1992); Shelton v. 
 
            McDonalds Hamburgers, file number 976855 (1992); Lloyd v. 
 
            Western Home, file number 890207 (App. Dec. 1991).  
 
            
 
                 The fairly debatable standard which was announced in 
 
            the tort case of Dolan v. Aid Insurance Company, 431 N.W.2d 
 
            790 (Iowa 1989) appears to have been adopted for workers' 
 
            compensation cases in Dodd v. Oscar Mayer Foods Corp., file 
 
            number 724378 (1989); Throgmartin v. Precision Pulley Inc., 
 
            file number 885869 (On Appeal) (1990); Collins v. Hawkeye 
 
            Moving & Storage, file number 873651 (1990).
 

 
            
 
            Page  22
 
            
 
            
 
            
 
            
 
            
 
                 Where the employer failed to pay permanent partial 
 
            disability in accordance with the rating of its own chosen 
 
            physician (the lowest rating in the record), the failure to 
 
            pay was determined to be unreasonable and a 50 percent 
 
            penalty was assessed.  Stanley v. Wilson Foods Corp., file 
 
            number 753405 (1990). Likewise in this case, claimant's 
 
            evaluator determined that claimant had sustained a 23 
 
            percent permanent  impairment and defendants own evaluator, 
 
            who was also the treating physician, testified that claimant 
 
            sustained a 10 percent permanent impairment.  It must be 
 
            determined that defendant unreasonably failed to pay at 
 
            least 50 weeks of permanent partial disability benefits 
 
            based upon a 10 percent industrial disability to the body as 
 
            a whole.
 
            
 
                 Wherefore, it is determined that claimant is entitled 
 
            to 50 weeks of penalty benefits at the 50 percent penalty 
 
            rate of $96.815 in the total amount of $4,840.75.
 
            
 
                 Total penalty benefits for all three periods of time 
 
            add up to $5,435.39 ($539.36 + $55.28 + 4,840.75).
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 Wherefore, based upon the foregoing and following 
 
            principles of law these conclusions of law are made.
 
            
 
                 That the injury of July 10, 1989 was the cause of both 
 
            temporary and permanent disability.  Bodish v. Fischer, 
 
            Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  Lindahl v. L. 
 
            O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  
 
            
 
                 That claimant is entitled to 45.713 weeks of healing 
 
            period benefits.  Iowa Code section 85.34(1). 
 
            
 
                 That claimant has sustained a 30 percent industrial 
 
            disability to the body as a whole and that he is entitled to 
 
            150 weeks of permanent partial disability benefits.  Iowa 
 
            Code section 85.34(2)(u).
 
            
 
                 That claimant is entitled to $4,864.53 in medical 
 
            expenses and $178.29 in medical mileage which amounts total 
 
            $5,042.82.  Iowa Code section 85.27.
 
            
 
                 That claimant is entitled to $285.64 for the 
 
            independent medical examination requested by employer and 
 
            $425 for the independent medical examination by a physician 
 
            of his own choice which amounts total $710.64.  Iowa Code 
 
            section 85.39 paragraphs 1 and 2.
 
            
 
                 That claimant is entitled to $5,435.39 in penalty 
 
            benefits.  Iowa Code section 86.13 unnumbered paragraph 4.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 That employer pay to claimant forty-five point seven 
 
            one three (45.713) weeks of healing period benefits at the 
 

 
            
 
            Page  23
 
            
 
            
 
            
 
            
 
            rate of one hundred ninety-three and 63/100 dollars 
 
            ($193.63) per week for the periods specified in the decision 
 
            in the total amount of eight thousand eight hundred 
 
            fifty-one and 41/100 dollars ($8,851.41) commencing on the 
 
            dates specified for healing period in the body of this 
 
            decision captioned Entitlement - Temporary Disability. 
 
            
 
                 That employer pay to claimant one hundred fifty (150) 
 
            weeks of permanent partial disability benefits at the rate 
 
            of one hundred ninety-three and 63/100 dollars ($193.63) per 
 
            week in the total amount of twenty-nine thousand and 
 
            forty-four and 50/100 dollars ($29,044.50) commencing on 
 
            April 9, 1991.
 
            
 
                 That defendant is entitled to a credit of fifty (50) 
 
            weeks of weekly benefits paid to claimant prior to hearing 
 
            at the rate of one hundred eighty and 03/100 dollars 
 
            ($180.03) per week in the total amount of nine thousand and 
 
            one and 50/100 dollars ($9,001.50).
 
            
 
                 That all accrued weekly benefits are to be paid in a 
 
            lump sum.
 
            
 
                 That interest on weekly benefits will accrue pursuant 
 
            to Iowa Code section 85.30.
 
            
 
                 That defendant pay to claimant or the provider of 
 
            medical services five thousand forty-two and 82/100 dollars 
 
            ($5,042.82) for medical expenses and medical mileage 
 
            expenses ($4,864.53 + $178.29).
 
            
 
                 That employer pay to claimant or the provider of 
 
            medical services seven hundred ten and 64/100 dollars 
 
            ($710.64) for independent medical examinations ($285.64 + 
 
            $425).
 
            
 
                 That employer pay to claimant five thousand four 
 
            hundred thirty-five and 39/100 dollars ($5,435.39) in 
 
            penalty benefits ($539.36 + $55.28 + $4,840.75).
 
            
 
                 All of these payments are to be made within thirty (30) 
 
            days after the signing and filing of this decision.
 
            
 
                 That the costs of this action, including the costs of 
 
            the attendance of the court reporter at hearing and the cost 
 
            of the transcript, are charged to defendant pursuant to Iowa 
 
            Code sections 86.19(1) and 86.40 and rule 343 IAC 4.33.
 
            
 
     
 
            
 
            
 
            Page  24
 
            
 
            
 
            
 
            
 
            That defendant file claim activity reports as requested by 
 
            this agency pursuant to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of March, 1993.
 
 
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          WALTER R. McMANUS, JR.
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Dennis J. Mahr
 
            Attorney at Law
 
            318 Insurance Centre
 
            507 7th Street
 
            Sioux City, IA  51101
 
            
 
            Mr. Joel T. S. Greer
 
            Attorney at Law
 
            112 West Church Street
 
            P.O. Box 96
 
            Marshalltown, IA  50158
 
            
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
                                       1402.60, 1802, 1807, 1906
 
                                       2503, 2505, 2700, 2901, 2906
 
                                       4000.2, 51401, 51402.40, 51803
 
                                       Filed March 11, 1993
 
                                       Walter M. McManus, Jr.
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            RAMON D. COLLINS,   
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                          File No. 921081
 
            K MART CORPORATION, 
 
                                          A R B I T R A T I O N
 
                 Employer, 
 
                 Self-Insured,            D E C I S I O N
 
                 Defendant.     
 
                      
 
                      
 
            ___________________________________________________________
 
            
 
            51401, 51402.40
 
            Employer maintained that claimant sustained only a simple 
 
            muscle strain.  However, this contention was contrary to the 
 
            overwhelming medical evidence.  All six doctors who treated 
 
            claimant from the first to the last all determined that he 
 
            sustained a disc injury which was the cause of both 
 
            temporary and permanent disability.
 
            
 
            1802
 
            Healing period benefits for three separate periods were 
 
            awarded.
 
            The first one was conventional.  A doctor took claimant off 
 
            work and later he returned to a new full time employment.
 
            The second one was based on agency precedent and allowed 
 
            claimant four days of healing period benefits when he was 
 
            hospitalized for tests and some treatment.
 
            The third one began when claimant was hospitalized for 
 
            surgery.  It continued through the functional capacity 
 
            examination and ended when the treating surgeon said healing 
 
            period ended after claimant completed the low back pain 
 
            rehabilitation program.  In the middle of this third period 
 
            claimant was released to return to work at his own request 
 
            but his employer would not take him back due to this back 
 
            injury and resulting surgery.  It was determined that this 
 
            release to return to work did not terminate claimant's 
 
            healing period because the treating physician continued to 
 
            treat claimant with the functional capacity examinations and 
 
            back rehabilitation program and claimant showed improvement 
 
            through these programs.
 
            Claimant was not allowed healing period benefits for hourly 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            portions of a day that he lost work on several days to go to 
 
            the doctor because no statutory or case law authority could 
 
            be found for this proposition and none was cited by 
 
            claimant.  Thilges v. Snap-on Tools Corporation, 857208, 
 
            894337, 896606, 905195, 905196, (App. Decn., February 10, 
 
            1993).  Dicta was that such an allowance was consistent and 
 
            compatible with the workers' compensation law but new 
 
            legislation might clear up this problem.
 
            
 
            51402.40, 51803, 1807
 
            Claimant was awarded 30 percent industrial disability.  The 
 
            injury was a herniated intervertebral disc requiring a 
 
            laminotomy and a diskectomy.  Treating physician awarded a 
 
            10 percent impairment rating.  Claimant's evaluating 
 
            physician awarded a 23 percent impairment rating.  
 
            Claimant's vocational rehabilitation evaluator, whose 
 
            evidence was not controverted, determined that claimant 
 
            sustained a 33 percent to 37 percent loss of earning 
 
            capacity.  Both physicians placed some limitations on 
 
            claimant's lifting, either one of which limited claimant's 
 
            ability to perform general mechanical work which is the only 
 
            skill qualification that he had ever achieved since age 16.  
 
            Claimant was age 30 at the time of the injury and age 33 at 
 
            the time of the hearing.  He had an eighth grade eduction 
 
            without a GED.  Employer fired claimant when they learned he 
 
            had a disc injury and that he was taken off work 
 
            indefinitely by the doctor on account of it.
 
            
 
            1402.60, 2501, 2700
 
            Claimant was allowed medical benefits from his first 
 
            treatment through approximately when the treating physician 
 
            determined his healing period had ended in the approximate 
 
            amount of $5,000.
 
            
 
            1402.60, 2503, 2505, 2700
 
            Claimant then sought out his own physician who performed a 
 
            complete spinal myelogram and discogram which cost about 
 
            $8,000 more.  It was determined that this subsequent 
 
            treatment and testing was (1) not caused by this injury and 
 
            (2) was not reasonable medical treatment.  Nothing 
 
            substantially new was learned from the later examinations.  
 
            This medical expense was denied.
 
            
 
            2505
 
            Claimant was allowed reimbursement for two independent 
 
            medical examinations.  One was under the first paragraph and 
 
            one was under the second paragraph of Iowa Code section 
 
            85.39.  The first one was requested by employer.  Claimant 
 
            was allowed his normal rate of pay, mileage, and an 
 
            allowance for meals and one overnight in a motel.  The 
 
            second examination was requested by the employee and $425 
 
            was selected out of the doctor's bill for a reasonable 
 
            allowance.
 
            
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            4000.2
 
            Claimant was awarded 50 percent penalty benefits for the 
 
            first and second healing periods for which claimant had 
 
            never been paid.  
 
            Claimant was also awarded 50 percent penalty benefits for 
 
            the permanent partial disability benefits which had never 
 
            been paid even though employer had two impairment ratings 
 
            from two different doctors and another one from a 
 
            rehabilitation specialist.  There was no medical evidence 
 
            that claimant had (1) no permanent impairment or (2) no work 
 
            restrictions after healing period ended.  The penalty 
 
            benefits on the permanent disability was for 50 weeks which 
 
            was based on the 10 percent rating given by employer's own 
 
            selected physician who was also the treating physician.
 
            
 
            2901, 2906
 
            Although the deputy excluded claimant's deposition from 
 
            evidence at the time of the hearing, on his own initiative, 
 
            because claimant was in the courtroom to testify at the time 
 
            of the hearing, nevertheless, the deputy subsequently in the 
 
            consideration of the case admitted the deposition on his own 
 
            initiative and it was considered in the determination of the 
 
            issues in the case.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            KEVIN RUDE,                   :
 
                                          :
 
                 Claimant,                :         File No. 921086
 
                                          :
 
            vs.                           :      A R B I T R A T I O N
 
                                          :
 
            ROBERT SULSBERGER,            :         D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Defendant.               :
 
            ____________________________________________________________
 
            
 
                                   INTRODUCTION
 
            
 
                 This is a proceeding in arbitration brought by the 
 
            claimant, Kevin R. Rude, against his employer, Robert 
 
            Sulsberger, to recover benefits under the Iowa Workers' 
 
            Compensation Act as the result of an injury allegedly 
 
            sustained on March 1, 1989.  This matter came on for hearing 
 
            before the undersigned deputy industrial commissioner at 
 
            Sioux City, Iowa on July 5, 1990.  A first report has not 
 
            been filed.  Pursuant to an order of Deputy Industrial 
 
            Commissioner Larry P. Walshire filed April 13, 1990, the 
 
            record was closed to defendant as to the presentation of 
 
            further evidence or activity as defendant had failed to file 
 
            an answer.  At hearing, claimant waived his right to have a 
 
            certified shorthand reporter record his testimony.  
 
            Defendant did not appear at hearing.  The record in this 
 
            matter consists of the testimony of claimant as well as of 
 
            claimant's exhibits 1 through 12.
 
            
 
                                      issues
 
            
 
                 In lieu of stipulations, claimant expressed his belief 
 
            that he was entitled to healing period or temporary total 
 
            disability from March 1, 1989 to April 1, 1989 with any 
 
            permanent partial disability to commence on April 1, 1989.  
 
            Claimant also expressed his belief that he had a gross 
 
            weekly wage of $475.00.  Claimant was single and entitled to 
 
            one exemption.
 
            
 
                 Issues remaining to be decided are:
 
            
 
                 1.  Whether claimant received an injury which arose out 
 
            of and in the course of his employment;
 
            
 
                 2.  Whether a causal relationship exists between the 
 
            alleged injury and the claimed disability;
 
            
 
                 3.  Whether claimant is entitled to benefits and the 
 
            nature and extent of any benefit entitlement;
 
            
 
                 4.  Whether claimant is entitled to payment of certain 
 
            medical costs pursuant to section 85.27; and,
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                 5.  Claimant's rate of weekly compensation in the event 
 
            of an award.
 
            
 
                                 findings of fact
 
            
 
                 The deputy, having heard the testimony and considered 
 
            the evidence, finds:
 
            
 
                 Thirty-two-year-old single male claimant worked for 
 
            Robert Sulsberger as a tractor-trailer driver from February 
 
            1, 1989 through June 5, 1989 when claimant quit work on 
 
            account of Sulsberger's failure to pay workers' 
 
            compensation.  Claimant drove a tractor-trailer of soybean 
 
            hulls to Norfolk, Nebraska on March 1, 1989.  Delivery 
 
            drivers were required to sweep up hulls before leaving the 
 
            plant or pay a $20.00 clean-up fee.  At approximately 7:45 
 
            a.m., claimant was under the truck sweeping hulls with a 
 
            push broom when he hit himself in the scrotum with the broom 
 
            handle.  Claimant acknowledged that he had hit himself 
 
            previously, but denied that he had ever hurt himself or had 
 
            problems in the genital area before March 1, 1989.  After 
 
            the incident, claimant continued to drive, but on apparently 
 
            March 3, 1989 requested that the dispatcher find him a fast 
 
            route home so he could rest.  He arrived at his home on 
 
            March 4, 1989.  By the evening of March 1 and 2, he had had 
 
            significant pain and was having difficulty driving and 
 
            walking.  The groin area was swollen.  Claimant had notified 
 
            Sulsberger about his injury by speaking with Mrs. Sulsberger 
 
            telephonically at approximately 7:00 p.m. on March 2, 1989.  
 
            Claimant had attempted earlier notification, but the 
 
            Sulsberger phone was not answered.
 
            
 
                 Claimant saw Harold L. Ganzhorn, M.D., on March 5, 
 
            1989.  Dr. Ganzhorn referred claimant to Richard L. Vaught, 
 
            M.D.  From March 6, 1989 through March 12, 1989 claimant was 
 
            hospitalized at St. Lukes Medical Center.  Claimant 
 
            underwent inguinal exploration with right epididymectomy.  
 
            Upon surgical exploration, he was found to have epididymitis 
 
            with abscess formation and a question of having had bleeding 
 
            into the epididymitis following a previous injury.  There 
 
            was no evidence of any torsion.  The right testicle is 
 
            incapable of sperm production.  Claimant has no other 
 
            permanent effect due to his injury.  Claimant returned to 
 
            work on April 1, 1989 with pain, although he was able to 
 
            continue work until quitting on June 5, 1989.
 
            
 
                 Claimant made four trips totalling 60 miles each from 
 
            his home in Smithland to Sioux City for treatment of his 
 
            scrotum condition.  Claimant made one 18-mile trip from his 
 
            home in Smithland to Mapleton where he saw Dr. Ganzhorn.  
 
            Claimant's total medical mileage is 258 miles.
 
            
 
                 Claimant's medical costs related to his scrotum 
 
            condition include the following:
 
            
 
                 Anesthesia Consultants               $  378.00
 
                 Plaza Urological                        627.50
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
            
 
                 St. Lukes Medical Center              3,975.79
 
                 St. Lukes Medical Center                 91.79
 
                 Harold L. Ganzhorn                       21.00
 
                 Total                                $5,094.08
 
            
 
                 Claimant's exhibit 5 is a charge of $20.00 for medical 
 
            information which Dr. Vaught rendered on claimant.  That 
 
            charge is more appropriately treated as a cost of this 
 
            action.
 
            
 
                                conclusions of law
 
            
 
                 Our first concern is whether claimant has established 
 
            an injury which arose out of and in the course of his 
 
            employment.
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that he received an injury on March 1, 1989 
 
            which arose out of and in the course of his employment. 
 
            McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 
 
            1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 
 
            N.W.2d 128 (1967). 
 
            
 
                 The injury must both arise out of and be in the course 
 
            of the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 
 
            Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 
 
            of the Iowa Report.  See also Sister Mary Benedict v. St. 
 
            Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (l963) and Hansen 
 
            v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958).
 
            
 
                 The words "out of" refer to the cause or source of the 
 
            injury.  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 
 
            68 N.W.2d 63 (1955). 
 
            
 
                 The words "in the course of" refer to the time and 
 
            place and circumstances of the injury.  McClure v. Union 
 
            et al. Counties, 188 N.W.2d 283 (Iowa 1971); Crowe v. DeSoto 
 
            Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955).
 
            
 
                 Claimant has proven such an injury.  While claimant 
 
            admitted he had hit himself in the scrotum on previous 
 
            occasions and there is some medical evidence to suggest some 
 
            previous harm to the scrotal area, claimant did not have 
 
            significant problems leading to medical treatment and 
 
            surgery until his incident of March 1, 1989.  Claimant's 
 
            incident occurred while he was properly fulfilling a duty 
 
            required by his job.
 
            
 
                 Likewise, claimant has established causation.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of March 1, 
 
            1989 is causally related to the disability on which he now 
 
            bases his claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
            N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 296, 18 
 
            N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
            
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903 (Iowa 1974).  However, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Id. at 907.  Further, the weight to be given to such 
 
            an opinion is for the finder of fact, and that may be 
 
            affected by the completeness of the premise given the expert 
 
            and other surrounding circumstances.  Bodish, 257 Iowa 516, 
 
            133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
            Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
            
 
                 While there is no direct medical opinion as to 
 
            causation, claimant's own testimony and the medical history 
 
            recorded in his medical records clearly demonstrate a 
 
            relationship between claimant's work injury and his 
 
            subsequent scrotal infection and need for scrotal surgery.
 
            
 
                 We reach the benefit question.
 
            
 
                 Pursuant to section 85.33, an employer is liable for 
 
            temporary total disability benefits until the employee has 
 
            returned to work or is medically capable of returning to 
 
            employment substantially similar to the employment in which 
 
            the employee was engaged at the time of injury, whichever 
 
            occurs first.  Pursuant to section 85.34, an employer is 
 
            liable for healing period or permanent partial disability 
 
            benefits where an injury produces permanent disability.  
 
            Unscheduled injuries to the body as a whole are evaluated by 
 
            the industrial method as to permanent partial disability.  
 
            Under the industrial method, functional disability is 
 
            considered as it relates to reduction of earning capacity.  
 
            Olson v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 
 
            N.W.2d 251, 257 (1963).
 
            
 
                 Claimant was off work from March 1, 1989 through March 
 
            31, 1989.  Claimant is entitled to temporary total 
 
            disability benefits for that period.  Claimant's functional 
 
            disability on account of his work injury as testified to by 
 
            claimant relates only to claimant's ability to produce sperm 
 
            via his right testicle.  Neither claimant nor his physicians 
 
            believe other disability exists.  Claimant apparently does 
 
            have appropriate sperm production through the left testicle.  
 
            Claimant's inability to produce sperm via the right testicle 
 
            does not apparently impact on his earning capacity.  
 
            Claimant did leave work subsequent to his injury. He left on 
 
            account of his dispute with his employer regarding the 
 
            employer's failure to pay workers' compensation.  It does 
 
            not appear that the employer would not have continued to 
 
            employ claimant, however.  Hence, that fact also does not 
 
            establish any permanent industrial loss to claimant on 
 
            account of his work injury per se.  See McSpadden v. Big Ben 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
            
 
            Coal Co., 288 N.W.2d 181 (Iowa 1980).
 
            
 
                 Pursuant to section 85.27, the employer is liable for 
 
            reasonable and necessary medical care related to compensable 
 
            injury.  Claimant has established a compensable injury.  His 
 
            medical costs as outlined in the above findings of fact are 
 
            medical costs for which defendant is liable.  As noted, the 
 
            cost of the medical record obtained from Dr. Vaught is not 
 
            properly a section 85.27 medical cost, but is a cost of this 
 
            action.
 
            
 
                 We consider claimant's rate of weekly compensation.  
 
            Claimant had a gross weekly wage of $475.00 based on the 
 
            available evidence.  Claimant was single and entitled to one 
 
            exemption.  Claimant was a full-time employee paid on a 
 
            weekly pay period basis.  Hence, his gross weekly earnings 
 
            are the basis of computation of his rate of compensation.  
 
            See section 85.36(1).  Under the July 1, 1988 benefit 
 
            schedule, a single individual earning $475.00 per week and 
 
            entitled to one exemption has a compensation rate of 
 
            $276.36.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Defendant pay claimant temporary total disability 
 
            benefits from March 1, 1989 through March 31, 1989 at a rate 
 
            of two hundred seventy-six and 36/100 dollars ($276.36).
 
            
 
                 Defendant pay accrued amounts in a lump sum and pay 
 
            interest pursuant to Iowa Code section 85.30 as amended.
 
            
 
                 Defendant pay claimant's medical expenses as follows:
 
            
 
                 Anesthesia Consultants               $  378.00
 
                 Plaza Urological                        627.50
 
                 St. Lukes Medical Center              3,975.79
 
                 St. Lukes Medical Center                 91.79
 
                 Harold L. Ganzhorn                       21.00
 
                 Total                                $5,094.08
 
            
 
                 Defendant pay claimant medical mileage in the amount of 
 
            two hundred fifty-eight (258) miles at the appropriate rate 
 
            of twenty-one cents ($.21) per mile.
 
            
 
                 Defendant pay the costs of the proceeding pursuant to 
 
            Division of Industrial Services Rule 343-4.33, including 
 
            costs relating to medical information obtained from Dr. 
 
            Vaught in the amount of twenty and 00/100 dollars ($20.00).
 
            
 
                 Defendant file a first report of injury immediately and 
 
            file claim activity reports as the agency requests pursuant 
 
            to Division of Industrial Services Rule 343-3.1.
 
            
 
                 Signed and filed this ______ day of ____________, 1990.
 
            
 
                 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          HELENJEAN WALLESER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Thomas R. Mohrhauser
 
            Attorney at Law
 
            425 Main Street
 
            Mapleton, Iowa  51034
 
            
 
            Mr. Richard L. McCoy
 
            Attorney at Law
 
            300 Badgerow Building
 
            P.O. Box 328
 
            Sioux City, Iowa  51102
 
            
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               5-1100, 1803
 
                                               Filed July 31, 1990
 
                                               HELENJEAN WALLESER
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            KEVIN RUDE,                   :
 
                                          :
 
                 Claimant,                :         File No. 921086
 
                                          :
 
            vs.                           :      A R B I T R A T I O N
 
                                          :
 
            ROBERT SULSBERGER,            :         D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Defendant.               :
 
            ____________________________________________________________
 
            
 
            5-1100
 
            Claimant proved injury arising out of and in the course of 
 
            employment where defendant's evidence and activity was cut 
 
            off for failure to file an answer.
 
            
 
            1803
 
            Claimant's loss of sperm production in right testicle not 
 
            sufficient basis for an award of permanent partial 
 
            disability where loss had not impacted on earning capacity.
 
            Claimant's leaving work voluntarily after dispute with 
 
            employer over failure to pay workers' compensation benefits 
 
            also insufficient basis for industrial disability award.