BEFORE THE IOWA INDUSTRIAL COMMISSIONER 
 
         ____________________________________________________________
 
                                       :
 
         RETA MONDIA,                  :
 
                                       :         File No. 925105
 
              Claimant,                :
 
                                       :      A R B I T R A T I O N
 
         vs.                           :
 
                                       :         D E C I S I O N
 
         ROCKWELL INTERNATIONAL,       :
 
                                       :
 
              Employer,                :
 
              Self-Insured,            :
 
              Defendant.               :
 
         ___________________________________________________________
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration upon the petition of 
 
         claimant, Rita Mondia, against her employer, Rockwell 
 
         International, self-insured employer, defendant.   Claimant filed 
 
         her petition before the Iowa Industrial Commissioner on April 25, 
 
         1991.  The case was heard on November 18, 1993 at the Mahaska 
 
         County courthouse in Oskaloosa, Iowa.  The record consists of the 
 
         testimony of claimant.  The record also consists of claimant's 
 
         exhibits 1-10 and defendant's exhibits A-F.
 
         
 
              There were duplicate copies of many of the exhibits.  The 
 
         parties are requested to eliminate duplication of exhibits as it 
 
         delays the deputy in the writing of the decision.  Compliance in 
 
         future proceedings is urged.
 
         
 
                                      ISSUES
 
         
 
              The issues to determine are:  1) whether there is a causal 
 
         relationship between the work injury and any temporary or 
 
         permanent disability; 2) whether claimant is entitled to any 
 
         permanent partial disability benefits; and 3) whether claimant 
 
         has timely filed her petition pursuant to section 85.26.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              The deputy, having heard the testimony and considered all 
 
         the evidence, finds:
 
         
 
              Claimant is now 50 years old.  She is divorced and the 
 
         mother of three children.
 
         
 
              Claimant commenced her employment with defendant in 1987.  
 
         She remained in defendant's employ through October 17, 1990.  
 
         Claimant testified she completed three years and one month of 
 
         employment.  Claimant was terminated from her employment with 
 
         defendant because of excessive absenteeism.  The record 
 
         establishes that prior to her termination, claimant was 
 
         progressively disciplined by the company for her absenteeism.  
 
         However, despite claimant's many counseling sessions with members 
 
         of defendant's company, claimant continued to miss work.
 

 
         
 
         Page   2
 
         
 
         
 
         
 
         
 
              The parties stipulated that on April 14, 1989, claimant 
 
         sustained a work-related injury.  At the time of the work injury 
 
         claimant was lifting parts.  The parts weighed approximately 47 
 
         pounds each.
 
         
 
              On April 17, 1989, claimant sought chiropractic treatment.  
 
         She consulted with Howard Hunt, D.C.  He performed various 
 
         chiropractic procedures.  
 
         
 
              Claimant next sought relief for her low back pain at the 
 
         Jefferson County Hospital.  She sought attention on April 24, 
 
         1989 (Defendant Exhibit A-3).  Don Renfrew, M.D., a radiologist, 
 
         interpreted various radiographic tests.  He opined:
 
         
 
                 There does appear to be some spondylolysis of L5 on 
 
              S1.
 
         
 
                 ....
 
         
 
                 At the L5-S1 level, there appears to be some 
 
              spondylolisthesis without spondylolysis.  The posterior 
 
              disc margin is straight and the thecal sac and epidural 
 
              fat normal in appearance.
 
         
 
                IMPRESSION;  THE FINDINGS ARE THOSE OF A LEFT LATERAL 
 
              AND CENTRAL HERNIATED NUCLEUS PULPOSUS AT L4-5.
 
         
 
         (Claimant's Ex. 8-4)
 
         
 
              Claimant then sought medical attention from Donald D. Berg, 
 
         M.D., on May 3, 1989.  Dr. Berg's clinic notes for that date 
 
         record the physician's findings as follows:
 
         
 
                 This pt. is a 45 y/o pt. referred by Dr. Sutton who 
 
              was injured at work on April 14th and was lifting heavy 
 
              parts about 47 lbs. and lifts these parts about 5 times 
 
              working at Rockwell.  She developed pain and has pain 
 
              radiating into her right leg.  She has some toe 
 
              extensor weakness on the right.  On PX there is 
 
              positive SLR and also to a lesser degree on the left.  
 
              She has limited ROM on her back and she hurts when she 
 
              sits for periods of time and notes right sciatic pain 
 
              increases.  X-rays of her lumbar spine show some 
 
              degenerative osteoarthritis in the L5, S1 facet joint 
 
              on the right.  She also has evidence of residual from 
 
              old gunshot wound on the RLQ of her abdomen.  Clinical 
 
              impression is right sciatica.  Recommendation is r/o 
 
              herniated disc.  I would recommend doing a CT scan of 
 
              her back which was scheduled to determine if she has 
 
              evidence of herniated disc causing this sciatic pain.  
 
              She is not to work until she has this test done.  Thank 
 
              you for referring this pt.
 
         
 
         (Cl. Ex. 8-5).
 
         
 
              Radiographic reports revealed the following relative to 
 
         claimant's condition:  "Left lateral and central hernia nucleus 
 
         pulposus, L4-5" (Cl. Ex. 9-3).
 

 
         
 
         Page   3
 
         
 
         
 
         
 
              On June 2, 1989, Dr. Berg performed a laminectomy with the 
 
         removal of a herniated disk at L4-5 with the approach having been 
 
         made by both the right and left sides (Cl. Ex. 9-4).
 
         
 
              Pursuant to a request from defendant's attorney, Dr. Berg 
 
         authored a report dated January 18, 1993.  In his report the 
 
         surgeon opined:
 
         
 
              [T]he patient was released by me on October 12, 1989 
 
              following laminectomy with removal of herniated disc at 
 
              L4-5.
 
         
 
                 She had recovered satisfactorily to the point she 
 
              was released.  She had good range of motion of her back 
 
              at that time and normal neurovascular exam.  She had 
 
              earlier been released by me to 20 lb. lifting limit 
 
              with no frequent twisting or bending of her back on 
 
              September 25, 1989.  She stated she desired to go back 
 
              to work with no restrictions and I advised her she 
 
              could do this.  I also advised her to protect herself 
 
              when doing lifting and to avoid extremely heavy lifting 
 
              and to do lifting in a correct manner with bending of 
 
              the knees and not bending her back.
 
         
 
                 At that time, her permanent physical impairment 
 
              rating would have been 6% whole body permanent physical 
 
              impairment secondary to having herniated disc removed 
 
              at L4-5 with resolvement of her sciatic pain.
 
         
 
                 I have not seen this patient since that time except 
 
              on one occasion, that being May 16, 1990.  She was 
 
              having some sciatic pain and I advised her at that time 
 
              she should stay off work and was placed on medication 
 
              Soma and Indocin.  I also advised at that time that if 
 
              she continued to have problems, she should strongly 
 
              consider getting into another job field.  She was told 
 
              to report back as needed following her May 16, 1990 
 
              visit.  She has not returned since that time.
 
         
 
         (Cl. Ex. 9-1)
 
         
 
              Dr. Berg opined that as of October 16, 1989, claimant was 
 
         able to return to work without restrictions.
 
         
 
              Besides her low back condition, claimant was also suffering 
 
         from some psychological and emotional problems which were 
 
         unrelated to her work injury.  She was hospitalized at the 
 
         Ottumwa Regional Health Center.  The providers indicated that 
 
         claimant had major depression, mixed substance abuse of alcohol 
 
         and prescription drugs, and that claimant had moderate to strong 
 
         codependency issues (Def. Exs. A-12, A-13).  Claimant's 
 
         psychological problems could have interfered with claimant's 
 
         recovery of her low back condition, however, her psychological 
 
         condition was not caused by her work injury on May 14, 1989.  
 
         Claimant participated in treatment but she was prematurely 
 
         discharged for refusing to address the possibility that she was 
 
         chemically dependent (Def. Ex. A-22).
 
         
 

 
         
 
         Page   4
 
         
 
         
 
         
 
         
 
         
 
              Claimant returned to work after her laminectomy.  The date 
 
         of her return was in October of 1989.  She worked without the 
 
         imposition of physical restrictions.   After her return to work, 
 
         claimant had numerous difficulties with the company's policy on 
 
         absenteeism.  Claimant missed many work days.  It is unknown to 
 
         this deputy why claimant missed so many hours of work.   She was 
 
         progressively disciplined for tardiness, and unexcused absences.  
 
         Finally, on October 17, 1990, claimant was terminated because she 
 
         had developed unacceptable attendance patterns.  
 
         
 
              Claimant filed for unemployment benefits but the 
 
         administrative law judge determined that:
 
         
 
                 The claimant was discharged from her employment 
 
              because of excessive unexcused absenteeism, which does 
 
              show a willful and a wanton disregard of the employer's 
 
              interests and is misconduct within the meaning of Iowa 
 
              Code Section 96.5-2-a and as above described.... 
 
              Accordingly, it is held the claimant was discharged 
 
              from her employment because of misconduct in connection 
 
              with the employment of the claimant, and the claimant 
 
              is not entitled to receive unemployment insurance 
 
              benefits.  The disqualifying decision of the Job 
 
              Service representative is correct and shall be 
 
              affirmed.
 
         
 
         (Def. Ex. B-ll)
 
         
 
              Claimant found employment with a Casey's Convenience Store. 
 
         She commenced her employment on June 3, 1991.  There she remained 
 
         employed until she was terminated for absenteeism.  The date of 
 
         her termination was November 5, 1992.  Claimant denied she had a 
 
         problem with absenteeism, however, the evidence overwhelmingly 
 
         establishes that she did have excessive absences during her 
 
         period of employment.
 
         
 
              At the time of the hearing, claimant was not employed 
 
         outside of the home.  She testified she was still looking for 
 
         work.
 
         
 
              For purposes of obtaining an independent medical 
 
         examination, claimant met with Marc E. Hines, M.D., a 
 
         neurologist.  The examination was made approximately four years 
 
         after claimant's work injury.  
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              The burden of proof is on the party asserting the 
 
         affirmative of an issue in an administrative proceeding; "on the 
 
         party who would suffer loss if the issue were not established."  
 
         Wonder Life Co. v. Liddy, 207 N.W.2d 27 (Iowa 1973); Norland v. 
 
         Ides, 412 N.W.2d 904 (Iowa 1987).
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury is a proximate cause of the 
 
         disability on which the claim is based.  A cause is proximate if 
 
         it is a substantial factor in bringing about the result; it need 
 
         not be the only cause.  A preponderance of the evidence exists 
 
         when the causal connection is probable rather than merely 
 

 
         
 
         Page   5
 
         
 
         
 
         
 
         
 
         
 
         possible.  Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 
 
         1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 (Iowa 
 
         1974).
 
         
 
              The question of causal connection is essentially within the 
 
         domain of expert testimony.  The expert medical evidence must be 
 
         considered with all other evidence introduced bearing on the 
 
         causal connection between the injury and the disability.  The 
 
         weight to be given to any expert opinion is determined by the 
 
         finder of fact and may be affected by the accuracy of the facts 
 
         relied upon by the expert as well as other surrounding 
 
         circumstances.  The expert opinion may be accepted or rejected, 
 
         in whole or in part.  Sondag v. Ferris Hardware, 220 N.W.2d 903 
 
         (Iowa 1974); Anderson v. Oscar Mayer & Co., 217 N.W.2d 531 (Iowa 
 
         1974); Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 
 
         (1965).
 
         
 
              A personal injury contemplated by the workers' compensation 
 
         law means an injury, the impairment of health or a disease 
 
         resulting from an injury which comes about, not through the 
 
         natural building up and tearing down of the human body, but 
 
         because of trauma.  The injury must be something which acts 
 
         extraneously to the natural processes of nature and thereby 
 
         impairs the health, interrupts or otherwise destroys or damages a 
 
         part or all of the body.  Although many injuries have a traumatic 
 
         onset, there is no requirement for a special incident or an 
 
         unusual occurrence.  Injuries which result from cumulative trauma 
 
         are compensable.  McKeever Custom Cabinets v. Smith, 379 N.W.2d 
 
         368 (Iowa 1985); Olson v. Goodyear Serv. Stores, 255 Iowa 1112, 
 
         125 N.W.2d 251 (1963); Ford v. Goode, 240 Iowa 1219, 38 N.W.2d 
 
         158 (1949); Almquist v. Shenandoah Nurseries, Inc., 218 Iowa 724, 
 
         254 N.W. 35 (1934).  An occupational disease covered by chapter 
 
         85A is specifically excluded from the definition of personal 
 
         injury.  Iowa Code SS85.61(5); Iowa Code SS85A.8.
 
         
 
              Claimant has established that her low back condition was the 
 
         result of her work injury on April 14, 1989.  Dr. Berg discusses 
 
         the issue of causation in his office note of May 3, 1989 (Cl. Ex. 
 
         9-2).  Claimant has met her burden of proof.
 
         
 
              The next issue for determination is the nature and extent of 
 
         claimant's permanent partial disability, if any.
 
         
 
              Functional impairment is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which the employee is 
 
         fitted.  Olson v. Goodyear Serv. Stores, 255 Iowa 1112, 125 
 
         N.W.2d 251 (1963); Barton v. Nevada Poultry, 253 Iowa 285, 110 
 
         N.W.2d 660 (1961).
 
         
 
              A finding of impairment to the body as a whole found by a 
 
         medical evaluator does not equate to industrial disability.  
 
         Impairment and disability are not synonymous.  The degree of 
 
         industrial disability can be much different than the degree of 
 
         impairment because industrial disability references to loss of 
 
         earning capacity and impairment references to anatomical or 
 
         functional abnormality or loss.  Although loss of function is to 
 

 
         
 
         Page   6
 
         
 
         
 
         
 
         
 
         
 
         be considered and disability can rarely be found without it, it 
 
         is not so that a degree of industrial disability is 
 
         proportionally related to a degree of impairment of bodily 
 
         function.
 
         
 
              Factors to be considered in determining industrial dis
 
         ability include the employee's medical condition prior to the 
 
         injury, immediately after the injury, and presently; the situs of 
 
         the injury, its severity and the length of the healing period; 
 
         the work experience of the employee prior to the injury and after 
 
         the injury and the potential for rehabilitation; the employee's 
 
         qualifications intellectually, emotionally and physically; 
 
         earnings prior and subsequent to the injury; age; education; 
 
         motivation; functional impairment as a result of the injury; and 
 
         inability because of the injury to engage in employment for which 
 
         the employee is fitted.  Loss of earnings caused by a job 
 
         transfer for reasons related to the injury is also relevant.  
 
         Likewise, an employer's refusal to give any sort of work to an 
 
         impaired employee may justify an award of disability.  McSpadden 
 
         v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980).  These are 
 
         matters which the finder of fact considers collectively in 
 
         arriving at the determination of the degree of industrial 
 
         disability.
 
         
 
              There are no weighting guidelines that indicate how each of 
 
         the factors are to be considered.  Neither does a rating of 
 
         functional impairment directly correlate to a degree of 
 
         industrial disability to the body as a whole.  In other words, 
 
         there are no formulae which can be applied and then added up to 
 
         determine the degree of industrial disability.  It therefore 
 
         becomes necessary for the deputy or commissioner to draw upon 
 
         prior experience as well as general and specialized knowledge to 
 
         make the finding with regard to degree of industrial disability.  
 
         See Christensen v. Hagen, Inc., Vol. 1 No. 3 State of Iowa 
 
         Industrial Commissioner Decisions 529 (App. March 26, 1985); 
 
         Peterson v. Truck Haven Cafe, Inc., Vol. 1 No. 3 State of Iowa 
 
         Industrial Commissioner Decisions 654 (App. February 28, 1985).
 
         
 
              Compensation for permanent partial disability shall begin at 
 
         the termination of the healing period.  Compensation shall be 
 
         paid in relation to 500 weeks as the disability bears to the body 
 
         as a whole.  Section 85.34.
 
         
 
              Dr. Berg, the company physician, has provided a functional 
 
         impairment rating in the amount of 6 percent.  Dr. Hines has 
 
         assessed a functional impairment rating of 15 percent but 5 
 
         percent is due to headaches, and even claimant testified she did 
 
         not know if the headaches were related to her low back injury.  
 
         Therefore, it is this deputy industrial commissioner's 
 
         determination that claimant's functional impairment from Dr. 
 
         Hines is in the amount of 10 percent.  Her functional impairment 
 
         which is due to this work injury is in the range of 6 percent - 
 
         10 percent.  
 
         
 
              Claimant had no permanent restrictions placed upon her.  She 
 
         was capable of returning to her former position with defendant.  
 
         Claimant returned to work at the same rate of pay.  This deputy 
 
         believes her date of return is October 15, 1989.   
 
         
 

 
         
 
         Page   7
 
         
 
         
 
         
 
         
 
         
 
              Claimant performed her same duties for the next year.  
 
         However, during this time frame claimant missed an inordinate 
 
         amount of work.  She was tardy on numerous occasions.  Claimant's 
 
         poor attendance and repeated tardiness resulted in progressive 
 
         discipline.  She was counseled; she received written reprimands; 
 
         and she was suspended without pay before she was ultimately 
 
         terminated.  Despite the efforts which were made to keep claimant 
 
         employed, claimant continued to miss work.  After reviewing the 
 
         record, it appears to the undersigned that claimant's excessive 
 
         absenteeism was not the result of her work injury.  Rather, it 
 
         appears her poor attendance was the result of her complicated 
 
         personal life coupled with her life style.  
 
         
 
              This deputy is convinced that had claimant not missed so 
 
         much work, she still would have been employed by defendant at the 
 
         same rate of pay or with even higher wages.  Claimant's 
 
         termination is the result of her own irresponsible actions.  Her 
 
         loss of earning capacity is primarily due to claimant's refusal 
 
         to come to work or to come to work at the designated time.  At 
 
         the time of her work injury, claimant was earning gross wages in 
 
         the sum of $360.22 per week.  After her termination, claimant 
 
         earned minimum wages at the convenience store.  Since her 
 
         termination at Casey's, claimant has not worked.  Claimant 
 
         testified she has applied for nearly 100 positions.  However, 
 
         claimant neglected to testify as to the places where she applied 
 
         for jobs.  Claimant's credibility is questioned with respect to 
 
         the efforts she has made to secure additional employment. 
 
         
 
              Therefore, in light of the foregoing, as well as in light of 
 
         the testimony, and in light of this deputy's observations of 
 
         claimant, it is the determination of the undersigned that 
 
         claimant has an 8 percent permanent partial disability.  She is 
 
         entitled to 40 weeks of permanent partial disability benefits at 
 
         the stipulated rate of $224.34 per week and commencing on October 
 
         16, 1989.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered that:
 
         
 
              Defendant shall pay unto claimant forty (40) weeks of 
 
         permanent partial disability benefits at the stipulated rate of 
 
         two hundred twenty-four and 34/l00 ($224.34) per week and 
 
         commencing on October 16, 1989.
 
         
 
              Defendant shall take credit for all permanent partial 
 
         disability benefits previously paid to claimant.
 
         
 
              Accrued benefits are to be paid in a lump sum together with 
 
         statutory interest at the rate of ten percent (10%) per year.
 
         
 
              Costs are taxed to defendant pursuant to rule 343 IAC 4.33.
 
         
 
              Defendant shall file a claim activity report as requested by 
 
         this division and pursuant to rule 343 IAC 3.1.
 
         
 
         
 
              Signed and filed this ____ day of July, 1994.
 
         
 

 
         
 
         Page   8
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                       ______________________________               
 
                                       MICHELLE A. McGOVERN
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Stephen D. Lombardi
 
         Attorney at Law
 
         10101 University Ave  STE 202 
 
         Des Moines IA  50325
 
         
 
         Mr. Scott E. McLeod
 
         Attorney at Law
 
         526 Second Ave SE
 
         PO Box 2457
 
         Cedar Rapids IA  52406-2457
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                  5-1803
 
                                                  Filed July 27, 1994
 
                                                  MICHELLE A. McGOVERN
 
            
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER 
 
            ____________________________________________________________
 
                      
 
            RETA MONDIA,   
 
                                                   File No. 925105
 
                 Claimant, 
 
                                                 A R B I T R A T I O N
 
            vs.       
 
                                                     D E C I S I O N
 
            ROCKWELL INTERNATIONAL,  
 
                      
 
                 Employer, 
 
                 Self-Insured,  
 
                 Defendant.     
 
            ___________________________________________________________
 
            
 
            
 
            5-1803
 
            Claimant was awarded an 8 percent permanent partial 
 
            disability.
 
            
 
 
            
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            STEPHNIE M. VAUGHN,           :
 
                                          :
 
                 Claimant,                :      File No. 925283
 
                                          :
 
            vs.                           :
 
                                          :  A R B I T R A T I O N
 
            IOWA POWER INC.,              :
 
                                          :      D E C I S I O N
 
                 Employer,                :    
 
                 Self-Insured,            :      
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Stephnie 
 
            M. Vaughn, claimant, against Iowa Power Inc., self-insured 
 
            employer, to recover benefits under the Iowa Workers' 
 
            Compensation Act as a result of an injury sustained on April 
 
            1, 1989.  This matter came on for hearing before the 
 
            undersigned deputy industrial commissioner on July 22, 1992, 
 
            in Des Moines, Iowa.  The record was considered fully 
 
            submitted at the close of the hearing.  The record in this 
 
            case consists of joint exhibits A through K.  The claimant 
 
            was present and testified.  Also present and testifying were 
 
            Harold Vaughn and Cindy Byrd.
 
            
 
                                      ISSUES
 
            
 
                 Pursuant to the prehearing report and order dated July 
 
            22, 1992, the parties have presented the following issues 
 
            for resolution:
 
            
 
                 1.  Whether claimant is entitled to temporary total 
 
            disability or healing period benefits beyond February 7, 
 
            1990;
 
            
 
                 2.  Whether claimant is entitled to permanent 
 
            disability benefits under the odd-lot doctrine or otherwise; 
 
            and
 
            
 
                 3.  Whether claimant is entitled to certain medical 
 
            expenses under Iowa Code section 85.27.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The undersigned has carefully considered all the 
 
            testimony given at the hearing, arguments made, evidence 
 
            contained in the exhibits herein, and makes the following 
 
            findings:
 
            
 
                 Claimant was born on February 15, 1966, and completed 
 
            the tenth grade of school.  She has a GED certificate.  
 
            Claimant has worked at various times as a file clerk, 
 
            typist, sales person, receptionist, and stenographer.  She 
 
            commenced working for employer in May 1987.  She was laid 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            off on October 13, 1989.  Claimant has not worked since that 
 
            time.
 
            
 
                 In May 1989 claimant presented to Cindy Byrd, workers' 
 
            compensation case manager for employer, with complaints of 
 
            bilateral wrist and forearm pain.  She was referred to 
 
            Michael Makowsky, M.D., for evaluation.  She presented to 
 
            Dr. Makowsky on May 22, 1989, with complaints of bilateral 
 
            wrist pain.  He diagnosed bilateral wrist tendinitis and 
 
            released her to light duty work with no keyboard entry for 
 
            one week.  He prescribed wrist braces and Naprosyn.  On May 
 
            30, 1989, he increased her keyboard activity to two hours 
 
            out of every four hours.  On June 2, 1989, she reported no 
 
            improvement in her condition and the restriction of no 
 
            keyboard entry duty was reimposed.  After steroid therapy, 
 
            she presented as improved on June 12, 1989, and was returned 
 
            to light duty with one hour on and one hour off keyboard 
 
            entry.  On June 20, 1989, her condition was described as 
 
            "much improved" and she was told to discontinue the Naprosyn 
 
            and braces and to begin exercises.  Claimant then went on a 
 
            two week vacation.  Afterwards, she returned to work and on 
 
            July 24, 1989, presented to Dr. Makowsky with increased 
 
            symptomatology.  Dr. Makowsky then referred her to Douglas 
 
            S. Parks, M.D., a plastic and reconstructive hand surgeon, 
 
            for further evaluation (exhibit A, pages 1-7).  
 
            
 
                 Dr. Parks saw claimant on August 18, 1989.  Prior to 
 
            evaluation, an EMG and nerve conduction studies were 
 
            performed on August 11, 1989, and were within normal limits.  
 
            On examination, Dr. Parks stated, in pertinent part, "...at 
 
            this time I can find no apparent etiology for this other 
 
            then a tendonitis difusely [sic].  She seems to have a very 
 
            low threshold for pain, just strumming her tendons brought 
 
            her to tears...." (ex. C, p. 1).  Dr. Parks diagnosed a mild 
 
            tendinitis and prescribed Motrin because claimant refused 
 
            steroid treatment.  
 
            
 
                 Claimant then saw Dr. Makowsky on August 21, 1989.  He 
 
            returned her to light duty with the following restrictions:
 
            
 
            1.  No lifting more than 10 pounds.
 
            2.  No repetitive movements of the elbows, wrists, 
 
            and hands.
 
            3.  Keyboard entry only 10% of the time, minimal 
 
            writing, and use of the typewriter.
 
            
 
            (exhibit A, page 16)
 
            
 
                 Claimant saw Dr. Makowsky for follow-up examination on 
 
            September 11, 1989.  She reported no improvement and, in 
 
            fact, a worsening of her symptoms.  This was a stormy visit 
 
            during which claimant voiced complaints about her treatment 
 
            and accused Dr. Makowsky of collusion with employer.  At 
 
            this time, Dr. Makowsky indicated that he no longer wished 
 
            to treat claimant (ex. A, pp. 18-19).
 
            
 
                 On September 22, 1989, Dr. Parks reported, "I find 
 
            nothing surgically as far as in her wrists that I can help 
 
            with."  He recommended a full evaluation at the Mayo Clinic 
 
            (ex. C, p. 4).
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
                 In the meantime, Steven D. Sohn, M.D., claimant's 
 
            family physician, reported on September 11, 1989, without 
 
            explanation, that in his opinion claimant has developed a 
 
            severe bilateral carpal tunnel syndrome as a result of 
 
            repetitive motion action and activities involved in her job 
 
            (ex. D).
 
            
 
                 On September 24, 1989, employer sent claimant to the 
 
            University of Iowa, Department of Orthopaedic Surgery, for 
 
            evaluation.  She was seen by A.E. Cram, M.D., hand surgeon.  
 
            He reported that "Objective findings are minimal in that it 
 
            is difficult to evaluate her degree of cooperation with 
 
            pinch and grip tests and her symptoms of pain are subjective 
 
            and not amenable to direct measure.  Nevertheless I do 
 
            believe that she did have pain on motion in forearm and 
 
            wrist and in biceps and triceps."  (ex. F, p. 2).  Dr. Cram 
 
            requested a second opinion from William Blair, M.D.
 
            
 
                 On examination by Dr. Blair on September 25, 1989, 
 
            claimant stated for the past week her initial wrist pain was 
 
            absent but she had pain her hand, elbow, arm, and shoulder, 
 
            extending into the shoulder blades, bilaterally.  Dr. Blair 
 
            indicated that "There is no pattern to these symptoms.  That 
 
            is, no specific activity, period of rest, or time of day 
 
            affects the time of pattern.  There is no specific location 
 
            that consistently is a difficulty for her...."  Without 
 
            being specific, Dr. Blair diagnosed a cumulative trauma 
 
            disorder but recommended no further medical treatment (ex. 
 
            F, pp. 3-4).
 
            
 
                 Claimant was then authorized by employer/insurance 
 
            carrier to participate in Iowa Methodist Pain Management 
 
            Center's program.  She was evaluated on October 11, 1989.  
 
            She presented with complaints of bilateral shoulder, elbow, 
 
            arm, hand, and finger pain.  She was seen by Timothy D. 
 
            Leonard, M.A., stress management and biofeedback therapist.  
 
            He felt that she was suffering from chronic pain syndrome 
 
            (ex. E, pp. 1-3).  Claimant was found to be an appropriate 
 
            candidate for biofeedback-assisted relaxation training over 
 
            a course of seven sessions.   She participated on and off 
 
            until December 14, 1989, when she completed the course of 
 
            treatment.  W.C. Koenig, Jr., M.D., medical director at the 
 
            pain management center reported on January 2, 1990, that as 
 
            of December 19, 1989, claimant manifested significant 
 
            improvement with reduction of pain in her neck and shoulder 
 
            by approximately 95 percent.  However, she complained of a 
 
            recurrence of total upper extremity dysesthesias and 
 
            paresthesias and wrist pain.  She was on no medication at 
 
            this time.  She was given a prescription for Clinoril and 
 
            ibuprofen.  She was advised to discontinue smoking and 
 
            continue with her exercises (ex. G).  
 
            
 
                 On January 4, 1990, Dr. Makowsky was asked to provide 
 
            an impairment rating.  After reviewing her medical records 
 
            from the University of Iowa Medical Center, progress notes 
 
            from the Pain Management Center and a report from Dr. 
 
            Koenig, Dr. Makowsky opined that "Based upon the American 
 
            Medical Association's, Guides to the Evaluation of Permanent 
 
            Impairment, Third Edition, Ms. Vaughn has sustained a 0 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            percent permanent impairment due to her tendinitis of April 
 
            1989." (ex. A, p. 21).
 
            
 
                 On April 24, 1991, claimant was sent by her attorney to 
 
            Mark B. Kirkland, D.O., for evaluation.  Claimant's 
 
            complaints were referable to bilateral hand pain, right 
 
            greater than left.  On examination, Dr. Kirkland reported in 
 
            pertinent part as follows:
 
            
 
                 ...She does have a positive Phalen test 
 
                 bilaterally.  This causes reproduction of the 
 
                 numbness and tingling in the same fingers as 
 
                 mentioned above.  She also has a positive Tinel 
 
                 sign bilaterally, greater on the right than the 
 
                 left.  She does have thenar atrophy on the right 
 
                 compared to the left....
 
            
 
            (exhibit H, page 2)
 
            
 
                 Dr. Kirkland recommended consultation with a 
 
            neurologist and EMG's.  He diagnosed bilateral carpal tunnel 
 
            syndrome based on her symptoms.  Apparently, these tests 
 
            were performed in August 1991, and within normal limits.  
 
            They were repeated on November 1, 1991, at the University of 
 
            Iowa Medical Center in conjunction with an evaluation by 
 
            Gloria Galloway, M.D., in the Neurology Clinic.  A general 
 
            physical examination was unremarkable and a neurological 
 
            examination revealed no atrophy in the hands or arms with 
 
            full strength throughout.  She did have decreased 
 
            temperature and pinprick sensation in the median 
 
            distribution of both hands, right greater than left.  
 
            Despite normal EMG/NCV's, Dr. Galloway indicated that 
 
            claimant suffered from mild bilateral carpal syndrome (ex. 
 
            F, pp. 3-11).
 
            
 
                 On May 12, 1992, claimant's attorney referred claimant 
 
            to Dr. Kirkland for a second independent medical evaluation.  
 
            Dr. Kirkland noted that claimant was seen on March 9, 1992, 
 
            in the neurology department and carpal tunnel syndrome was 
 
            not indicated.  An MRI examination was also performed and 
 
            showed a small bulge at C5-C6 without any cord or nerve root 
 
            compression (these records are not in evidence).  At this 
 
            time, Dr. Kirkland noted that claimant still had a positive 
 
            Phalen's test and a positive Tinnel's.  He felt that despite 
 
            negative EMG's, she still had bilateral carpal tunnel 
 
            syndrome.  He recommended surgical release (ex. H, pp. 4-5). 
 
            
 
                 On May 22, 1992, Dr. Kirkland reported to claimant's 
 
            attorney that he cannot give her a permanent impairment 
 
            rating until she has surgery (ex. H, p. 6).  
 
            
 
                                        
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 The first issue to be determined is whether claimant is 
 
            entitled to additional temporary total disability or healing 
 
            period benefits beyond February 7, 1990.  Claimant argues 
 
            that she needs to have bilateral carpal tunnel surgery to 
 
            relieve her symptoms.  She further argues that her healing 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            period should continue until she has surgery and a 
 
            permanency rating deferred until after surgery.  Defendant 
 
            vigorously disputes claimant's claim.  
 
            
 
                 A careful review of the medical evidence reveals that 
 
            on January 4, 1990, Dr. Makowsky opined that claimant had 
 
            sustained a 0 percent impairment rating (ex. A, p. 21).
 
            
 
                 On January 4, 1990, Dr. Makowsky stated that during the 
 
            four months of treatment, he observed a "significant problem 
 
            of symptom magnification."  It was his judgement that most 
 
            activities should not significantly increase her symptoms 
 
            nor should they result in any permanent impairment (ex. A, 
 
            p. 21).  From May 30, 1989 through September 11, 1989, Dr. 
 
            Makowsky was claimant's primary treating physician.  In 
 
            rendering his recent opinion, Dr. Makowsky reviewed copies 
 
            of medical reports from claimant's other examining 
 
            physicians.  For example, the August 22, 1989, letter from 
 
            Dr. Parks indicating that claimant "may have an early carpal 
 
            tunnel on the right even though the EMG is normal.  However, 
 
            it is not very significant at this time." (ex. C, p. 3).  
 
            Dr. Makowsky also had access to the September 25, 1989, 
 
            report from Dr. Blair of University Hospitals which states, 
 
            "I recommend no further treatment." (ex. F, p. 4).  Dr. 
 
            Makowsky was also provided a copy of the medical report from 
 
            Dr. W.C. Koenig, Jr., dated January 2, 1990, in which Dr. 
 
            Koenig concludes "As of 12/19/89, the patient had 
 
            significant improvement... She also is no longer taking any 
 
            medications whatsoever.  Physical examination is unchanged 
 
            in terms of muscle stretch reflexes, strength, and range of 
 
            motion from 11/10/89." (ex. G, p. 1).
 
            
 
                 The only medical evidence in this proceeding which even 
 
            suggests the possibility of bilateral carpal tunnel surgery 
 
            is the May 15, 1992, letter from Dr. Mark Kirkland to 
 
            claimant's attorney (ex. H, pp. 4-5).  However, this 
 
            recommendation for surgery is contrary to the opinion of all 
 
            other medical authorities who have examined claimant.  
 
            Particularly, this opinion of Dr. Kirkland is contrary to 
 
            all of the medical opinions expressed during the time that 
 
            the claimant was employed at Iowa Power and during the 
 
            extended attempts at medical treatment immediately following 
 
            her termination from employment.  Dr. Douglas S. Parks, a 
 
            board certified plastic surgeon examined claimant on August 
 
            18, 1989, and concluded "...at this time I can find no 
 
            apparent etiology for this other than tendonitis difusely 
 
            [sic]." (ex. C, p. 1).  In a September 22, 1899, letter to 
 
            Cindy Byrd, Dr. Parks stated, "Per our conversation 9/21/89 
 
            concerning Stephnie Vaughn at this time I find nothing 
 
            surgically as far as her wrists that I can help with."  (ex. 
 
            C, p. 4).
 
            
 
                 Upon examination at University Hospitals in Iowa City 
 
            on September 25, 1989, Dr. Cram concluded, "Objective 
 
            findings are minimal in that it is difficult to evaluate her 
 
            degree of cooperation with pinch and grip tests and her 
 
            symptoms of pain are subjective and not amenable to direct 
 
            measure."  (ex. F, p. 2).
 
            
 
                 Dr. Blair noted that there was no consistency in the 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            symptoms expressed by Stephnie Vaughn and her complaints 
 
            seemed to migrate from one location to another.  Dr. Blair 
 
            stated, "There is not pattern to these symptoms.  That is, 
 
            no specific activity, period of rest, or time of day affects 
 
            the pattern.  There is no specific location that 
 
            consistently is a difficulty for her."  (ex. F, p. 3).
 
            
 
                 In his impressions, Dr. Blair stated:
 
            
 
                 Stephnie is a pleasant young lady who is motivated 
 
                 to continue working and concerned about her 
 
                 financial contribution to her family.  However, 
 
                 the couple is steep in social economic issues, 
 
                 including employee versus employer confrontation, 
 
                 misinformation concerning Workman's [sic] 
 
                 Compensation, and ethical issues concerning her 
 
                 present and future employability.  They have not 
 
                 yet clearly focused on realistic options (given 
 
                 her diagnosis and prognosis) nor have they begun 
 
                 to plan a realistic strategy.
 
            
 
                 ...
 
            
 
                 Because this couple, and primarily Stephnie's 
 
                 husband, preferred to focus on the pain and 
 
                 compensation aspects of her CTD, I recommended 
 
                 that they consider seeking the services of an 
 
                 attorney both for purposes of education and 
 
                 assistance in securing what I anticipate will be a 
 
                 somewhat stormy settlement.
 
            
 
                 I recommended no further medical treatment.
 
            
 
            (exhibit F, pp. 3-4)
 
            
 
                 Dr. Kirkland's recent opinion that claimant should have 
 
            carpal tunnel surgery is even refuted by the experts to whom 
 
            Dr. Kirkland referred Stephnie Vaughn.  In a letter dated 
 
            September 23, 1992, Dr. Kirkland recommended "a consultation 
 
            with a neurologist and also EMG obtained by the neurologist 
 
            as well.  This can be done at the University of Iowa..." 
 
            (ex. H, p. 3).  In response to this request, Stephnie Vaughn 
 
            was seen by Drs. Schlagel and Galloway in the Department of 
 
            Neurology at University of Iowa Hospitals and Clinics.  
 
            Their joint report to Dr. Kirkland dated November 5, 1991, 
 
            includes references that, "She had an EMG in August, 1991, 
 
            which was negative... The general exam was unremarkable... 
 
            Motor testing showed normal tone and bulk.  There was no 
 
            atrophy noted in the hands or arms.  Strength was full 
 
            throughout, including all intrinsic hand muscles."
 
            
 
                 Even though Drs. Schlagel and Galloway thought claimant 
 
            might suffer from mild bilateral carpal tunnel syndrome, 
 
            they clearly stated that they "do not feel at this time that 
 
            surgical consultation is advisable." (ex. F, pp. 9-10).
 
            
 
                 Dr. Kirkland is the only physician who recommends 
 
            surgery.  It is certainly arguable that any recommendation 
 
            for surgery must be for a medical condition which has 
 
            occurred subsequent to claimant's employment at Iowa Power 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            since her last active work involvement was in October 1989.
 
            
 
                 Finally, Dr. Kirkland's opinion that "no permanent 
 
            impairment rating can be given at this time because Stephnie 
 
            has not had surgery." (ex. H, p. 6) is not entitled to 
 
            significant weight and consideration because it is contrary 
 
            to the objective medical evidence and opinion of claimant's 
 
            treating physician and other specialists.  
 
            
 
                 Claimant has not met her burden of proof that her 
 
            healing period should extend beyond February 7, 1990, or 
 
            that she has a permanent impairment to her upper 
 
            extremities.  Dr. Makowsky's 0 percent rating is entitled to 
 
            significant weight and consideration because it is 
 
            consistent with the total evidence in this case.  
 
            Accordingly, claimant has not shown by a preponderance of 
 
            the evidence that she has a permanent impairment which is 
 
            causally related to her April 1, 1989, injury.
 
            
 
                 The next issue to be determined is whether claimant is 
 
            entitled to be reimbursed by employer for an independent 
 
            medical examination conducted by Dr. Kirkland.  
 
            
 
                 Iowa Code section 85.39 provides, in part:
 
            
 
                    If an evaluation of permanent disability has 
 
                 been made by a physician retained by the employer 
 
                 and the employee believes this evaluation to be 
 
                 too low, the employee shall, upon application to 
 
                 the commissioner and upon delivery of a copy of 
 
                 the application to the employer and its insurance 
 
                 carrier, be reimbursed by the employer the 
 
                 reasonable fee for a subsequent examination by a 
 
                 physician of the employee's own choice, and 
 
                 reasonably necessary transportation expenses 
 
                 incurred for the examination.  The physician 
 
                 chosen by the employee has the right to confer 
 
                 with and obtain from the employer-retained 
 
                 physician sufficient history of the injury to make 
 
                 a proper examination.
 
            
 
                 It is determined that claimant is entitled to $400 for 
 
            the April 24, 1991, medical examination of Dr. Mark Kirkland 
 
            as an independent examination under Iowa Code section 85.39 
 
            and reasonable and necessary transportation expenses 
 
            incurred for the examination.  Claimant is not entitled to a 
 
            second independent medical examination by Dr. Kirkland or 
 
            any other physician.  
 
            
 
                 An application for an independent medical examination 
 
            under Iowa Code section 85.39 need not precede the 
 
            examination if the claimant is satisfied to wait until the 
 
            hearing to be reimbursed provided that this is designated as 
 
            a hearing issue on the hearing assignment order.  Pirozek v. 
 
            Swift Independent Packing and Second Injury Fund of Iowa, 
 
            file numbers 753643, 753642, 724893 (App. Dec. 1987).  Dr. 
 
            Makowsky gave claimant a 0 percent permanency rating on 
 
            January 4, 1990.  Dr. Kirkland's examination on April 24, 
 
            1991, was subsequent to this evaluation.  
 
            
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
                 It is not necessary for a claimant to obtain the prior 
 
            approval of defendant or file an application with the 
 
            industrial commissioner's office prior to seeing an 
 
            independent examiner.  It is not necessary for claimant to 
 
            apply for reimbursement for an independent medical 
 
            examination by a physician of her own choice prior to the 
 
            examination or prior to hearing.  Pirozek, file number 
 
            803955 (1986).  The only condition precedent is a medical 
 
            examination by an employer retained physician.  Pirozek, 
 
            file numbers 753643, 753642, 724893.  In that case, 
 
            Industrial Commissioner Robert C. Landess stated that the 
 
            condition precedent of an evaluation made by an 
 
            employer-retained physician was present.  The provision for 
 
            reimbursement then, comes into play when as here, 
 
            defendant's liability is established.  McSpadden v. Big Ben 
 
            Coal Co., 288 N.W.2d 181 (Iowa 1980).
 
            
 
                 Thus, where the employer is found liable for the injury 
 
            or admits liability, the only condition precedent to the 
 
            triggering of section 85.39 is a showing that a prior 
 
            evaluation by the employer's physician for the injury an 
 
            issue has been made and the employer's physician has reached 
 
            a conclusion regarding a permanent impairment.  Kilness v. 
 
            Ebasco Services, Inc., Thirty-fourth Biennial Report of the 
 
            Industrial Commissioner, 161-62 (1979); Chapman v. Max Boyd 
 
            Company, III Iowa Industrial Commissioner Report, 50, 53 
 
            (1983).  A rating of no impairment is a rating of impairment 
 
            for purposes of section 85.39.
 
            
 
                 Accordingly, defendant is liable for Dr. Kirkland's 
 
            April 1991 independent medical examination and for 
 
            reasonable, necessary transportation expenses incurred for 
 
            the examination.
 
            
 
                 This determination is dispositive of the entire case 
 
            and further analysis is unnecessary.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 That defendant pay all medical and mileage expenses 
 
            incurred for Dr. Kirkland's April 1991 independent medical 
 
            examination. Iowa Code section 85.39.
 
            
 
                 That defendant pay costs pursuant to rule 343 IAC 4.33.
 
            
 
                 That defendant file claim activity reports as required 
 
            by the agency.
 
            
 
                 Signed and filed this ____ day of August, 1992.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          JEAN M. INGRASSIA
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            
 
            Mr. Thomas S. Reavely
 
            Attorney at Law
 
            100 Court Ave, STE 203
 
            Des Moines, Iowa  50309
 
            
 
            Mr. Cecil L. Goettsch
 
            Attorney at Law
 
            801 Grand, STE 3700
 
            Des Moines, Iowa  50309-2727
 
            
 
 
            
 
            
 
            
 
            
 
            
 
                                               1802 2502
 
                                               Filed August 5, 1992
 
                                               Jean M. Ingrassia
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            STEPHNIE M. VAUGHN, 
 
                      
 
                 Claimant,                      File No. 925283
 
                      
 
            vs.       
 
                                             A R B I T R A T I O N
 
            IOWA POWER INC.,    
 
                                                D E C I S I O N
 
                 Employer, 
 
                 Self-Insured,        
 
                 Defendant.     
 
            ___________________________________________________________
 
            
 
            1802
 
            Claimant alleges an entitlement to additional temporary 
 
            total or healing period benefits.  Claimant has the burden 
 
            of proof.  There is no competent medical evidence to 
 
            establish an entitlement to such benefits beyond February 7, 
 
            1990, the date when she was last paid temporary total 
 
            disability benefits.  Dr. Makowsky, claimant's treating 
 
            physician, opined on January 4, 1990, that claimant 
 
            sustained a 0 percent permanent impairment.
 
            Claimant argues that she needs to have bilateral carpal 
 
            tunnel surgery to relieve her subjective symptoms.  Claimant 
 
            further argues that her healing period should continue until 
 
            she has the surgery she desires.  The only medical evidence 
 
            in this proceeding which even suggests the possibility of 
 
            bilateral carpal tunnel surgery is the May 15, 1992, letter 
 
            from Dr. Mark Kirkland to claimant's attorney.  However, 
 
            this recommendation is contrary to all other medical 
 
            authorities who have treated and/ examined claimant.  Dr. 
 
            Kirkland's opinion is not entitled to significant weight and 
 
            consideration since it is contrary to the medical evidence 
 
            and opinions of other specialists.
 
            
 
            2502
 
            It is not necessary for claimant to obtain prior approval of 
 
            defendant or that claimant file an application with the 
 
            industrial commissioner's office prior to seeing an 
 
            independent medical examiner.  Nor is it necessary for 
 
            claimant to apply for reimbursement for an independent 
 
            medical examination by a physician by claimant's own choice 
 
            prior to the examination or prior to hearing.  Pirozek v. 
 
            Swift Independent Packing and Second Injury Fund, file 
 
            numbers 753643, 753642, 724893 (App. Dec. 1987).  Where the 
 
            employer is found liable for the injury or admits liability, 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            the only condition precedent to the triggering of this 
 
            provision is a showing that a prior evaluation by the 
 
            employer's physician for the injury in issue has been made 
 
            and the employer's physician has reached a conclusion 
 
            regarding a permanent impairment.  Kilness v. Ebasco 
 
            Services, Inc., Thirty-fourth Biennial Report of the 
 
            Industrial Commissioner, 161-62 (1979); Chapman v. Max Boyd 
 
            Co., III Iowa Industrial Commissioner Report, 50, 53 (1983).  
 
            A rating of no impairment is a rating of impairment for 
 
            purposes of section 85.39.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            SANDRA RUFFINO,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No.  925335
 
            GLENWOOD STATE HOSP SCHOOL,   :
 
                                          :  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.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Sandra 
 
            Ruffino as a result of injuries to her low back which 
 
            occurred on June 24, 1989.  Defendants accepted 
 
            compensability and stipulated to causal connection for the 
 
            injury, paid weekly benefits and medical expenses.
 
            
 
                 The case was heard and fully submitted at Des Moines, 
 
            Iowa, on January 18, 1991.  The record in the proceeding 
 
            consists of joint exhibits 1 through 80 and testimony from 
 
            claimant, Robert Ruffino, Charolette Rollins, Neva Paulsen 
 
            and Fenton Lincoln.
 
            
 
                 The parties stipulated that claimant sustained an 
 
            injury arising out of and in the course of employment on 
 
            June 24, 1989.  The parties also stipulated that the injury 
 
            was a cause of permanent partial disability and healing 
 
            period.
 
            
 
                                      issues
 
            
 
                 The issues for determination are as follows:
 
            
 
                 1.  The extent of entitlement to weekly compensation 
 
            for healing period benefits;
 
            
 
                 2.  The extent of entitlement to weekly compensation 
 
            for permanent partial disability, and odd-lot doctrine; and
 
            
 
                 3.  The commencement date for permanent partial 
 
            disability.
 
            
 
                                        
 
            
 
                                 findings of fact
 
            
 
                 Having considered all the evidence received the 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            following findings of fact are made:
 
            
 
                 Claimant, age 48 at time of injury, started working for 
 
            the employer on September 16, 1973.  She had a physical 
 
            examination prior to starting employment which failed to 
 
            reveal any low back problems.  She worked for employer as a 
 
            residential treatment worker-certified medical aide.  
 
            Claimant, a high school graduate, did receive some 
 
            additional training so as to qualify her as a certified 
 
            medical aide.  Claimant was required as part of her duties 
 
            with employer to perform physical tasks and to assist with 
 
            behavior problems exhibited by residents.  Behavior problems 
 
            were described as emotional outbursts exhibited by residents 
 
            which often result in physical violence.
 
            
 
                 Claimant worked with higher functional residents at the 
 
            school.  She bathed, administered medications, fed and 
 
            performed other general care duties for residents.  Her work 
 
            required bending, stooping, twisting and occasional physical 
 
            restraint of residents.
 
            
 
                 On June 24, 1989, claimant was earning $22,000 per year 
 
            working full time for employer.  Claimant enjoyed a full 
 
            fringe benefits package paid for by employer.
 
            
 
                 Claimant on June 24, 1989, injured her low back while 
 
            working for employer when she was assaulted by a resident.  
 
            Claimant had sustained an earlier injury to her back for 
 
            which she was still receiving therapy as of June 24, 1989.
 
            
 
                 Claimant went to Robert K. Fryzek, M.D., for initial 
 
            treatment.  She was later referred to a neurosurgeon, 
 
            Behrouz Rassekh, M.D., for treatment and surgery.
 
            
 
                 Dr. Rassekh diagnosed claimant's low back problem as an 
 
            L4-L5 herniated disc on the right, exhibit 35.  Claimant was 
 
            taken off work by Dr. Rassekh on July 14, 1989.  However, 
 
            claimant delayed her medical treatment due to her husband's 
 
            open heart surgery.  On July 27, 1989, a lumbar myelogram 
 
            was performed which revealed the herniated disc.
 
            
 
                 Claimant underwent surgery for the herniated disc on 
 
            August 8, 1989.  The surgery was performed by Dr. Rassekh.  
 
            He followed her care throughout her convalescence.
 
            
 
                 On October 18, 1989, Dr. Rassekh opined that claimant 
 
            had reached maximum medical improvement, ex. 75, pp. 16-18.  
 
            He also opined that claimant sustained 5 to 10 percent 
 
            permanent partial impairment and should abide by work 
 
            restrictions of lifting 20 to 50 pounds occasionally and 10 
 
            pounds frequently with no lifting over 50 pounds.  Dr. 
 
            Rassekh provided detailed work restrictions in his report 
 
            marked exhibit 75.  
 
            
 
                 Claimant did not immediately return to work for 
 
            employer.  It wasn't until March 1990 that claimant 
 
            attempted to return to work.  Claimant testified that she 
 
            was unable to perform the tasks required of her and she 
 
            again left work so as to return to her treating doctor.  On 
 
            March 7, 1990, she saw Dr. Rassekh who took her off work 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            again due to the low back injury.  Dr. Rassekh then released 
 
            claimant to go back to work beginning March 26, 1990, ex. 
 
            80, pp. 13-15.
 
            
 
                 Claimant again return to work for employer on March 26, 
 
            1990, to work as a night-watch aide.  Her job was to sit in 
 
            a chair so as to restrict a resident from drinking too much 
 
            water.  Claimant testified that she was required to sit in 
 
            the chair for eight hours straight.  Claimant stated that 
 
            she was not allowed to move from the chair with the 
 
            exception of several short breaks.  Claimant also stated 
 
            that she had a sleep disorder which was aggravated by her 
 
            working the night shift.  Claimant's work prior to the 
 
            injury was limited to the day shift.
 
            
 
                 Claimant worked the night shift job until April 23, 
 
            1990, when she voluntarily terminated her employment with 
 
            employer.  She testified that she could no longer perform 
 
            the duties of the night-watch job due to the stress, her 
 
            sleep disorder and the prolonged sitting required.
 
            
 
                 Claimant and her husband later sold their house in 
 
            Glenwood and moved to the Ozarks where they had started 
 
            building another home.
 
            
 
                 Claimant testified that she had decided to move to the 
 
            Ozarks on April 23, 1990.  However, on April 10, 1990, 
 
            claimant told her psychiatrist, John Fernandez, M.D., that 
 
            she had put her house up for sale and planned to move to the 
 
            Ozarks so as to start building a new home, ex. 6(a).
 
            
 
                 Robert Ruffino testified that he is claimant's husband.  
 
            He substantiated claimant's history of the events that 
 
            occurred with respect to this case.  He testified that 
 
            claimant had not planned to retire until she was past age 
 
            60.  He also stated that his retirement resulted in a loss 
 
            of health insurance.  He was relying on claimant's insurance 
 
            through the state of cover his heart problem.
 
            
 
                 Charlotte Rollins testified that she was employed as 
 
            night-watch worker for employer during March and April of 
 
            1990.  She worked with claimant during that period of time.  
 
            She stated that claimant's night watch job would allow a 
 
            10-minute break to be taken each hour.  She also testified 
 
            that claimant was allowed to get up, walk around, do 
 
            exercises, watch TV or read while on the job.  She stated 
 
            that she night-watch position did not require lifting, 
 
            bending, stooping or pushing.  She observed claimant move 
 
            furniture on several occasions during the period in 
 
            question.
 
            
 
                 Neva Paulsen testified that she supervised residential 
 
            treatment workers for employer.  She testified that she had 
 
            conversations with claimant about the Ozarks prior to April 
 
            23, 1990.  Claimant told Ms. Paulsen that when the Glenwood 
 
            house was sold that she and her husband would move to the 
 
            Ozarks.
 
            
 
                 Fenton Lincoln testified that he has a bachelor of 
 
            science degree in human resources from the University of 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            Iowa.  He is employed by employer as a personnel technician.  
 
            In that capacity he is responsible for coordinating injured 
 
            employees' return to work.  He stated that he is familiar 
 
            with claimant as he was the individual responsible for 
 
            offering claimant the night-watch job in March of 1990.  
 
            Lincoln stated that the night watch-job was offered because 
 
            it was the only position available which met claimant's work 
 
            restrictions.  He also stated that a secretarial position 
 
            was open, but authorization to hire had not yet been 
 
            received.
 
            
 
                 Lincoln testified that claimant terminated her 
 
            employment with employer after she had exhausted most of her 
 
            accrued sick leave and vacation.
 
            
 
                 The first issue to be resolved concerns claimant's 
 
            entitlement to healing period benefits.  Claimant was first 
 
            taken off work by Dr. Rassekh on July 15, 1989.  However, 
 
            she delayed treatment due to her husband's health problem 
 
            until July 27, 1989.  It is found that claimant's healing 
 
            period begins on July 27, 1989.  During the period between 
 
            July 14 and July 27, claimant was not under active care for 
 
            her work-related medical problem as she was attending to her 
 
            family problems.
 
            
 
                 The treating doctor found that claimant had achieved 
 
            maximum medical improvement on October 18, 1989.  He also 
 
            assigned permanent work restrictions on that date.  It is 
 
            found that as of October 18, 1989, significant improvement 
 
            in claimant's low back condition was no longer expected.  
 
            Therefore, claimant's healing period ended October 18, 1989.
 
            
 
                 However, claimant was again taken off work by Dr. 
 
            Rassekh due to a temporary aggravation of her condition.  
 
            Dr. Rassekh restricted claimant from work starting March 7, 
 
            1990 through March 25, 1990.  Claimant had actually left 
 
            work in early March 1990 due to back complaints.  Lost time 
 
            for this earlier period has not been proven as Dr. Rassekh 
 
            did not authorize claimant to take time off work.  Claimant 
 
            has established entitlement to a second healing period 
 
            beginning March 7, 1990 through March 25, 1990.
 
            
 
                 The next issue to be decided concerns claimant's 
 
            entitlement to permanent partial disability and odd-lot 
 
            doctrine benefits.
 
            
 
                 In order to invoke the odd-lot doctrine, claimant must 
 
            prove that the June 24, 1989 injury makes her incapable of 
 
            obtaining employment in any well known branch of the labor 
 
            market.  Claimant's vocational rehabilitation expert opined 
 
            that claimant is employable, ex. 13d.  The remaining 
 
            evidence presented fails to prove that claimant isn't 
 
            employable.
 
            
 
                 Claimant has failed to meet her burden in proving that 
 
            she is not capable of obtaining employment in any well known 
 
            branch of the labor market, thereby invoking the odd-lot 
 
            doctrine.
 
            
 
                 The parties stipulated that the injury of June 24, 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            1989, is to be evaluated industrially.  Factors to be 
 
            considered when assessing industrial disability include: 
 
            claimant's age, education, experience, work restrictions, 
 
            permanent partial impairment, motivation and employer's 
 
            offer of employment.
 
            
 
                 Claimant, age 48 at the time of injury, would be 
 
            expected to work another 15 to 17 years prior to retirement.  
 
            She has a high school education with some additional 
 
            training which qualifies her as a certified medical aide.  
 
            Her work experience consists primarily of work with employer 
 
            as a residential treatment worker.  
 
            
 
                 Claimant's work restrictions restrict her from going 
 
            back to her former position as a residential treatment 
 
            worker.
 
            
 
                 Employer offered claimant alternate work which 
 
            satisfied her work restrictions.  Claimant testified that 
 
            the work violated her work restrictions in that she was 
 
            required to sit for eight hours per day without appropriate 
 
            breaks.  It is found that claimant has failed to prove that 
 
            the night-watch position violated her work restrictions.  It 
 
            is found that employer offered claimant appropriate work in 
 
            good faith.
 
            
 
                 Dr. Rassekh opined that claimant sustained a permanent 
 
            partial impairment of 5 to 10 percent as a result of her 
 
            June 24, 1989 work injury.  No contrary opinion of 
 
            impairment was offered.  
 
            
 
                 One vocational rehabilitation report was offered.  
 
            James T. Rogers opined that claimant is now capable of 
 
            earning only $8,000 to $12,000 per year as compared to her 
 
            prior earning capacity of $22,000 per year.  
 
            
 
                 Factors which tend to weigh in favor of increasing 
 
            industrial disability include: claimant's age, work 
 
            restrictions which disqualify her from her old job and her 
 
            loss of earning capacity.
 
            
 
                 Factors which tend to weigh against a finding of 
 
            industrial disability include: employer's offer of work, 
 
            claimant's lack of motivation to return to work, the low 
 
            impairment rating and claimant's training as a certified 
 
            medical aide.  It is noted that had claimant accepted the 
 
            night watch position she would have suffered no actual loss 
 
            of earnings.
 
            
 
                 Defendant argued that claimant has no industrial 
 
            disability in that her June 24, 1989 injury was an 
 
            aggravation of a preexisting condition.  This argument fails 
 
            in that no evidence of preexisting industrial disability was 
 
            presented.  Prior to June 24, 1989, claimant was capable of 
 
            performing all of her duties as a residential treatment 
 
            worker.  Therefore, no preexisting industrial disability has 
 
            been proven.
 
            
 
                 Having considered all the evidence presented, it is 
 
            found that claimant sustained 25 percent industrial 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            disability as a result of the June 24, 1989 injury.
 
            
 
                 The commencement date for payment of permanent partial 
 
            disability is found to be October 29, 1989, as that date 
 
            coincides with the end of claimant's first healing period.  
 
            Benefits are to be paid intermittently before and after the 
 
            second healing period.
 
            
 
                                conclusions of law
 
            
 
                 Section 85.34(1), Code of Iowa, provides that healing 
 
            period benefits are payable to an injured worker who has 
 
            suffered permanent partial disability until (1) he has 
 
            returned to work; (2) is medically capable of returning to 
 
            substantially similar employment; or (3) has achieved 
 
            maximum medical recovery.  The industrial commissioner has 
 
            recognized that healing period benefits can be interrupted 
 
            or intermittent.  Willis v. Lehigh Portland Cement Company, 
 
            Vol. 2-1, State of Iowa Industrial Commissioner Decisions, 
 
            485 (1984).
 
            
 
                 The end of the healing period occurs at the time when 
 
            the physicians indicate that no further improvement is 
 
            forthcoming.  It is not determined by hindsight looking back 
 
            to find the point at which recovery ceased.  Thomas v. 
 
            William Knudson & Son, Inc., 394 N.W.2d 124, 126 (Iowa App. 
 
            1984); Armstrong Tire & Rubber Co. v. Kubli, 312 N.W.2d 60 
 
            (Iowa App. 1981).
 
            
 
                 Claimant has proven entitlement to intermittent healing 
 
            period benefits beginning June 27, 1989 through October 18, 
 
            1989 and beginning March 7, 1990 through March 25, 1990.
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, expe
 
            rience and inability to engage in employment for which he is 
 
            fitted.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 
            125 N.W.2d 251 (1963).  Barton v. Nevada Poultry, 253 Iowa 
 
            285, 110 N.W.2d 660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial disabil
 
            ity.  This is so as impairment and disability are not syn
 
            onymous.  Degree of industrial disability can in fact be 
 
            much different than the degree of impairment because in the 
 
            first instance reference is to loss of earning capacity and 
 
            in the latter to anatomical or functional abnormality or 
 
            loss.  Although loss of function is to be considered and 
 
            disability can rarely be found without it, it is not so that 
 
            a degree of industrial disability is proportionally related 
 
            to a degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  These are matters which the 
 
            finder of fact considers collectively in arriving at the 
 
            determination of the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  There are no 
 
            guidelines which give, for example, age a weighted value of 
 
            ten percent of the total value, education a value of fifteen 
 
            percent of total, motivation - five percent; work experience 
 
            - thirty percent, etc.  Neither does a rating of functional 
 
            impairment directly correlate to a degree of industrial 
 
            disability to the body as a whole.  In other words, there 
 
            are no formulae which can be applied and then added up to 
 
            determine the degree of industrial disability.  It therefore 
 
            becomes necessary for the deputy or commissioner to draw 
 
            upon prior experience, general and specialized knowledge to 
 
            make the finding with regard to degree of industrial dis
 
            ability.   See Peterson v. Truck Haven Cafe, Inc., (Appeal 
 
            Decision, February 28, 1985); Christensen v. Hagen, Inc., 
 
            (Appeal Decision, March 26, l985).
 
            
 
                 Under the odd-lot doctrine, which was formally adopted 
 
            by the Iowa Supreme Court in Guyton, supra, a worker becomes 
 
            an odd-lot employee when an injury makes the worker 
 
            incapable of obtaining employment in any well-known branch 
 
            of the labor market.  An odd-lot worker is thus totally 
 
            disabled if the only services the worker can perform are so 
 
            limited in quality, dependability, or quantity that a 
 
            reasonably stable market for them does not exist.  Id., 
 
            citing Lee v. Minneapolis Street Railway Company, 230 Minn. 
 
            315, 320, 41 N.W.2d 433, 436 (1950).  The rule of odd-lot 
 
            allocates the burden of production of evidence.  If the 
 
            evidence of degree of obvious physical impairment, coupled 
 
            with other facts such as claimant's mental capacity, 
 
            education, training or age, places claimant prima facie in 
 
            the odd-lot category, the burden should be on the employer 
 
            to show that some kind of suitable work is regularly and 
 
            continuously available to the claimant.  Certainly in such 
 
            cases it should not be enough to show that claimant is 
 
            physically capable of performing light work and then round 
 
            out the case for noncompensable by adding a presumption that 
 
            light work is available.  Guyton, 373 N.W.2d at 105.
 
            
 
                 When a worker makes a prima facie case of total 
 
            disability by producing substantial evidence that the worker 
 
            is not employable in the competitive labor market, the 
 
            burden to produce evidence of suitable employment shifts to 
 
            the employer.  If the employer fails to produce such 
 
            evidence and the trier of fact finds the worker falls in the 
 
            odd-lot category, the worker is entitled to a finding of 
 
            total disability.  Even under the odd-lot doctrine, the 
 
            trier of fact is free to determine the weight and 
 
            credibility of the evidence in determining whether the 
 
            worker's burden of persuasion has been carried.  Only in an 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            exceptional case would evidence be sufficiently strong to 
 
            compel a finding of total disability as a matter of law.  
 
            Guyton, 373 N.W.2d at 106.  The court went on to state:
 
            
 
                    The commissioner did not in his analysis 
 
                 address any of the other factors to be considered 
 
                 in determining industrial disability.  Industrial 
 
                 disability means reduced earning capacity.  Bodily 
 
                 impairment is merely one factor in a gauging 
 
                 industrial disability.  Other factors include the 
 
                 worker's age, intelligence, education, 
 
                 qualifications, experience, and the effect of the 
 
                 injury on the worker's ability to obtain suitable 
 
                 work.  See Doerfer Division of CCA v. Nicol, 359 
 
                 N.W.2d 428, 438 (Iowa 1984).  When the combination 
 
                 of factors precludes the worker from obtaining 
 
                 regular employment to earn a living, the worker 
 
                 with only a partial functional disability has a 
 
                 total disability.  See McSpadden v. Big Ben Coal 
 
                 Co, 288 N.W.2d 181, 192 (Iowa 1980).
 
            
 
                 Iowa Code section 85.34(2) provides that compensation 
 
            for permanent partial disability shall begin at the 
 
            termination of the healing period.  Iowa Code section 
 
            85.34(2)(u) provides that compensation for a nonscheduled or 
 
            body as a whole injury shall be paid in relation to 500 
 
            weeks and the disability bears to the body as a whole.
 
            
 
                 Claimant has failed to meet her burden of proof in 
 
            order to invoke the odd-lot doctrine.
 
            
 
                 Upon considering all of the material factors, it is 
 
            found that the evidence in this case supports an award of 25 
 
            percent permanent partial disability which entitles the 
 
            claimant to recover 125 weeks of benefits under Iowa Code 
 
            section 85.34(2)"u" commencing October 19, 1989.
 
            
 
                 All costs incurred in the hearing before the deputy 
 
            commissioner shall be taxed in the discretion of the deputy 
 
            commissioner unless otherwise required by the rule of civil 
 
            procedure governing discovery.  Iowa Code section 86.40.  
 
            Rule 343 IAC 4.33.
 
            
 
                 Witnesses called to testify only to an expert opinion 
 
            shall receive compensation to be fixed by the deputy 
 
            commissioner not to exceed $150 per day while so employed.  
 
            Iowa Code section 622.72.
 
            
 
                 Claimant offered a statement of costs totally $668.  
 
            Item seven indicated a cost of $345 for a vocational 
 
            rehabilitation evaluation.  This is in the form of an 
 
            expert's report which is a reimbursable cost to the extent 
 
            of $150 pursuant to Iowa Code section 622.72.
 
            
 
                 Items 1, 2, 4 and 6 indicate costs for obtaining 
 
            medical reports.  Rule 343 IAC 4.33(6) limits the taxation 
 
            to the reasonable costs of obtaining no more than two 
 
            doctors' reports.  The more expensive costs shall be 
 
            allowed.  Claimant is allowed a total of $60 in costs for 
 
            obtaining two medical reports.
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            
 
                 Costs, in the amount of $418, are assessed against 
 
            defendant, as well as, costs for the attendance of a court 
 
            reporter at the January 18, 1991 hearing.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 That defendant pay claimant fourteen and five-sevenths 
 
            (14 5/7) weeks of healing period benefits at the rate of two 
 
            hundred fifty-nine and 29/100 dollars ($259.29) for the 
 
            period July 27, 1989 through October 18, 1989 and March 8, 
 
            1990 through March 25, 1990.
 
            
 
                 That defendant pay claimant one hundred twenty-five 
 
            (125) weeks of permanent partial disability at the rate of 
 
            two hundred fifty-nine and 29/100 dollars ($259.29) 
 
            commencing March 26, 1990.  Said benefits are to be paid 
 
            intermittently before and after the second healing period.
 
            
 
                 That defendant pay claimant four hundred eighteen 
 
            dollars ($418) in costs of this proceeding.  Defendant is to 
 
            pay for the attendance of the court reporter on January 18, 
 
            1990.
 
            
 
                 It is further ordered that defendants shall receive 
 
            credit for benefits previously paid.
 
            
 
                 It is further ordered that all accrued benefits are to 
 
            be paid in a lump sum.
 
            
 
                 It is further ordered that interest will accrue 
 
            pursuant to Iowa Code section 85.30. 
 
            
 
                 It is further ordered that defendants file claim 
 
            activity reports as requested by this agency pursuant to 
 
            rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of February, 1991.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          MARLON D. MORMANN
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Sheldon Gallner
 
            Attorney at Law
 
            PO Box 1588
 
            Council Bluffs, Iowa  51502
 
            
 
            Ms. Joanne Moeller
 
            Assistant Attorney General
 
            Hoover State Office Bldg.
 
            Des Moines, Iowa  50319
 
            
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
                      51802 51803
 
                      Filed February 8, 1991
 
                      Marlon D. Mormann
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            SANDRA RUFFINO,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No.  925335
 
            GLENWOOD STATE HOSP SCHOOL,   :
 
                                          :  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.              :
 
            ___________________________________________________________
 
            
 
            51802 51803
 
            Claimant, age 48, injured her low back which resulted in 
 
            surgery and a 5 to 10 percent impairment and work 
 
            restrictions.  Employer accommodated claimant, but she was 
 
            not motivate to return to work.  Claimant entitled to 
 
            healing period benefits and 25 percent permanent partial 
 
            disability.
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         ____________________________________________________________
 
                   
 
         GERALD PATES,  
 
                   
 
              Claimant, 
 
                  
 
         vs.       
 
                                              File No. 925342
 
         CASEY'S GENERAL STORE,   
 
                                                A P P E A L
 
              Employer, 
 
                                              D E C I S I O N
 
         and       
 
                   
 
         EMPLOYER'S MUTUAL INSURANCE   
 
         CO.,     
 
                   
 
              Insurance Carrier,  
 
              Defendants.    
 
         ___________________________________________________________
 
         The record, including the transcript of the hearing before the 
 
         deputy and all exhibits admitted into the record, has been 
 
         reviewed de novo on appeal.  The decision of the deputy filed 
 
         November 5, 1993 is affirmed and is adopted as the final agency 
 
         action in this case. 
 
         
 
         Claimant shall pay the costs of the appeal, including the 
 
         preparation of the hearing transcript.
 
         
 
         Signed and filed this ____ day of May, 1994.
 
         
 
         
 
         
 
         
 
                                   ________________________________
 
                                           BYRON K. ORTON
 
                                       INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr John R Walker Jr
 
         Attorney at Law
 
         620 Lafayette St
 
         P.O. Box 178
 
         Waterloo  IA  50704
 
         
 
         Mr Philip H Dorff
 
         Attorney at Law
 
         Terrace Center  STE 111
 
         2700 Grand Ave
 
         Des Moines  IA  50312
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                              5-1803
 
                                              Filed May 31, 1994
 
                                              BYRON K. ORTON
 
            
 
                        BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            GERALD PATES,  
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                                File No. 925342
 
            CASEY'S GENERAL STORE,   
 
                                                  A P P E A L
 
                 Employer, 
 
                                               D E C I S I O N
 
            and       
 
                      
 
            EMPLOYER'S MUTUAL INSURANCE   
 
            CO.,      
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            
 
            5-1803
 
            Claimant, a 36-year-old high school graduate sustained a low 
 
            back injury while working for Casey's General Stores.
 
            Diagnosed as a herniated disc, claimant has continually 
 
            declined surgery.  He was assigned work restrictions of no 
 
            lifting of more than 25 pounds, no ladder climbing and no 
 
            driving in excess of 30 miles
 
            
 
            Claimant awarded 35% industrial disability based on 
 
            motivation, his mental status and work restrictions.
 
            
 
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            GERALD A. PATES,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 925342
 
            CASEY'S GENERAL STORES,       :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            EMPLOYERS MUTUAL COMPANIES,   :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by 
 
            claimant, Gerald Pates, against his former employer, Casey's 
 
            General Stores, and its insurance carrier, Employers Mutual 
 
            Companies.  
 
            
 
                 The record in this case consists of testimony from the 
 
            claimant, Dorthea Pates (claimant's wife), Ronald Weiss, Hal 
 
            Brown, and Virginia Peterson; joint exhibits A-HH; JJ-OO; 
 
            and, claimant's exhibits 1, 2, 3, 4, 9 and 10.  Joint 
 
            exhibit II was excluded from the evidence because it was 
 
            produced and served beyond claimant's discovery/case 
 
            preparation deadlines.  An offer of proof was made by 
 
            claimant.  A hearing was held before the undersigned deputy 
 
            industrial commissioner on August 16, 1993 in Waterloo, 
 
            Iowa.  
 
            
 
                                      ISSUES
 
            
 
                 The parties presented the following issues for 
 
            resolution:
 
            
 
                 1.  Whether claimant has sustained a permanent 
 
            disability as a result of a work-related injury he sustained 
 
            on July 7, 1989; 
 
            
 
                 2.  Whether claimant is entitled to temporary total or 
 
            healing period benefits; 
 
            
 
                 3.  Whether claimant is entitled to permanent partial 
 
            disability benefits; 
 
            
 
                 4.  Whether claimant is entitled to medical benefits, 
 
            pursuant to Iowa Code section 85.27; and,  
 
            
 
                 5.  Whether claimant is entitled to penalty benefits as 
 
            governed by Iowa Code section 86.13(4).
 

 
            
 
            Page   2
 
            
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The undersigned deputy, having reviewed all of the 
 
            evidence received, finds the following facts:
 
            
 
                 Claimant, Gerald Pates, provided little testimony at 
 
            the hearing.  He was unable to remember his date of birth, 
 
            where he attended high school, and whether he was taking any 
 
            medications during the hearing.  Claimant could not remember 
 
            when he was injured on the job, or whether he missed any 
 
            work due to the injury.  
 
            
 
                 The undersigned requested that claimant remove his 
 
            baseball cap and sunglasses while he was sworn in, but he 
 
            continued to wear each during his short time on the witness 
 
            stand.  Claimant was difficult to understand, was unable to 
 
            supply any information regarding his case, and was 
 
            malodorous.
 
            
 
                 Claimant's wife, Dorthea Pates, supplied most of the 
 
            information.  Her testimony, along with the documentary 
 
            evidence, provides the following findings of fact:
 
            
 
                 At the time of the hearing, claimant was 36 years of 
 
            age. 
 
            
 
                 Claimant graduated from Don Bosco High School in 
 
            Gilbertville, Iowa.  He received B's, C's and D's.  His work 
 
            history includes positions with Firestone and Starr 
 
            Refrigeration, construction work, and work as a service 
 
            person with the defendant, Casey's General Stores.  He 
 
            performed a variety of duties in servicing, maintaining and 
 
            repairing all equipment at various Casey's General Stores. 
 
            (Jt. Ex. K).  It appears that claimant was a good employee. 
 
            (Jt. Ex. J).
 
            
 
                 In July of 1989, claimant injured his back while 
 
            lifting an air conditioner compressor.  It was estimated 
 
            that this piece of equipment weighed 75 to 100 pounds.  The 
 
            incident was reported to claimant's supervisor. (Jt. Exs. D, 
 
            E and F).
 
            
 
                 Claimant has received medical treatment from a variety 
 
            of physicians.  Immediately following the injury, claimant 
 
            sought treatment from D.A. Widen, D.C.  His records, found 
 
            at joint exhibit W, are illegible.  A typewritten letter to 
 
            the adjusting company, dated August 29, 1989, states that 
 
            claimant was initially seen in the office on September 21, 
 
            1988 with complaints of extreme lower back pain which 
 
            radiated into the left leg.  These symptoms were attributed 
 
            to a lifting accident at work which occurred on August 25, 
 
            1988.  Claimant underwent a CT scan, and James Mueller, 
 
            M.D., diagnosed a bulging/herniated disc at the L4-5 level.    
 
            Dr. Widen stated that "[Claimant] was improving very well 
 
            until second injury occurred."  Apparently (although the 
 
            copy provided to the undersigned is poorly photocopied) 
 
            claimant's last visit to Dr. Widen was in December of 1989.  
 
            It is noted that claimant had continuously seen Dr. Widen 
 
            from the initial injury (September 21, 1988) until the 
 

 
            
 
            Page   3
 
            
 
            second injury (July 7, 1989), which is the subject of this 
 
            litigation. (Jt. Ex. W).  
 
            
 
                 In May of 1990, Dr. Mueller examined claimant, and 
 
            ordered an MRI which revealed a lesion at the "4-5 
 
            interspace."  
 
            
 
                 The notes reflect that claimant had a large central 
 
            herniation with some impingement on the left side at the 
 
            L4-5 level.  Dr. Mueller recommended surgery, but claimant 
 
            declined, and wanted to continue with exercises and 
 
            medications.  Dr. Mueller recommended a second opinion.  
 
            (Jt. Ex. X).
 
            
 
                 On July 31, 1990, claimant underwent an evaluation 
 
            performed by John Milner-Brage, M.D.  An EMG study was 
 
            conducted on the lower spine, gluteus medius, gluteus 
 
            maximus, iliopsoas, adductor longus, bastus medialis, 
 
            tibialis anterior, medial gastroc, extensor digitorum 
 
            longus, abductor hallucis, and tibialis posterior.  All of 
 
            the muscles were normal.  Dr. Milner-Brage diagnosed 
 
            myofascial pain, which was to be treated with increased 
 
            activities and regular exercise.  He did not expect any 
 
            long-term disability.  There is no mention of personality 
 
            defects, troubled behavior or a closed head injury.  (Jt. 
 
            Ex. Z).
 
            
 
                 Claimant was sent to Arnold Delbridge, M.D., in June 
 
            and November of 1990 and April of 1991.  After a course of 
 
            physical therapy and several examinations, Dr. Delbridge 
 
            determined that claimant had a herniated disc at the L4-5 
 
            level which was "questionably" impinging on the nerves.  He 
 
            noted loss of motion of the lumbar spine.  Using the Guides 
 
            to Evaluation of Permanent Impairment, third edition, Dr. 
 
            Delbridge determined that claimant had sustained a 10 
 
            percent impairment of the body as a whole, based on the 
 
            herniation and loss of motion.  Dr. Delbridge also 
 
            determined that claimant had work restrictions of no lifting 
 
            of more than 25 pounds, no ladder climbing, and no driving 
 
            of more than 30 miles.  There is no mention of personality 
 
            defects or disorders, troubled behavior or a closed head 
 
            injury. (Jt. Ex. AA).
 
            
 
                 In July of 1991, claimant underwent a vocational 
 
            rehabilitation evaluation.  He was wearing a baseball cap, 
 
            and dark glasses, and appeared to be in very severe pain.  
 
            He declined surgical intervention, and was not interested in 
 
            counseling, but simply stated that he "wanted his old job 
 
            back" even though he did not believe he could perform the 
 
            duties associated with the job.  At the time, he was working 
 
            at Bishop's, and did not want any job modifications.  
 
            Additional evaluations were performed in August and 
 
            September of 1991.  Claimant was not interested in 
 
            vocational placement assistance.  (Jt. Ex. Q).
 
            
 
                 In January of 1992, claimant underwent testing with the 
 
            State of Iowa Vocational Rehabilitation department.  The 
 
            results of various tests showed claimant was of average 
 
            intelligence, and skilled in several areas, including 
 
            mechanical work.  There is no mention of mental problems or 
 

 
            
 
            Page   4
 
            
 
            
 
            behavior difficulties. (Jt. Ex. R).
 
            
 
                 In May of 1992, claimant underwent an evaluation by 
 
            Susan Woo, M.D., a family practitioner in Cedar Falls, Iowa.  
 
            The evaluation was directed to the Disability Determination 
 
            Services to support his claim for social security benefits.  
 
            Her impression was that of a personality change, stiff back 
 
            and associated loss of range of movements, which she 
 
            attributed to musculoligamentous and soft tissue injury.  He 
 
            was to check with his family physician regarding the 
 
            depression.  (Jt. Ex. CC).
 
            
 
                 Claimant underwent several psychological evaluations.  
 
            The first evaluation was performed by Ralph Scott, Ph.D., on 
 
            June 26, 1992.   He diagnosed an "Organic Mental Disorder 
 
            (with delusions, rule out with depressions)."  (Jt. Ex. BB)  
 
            He recommended that claimant would benefit from involvement 
 
            in a protected work situation.  Dr. Scott's report goes on 
 
            to supply the following information:
 
            
 
                 In a work setting, the quality of Gerald's 
 
                 performance would be highly erratic.  He can 
 
                 remember and understand instructions, procedures, 
 
                 and locations at about the second percentile.  He 
 
                 can carry out instructions, maintain attention, 
 
                 concentration, and pace at about the second 
 
                 percentile.  Gerald can interact appropriately 
 
                 with supervisors, coworkers, and the public no 
 
                 higher than the first percentile.  His ability to 
 
                 exercise judgement and respond to changes in the 
 
                 workplace does not exceed the second percentile.  
 
                 Gerald is incapable of handling benefits in his 
 
                 own behalf.
 
            
 
            (Jt. Ex. BB).  
 
            
 
                 Dr. Scott's resume is included in the evidence, and 
 
            consists of 26 pages. (Jt. Ex. DD).
 
            
 
                 In September 1992, claimant was evaluated by John 
 
            Bayless, Ph.D., a licensed psychologist.  After an 
 
            examination and brief testing, he diagnosed a severe organic 
 
            mental disorder,  orbitofrontal dysfunction, suggested 
 
            byanosmia, and a probable underlying epileptiform disorder.  
 
            He suggested anticonvulsant medications.  In July of 1993, 
 
            Dr. Bayless stated that claimant was not "manufacturing" his 
 
            symptoms, and believed claimant needed psychiatric 
 
            evaluation and treatment.  He referred claimant to the 
 
            University of Iowa.  (Jt. Ex. EE).
 
            
 
                 In February and May of 1993, claimant was sent by Drs. 
 
            Miller and Schultz of the Psychiatry Outpatient Department 
 
            at the University of Iowa to Robert D. Jones, Ph.D., for 
 
            neurobehavior evaluations.  Based on an examination and 
 
            testing, Dr. Jones believed claimant was malingering, 
 
            although entertained that claimant's behavior might be 
 
            compatible with a psychiatric disorder.  However, the final 
 
            analysis was that claimant's "neuropsychological defects and 
 
            reported course are clearly not consistent with a post 
 
            traumatic head injury syndrome."  Dr. Jones goes on to state  
 

 
            
 
            Page   5
 
            
 
            
 
            although it is possible claimant has an underlying or 
 
            cognitive impairment, he was unable to discern the presence, 
 
            nature, or severity of such impairments given claimant's 
 
            presentation at the evaluation. (Jt. Ex. FF).  The May 1993 
 
            evaluation reiterated that although claimant has a severe 
 
            behavioral disturbance, the presentation was not compatible 
 
            with a post traumatic head injury.  Dr. Jones believed the 
 
            behavior was "best explained by a combination of 
 
            motivational and psychiatric factors."  Apparently, at the 
 
            latter evaluation, claimant expressed homicidal and suicidal 
 
            ideations.  (Jt. Ex. FF).
 
            
 
                 In May of 1993, claimant was hospitalized for 
 
            psychiatric observation.  (Jt. Ex. GG)  In a letter dated 
 
            June 29, 1993, the treating physicians surmised the 
 
            following information:
 
            
 
                 There are a number of factors involved.  He 
 
                 sustained a closed head injury in 1984.  After 
 
                 this, his wife noted some changes in his 
 
                 functioning.  For example, he was no longer able 
 
                 to balance their checkbook.  However, he was able 
 
                 to continue working.  In 1989, he suffered a back 
 
                 injury at work.  After reinjuring it, he was not 
 
                 allowed to return to work.  Since that time, there 
 
                 has been deterioration in his ability to function 
 
                 with partial temporary improvement in hospital.  
 
                 He is often non-communicative and is anhedonic.  
 
                 He has expressed homicidal ideation against his 
 
                 ex-employer, as well as suicidal ideation.  He 
 
                 expresses great frustration with not being able to 
 
                 return to work.  It has been extremely difficult 
 
                 to discern what the exact underlying psychiatric 
 
                 diagnosis is.  However, it is clear that Mr. Pares 
 
                 (sic) was gainfully employed until 1989 and, since 
 
                 losing his job, has deteriorated significantly.  
 
                 It would seem at this time, given his suicidal and 
 
                 homicidal ideation, that he should not return to 
 
                 work.  He remains under psychiatric care at this 
 
                 point.
 
            
 
            (Jt. Ex. HH).
 
            
 
                 Claimant was eventually released from the facility.  
 
            Defendant Casey's attempted to return claimant to work.  A 
 
            job was created for him, which involved visiting various 
 
            stores and hanging bulletin boards.  This position required 
 
            him to lift a bulletin board weighing approximately five 
 
            pounds and placing it on a nail in the wall.  On his first 
 
            day back, claimant placed one bulletin board in a store, was 
 
            riding with a co-worker to another store, and developed 
 
            severe back pain.  He was taken by ambulance to the 
 
            emergency room.  
 
            
 
                 Dr. Jones was deposed for the case on July 6, 1993.  He 
 
            explained the testing procedures, and reiterated that the 
 
            results indicated claimant was malingering in that the 
 
            results of an auditory test were lower than the results one 
 
            would expect from a deaf person who took the same auditory 
 
            test. (Jt. Ex. D, p. 12). Dr. Jones went on to state that 
 

 
            
 
            Page   6
 
            
 
            
 
            usually, the most severe impairments which result from a 
 
            closed head injury will appear immediately after the injury.  
 
            (Jt. Ex. D, p. 13-14).  Apparently, claimant's decline in 
 
            his mental status began in 1990, following the loss of 
 
            Social Security benefits.  Id.  Dr. Jones was unable to 
 
            state with any degree of certainty that claimant had a 
 
            neuropsychological sequela of a head injury. (Jt. Ex. D, p. 
 
            15) He stated that claimant's behavior was "grossly 
 
            consistent with drug abuse."  (Jt. Ex. D, p. 16).
 
            
 
                 Claimant has exhibited antisocial behavior in the past, 
 
            prior to the 1989 injury.  In 1988, he was charged and plead 
 
            guilty to assault with a dangerous weapon (a hand gun).  
 
            (Exs. M, N, O and P)  In his company van, drug paraphernalia 
 
            was found, such as a marijuana pipe.  Claimant denies these 
 
            items were his; the employer denies planting such items in 
 
            the van.  Claimant also accuses the employer of stalking him 
 
            and making repeated telephone calls to his house.  The 
 
            defendants also deny these activities. 
 
            
 
                 Apparently, claimant was unable to work, and did not 
 
            receive workers' compensation benefits until September of 
 
            1989.  Once payments started, they were stopped 
 
            intermittently.  (Claimant's exhibit 1).
 
            
 
                         ANALYSIS AND CONCLUSIONS OF LAW
 
            
 
                 The first issue to address is whether claimant 
 
            sustained a permanent disability due to his work-related 
 
            injury on July 7, 1989.
 
            
 
                 The party who would suffer loss if an issue were not 
 
            established has the burden of proving that issue by a 
 
            preponderance of the evidence.  Iowa R. App. P. 14(f).
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury is a proximate 
 
            cause of the disability on which the claim is based.  A 
 
            cause is proximate if it is a substantial factor in bringing 
 
            about the result; it need not be the only cause.  A 
 
            preponderance of the evidence exists when the causal 
 
            connection is probable rather than merely possible.  
 
            Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 
 
            1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 
 
            (Iowa 1974).
 
            
 
                 The question of causal connection is essentially within 
 
            the domain of expert testimony.  The expert medical evidence 
 
            must be considered with all other evidence introduced 
 
            bearing on the causal connection between the injury and the 
 
            disability.  The weight to be given to any expert opinion is 
 
            determined by the finder of fact and may be affected by the 
 
            accuracy of the facts relied upon by the expert as well as 
 
            other surrounding circumstances.  The expert opinion may be 
 
            accepted or rejected, in whole or in part.  Sondag v. Ferris 
 
            Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar 
 
            Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, 
 
            Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
 
            
 
                 The only physician who opined that claimant had 
 

 
            
 
            Page   7
 
            
 
            
 
            sustained a permanent back injury was Dr. Delbridge.  He 
 
            evaluated claimant in November of 1990 and April of 1991.  
 
            He was of the opinion that claimant had sustained a 10 
 
            percent impairment to the body as a whole, and assigned 
 
            somewhat severe work restrictions, including no lifting of 
 
            more than 25 pounds, no ladder climbing and no driving of 
 
            more than 30 miles.  
 
            
 
                 Dr. Milner-Brage assigned no permanency and no work 
 
            restrictions.  Dr. Woo determined that claimant was 
 
            suffering from myofascial pain.  
 
            
 
                 Claimant has advanced several theories addressing 
 
            causation of the mental or psychiatric problems.  On one 
 
            hand, he is attempting to argue that due to the injury, and 
 
            particularly due to the way he was treated by the employer 
 
            and insurance company, his mental status has plummeted, and 
 
            he is unable to work.  Claimant started out with Casey's as 
 
            a productive employee, although he has several troubling 
 
            incidents in past including a conviction of assault with a 
 
            deadly weapon.  While claimant has continually denied drug 
 
            use, the evidence may support a different finding.  Past 
 
            drug use has been documented.  
 
            
 
                 On the other hand, claimant advances that he received a 
 
            severe closed head injury in 1984 when he was hit in the 
 
            head with a tree branch and received a substantial number of 
 
            stitches.  Apparently, he is suggesting that he has an 
 
            organic brain deficiency which makes him act unstable.  Once 
 
            again, this argument is not substantiated by the evidence, 
 
            and, claimant was highly functional for more than five years 
 
            following the incident.  While claimant's wife testified 
 
            that after the incident he was unable to complete paperwork 
 
            for his job, this is not borne out by the evidence.  
 
            Claimant was required to read and follow instructions and 
 
            complete a certain amount of paperwork while he worked for 
 
            Casey's.  Even if this is the case, his mental status is but 
 
            one factor to address when evaluating any potential 
 
            industrial disability he may have due to the work injury.  
 
            
 
                 The undersigned believes that one point is clear; 
 
            claimant did not sustain a mental injury while on the job.  
 
            No physician has attributed his mental status to his work or 
 
            to his work injury.  The undersigned is not convinced that 
 
            the origins of claimant's mental problems (if any) are 
 
            grounded in the work injury.   
 
            
 
                 No physician has attributed his mental status to his 
 
            work, or to his work injury.  
 
            
 
                 After carefully and painstakingly reviewing all of the 
 
            evidence received, it is found that claimant has sustained a 
 
            permanent disability due to the injury he sustained on July 
 
            7, 1989 while working for Casey's.
 
            
 
                  As a result, he is entitled to healing period 
 
            benefits.  Iowa Code section 85.34(1) states, in relevant 
 
            part:
 
            
 
                    If an employee has suffered a personal injury 
 

 
            
 
            Page   8
 
            
 
            
 
                 causing permanent partial disability..., the 
 
                 employer shall pay to the employee compensation 
 
                 for a healing period,...beginning on the date of 
 
                 injury, and until the employee has returned to 
 
                 work or it is medically indicated that significant 
 
                 improvement from the injury is not anticipated or 
 
                 until the employee is medically capable of 
 
                 returning to employment substantially similar to 
 
                 the employment in which the employee was engaged 
 
                 at the time of injury, whichever occurs first.  
 
            
 
                   The parties were unable to agree upon a time period 
 
            for the benefits to run.  Claimant apparently wants a 
 
            running award.  This is rejected.  Claimant returned to 
 
            work, albeit only for one day, and was released to return to 
 
            work on numerous occasions.  No physician who treated 
 
            claimant for his back injury has stated that claimant cannot 
 
            work.  While it is true that one psychologist has stated 
 
            that claimant should not be working, and and all diagnoses 
 
            of claimant's mental condition are so tenuous that the 
 
            undersigned is unable to find that he has shown by a 
 
            preponderance of the evidence that he has an identifiable 
 
            mental deficiency.
 
            
 
                 The undersigned finds that claimant should be awarded 
 
            healing period benefits from July 7, 1989 through July 31, 
 
            1990,  the date of Dr. Milner-Brage's evaluation.  
 
            
 
                 The next issue to address is whether claimant has 
 
            sustained an industrial disability. 
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, expe
 
            rience and inability to engage in employment for which he is 
 
            fitted.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 
            125 N.W.2d 251 (1963).  Barton v. Nevada Poultry, 253 Iowa 
 
            285, 110 N.W.2d 660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial disabil
 
            ity.  This is so as impairment and disability are not syn
 
            onymous.  Degree of industrial disability can in fact be 
 
            much different than the degree of impairment because in the 
 
            first instance reference is to loss of earning capacity and 
 
            in the latter to anatomical or functional abnormality or 
 
            loss.  Although loss of function is to be considered and 
 
            disability can rarely be found without it, it is not so that 
 
            a degree of industrial disability is proportionally related 
 
            to a degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 

 
            
 
            Page   9
 
            
 
            
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  These are matters which the 
 
            finder of fact considers collectively in arriving at the 
 
            determination of the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  There are no 
 
            guidelines which give, for example, age a weighted value of 
 
            ten percent of the total value, education a value of fifteen 
 
            percent of total, motivation - five percent; work experience 
 
            - thirty percent, etc.  Neither does a rating of functional 
 
            impairment directly correlate to a degree of industrial 
 
            disability to the body as a whole.  In other words, there 
 
            are no formulae which can be applied and then added up to 
 
            determine the degree of industrial disability.  It therefore 
 
            becomes necessary for the deputy or commissioner to draw 
 
            upon prior experience, general and specialized knowledge to 
 
            make the finding with regard to degree of industrial dis
 
            ability.  See Peterson v. Truck Haven Cafe, Inc., (Appeal 
 
            Decision, February 28, 1985); Christensen v. Hagen, Inc., 
 
            (Appeal Decision, March 26, l985).
 
            
 
                 Claimant is 38 years old.  He is a high school 
 
            graduate, and is of average intelligence.  
 
            
 
                 Claimant's work history has been in the mechanical 
 
            field, as he was very adept at fixing all types of machines.  
 
            
 
                 Claimant's background indicates that he has some work 
 
            experience in jobs requiring heavy lifting.  
 
            
 
                 Claimant's work injury has caused some physical 
 
            disability.  This, coupled with claimant's total aversion to 
 
            surgical intervention, presents a difficult case to analyze.  
 
            Several physicians have recommended back surgery, but no 
 
            percentages of success are found in the record.  The 
 
            undersigned has reviewed many cases where injured workers 
 
            have sustained back injuries, and have subsequently 
 
            undergone surgery.  While this writer certainly does not 
 
            suggest that claimant undergo the recommended treatment, he 
 
            also cannot be rewarded for his inability to work due to his 
 
            perception of pain.  
 
            
 
                 What is perhaps most troubling about the case is the 
 
            sporadic treatment rendered to claimant, and the wide range 
 
            of responses from claimant when he has visited the many 
 
            physicians associated with his medical treatment.  The 
 
            undersigned is not sure which party is at fault for the 
 
            inconsistency of the treatment.  The record suggests that 
 
            the insurance company was somewhat casual in their handling 
 
            of the claim.  At one point, claimant was prepped for 
 
            surgery, which was cancelled suddenly by the insurance 
 
            company.  Likewise, claimant's motivation to get well and 
 
            return to work must be considered, as some observations from 
 
            claimant and the doctors indicate that his physical and 
 
            mental conditions have worsened when certain benefits are 
 
            exhausted.  Additionally, one physician suggested that 
 

 
            
 
            Page  10
 
            
 
            
 
            claimant was malingering, while others did not even note or 
 
            comment on his appearance or behavior.  One physician 
 
            diagnosed an organic brain injury, but others did not.        
 
            
 
                 Claimant's credibility has certainly been placed in 
 
            issue.  Several medical records indicated his behavior is 
 
            consistent with drug abuse, and statements from neighbors 
 
            indicate that he has been able to cut and stack wood.  
 
            Without much input from the claimant at hearing, the 
 
            undersigned is forced to rely upon notations in the record 
 
            to determine whether claimant was credible.
 
            
 
                 Claimant must take some responsibility for his own 
 
            fate; while he did receive an injury while working for his 
 
            former employer, he has not shown any motivation to get 
 
            better, either physically or mentally.  No one has deemed 
 
            claimant unemployable, except claimant and his wife.  There 
 
            is nothing in the record that suggests he cannot function in 
 
            a job, other than the behaviors displayed by claimant.  In 
 
            one's wildest dreams, it is impossible to believe that after 
 
            lifting a bulletin board that weighs less than five pounds, 
 
            claimant was in so much pain that he was taken by ambulance 
 
            to the hospital.  
 
            
 
                 By far, the most troubling aspect about claimant's case 
 
            is his mental state.  
 
            
 
                 He blames his problems on Casey's because "they took 
 
            everything away from me."  This apparently is a reference to 
 
            the financial difficulties claimant and his family 
 
            experienced when workers' compensation benefits were not 
 
            paid to him.  While the undersigned can certainly sympathize 
 
            with claimant's lament, any claim for bad faith on the part 
 
            of the insurance company or the employer is not properly 
 
            brought before this agency.  
 
            
 
                 Claimant was able to function for more than five years 
 
            after the tree branch incident.  It seems peculiar that his 
 
            behavior suddenly changed, instead of changing slowly, as 
 
            suggested by Dr. Jones.
 
            
 
                 The undersigned is absolutely convinced that claimant 
 
            sustained an injury at work which has not had an 
 
            insubstantial impact on his ability to work; however, the 
 
            origins of claimant's troubling behavior cannot be 
 
            conclusive.
 
            
 
                 Claimant's prior medical history, including notations 
 
            about the head injury claimant sustained when a tree branch 
 
            fell on him can be found at joint exhibits S, T, U and V.
 
            
 
                 After considering all of the factors, including 
 
            claimant's age and his work experience; the fact that he has 
 
            not displayed any motivation to return to work; his 
 
            questionable behavior and demeanor; the severity of the 
 
            permanent impairment; the work restrictions that will make 
 
            it more difficult for claimant to work in occupations he has 
 
            previously held; the willingness of the defendant employer 
 
            to return claimant to a job; and, claimant's transferable 
 
            skills, it is determined that he has sustained a 35 percent 
 

 
            
 
            Page  11
 
            
 
            
 
            industrial disability.   
 
            
 
                 The next issue to address is whether claimant is 
 
            entitled to penalty benefits, as provided for by Iowa Code 
 
            section 86.13.  This particular code section states, in 
 
            relevant part:
 
            
 
                    If a delay in commencement or termination of 
 
                 benefits occurs without reasonable or probable 
 
                 cause or excuse, the industrial commissioner shall 
 
                 award benefits in addition to those benefits 
 
                 payable under this chapter, or chapter 85, 85A, or 
 
                 85B, up to fifty percent of the amount of benefits 
 
                 that were unreasonably delayed or denied.
 
            
 
                 The agency has decided that the standard for 
 
            determining whether delay in commencement of payments or 
 
            unreasonable termination of the same is "whether the claim 
 
            is fairly debatable."  See, Seydel V. Univeristy of Iowa 
 
            Physical Plant, (App. Decsn., file no. 753405, filed 
 
            November 1, 1989).  
 
            
 
                 The record reflects that claimant had to wait 
 
            approximately seven weeks for the first benefit check to be 
 
            issued.  No explanation of the stopping and starting of 
 
            payments was produced at the hearing.  It does not appear 
 
            that defendants ever denied that claimant had been injured 
 
            on the job.  No checks were issued the week of December 25, 
 
            1989; January 1, 1990; January 15, 1990; May 6-31, 1990 and 
 
            June 1-17, 1990.   Payments ended October 19, 1992.   The 
 
            undersigned does not condone defendants' dilatory efforts.  
 
            There appears to be no "debate" that claimant was injured on 
 
            the job.  He is awarded five percent penalty benefits on 
 
            those weeks he did not receive a benefit check.  
 
            
 
                 The final issue to be addressed is whether claimant is 
 
            entitled to medical benefits as provided for under Iowa Code 
 
            section 85.27.  
 
            
 
                    The employer, for all injuries compensable 
 
                 under this chapter or chapter 85A, shall furnish 
 
                 reasonable surgical, medical, dental, osteopathic, 
 
                 chiropractic, podiatric, physical rehabilitation, 
 
                 nursing, ambulance and hospital services and 
 
                 supplies therefor and shall allow reasonably 
 
                 necessary transportation expense incurred for such 
 
                 services.
 
            
 
                 As it has been found that claimant did sustain an 
 
            injury which arose out of and in the course of his 
 
            employment, defendants are responsible for payment of any 
 
            and all treatment rendered to claimant to treat his back 
 
            injury.  
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendants shall pay claimant healing period 
 
            benefits from July 7, 1989 through July 31, 1990 at the rate 
 

 
            
 
            Page  12
 
            
 
            
 
            of two hundred thirty-nine and 39/100 dollars ($239.39) per 
 
            week;
 
            
 
                 That defendants shall pay claimant permanent partial 
 
            disability benefits for one hundred seventy-five (175) weeks 
 
            beginning August 1, 1990 at the rate of two hundred thirty-
 
            nine and 39/100 dollars ($239.39) per week; 
 
            
 
                 That defendants shall pay the costs of claimant's 
 
            medical treatment for his back injury, as provided by Iowa 
 
            Code section 85.27; 
 
            
 
                 That defendants shall receive credit for benefits 
 
            previously paid, and shall pay accrued weekly benefits in a 
 
            lump sum;
 
            
 
                 That defendants shall pay interest on the benefits 
 
            awarded herein as set forth in Iowa Code section 85.30;
 
            
 
                 That defendants shall pay the costs of this action, 
 
            pursuant to rule 343 IAC 4.33;
 
            
 
                 That defendant shall file a claim activity report upon 
 
            payment of this award as required by the agency under rule 
 
            343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of November, 1993.
 
            
 
            
 
            
 
                                          
 
                                          ________________________________
 
                                          PATRICIA J. LANTZ
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            Copies To:
 
            
 
            Mr John R Walker
 
            Attorney at Law
 
            620 Lafayette St
 
            P O Box 178
 
            Waterloo IA 50704
 
            
 
            Mr Philip H Dorff
 
            Attorney at Law
 
            Terrace Ctr  Ste 111
 
            2700 Grand Ave
 
            Des Moines IA 50312
 
            
 
            
 
 
            
 
 
 
 
 
 
 
                                                5-1803
 
                                                Filed November 5, 1993
 
                                                Patricia J. Lantz
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            GERALD A. PATES,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 925342
 
            CASEY'S GENERAL STORES,       :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            EMPLOYERS MUTUAL COMPANIES,   :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-1803
 
            Claimant, a 36-year-old high school graduate sustained a low 
 
            back injury while working for Casey's General Stores.
 
            Diagnosed as a herniated disc, claimant has continually 
 
            declined surgery.  He was assigned work restrictions of no 
 
            lifting of more than 25 pounds, no ladder climbing and no 
 
            driving in excess of 30 miles
 
            Claimant awarded 35% industrial disability based on 
 
            motivation, his mental status and work restrictions.