BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         ____________________________________________________________
 
                                       :
 
         TRUDY BASHARA,                :
 
                                       :
 
              Claimant,                :
 
                                       :
 
         vs.                           :
 
                                       :      File No. 927603
 
         REGIONAL HEALTH SERVICES,     :
 
                                       :    A R B I T R A T I O N
 
              Employer,                :
 
                                       :      D E C I S I O N
 
         and                           :
 
                                       :
 
         AETNA CASUALTY & SURETY       :
 
         COMPANY,                      :
 
                                       :
 
              Insurance Carrier,       :
 
              Defendants.              :
 
         ___________________________________________________________
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Claimant Trudy Bashara seeks benefits under the Iowa 
 
         Workers' Compensation Act on account of a back injury suffered 
 
         August 16, 1989, while employed by defendant Regional Health 
 
         Services ("RHS").  That employer was insured for workers' 
 
         compensation purposes by Aetna Casualty and Surety Company.  
 
         
 
              The cause came on for hearing in Des Moines, Iowa on August 
 
         18, 1992.  Testimony was received from claimant, Joanne Bell, 
 
         Charles Linden and Nancy Rhines.  Claimant's exhibits 1 & 2 and 
 
         joint exhibits A-M were received.  These exhibits include the 
 
         depositions of Dr. Peter Wirtz, Dr. Joe Fellows, Charles Linden 
 
         and Nancy Rhines.
 
         
 
                                      ISSUES
 
         
 
              The parties have stipulated that claimant sustained an 
 
         injury arising out of and in the course of employment on August 
 
         16, 1989, that the injury caused temporary disability of 
 
         stipulated extent, to the rate of compensation ($221.76 per 
 
         week), and that certain benefits were voluntarily paid prior to 
 
         hearing.
 
         
 
              Issues presented for resolution include:
 
         
 
              1.  Whether the work injury caused permanent disability;
 
         
 
              2.  The extent of permanent disability, if any;
 
         
 
              3.  Entitlement to medical benefits.
 
         
 
              The only disputed medical benefits are transportation and 
 
         lodging costs for five trips claimant made to the Mayo Clinic in 
 
         Rochester, Minnesota.  Defendants have stipulated that the fees 
 
         charged were fair and reasonable, incurred for reasonable and 
 
         necessary treatment, and causally connected to the work injury.  
 

 
         
 
         Page   2
 
         
 
         
 
         
 
         
 
         Authorization of those expenses by defendants was disputed, but 
 
         it was ruled that the authorization defense was invalid because 
 
         defendants denied liability on the claim.  Defendants moved to 
 
         reconsider that ruling on the basis that the costs accrued prior 
 
         to the date an answer denying liability was filed, and the motion 
 
         was taken under advisement.  As discussed below, that motion is 
 
         moot because actual authorization is found in this decision.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              The undersigned deputy industrial commissioner finds:
 
         
 
              Trudy Bashara, 47 years of age at hearing, is a bright, 
 
         articulate registered nurse who was employed as business manager 
 
         of a medical clinic when she was injured.  She graduated from 
 
         high school in Switzerland and took two years of college in 
 
         Belgium, earning a degree with major emphasis in languages and 
 
         accounting.  After moving to the United States, she took two 
 
         years of nursing school in Utah, and, although the record is 
 
         somewhat unclear, is apparently a registered nurse.  She also has 
 
         one year of training as a physician's assistant from the College 
 
         of Osteopathic Medicine in Des Moines and has taken computer and 
 
         law classes at the Des Moines Area Community College.
 
         
 
              In 1962-63 claimant worked as a translator for the United 
 
         Nations in Zurich, Switzerland.  She is fluent in (at least) 
 
         Swiss, German, French, Italian and English.  After moving to the 
 
         United States, claimant worked for approximately one year as a 
 
         bookkeeper and approximately eight years in a hospital, in the 
 
         admissions and accounting departments.  She left this work to 
 
         attend nursing school, then one year doing "everything" in a one 
 
         physician office, following which she took work in 1979 as an 
 
         office manager and nurse for a group of orthopedic specialists in 
 
         Des Moines.  She continued this work while taking physicians' 
 
         assistant courses at COMS.  Claimant discontinued that program 
 
         after finishing the academic portion because she would be 
 
         required to move away from Des Moines to complete the clinical 
 
         portion of the program.
 
         
 
              Afterwards, claimant was self-employed in a catering 
 
         business, but decided in 1989 to return to the medical field.  
 
         She took work with defendant Regional Health Services on June 15, 
 
         1989 as business manager.  RHS is a non-profit corporation 
 
         affiliated with several other corporations under the aegis of a 
 
         major Des Moines hospital.  In 1989, it operated several medical 
 
         clinics in smaller central Iowa communities (such as Winterset, 
 
         where claimant worked), operated a medical laundry service, a 
 
         home health care program, supplied respiratory equipment and 
 
         provided consultation services to various rural physicians and 
 
         clinics.
 
         
 
              Prior to accepting work with RHS, claimant suffered no 
 
         thoracic spine problems or other disabling conditions.  However, 
 
         she was injured on August 16, 1989, when a heavy shelving unit 
 
         fell on her during a remodeling project.  Claimant was at the 
 
         time standing on a step stool and was knocked backwards into a 
 
         counter, striking her back between the shoulder blades.
 
         
 
              Ms. Bashara developed pain first in the low back, then the 
 
         thoracic spine and neck.  She received prompt treatment from a 
 

 
         
 
         Page   3
 
         
 
         
 
         
 
         
 
         family practitioner at the clinic, Larry D. Foster, D.O., and the 
 
         following day by Joe Fellows, M.D.  Dr. Fellows is a board 
 
         certified orthopedic surgeon who testified by deposition on 
 
         August 13, 1992.
 
         
 
              After examination and x-rays, Dr. Fellows initially 
 
         diagnosed a soft tissue or muscle ligament injury to the upper 
 
         back.  Dr. Foster had found claimant exquisitely tender in the 
 
         upper thoracic region, approximately T2-3.  Dr. Fellows reported 
 
         discomfort at about T3 or T4 with mild lower back discomfort.  
 
         
 
              Dr. Fellows did not see claimant again for one year.  On 
 
         August 23, 1990, he reviewed his year-old films plus magnetic 
 
         resonance imaging studies done on November 1, 1989 and August 22, 
 
         1990.  He noted deformity of the vertebral bodies at T6 and T7 
 
         with Schmorl's nodules, which he described as scars on the 
 
         vertebral bodies evidencing inflammation that occurred while 
 
         claimant was growing up.  He did not find evidence of compression 
 
         fractures, but noted a slight amount of wedging at T6, evidence 
 
         of juvenile epiphysitis.  He agreed that a direct blow to such an 
 
         area can aggravate symptoms, causing muscle spasm and pain.  
 
         Based on an assumed history or persistent pain and clinical 
 
         evidence of muscle spasm or rigidity in the back, Dr. Fellows 
 
         believed claimant would have a ratable permanent impairment based 
 
         on the back injury and the preexisting deformity at T6 on the 
 
         order of two percent of the body as a whole.  Dr. Fellows denied 
 
         personal knowledge of whether or not claimant had a medically 
 
         documented history of such pain and spasm of greater than six 
 
         months duration.
 
         
 
              The record does not show that either Dr. Fellows or Dr. 
 
         Foster recommend permanent medical restrictions of any sort.
 
         
 
              Claimant's symptoms did not improve following her first 
 
         treatment at the hands of Dr. Fellows.  After the November 1, 
 
         1989 MRI study (ordered by her husband, who is coincidentally 
 
         also an orthopedic surgeon), claimant decided to seek treatment 
 
         at the Mayo Clinic.  She sought and received authorization in 
 
         advance from her supervisor, Nancy Rhines.  Ms. Rhines was at the 
 
         time defendant's director of clinic management.  Later, after 
 
         claimant had already begun treatment at Mayo, defendant Aetna 
 
         balked at paying transportation and motel expenses, although the 
 
         medical fees were paid.
 
         
 
              Claimant made "approximately" five visits to the Mayo 
 
         Clinic, and was seen on every occasion by Janell Shaw, M.D.  When 
 
         claimant was first seen at Mayo, Dr. Sherwin Goldman reported a 
 
         diagnosis of mild compression fractures at two levels and 
 
         superimposed interspinous ligament strain with tension myalgias.  
 
         However, Dr. Goldman wrote on July 31, 1991 after reviewing other 
 
         medical reports, a bone scan of August 22, 1989 and an MRI of 
 
         August 22, 1990, that his earlier diagnosis "appears to differ 
 
         from the information you have mailed me."  Thus, it appears that 
 
         he has changed his mind as to the existence of bi-level 
 
         compression fractures.  Dr. Shaw, on the other hand, did not 
 
         diagnose any fracture of a thoracic vertebral body.  While she 
 
         released claimant only to part time work, the record does not 
 
         show that Dr. Shaw (or any other physician at Mayo) recommended 
 
         permanent activity restrictions.  No impairment rating has been 
 
         suggested.
 

 
         
 
         Page   4
 
         
 
         
 
         
 
         
 
         
 
              On March 20, 1990, claimant suffered a neck injury of such 
 
         severity as to require a disc excision and cervical fusion on the 
 
         following day.  Claimant has stipulated that the neck injury was 
 
         not work related and seeks no relief with respect to that injury.  
 
         Accordingly, the parties did not submit evidence as to that 
 
         injury.
 
         
 
              Dr. Goldman had, in the meantime, recommended a course of 
 
         physical therapy.  As this was to be undertaken in Des Moines, 
 
         claimant sought and received a referral to a local physician 
 
         selected by defendants, this being Peter Wirtz, M.D.  Dr. Wirtz 
 
         is a board certified orthopedic surgeon who testified by 
 
         deposition on December 19, 1991.  Dr. Wirtz saw claimant on four 
 
         occasions between May 9, 1990 and October 24, 1990.
 
         
 
              This physician has changed his opinion several times.  He 
 
         initially diagnosed fractures at T6 and T7 resulting in a 12.5 
 
         percent impairment to the body as a whole and requiring activity 
 
         restrictions limiting lifting as well as bending forward and 
 
         pushing and pulling with the upper extremities.  He later 
 
         concluded that the thoracic injury produced no fractures, but was 
 
         a contusion and flexion injury without residual symptomatology.  
 
         He concluded in his deposition that any symptoms of the thoracic 
 
         spine were referred from the cervical spine and that any 
 
         restrictions on physical activities related only to the cervical 
 
         spine injury.  While he testified that the subject injury "did 
 
         cause subjective symptoms that were restrictive in her 
 
         functionability [sic] and use of her upper extremities and 
 
         spine", he summarized as follows:
 
         
 
                 Q.  I'm winding down here.
 
         
 
                 Your office notes of August 23, 1990, when you 
 
              examined Ms. Bashara, I believe you imposed a working 
 
              restriction of six hours a day, is that correct, 
 
              Doctor?
 
         
 
                 A.  Yes.
 
         
 
                 Q.  Was that restriction at that time due to neck 
 
              symptomatology or to thoracic spine problems?  
 
         
 
                 A.  It would be related to the neck symptomatology.
 
         
 
                 Q.  And that restriction was not at all related to 
 
              thoracic spine then?
 
         
 
                 A.  No.
 
         
 
                 Q.  And as far as you know, Dr. Wirtz, do all of Ms. 
 
              Bashara's current symptoms relate to her cervical disk 
 
              condition and not to thoracic spine?
 
         
 
                 A.  That would be my opinion that they do.
 
         
 
                 Q.  So there is neither objective nor subjective 
 
              evidence of a current thoracic spine injury, is that 
 
              true?
 
         
 

 
         
 
         Page   5
 
         
 
         
 
         
 
         
 
                 A.  Based on my records, that would be true.
 
         
 
         (Wirtz Deposition, pages 26-27).
 
         
 
              Ms. Bashara continued to work at the Winterset clinic for 
 
         some fourteen months following her injury, although at reduced 
 
         hours.  Unfortunately, RHS made a business decision to close the 
 
         clinic on October 31, 1990.  Claimant's status was not a factor 
 
         in this decision.  After the clinic was closed, claimant worked 
 
         in a Des Moines office for approximately two weeks (full time) 
 
         straightening out the records, posting accounts receivable and 
 
         the like.  Her hours were gradually reduced to the point that she 
 
         no longer found it advantageous to work.  Ms. Bashara also helped 
 
         teach a class for medical office receptionists, but discontinued 
 
         that part time activity because she needed to travel to 
 
         Switzerland for personal reasons.
 
         
 
              RHS has not offered claimant any other work.  She has not 
 
         expressed an interest in seeking any less responsible work with 
 
         RHS, and it appears probable that she would not be interested in 
 
         accepting a reduced job, consistent with her very limited and 
 
         selective search for work since the clinic closed (she has sought 
 
         only a handful of specific jobs at a Des Moines hospital and a 
 
         non-profit health insurance carrier).  She admitted that her job 
 
         interest is limited to the medical field.  Ms. Bashara testified 
 
         that her only current symptomatology involves discomfort and 
 
         stiffness between the shoulder blades after prolonged sitting.  
 
         This improves with rest.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              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).
 
         
 
              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 
 

 
         
 
         Page   6
 
         
 
         
 
         
 
         
 
         N.W.2d 251 (1963); Barton v. Nevada Poultry, 253 Iowa 285, 110 
 
         N.W.2d 660 (1961).
 
         
 
              A finding of impairment to the body as a whole found by a 
 
         medical evaluator does not equate to industrial disability.  
 
         Impairment and disability are not synonymous.  The degree of 
 
         industrial disability can be much different than the degree of 
 
         impairment because industrial disability references to loss of 
 
         earning capacity and impairment references to anatomical or 
 
         functional abnormality or loss.  Although loss of function is to 
 
         be considered and disability can rarely be found without it, it 
 
         is not so that a degree of industrial disability is 
 
         proportionally related to a degree of impairment of bodily 
 
         function.
 
         
 
              Factors to be considered in determining industrial dis
 
         ability include the employee's medical condition prior to the 
 
         injury, immediately after the injury, and presently; the situs of 
 
         the injury, its severity and the length of the healing period; 
 
         the work experience of the employee prior to the injury and after 
 
         the injury and the potential for rehabilitation; the employee's 
 
         qualifications intellectually, emotionally and physically; 
 
         earnings prior and subsequent to the injury; age; education; 
 
         motivation; functional impairment as a result of the injury; and 
 
         inability because of the injury to engage in employment for which 
 
         the employee is fitted.  Loss of earnings caused by a job 
 
         transfer for reasons related to the injury is also relevant.  
 
         Likewise, an employer's refusal to give any sort of work to an 
 
         impaired employee may justify an award of disability.  McSpadden 
 
         v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980).  These are 
 
         matters which the finder of fact considers collectively in 
 
         arriving at the determination of the degree of industrial 
 
         disability.
 
         
 
              There are no weighting guidelines that indicate how each of 
 
         the factors are to be considered.  Neither does a rating of 
 
         functional impairment directly correlate to a degree of 
 
         industrial disability to the body as a whole.  In other words, 
 
         there are no formulae which can be applied and then added up to 
 
         determine the degree of industrial disability.  It therefore 
 
         becomes necessary for the deputy or commissioner to draw upon 
 
         prior experience as well as general and specialized knowledge to 
 
         make the finding with regard to degree of industrial disability.  
 
         See Christensen v. Hagen, Inc., Vol. 1 No. 3 State of Iowa 
 
         Industrial Commissioner Decisions 529 (App. March 26, 1985); 
 
         Peterson v. Truck Haven Cafe, Inc., Vol. 1 No. 3 State of Iowa 
 
         Industrial Commissioner Decisions 654 (App. February 28, 1985).
 
         
 
              The record made here convinces this writer that the subject 
 
         injury does not disable claimant from any work which she might 
 
         previously have done.  No permanent physical restrictions have 
 
         been imposed by any physician with respect to this injury to the 
 
         thoracic spine.  The only permanent restriction whatsoever is the 
 
         six hour day restriction imposed by Dr. Wirtz, and he attributes 
 
         that entirely to the unrelated cervical injury.  Claimant is 
 
         bright, articulate, and enjoys an employment history as a 
 
         responsible and competent manager in her field.  The performance 
 
         evaluation given her shortly after the work injury might best be 
 
         described as a rave review.  Charles Linden and Nancy Rhines are 
 
         clearly ready to furnish her positive recommendations.  What work 
 

 
         
 
         Page   7
 
         
 
         
 
         
 
         
 
         she has selectively sought since the clinic was closed is 
 
         consistent with that experience.  While Ms. Bashara may wish to 
 
         limit herself to the medical field, she obviously has many 
 
         valuable transferable skills.  There has been no diminution of 
 
         her earning capacity by reason of this injury.
 
         
 
              As noted above, an employer's refusal to give work to an 
 
         impaired employee may justify an award of disability under 
 
         McSpadden.  But here, claimant lost her job because the work 
 
         site was closed, not because of the work injury or any resultant 
 
         impairment.  Unemployment due to an economic downturn does not 
 
         operate to show industrial disability related to a work injury.  
 
         Webb v. Lovejoy Construction Co., 2 Iowa Indus. Comm'r Rep. 430 
 
         (App. Dec. 1981).  A non-work related layoff does not operate to 
 
         increase industrial disability.  Wales v. Caterpillar Tractor 
 
         Co., File Number 763660, (App. Decn., March 31, 1989).  Where a 
 
         claimant did not return to work with employer due to a provision 
 
         in a union contract, this did not increase disability under 
 
         McSpadden.  Vosberg v. A. Y. McDonald Mfg. Co., File Number 
 
         906860, (App. Decn., February 27, 1992), although claimant's 
 
         unemployment in that case represented a substantial loss of 
 
         earnings, a factor of industrial disability.  In this case, 
 
         claimant's present unemployed status should be seen more as a 
 
         product of her own motivation and selectivity in job seeking, 
 
         rather than lack of employability on the open labor market.  
 
         Defendants are not responsible for disability caused by 
 
         claimant's failure to mitigate disability following injury.  
 
         Jeffries v. Iowa Dept. of Transp., File Number 857962, (App. 
 
         Decn., January 31, 1992).
 
         
 
              Claimant has residual pain.  The discomfort in her mid back 
 
         is "always there," although it does not appear disabling.  While 
 
         pain itself is a proper element of damages in personal injury 
 
         litigation, it is not compensable under chapter 85 unless there 
 
         is an impact on earning capacity.  Clute v. Countryside 
 
         Retirement Home, File Number 876351 (Arb. Decn. November 29, 
 
         1990); Benton v. Hyman Freightways, Inc., File Numbers 721933 and 
 
         754493 (Review-Reopening Decn., January 7, 1991).
 
         
 
              On balance, claimant can not be said to have established 
 
         industrial disability.  The issue must be resolved in favor of 
 
         defendants.
 
         
 
              Yet to be determined is claimant's entitlement to medical 
 
         benefits.  This brings up defendants' motion to reconsider this 
 
         deputy's earlier ruling holding the authorization defense 
 
         invalid.  The deputy so held because defendants can not deny 
 
         liability and also guide the course of treatment.  Barnhart v. 
 
         MAQ, Inc., 1 Iowa Indus. Comm'r Rep. 16 (1981).  Defendants take 
 
         the position that they did not deny liability prior to the filing 
 
         of their answer (September 27, 1990), which occurred after 
 
         claimant accrued her travel costs while treating at the Mayo 
 
         Clinic.  However, it is unnecessary to resolve this contention 
 
         because the evidence shows that claimant's treatment at the Mayo 
 
         Clinic was duly authorized by her supervisor, Nancy Rhines.
 
         
 
              Claimant submitted what amounts to a rough estimate of her 
 
         expenses: five trips at five hundred miles each and motel 
 
         expenses for four nights at "approximately" $90.00 per night.  
 
         Her claim is for $885.00.  This writer would be inclined to find 
 

 
         
 
         Page   8
 
         
 
         
 
         
 
         
 
         claimant's proof insufficient and far too nonspecific to support 
 
         an award, except that defendants have stipulated the 
 
         reasonableness and causal connection of the expenses.  Had this 
 
         issue been disputed, claimant may well have been able to produce 
 
         more satisfactory evidence.  Since it is held that the expenses 
 
         were also authorized, they shall be awarded in this proceeding.  
 
         Although defendants have voluntarily paid weekly benefits in 
 
         excess of claimant's entitlement, they are not entitled to credit 
 
         against medical expenses.
 
         
 
                              
 
         
 
         
 
         Page   9
 
         
 
         
 
         
 
         
 
                                      ORDER
 
         
 
              THEREFORE IT IS ORDERED:
 
         
 
              Defendants shall pay unto claimant the total of eight 
 
         hundred eighty-five and no/100 dollars ($885.00) as unremibursed 
 
         medical travel expenses.
 
         
 
              These benefits shall be paid in a lump sum together with 
 
         statutory interest thereon (from the last date of treatment, 
 
         March 9, 1990) pursuant to Iowa Code section 85.30.
 
         
 
              Costs are assessed to defendants pursuant to rule 343 IAC 
 
         4.33.
 
         
 
              Defendants shall file claim activity reports as requested by 
 
         this agency pursuant to rule 343 IAC 3.1.
 
         
 
              Signed and filed this ____ day of August, 1992.
 
         
 
         
 
         
 
         
 
                                       ________________________________
 
                                       DAVID R. RASEY
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr Barry Moranville
 
         Attorney at Law
 
         West Bank Building Ste 212
 
         1601 22nd Street
 
         West Des Moines Iowa 50265
 
         
 
         Mr Glenn Goodwin
 
         Attorney at Law
 
         4th Floor Equitable Building
 
         Des Moines Iowa 50309
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                             5-1402.40
 
                                             Filed August 26, 1992
 
                                             DAVID R. RASEY
 
 
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            TRUDY BASHARA, 
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                                  File No. 927603
 
            REGIONAL HEALTH SERVICES,     
 
                                             A R B I T R A T I O N
 
                 Employer, 
 
                                                 D E C I S I O N
 
            and       
 
                      
 
            AETNA CASUALTY & SURETY  
 
            COMPANY,  
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            
 
            5-1402.40
 
            Stipulated work injury was not shown to have caused 
 
            industrial disability.
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         ____________________________________________________________
 
                   
 
         TRUDY BASHARA, 
 
                   
 
              Claimant, 
 
                                              File No. 927603
 
         vs.       
 
                                                 N U N C
 
         REGIONAL HEALTH SERVICES,     
 
                                                  P R O
 
              Employer, 
 
                                                 T U N C
 
         and       
 
                                                O R D E R
 
         AETNA CASUALTY & SURETY  
 
         COMPANY,  
 
                   
 
              Insurance Carrier,  
 
              Defendants.    
 
         ___________________________________________________________
 
         Claimant filed an application for rehearing on September 14, 
 
         1992.  On September 15, Attorney Barry Moranville contacted the 
 
         undersigned by telephone to advise that the arbitration decision 
 
         filed August 26, 1992, was in error in finding that claimant is a 
 
         registered nurse.  Mr. Moranville, who enjoys an excellent 
 
         reputation for ethical conduct, advised that defense counsel had 
 
         no objection to the communication or an appropriate change in the 
 
         arbitration decision.
 
         IT IS THEREFORE ORDERED that the arbitration decision of August 
 
         26, 1992 is modified by deleting the finding therein that 
 
         claimant is a registered nurse.
 
         Signed and filed this ____ day of September, 1992.
 
         
 
         
 
         
 
         
 
                                       ________________________________
 
                                       DAVID R. RASEY
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr Barry Moranville
 
         Attorney at Law
 
         1601 22nd Street Ste 212
 
         West Des Moines Iowa 50266
 
         
 
         Mr Glenn Goodwin
 
         Attorney at Law
 
         4th Floor Equitable Building
 
         Des Moines Iowa 50309
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          9999
 
            Filed December 23, 1992
 
            Byron K. Orton
 
            DRR
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
            _____
 
                                            :
 
            LORNE SPIES,                    :
 
                                            :
 
                 Claimant,                  :
 
                                            :
 
            vs.                             :
 
                                            :        File No. 927717
 
            QUALITY ROOFING CO.,            :
 
                                            :          A P P E A L
 
                 Employer,                  :
 
                                            :        D E C I S I O N
 
            and                             :
 
                                            :
 
            THE HARTFORD,                   :
 
                                            :
 
                 Insurance Carrier,         :
 
                 Defendants.                :
 
            ____________________________________________________________
 
            _____
 
            
 
            9999
 
            Summary affirmance of deputy's decision filed December 31, 
 
            1991, with short additional analysis.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            LORNE SPIES,                  :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :         File No. 927717
 
                                          :
 
            QUALITY ROOFING CO.,          :      A R B I T R A T I O N
 
                                          :
 
                 Employer,                :         D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            THE HARTFORD,                 :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 Claimant Lorne Spies filed a petition in arbitration 
 
            against employer Quality Roofing Company and its insurance 
 
            carrier, The Hartford, following a work injury sustained on 
 
            July 10, 1989.  He seeks benefits under the Iowa Workers' 
 
            Compensation Act as a result.
 
            
 
                 This cause came on for hearing in Davenport, Iowa, on 
 
            December 4, 1991.  The record consists of the testimony of 
 
            claimant and Dennis Erion and claimant's exhibits A through 
 
            K, inclusive.  Defendants' exhibit H-2 was offered, but 
 
            excluded upon objection.  It was not timely served pursuant 
 
            to the hearing assignment order entered on April 19, 1991.
 
            
 
                                      issues
 
            
 
                 The parties have stipulated that claimant sustained an 
 
            injury arising out of and in the course of his employment on 
 
            July 10, 1989, which caused temporary disability from July 
 
            11 through July 28 of that year.  The parties further 
 
            stipulate to a commencement date for permanent disability, 
 
            if awarded, of July 29, 1989, and a compensation rate of 
 
            $145.55.
 
            
 
                 Issues presented for resolution include:
 
            
 
                 1.  Whether there exists a causal relationship between 
 
            the injury and permanent disability;
 
            
 
                 2.  The nature and extent of permanent disability, 
 
            under the odd-lot theory of recovery or otherwise; and,
 
            
 
                 3.  The extent of claimant's entitlement to medical 
 
            benefits.
 
            
 
                                 findings of fact
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                 The undersigned deputy industrial commissioner finds:
 
            
 
                 Lorne Spies, 30 years of age at hearing, was a high 
 
            school graduate with one semester of college credit at the 
 
            time of his work injury.  Following the injury, he attended 
 
            a community college for two years and obtained an associate 
 
            of arts degree.  It does not appear that defendants 
 
            contributed to this further education.
 
            
 
                 Claimant's work history includes farm work, employment 
 
            with a steel company, loading and delivery work for a wine 
 
            business, self-employment for two years as a truck driver, 
 
            work as a counterman and mechanic for a motorcycle business, 
 
            work as a coupon sorter and as a roofer.  He was so employed 
 
            by defendant Quality Roofing Company.
 
            
 
                 Following the work injury, claimant received 
 
            unemployment insurance benefits from July through November 
 
            1989 (certifying for each week that he was indeed able and 
 
            available to work under Iowa Code section 95.4(3)), and 
 
            sought work with other roofing companies.  Claimant has held 
 
            several part-time jobs since his injury, along with 
 
            attending school for two years, and is now employed on a 
 
            part-time basis as a cashier.  He also worked on a full-time 
 
            basis for three weeks in a woodworking shop before being 
 
            laid off.
 
            
 
                 Prior to the work injury, claimant had injured his 
 
            upper back between the shoulder blades on multiple 
 
            occasions, but was never assigned medical restrictions and 
 
            continued to do heavy work without obvious limitation.
 
            
 
                 On July 10, 1989, while working as an apprentice 
 
            roofer, claimant attempted to lift a heavy conveyor device 
 
            from a truck and felt something "go out" or "pull" in his 
 
            lower back.  Chart notes of that date of Dr. C. Tan reflect 
 
            complaints of lower back pain and some tenderness of the low 
 
            back area.  Straight leg raising, ankle jerk and knee jerk 
 
            were normal.  Impression was of possible muscle spasm.  On 
 
            the next day, x-rays were read by G. T. Schmunk, M.D., as 
 
            showing normal bony structures of the lumbar spine, but a 
 
            slight loss of lordotic curve suggesting muscle spasm.  Dr. 
 
            Tan's chart notes of that day reflect continued complaints 
 
            of pain.  Claimant was prescribed pain and muscle relaxant 
 
            medication.  Dr. Tan was seen subsequently on two occasions, 
 
            but apparently no complaint of back pain was recorded.
 
            
 
                 Claimant was also seen by Steven L. Kooyers, a 
 
            chiropractor, beginning July 13, 1989.  Dr. Kooyers 
 
            testified by deposition on July 25, 1990.
 
            
 
                 Prior to seeing Dr. Kooyers, claimant testified that 
 
            his "employer" (the individual was not named) advised him to 
 
            go to his own doctor, and that he chose both Dr. Tan and Dr. 
 
            Kooyers.  By way of corroboration, Dennis Erion, president 
 
            of Quality Roofing Company, testified that he advised 
 
            claimant it was a good idea to see a physician.  There is no 
 
            record evidence to indicate that either Quality Roofing 
 
            Company or The Hartford advised claimant that Dr. Kooyers 
 
            was not an authorized physician.
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
                 Dr. Kooyers prepared a "Disability Slip" dated July 14 
 
            reflecting that claimant suffered acute lumbothoracic strain 
 
            without radiation and was to be off work until further 
 
            notice, although "good recovery is expected."  This slip was 
 
            duly delivered to defendant Quality Roofing Company.  
 
            Claimant was replaced on July 18 or 19 and refused further 
 
            work when released by Dr. Kooyers to return to work at the 
 
            end of the month.  Defendants have taken the position that 
 
            claimant is somehow to blame for being replaced by not 
 
            "keeping in touch" between July 14 and July 18, even though 
 
            known to be medically restricted from work on an indefinite 
 
            basis.  This argument is utterly unconvincing.
 
            
 
                 Claimant testified that, when he was released to return 
 
            to work by Dr. Kooyers (it will be recalled the parties have 
 
            stipulated liability for temporary disability through July 
 
            28), he was instructed to "be careful of heavy lifting."  
 
            However, on cross-examination, he conceded it was "possible" 
 
            that he had been released without medical restriction.  
 
            There is no medical evidence whatsoever that Dr. Kooyers (or 
 
            any other physician) imposed medical restrictions.  Even 
 
            though Dr. Kooyers testified by deposition, he was never 
 
            even asked if medical restrictions had been imposed.  Based 
 
            on the entire record, it is found that claimant was released 
 
            without medical restriction of any kind.
 
            
 
                 Dr. Kooyers testified that he had seen claimant between 
 
            July 13 and August 1, 1989, and on approximately seven 
 
            occasions in May and June 1990.  His original impression was 
 
            of lumbar strain, but he no longer believed this to be the 
 
            correct diagnosis in 1990, since claimant did not show
 
            
 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            substantial improvement.  However, Dr. Kooyers did not offer 
 
            an alternative diagnosis.  He conceded:
 
            
 
                 Now, I also have to tell you that the amount of 
 
                 diagnostic imaging and the amount of testing that 
 
                 we did is, you know, in my opinion, is not good 
 
                 enough to make a very accurate diagnosis; that I 
 
                 didn't have access to any MRIs or CAT scans or 
 
                 anything else to, you know, to really get in there 
 
                 and look and --
 
            
 
            (Dr. Kooyers deposition, page 13, line 25 through page 14, 
 
            line 5)
 
            
 
                 Dr. Kooyers apparently does not enjoy hospital 
 
            privileges in his locale, as he complained that hospital 
 
            personnel do not cooperate with him when he requests 
 
            testing; so he does not.
 
            
 
                 Dr. Kooyers believed that claimant had sustained a 40 
 
            percent functional impairment.  This impairment rating was 
 
            not assessed pursuant to such recognized standards as the 
 
            American Medical Association Guides to the Evaluation of 
 
            Permanent Impairment.  This reader found it a little 
 
            difficult to precisely discern the basis of this impairment 
 
            rating, although it was described as a 40 percent reduction 
 
            from the ability to "do a normal, everyday, you know, 
 
            working man's job."  Dr. Kooyers described tenderness over 
 
            the L5 spinous process, restricted movement in both 
 
            hamstrings and restricted reflexes into the Achilles' 
 
            tendon.
 
            
 
                 Dr. Kooyers submitted a disputed billing totalling 
 
            $160.00 for treatment between July 13 and July 21, 1989.  
 
            Claimant testified without contradiction that this treatment 
 
            related to the work injury.
 
            
 
                 Claimant was seen for evaluation by Maurice D. Schnell, 
 
            M.D., on April 9, 1991.  Dr. Schnell practices in physical 
 
            medicine and rehabilitation/orthopaedics.  Interestingly, 
 
            his chart notes reflect a history of claimant being 
 
            essentially pain free approximately two weeks after his 
 
            injury.  Claimant reported a back injury while bowling in 
 
            December 1990 which caused marked increase of low back pain 
 
            for 2-3 weeks, but which improved following additional 
 
            chiropractic treatment.  The nature and extent of that 
 
            treatment does not otherwise appear of record.
 
            
 
                 On physical examination, Dr. Schnell noted that 
 
            claimant was 6 feet 2 inches in height and weighed 310 
 
            pounds.  Straight leg raising was negative bilaterally in 
 
            the sitting position, although the hamstrings became tight 
 
            at 60 degrees bilaterally in the supine position.  Dr. 
 
            Schnell found no palpable tightness or masses of the 
 
            paraspinous muscles of the thoracic or lumbosacral area 
 
            bilaterally, but firm compression over the spinous processes 
 
            of S1 through L4 produced localized tenderness and 
 
            discomfort.  Dr. Schnell referred generally to "the paucity 
 
            of objective findings" in his examination, which did not 
 
            warrant any further diagnostic studies or referral, except 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            that with persistence of symptoms, further evaluation and 
 
            possible treatment would be in order.  Dr. Schnell also 
 
            noted the absence of sophisticated testing in this case, 
 
            along with a lack of treatment including physical therapy, 
 
            trunkal orthosis, back rehabilitation evaluation and 
 
            treatment, pain clinic evaluation or the use of 
 
            anti-inflammatory medications.
 
            
 
                 Dr. Schnell's impression was of localized chronic low 
 
            lumbar pain without any associated objective evidence of 
 
            lumbosacral radiculopathy-etiology undetermined.
 
            
 
                 Claimant was also seen for evaluation by Richard A. 
 
            Roski, M.D., a diplomate of the American Board of 
 
            Neurological Surgery.  Neurological examination by Dr. Roski 
 
            on November 26, 1991, revealed excellent range of motion of 
 
            the low back with no sciatic or radicular symptoms involving 
 
            either leg, no evidence of atrophy or fasciculations, normal 
 
            strength and normal sensation.  Claimant's only complaint 
 
            was some pain in the mid-low lumbar region that varied on 
 
            the degree of activity (as also reported by Dr. Schnell).  
 
            Appropriate working diagnosis would be a mild lumbar strain.  
 
            There was no significant muscle spasm, decreased range of 
 
            motion or neurologic deficit.  Based on subjective 
 
            complaints of back pain, Dr. Roski assessed a permanent 
 
            partial impairment of five percent of the whole person.
 
            
 
                                conclusions of law
 
            
 
                 The parties have stipulated that Lorne Spies sustained 
 
            an injury arising out of and in the course of his employment 
 
            on July 10, 1989.  They dispute whether the injury caused 
 
            permanent disability and, if so, the nature and extent 
 
            thereof.
 
            
 
                 Claimant's injury is to his back.  Without question, 
 
            this is an injury to the body as a whole.  Therefore, it 
 
            must be compensated industrially, or as a percentage of 500 
 
            weeks unless it is a total and permanent disability.
 
            
 
                 Industrial disability is the extent to which a work 
 
            injury reduces claimant's earning capacity.  Second Injury 
 
            Fund v. Hodgins, 461 N.W.2d 454 (Iowa 1990).  Functional 
 
            disability is an element to be considered, but consideration 
 
            must also be given to the employee's age, education, 
 
            qualifications, experience and inability to engage in 
 
            employment for which he is fitted.  Olson v. Goodyear Serv. 
 
            Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963).
 
            
 
                 In this case, there does not appear to be much, if any, 
 
            impact on earning capacity because no medical restrictions 
 
            have been imposed.  While claimant has testified to a great 
 
            number of activities which he now feels unable to perform, 
 
            he is not a physician and, obviously, is self-interested.  
 
            His self-imposed restrictions are not a reliable substitute 
 
            for medically-imposed restrictions.  While claimant may have 
 
            some minor functional impairment due to pain as per the 
 
            opinion of Dr. Roski (the less persuasive 40 percent 
 
            impairment rating imposed by Dr. Kooyers was not calculated 
 
            pursuant to any recognized standards, was explained 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            unclearly, seems relatively excessive for subjective 
 
            complaints of pain and was rendered prior to claimant's 
 
            intervening bowling injury) does not translate directly into 
 
            loss of earning capacity.
 
            
 
                 However, it is significant that defendant failed to 
 
            provide claimant further employment following his work 
 
            injury.  This, in and of itself, may justify an award of 
 
            industrial disability.  McSpadden v. Big Ben Coal Co., 288 
 
            N.W.2d 181 (Iowa 1980).  The industrial commissioner has 
 
            affirmed an award of ten percent industrial disability to a 
 
            claimant who had no permanent disability and was released to 
 
            return without restrictions following back injury, where 
 
            defendant refused to rehire.  Galli v. Advanced Drainage 
 
            Systems, Inc., File No. 825795 (App. Decn., November 30, 
 
            1989).  It is foreseeable that claimant's history of mild 
 
            lumbar strain some two years following his injury may make 
 
            him a less desirable prospective employee in the eyes of at 
 
            least some employers.
 
            
 
                 Claimant asserts he is an odd-lot employee under the 
 
            doctrine adopted by the Iowa Supreme Court in Guyton v. 
 
            Irving Jensen Co., 373 N.W.2d 101 (Iowa 1985).  Under that 
 
            theory of recovery, a worker is an odd-lot employee when a 
 
            work injury makes him incapable of work in any well-known 
 
            branch of employment; when the only services he can perform 
 
            are so limited in quality, dependability or quantity that a 
 
            reasonable stable market for them does not exist.  Id.  It 
 
            is claimant's burden of proof to establish that he is an 
 
            odd-lot employee.  He has not done so in this case.  For 
 
            several months following the injury, claimant claimed job 
 
            insurance benefits by certifying on a weekly basis that he 
 
            was able and available for work.  Claimant has held several 
 
            jobs, including one full-time job, and is currently employed 
 
            as a cashier.  He has obtained an associate of arts degree 
 
            in computer-aided design, and has yet to obtain work in that 
 
            field due only to current economic conditions, not the lack 
 
            of a marketable skill.
 
            
 
                 Considering then these factors in specific and the 
 
            record otherwise in general, it is held that claimant has 
 
            sustained a permanent partial industrial disability 
 
            equivalent to 15 percent of the body as a whole, or 75 
 
            weeks.
 
            
 
                 Dr. Kooyers' bill totalling $160.00 is also at issue.  
 
            Defendants have stipulated that the provider of medical 
 
            services would testify in the absence of contrary evidence 
 
            that fees were reasonable and incurred for reasonable and 
 
            necessary treatment.  They dispute causal connection to the 
 
            work injury and authorization by defendants.  Dr. Kooyers' 
 
            testimony is clear that the services he provided were 
 
            related to the work injury.  Claimant testified in a similar 
 
            vein.  Defendants offered no contrary evidence.  The 
 
            evidence also establishes that the services were authorized 
 
            by Quality Roofing Company, in particular by its president, 
 
            Dennis Erion.
 
            
 
                                      order
 
            
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Defendants shall pay unto claimant seventy-five (75) 
 
            weeks of permanent partial disability benefits at the 
 
            stipulated rate of one hundred forty-five and 55/100 dollars 
 
            ($145.55) per week commencing July 29, 1989, and totalling 
 
            ten thousand nine hundred sixteen and 25/100 dollars 
 
            ($10,916.25).
 
            
 
                 As all such benefits have accrued, they shall be paid 
 
            in a lump sum together with statutory interest thereon 
 
            pursuant to Iowa Code section 85.30.
 
            
 
                 Defendants shall pay Dr. Kooyers' bill totalling one 
 
            hundred sixty and 00/100 dollars ($160.00).
 
            
 
                 The costs of this action are assessed to defendants 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 Defendants shall file claim activity reports as 
 
            requested by the agency pursuant to rule 343 IAC 3.1.
 
            
 
     
 
            
 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            Signed and filed this ______ day of ____________, 1991.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          DAVID RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. James P. Hoffman
 
            Attorney at Law
 
            Middle Road
 
            P.O. Box 1087
 
            Keokuk, Iowa  52632
 
            
 
            Mr. Greg A. Egbers
 
            Mr. Mark A. Woollums
 
            Attorneys at Law
 
            600 Union Arcade Building
 
            111 East Third Street
 
            Davenport, Iowa  52801
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               5-1803
 
                                               Filed December 31, 1991
 
                                               DAVID RASEY
 
                 before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            LORNE SPIES,                  :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :         File No. 927717
 
                                          :
 
            QUALITY ROOFING CO.,          :      A R B I T R A T I O N
 
                                          :
 
                 Employer,                :         D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            THE HARTFORD,                 :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
            5-1803
 
            Claimant was awarded 15 percent industrial disability even 
 
            without medically-imposed restrictions, based upon 
 
            defendants' failure to rehire and a small impairment rating 
 
            which might make him less attractive to potential employers.
 
            
 
 
            
 
            
 
            
 
            
 
            
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            JAMES COLLIER,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 927728
 
            DURAKON INDUSTRIES, d/b/a     :
 
            DEFLECT-A-SHIELD,             :      A R B I T R A T I O N
 
                                          :
 
                 Employer,                :         D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            COMMERCE AND INDUSTRY         :
 
            INSURANCE COMPANY,            :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by James 
 
            Collier against Durakon Industries, d/b/a Deflect-A-Shield, 
 
            and its insurance carrier, Commerce and Industry Insurance 
 
            Company, based upon an alleged injury of August 25, 1989.  
 
            In this proceeding, the issues dealing with weekly benefit 
 
            entitlement for temporary total disability, healing period 
 
            and permanent disability have been bifurcated.  The only 
 
            issues to be determined are whether claimant sustained 
 
            injury which arose out of and in the course of his 
 
            employment with the employer and determination on a medical 
 
            bill in the amount of $231.00.
 
            
 
                 The case was heard and fully submitted at Des Moines, 
 
            Iowa, on January 15, 1992.  The record in the proceeding 
 
            consists of testimony from James Collier, Charlene Collier, 
 
            Jill Metzger, Donna Pressler, Dwight Simbro, Carolyn Berndt, 
 
            Ron Rockhold and Marty Flummer.  The record also contains 
 
            claimant's exhibits 1 through 9 and defendants' exhibit A.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 Having considered all the evidence received, together 
 
            with the appearance and demeanor of the witnesses, the 
 
            following findings of fact are made.
 
            
 
                 James Collier is a 45-year-old married man whose work 
 
            history consists primarily of farm labor and construction 
 
            labor.  Collier commenced employment with Deflect-A-Shield 
 
            on or about July 24, 1989.  He worked as a forklift 
 
            operator.  When he applied for the position on or about July 
 
            19, 1989, Collier revealed no health problems which would 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            
 
            limit his job performance (claimant's exhibit 5).  He 
 
            underwent a physical examination by the employer's physician 
 
            which disclosed no back problems (claimant's exhibit 6).
 
            
 
                 Collier had injured his back in 1988 and was off work 
 
            for several months.  He was hospitalized briefly and treated 
 
            conservatively (claimant's exhibit 1, pages 26-30).  A CT 
 
            scan taken at that time showed slight diffuse annular 
 
            bulging at the L5-S1 level of his spine and arthritis at the 
 
            levels of L4-5 and L5-S1.  Commencing in approximately 
 
            November 1988, Collier received chiropractic treatments at a 
 
            frequency of approximately once or twice per month through 
 
            July of 1989 (claimant's exhibit 1, pages 19 and 20).  The 
 
            frequency of chiropractic treatments increased commencing 
 
            August 25, 1989, with subsequent visits on August 28 and 
 
            August 29, 1989.  There were seven visits in September of 
 
            1989 and two in October of 1989 with the last being on 
 
            October 13, 1989 (claimant's exhibit 1, pages 19, 20 and 
 
            22).
 
            
 
                 James Collier testified at hearing that, on August 25, 
 
            1989, he started work at approximately 7:00 a.m. and was 
 
            operating a forklift working with supervisor Patsy Langloss.  
 
            He testified that, as he bent over to pick up an empty 
 
            pallet, he felt a sharp pain, let out a moan and then stood 
 
            back up.  He related that he drove the forklift around a 
 
            corner and that it was running out of propane fuel.  He 
 
            stated that he tried to change the tank but was unable.  He 
 
            stated that he reported his injury to Donna Pressler in the 
 
            front office, that two co-employees helped him out of the 
 
            plant to his car and that he then drove to Lineville, Iowa, 
 
            where he met Ron Rockhold who in turn drove him to the 
 
            office of chiropractor D. B. Treadwell, D.C.  Patsy Langloss 
 
            confirmed that Collier expressed pain while he was bending 
 
            over a pallet and that thereafter he appeared to be in pain.  
 
            There are discrepancies in the record regarding whether he 
 
            was lifting, preparing to lift or merely bending, whether he 
 
            was taken to the front office and whether he attempted to 
 
            change a propane tank on the forklift, but it is apparent 
 
            that he was put in contact with Donna Pressler, helped from 
 
            the plant to his car and left.
 
            
 
                 After treating with Dr. Treadwell for approximately a 
 
            week, claimant was released to resume light work effective 
 
            September 5, 1989.  He worked that one week but then 
 
            discontinued work.  According to Collier, he was unable to 
 
            perform adequately, although Dwight Simbro saw no difference 
 
            between claimant's pre-injury and post-injury performance.  
 
            Simbro's appearance and demeanor did not render his 
 
            testimony convincing.  No physician recommended that 
 
            claimant cease work following that one week.
 
            
 
                 Des Moines, Iowa, neurosurgeon Thomas A. Carlstrom, 
 
            M.D., began treating claimant on October 25, 1989.  He saw 
 
            claimant again in November at which time he ordered epidural 
 
            steroid injections and, in January 1990, when he recommended 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
            
 
            surgery (claimant's exhibit 3, pages 6-8).  Dr. Carlstrom 
 
            expressed his opinion that the claimant's current back 
 
            condition is related to the August 1989 incident and that 
 
            the surgery which he has recommended is likewise a result of 
 
            that incident (claimant's exhibit 3, pages 10 and 11).  
 
            There is no opinion evidence in the record which relates the 
 
            current herniated disc problem to anything other than the 
 
            August 1989 incident.
 
            
 
                 It is noted that claimant injured his left hand while 
 
            attempting to drive a steel fence post in February of 1990.  
 
            The fact of that activity could lend some question to the 
 
            credibility of the claimant's symptoms and complaints were 
 
            it not for the well-documented radiographic studies relied 
 
            upon by Dr. Carlstrom.  Testimony from claimant and his 
 
            spouse, together with the cancelled checks found in exhibits 
 
            8 and 9 clearly refute any claim that the claimant injured 
 
            his back while working on a pickup or remodeling his home.
 
            
 
                 Dr. Carlstrom ordered the epidural steroids for which 
 
            the $231.00 charge was made as shown in claimant's exhibit 
 
            2.  Epidural steroids are a common treatment for individuals 
 
            with back complaints of the type which afflict James 
 
            Collier.  The fact that the doctor ordered them indicates 
 
            that the doctor felt that they would be an appropriate 
 
            course of treatment.  A competent physician would not 
 
            knowingly act unreasonably in treating a patient.  There is 
 
            no evidence to indicate that the care provided by Dr. 
 
            Carlstrom was in any manner unreasonable.
 
            
 
                 While there is some discrepancy regarding whether 
 
            claimant was preparing to lift a pallet or tying product 
 
            back onto a pallet, it is certainly clear that he was 
 
            bending over while in the performance of part of his duties 
 
            for the employer.  The evidence from Dr. Carlstrom is that 
 
            the mere act of bending over can be sufficient to herniate a 
 
            disc, the precise condition which has been diagnosed in this 
 
            claimant.  As also indicated by Dr. Carlstrom, the herniated 
 
            disc condition did not exist in 1988 when claimant was 
 
            hospitalized and diagnostic tests were conducted.  There is 
 
            nothing in the record to indicate any intervening injury 
 
            between the time when tests were conducted in 1988 and again 
 
            conducted under the direction of Dr. Carlstrom in 1989.  It 
 
            is found that James Collier sustained an injury in the 
 
            nature of a herniated disc while bending as part of the 
 
            duties of his employment.
 
            
 
                                conclusions of law
 
            
 
                 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).
 
            
 
                 An injury occurs in the course of employment when it is 
 
            within the period of employment at a place where the 
 
            employee reasonably may be performing his duties and while 
 
            he is fulfilling those duties or engaged in something 
 
            incidental thereto.  An employee does not cease to be in the 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
            
 
            course of employment merely because he is not actually 
 
            engaged in doing some specifically prescribed task, if, in 
 
            the course of his employment, he does some act which he 
 
            deems necessary for the benefit or interest of his employer.  
 
            McMullin v. Dep't of Revenue, 437 N.W.2d 596 (Iowa App. 
 
            1989).  In this case, it is clear that James Collier, while 
 
            bending over, was in the process of performing some of the 
 
            specific tasks of his employment.  It is immaterial that he 
 
            may not have been actually lifting a heavy article.  The 
 
            result would be the same if he were merely preparing to lift 
 
            or bending forward for any other purpose associated with his 
 
            employment.
 
            
 
                 The arising out of requirement relates to the cause and 
 
            origin of the injury.  It is satisfied by showing a causal 
 
            relationship between the employment and the injury.  Sheerin 
 
            v. Holin Co., 380 N.W.2d 415 (Iowa 1986).  In this case, it 
 
            is well-corroborated by the evidence that the claimant 
 
            experienced pain while bending over in the performance of 
 
            the duties of his employment and that he has subsequently 
 
            been diagnosed by a neurosurgeon as having a herniated disc 
 
            which the neurosurgeon relates to the bending incident.  
 
            Such is sufficient to satisfy both the arising out of and 
 
            the in the course of requirements.  It is therefore 
 
            concluded that the herniated disc which afflicts James 
 
            Collier is an injury or is the result of an injury which 
 
            arose out of and in the course of his employment with this 
 
            employer on August 25, 1989.
 
            
 
                 Under the provisions of Code section 85.27, an employer 
 
            is responsible for providing reasonable treatment for 
 
            injuries which arise out of and in the course of employment.  
 
            It has previously been found that the $231.00 charge for an 
 
            epidural steroid injection as shown in exhibit 2 is 
 
            treatment for the claimant's back condition which arose out 
 
            of and in the course of his employment, that the treatment 
 
            was prescribed by a licensed physician, is a type of 
 
            treatment commonly seen with such injuries and was in all 
 
            aspects reasonable care for the condition.  Exhibit 2 shows 
 
            that an identical charge for the first injection had been 
 
            made and was paid by the insurance carrier.  The fact of 
 
            payment is evidence that the amount charged is reasonable.  
 
            Remington v. Machamer, 192 Iowa 1098, 186 N.W. 32 (1922); 
 
            Arnold v. Fort Dodge, Des Moines and So. R. Co., 186 Iowa 
 
            538, 173 N.W. 252 (1919); Reutkemeier v. Nolte, 179 Iowa 
 
            342, 161 N.W. 290 (1917).  There is nothing in the evidence 
 
            of this case to indicate that the amount charged is anything 
 
            other than reasonable.  The amount is in line with charges 
 
            made for similar services in other cases.  It is therefore 
 
            concluded that the employer is responsible for paying the 
 
            charge of $231.00 with Associated Anesthesiologists, P.C., 
 
            for the November 30, 1989, epidural injection received by 
 
            claimant.
 
            
 
                                      order
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                 IT IS THEREFORE ORDERED that defendants pay two hundred 
 
            thirty-one and 00/100 dollars ($231.00) to Associated 
 
            Anesthesiologists, P.C., under the provisions of Iowa Code 
 
            section 85.27.
 
            
 
                 IT IS FURTHER ORDERED that this case be assigned for 
 
            hearing to determine the claimant's entitlement to weekly 
 
            compensation benefits and any other matters which have 
 
            arisen since the date of hearing in this case.
 
            
 
                 Signed and filed this ______ day of ____________, 1992.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Thomas Henderson
 
            Attorney at Law
 
            317 Sixth Avenue, Suite 1200
 
            Des Moines, Iowa  50309-4110
 
            
 
            Mr. John E. Swanson
 
            Attorney at Law
 
            8th Floor, Fleming Building
 
            Des Moines, Iowa  50309
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 1106
 
                                                 Filed July 13, 1992
 
                                                 MICHAEL G. TRIER
 
 
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            JAMES COLLIER, 
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                               File No. 927728
 
            DURAKON INDUSTRIES, d/b/a     
 
            DEFLECT-A-SHIELD,              A R B I T R A T I O N
 
                      
 
                 Employer,                    D E C I S I O N
 
                      
 
            and       
 
                      
 
            COMMERCE AND INDUSTRY    
 
            INSURANCE COMPANY,  
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ____________________________________________________________
 
            
 
            1106
 
            Where employee was bending over as part of his work duties 
 
            and suffered a herniated disc, such was found to be an 
 
            injury which arose out of and in the course of employment.
 
            
 
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            RICHARD J. McCONNELEE,        :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 927807
 
            MAURICE HAY INVESTMENTS,      :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            INSURANCE COMPANY OF NORTH    :
 
            AMERICA (sued as CIGNA),      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by 
 
            claimant, Richard McConnelee, against his former employer, 
 
            Maurice Hay Investments, and its insurance carrier, 
 
            Insurance Company of North America (sued as Cigna).  
 
            Although claimant indicated that the proceeding was a 
 
            review-reopening, he is incorrect.  There has been no prior 
 
            adjudication, nor agreement for settlement filed in the 
 
            case.  See, Iowa Code section 86.14(2).  The petition is 
 
            amended to be a proceeding in arbitration.  Claimant 
 
            sustained a work-related injury on August 15, 1989, and 
 
            seeks additional workers' compensation.  The record in this 
 
            case consists of testimony from claimant, Michael McNeil, 
 
            Timothy Ohnesorge, Maurice Hay; and, joint exhibits A 
 
            through J.  Although at the hearing some exhibits were 
 
            excluded due to the undersigned's admonition that each party 
 
            could submit 50 pages of evidence, she has reviewed all of 
 
            the evidence and all joint exhibits are received.
 
            
 
                 The case was brought on for hearing before the 
 
            undersigned deputy industrial commissioner on June 29, 1993 
 
            at Des Moines, Iowa.  
 
            
 
                                      ISSUES
 
            
 
                 The parties submitted the following issues to be 
 
            addressed:
 
            
 
                 1.  Claimant's correct workers' compensation rate; and,
 
            
 
                 2.  Whether claimant is entitled to permanent partial 
 
            disability benefits.   
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The undersigned deputy, having reviewed all of the 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            evidence received at the hearing, finds the following facts:
 
            
 
                 Claimant, Richard McConnelee, was born on January 13, 
 
            1939.  At the time of the hearing, he was 54 years of age. 
 
            
 
                 Claimant is a high school graduate, earning his degree 
 
            in 1957.  He attended Drake University for one semester, and 
 
            has subsequently attended classes at the Des Moines Area 
 
            Community College.  He has worked as a mechanic for the past 
 
            20 years. 
 
            
 
                 From 1958-1963, claimant worked for E.I. Sargeant 
 
            Quarries, and helped build the interstate through Iowa.  In 
 
            1963-1968, Mr. McConnelee worked for the Department of 
 
            Transportation, and in 1968 opened his own business, 
 
            McConnelee Standard Station.  From 1976 to 1986, claimant 
 
            worked as a manager for a Standard/Amaco gasoline station, 
 
            where he supervised 28 employees.  He earned approximately 
 
            $20,000 per year ($25,000 with benefits), but quit his job 
 
            due to the stress associated with the business.
 
            
 
                 For the next two years, claimant held several jobs, 
 
            including working at a K-Mart and driving a tank truck for a 
 
            farm service business.  
 
            
 
                 In 1988, claimant began working as a carpenter's helper 
 
            for the defendant employer, Maurice Hay Investments.  He 
 
            stated that he was in excellent physical and emotional 
 
            condition when he started working for the company, although 
 
            admitted to some problems with his hearing. 
 
            
 
                 Due to wage differences, claimant quit his job in June 
 
            or July of 1989.  He was rehired by the employer several 
 
            days prior to the injury which is the subject of this claim. 
 
            
 
                 On August 15, 1989 claimant arrived at a job site with 
 
            other co-employees.  He was working on the upper level of a 
 
            house, went over to straighten a wall, stepped on a board, 
 
            and fell to the concrete floor on the lower level of the 
 
            house, a distance of approximately 15 feet.  He felt pain in 
 
            his right heel, hip, shoulder and arm.  Claimant was driven 
 
            to the emergency room at Methodist Medical Clinic in Westown 
 
            Parkway, West Des Moines, Iowa.  Eventually, he was sent to 
 
            Methodist Hospital by ambulance.  He had sustained a right 
 
            shoulder injury, two fractured ribs, a compression fracture 
 
            of the spine, a pelvic fracture, and a shattered right heel 
 
            (Joint Exhibit I, 2; 5; 14).  Surgery was performed by 
 
            Delwin Quenzer, M.D. on  August 21, 1989, where a closed 
 
            reduction was performed on the calcaneus fracture and a leg 
 
            cast was applied.  The pelvis and spine fractures were 
 
            stable and did not require a brace or cast.  Claimant was 
 
            discharged on August 22, 1989 (Jt. Ex. I, 13, pp. 270-272).  
 
            Claimant continued to receive treatment from Dr. Quenzer 
 
            through January of 1990.  During this time, he was treated 
 
            for prostate gland infection by William Hornaday, Jr., M.D.  
 
            The condition was possibly related to the work accident and 
 
            injuries (Jt. Ex. I, 12; 13, p. 266).  Claimant was 
 
            eventually referred to physical therapy and a work hardening 
 
            program at the Iowa Methodist Low Back Institute, and Dr. 
 
            Quenzer requested a follow-up session once the program was 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            completed by claimant
 
            (Jt. Ex. I, 13, pp. 261-264).  
 
            
 
                 Apparently, claimant first received physical therapy 
 
            from the Madison County Memorial Hospital in Winterset, 
 
            Iowa.  Records from the hospital indicate that his therapy 
 
            consisted of hot packs, ultrasound, messages and exercises.  
 
            While the notes from the therapist are cryptic and poorly 
 
            copied, it appears that claimant discontinued therapy with 
 
            the facility in February of 1990 (Jt. Ex. I, 7).  
 
            
 
                 In March of 1990, claimant began an eight-week work 
 
            hardening program with the Iowa Methodist Low Back 
 
            Institute.  He reported difficulty with sitting in a 
 
            straight chair for more than 10-15 minutes; pain in the 
 
            right forearm, right upper extremity and right scapula.  
 
            Claimant was unable to ambulate without the assistance of a 
 
            cane, and reported pain in the low back and hip area.  
 
            General areas of difficulty included general weakness, poor 
 
            endurance, high pain levels, fear of re-injury and anxiety 
 
            related to increased activities (Jt. Ex. I, 12, pp. 
 
            232-237).
 
            
 
                 A final report from Jean Gaskell, occupational 
 
            therapist, indicates that claimant improved his maximum 
 
            efforts with a slight reduction in pain levels.  He was 
 
            referred to the pain management center at the hospital, and 
 
            it was recommended that he undergo a psychological 
 
            evaluation.  Ms. Gaskell recommended  sedentary work (Jt. 
 
            Ex. I, 12, pp. 230-231). 
 
            
 
                 In May of 1990, claimant underwent a rehabilitation 
 
            consultation at the Pain Management Center at Iowa Methodist 
 
            Medical Center.  During this initial evaluation, it was 
 
            discovered that claimant needed carpal tunnel release and 
 
            ulnar tunnel release, which was eventually performed in May 
 
            of 1991.  (Jt. Ex. I, 6).  Records from the pain center are 
 
            found at Joint Exhibit I, 11, pp. 204-224.  The defendant 
 
            insurance company initially did not authorize treatment with 
 
            the center, but referred claimant to the Mercy Pain Center.  
 
            J. Dan Smeltzer, M.D., a medical sociologist/algology, 
 
            remained involved with claimant's case management, and the 
 
            record reflects that claimant was treated by both centers.  
 
            Claimant was also referred to William Koenig, M.D., at the 
 
            Younker Rehabilitation Center (Jt. Ex. I, 6, pp 204-224).  
 
            
 
                 In December of 1990, Ms. Gaskell presented her report 
 
            summarizing claimant's functional capacity.  Claimant 
 
            continued to complain of pain in the right wrist, elbow, 
 
            shoulder, right heel, low back, left leg and calf.  
 
            Medications included Tylenol #3 for pain, and medication for 
 
            depression.  Claimant used a wrist brace on his right wrist 
 
            and walked with a cane.  She reiterated her recommendation 
 
            that claimant return to sedentary labor, with no repetitive 
 
            motion, bending, stooping, reaching, grasping, or pinching.  
 
            He was to lift not more than 10 pounds bilaterally.  It was 
 
            recommended that he be allowed to rest for five minutes 
 
            after 30 minutes of work.  She proposed vocations as a 
 
            gas/service station inspector, mail delivery within a 
 
            building or office, or,  sedentary office work that is 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            nonrepetitive
 
            (Jt. Ex. I, 12, pp. 225-229).  
 
            
 
                 In December of 1990, claimant was evaluated by Daniel 
 
            McGuire, M.D., an orthopaedic surgeon.  Dr. McGuire reviewed 
 
            the records, and performed a physical examination, which 
 
            showed claimant's ability to forward flex so that his hands 
 
            touched his toes. The lower extremities were grossly intact, 
 
            and claimant displayed good lateral rotations.  Using the 
 
            AMA Guides to the Evaluation of Permanent Impairment, 
 
            claimant had sustained a five percent impairment to this 
 
            body as a whole.  He did not assign any restrictions on 
 
            claimant's activities, but recommended cardiovascular 
 
            conditioning and an aggressive rehabilitation program.  In 
 
            November of 1992, Dr. McGuire was of the opinion that 
 
            claimant would be suitable for any occupation (Jt. Ex. I, 
 
            8).  
 
            
 
                 Claimant underwent evaluations to rate the permanent 
 
            impairment of his right arm, performed by Dr. Quenzer, and 
 
            to his right ankle, performed by Dr. Den Hartog.  Dr. Hartog 
 
            recommended further surgery on the right ankle.  In May of 
 
            1993, he was of the opinion that claimant, due to the injury 
 
            to the right ankle, would be unable to stand  for  more than 
 
            four hours per day, with climbing of no more than two 
 
            flights of stairs.  Dr. Den Hartog also imposed a 30 pound 
 
            lifting restriction, and stated claimant had sustained a 28 
 
            percent impairment of the right lower extremity.  This 
 
            rating had been assigned on October 28, 1992 (Jt. Ex. I, 3).  
 
            The defendant insurance carrier requested a second opinion 
 
            from Scott Neff, D.O., who examined claimant's right lower 
 
            extremity.  He concurred that x-rays revealed an abnormality 
 
            in the subtalar joint, and agreed that if claimant was is 
 
            severe pain, he would undergo surgery in the form of 
 
            decompression of the peroneal tendon sheath (Jt. Ex. I, 10, 
 
            13).
 
            
 
                 Intracorp supervised claimant's claim almost 
 
            immediately, but became actively involved in the pursuit of 
 
            employment for claimant in December 1990 and January of 
 
            1991.  Karma Gibson, vocational rehabilitation specialist, 
 
            met with claimant to help establish return-to-work goals, 
 
            including contacting 10 employers per week.  While Ms. 
 
            Gibson provided leads for two telemarketing positions, 
 
            claimant took the initiative and applied for positions as a 
 
            security guard at several businesses and as a janitor for 
 
            the Winterset Community School District.  Further records 
 
            from Intracorp reveal that in March of 1990, claimant had 
 
            secured a full-time position as a security guard for Wells 
 
            Fargo Security Guard Service. While it is unclear as to who 
 
            actually secured this position for claimant, Ms. Gibson 
 
            became involved with monitoring claimant's position, duties, 
 
            performance and schedule.  In so doing, she ascertained that 
 
            due to his employment, claimant was living a less stressful 
 
            life (Jt. Ex. E).  
 
            
 
                 In January of 1993, claimant underwent a psychological 
 
            evaluation performed by Michael McNeil, Ph.D.  After 
 
            administering several tests and analyzing the results of the 
 
            same, Dr. McNeil diagnosed post-traumatic stress disorder, 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            and believed claimant was 50 percent mentally impaired (Jt. 
 
            Ex. I, 9).  
 
            
 
                 Jeff Johnson, a certified rehabilitation consultant, 
 
            was involved with claimant's case on an intermittent basis 
 
            from September 1, 1990 through April 29, 1993, the date of 
 
            his final report.  After reviewing medical records, Mr. 
 
            Johnson believed claimant had sustained a loss of access to 
 
            the labor market of 85 percent due to his physical 
 
            limitations; 95 percent if claimant's mental state was taken 
 
            into account; and a 30 percent loss of actual earnings (Jt. 
 
            Ex. B).
 
            
 
                 The parties could not agree on claimant's rate, and the  
 
            undersigned was provided with claimant's earnings from 
 
            January 4, 1989 through August 18, 1989.  It is noted that 
 
            claimant did not work on a consistent basis during this time 
 
            frame (Jt. Ex. F).
 
            
 
                 Mr. Hay testified at the hearing, and offered that 
 
            although claimant was dependable, he required supervision of 
 
            his work due to his lack of experience as a carpenter.
 
            
 
                 Claimant has secured suitable work as a security guard.  
 
            He earns $4.65 per hour, and is able to work with his 
 
            current employer to establish a schedule which both 
 
            accommodates his physical limitations and meets his 
 
            employer's needs.
 
            
 
                 Claimant stated that he lives with the pain, but 
 
            experiences depression due to his inability to perform 
 
            activities he enjoyed prior to his accident.
 
            
 
                         ANALYSIS AND CONCLUSIONS OF LAW
 
            
 
                 The first issue to address is whether claimant is 
 
            entitled to permanent partial disability benefits.  As 
 
            claimant has sustained numerous permanent injuries, an 
 
            analysis of his industrial disability is warranted. 
 
            
 
                 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.
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
                 Factors to be considered in determining industrial 
 
            disability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  These are 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).
 
            
 
                 At the time of the injury, claimant was 57 years of 
 
            age.  He has some formal education, and demonstrated a 
 
            desire to gain additional schooling to enhance his skills.
 
            
 
                 Claimant's work history has included both white collar 
 
            and blue collar positions.  He has been a manager and 
 
            supervisor of more than 25 employees, and he has been a 
 
            truck driver and clerk at a discount store.  For several 
 
            years prior to his injury, he worked as a carpenter's 
 
            helper.  As such, he performed odd jobs around construction 
 
            sites.  Given the descriptions of the work provided by both 
 
            claimant and Mr. Hay, the position was unskilled and 
 
            non-stressful. 
 
            
 
                 Claimant earned $6.50 per hour at the time of the 
 
            injury.  Past earnings indicate that claimant's wages 
 
            usually ranged between $6.00 per hour and $9.60 per hour.  
 
            
 
                 Claimant left his position as a supervisor for a gas 
 
            station due to the stress involved with management of 
 
            workers.  
 
            
 
                 Currently, claimant is working as a security guard, a 
 
            position which mandates claimant to work from a guard shack 
 
            which houses a chair, check identifications of visitors 
 
            coming into the plant, and walking from the shack to the 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            cars and delivery trucks.  He earns $4.65 per hour and works 
 
            32 hours per week.  While he stated that he was not 
 
            particularly happy with his job due to the sometimes hectic 
 
            schedule, his current employer is satisfied with claimant's 
 
            performance of his job duties, and felt claimant's position 
 
            was secure.  
 
            
 
                 After considering all of the factors that comprise an 
 
            industrial disability, including the severity of claimant's 
 
            injury; his healing period; his age; claimant's work history 
 
            and the range of his earnings; claimant's desire to return 
 
            to suitable employment; claimant's mental state; claimant's 
 
            current position as a security guard, and the physical 
 
            demands placed upon by the job; and, the work restrictions 
 
            placed upon claimant by his treating physicians; and, the 
 
            employer's inability or reluctance to re-employ claimant, it 
 
            is found that claimant has sustained a loss of earning 
 
            capacity of 25 percent. 
 
            
 
                 The final issue to address is claimant's workers' 
 
            compensation rate. 
 
            
 
                 The parties stipulated that at the time of the hearing, 
 
            claimant was married and entitled to two exemptions.  
 
            
 
                 Claimant argues that claimant's rate is calculated 
 
            under Iowa Code section 85.36(7), and computes to $172.68 
 
            based on his hourly wage of $6.50.  Defendants argue that 
 
            claimant's rate is to be calculated pursuant to Iowa Code 
 
            section 85.36(6), and as such totals $154.15 per week 
 
            because the average weekly wages for the 13 weeks prior to 
 
            the injury date total $228.23 per week.
 
            
 
                 Iowa Code section 85.36 provides, in relevant part:
 
            
 
                    The basis of compensation shall be the weekly 
 
                 earnings of the injured employee at the time of 
 
                 the injury.  Weekly earnings means gross salary, 
 
                 wages, or earnings of an employee to which such 
 
                 employee would have been entitled had the employee 
 
                 worked the customary hours for the full pay period 
 
                 in which the employee was injured, as regularly 
 
                 required by the employee's employer for the work 
 
                 or employment for which the employee was employed, 
 
                 computed or determined as follows and then rounded 
 
                 to the nearest dollar:
 
            
 
                    ....
 
            
 
                    6.  In the case of an employee who is paid on a 
 
                 daily, or hourly basis, or by the output of the 
 
                 employee, the weekly earnings shall be computed by 
 
                 dividing by thirteen the earnings, not including 
 
                 overtime or premium pay, of said employee earned 
 
                 in the employee of the employer in the last 
 
                 completed period of thirteen consecutive calendar 
 
                 weeks immediately preceding the injury.
 
            
 
                    7.  In the case of an employee who has been in 
 
                 the employ of the employer less than thirteen 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
                 calendar weeks immediately preceding the injury, 
 
                 the employee's weekly earnings shall be computed 
 
                 under subsection 6, taking the earnings, not 
 
                 including overtime or premium pay, for such 
 
                 purpose to be the amount the employee would have 
 
                 earned had the employee been so employed by the 
 
                 employer the full thirteen calendar weeks 
 
                 immediately preceding the injury and had worked, 
 
                 when work was available to other employees in a 
 
                 similar occupation.
 
            
 
                 The undersigned believes claimant's correct workers' 
 
            compensation rate is $172.68 per week.  Claimant was not in 
 
            the employ of the defendant for a full 13 weeks prior to the 
 
            injury.  There had been a termination, and claimant was 
 
            unemployed for a month preceding the accident.  
 
            
 
                                      ORDER
 
            
 
                 WHEREFORE, IT IS ORDERED:
 
            
 
                 That defendants shall pay claimant permanent partial 
 
            disability benefits totaling one hundred twenty-five (125) 
 
            weeks at the rate of one hundred seventy-two and 68/100 
 
            dollars ($172.68) per week commencing February 28, 1992.
 
            
 
                 That defendants shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against the award for 
 
            weekly benefits previously paid.
 
            
 
                 That defendats shall pay interest on benefits awarded 
 
            herein as set fort in Iowa Code section 85.30. 
 
            
 
                 That defendants shall pay the costs of this action, 
 
            pursuant to rule 343 IAC 4.33. 
 
            
 
                 That defendants shall file a claims activity report 
 
            upon payment of this award as required by the agency 
 
            pursuant to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of August, 1993.
 
            
 
            
 
            
 
            
 
                                          
 
                                        ________________________________
 
                                          PATRICIA J. LANTZ
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr Thomas J Reilly
 
            Attorney at Law
 
            4900 University  Ste 200
 
            Des Moines IA 50311
 
            
 
            Ms Coreen K Bezdicek
 
            Mr Charles Cutler
 
            Attorney at Law
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            729 Ins Exch Bldg
 
            505 Fifth Ave
 
            Des Moines IA 50309
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               5-1803
 
                                               Filed August 26, 1993
 
                                               Patricia J. Lantz
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            RICHARD J. McCONNELEE,        :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 927807
 
            MAURICE HAY INVESTMENTS,      :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            INSURANCE COMPANY OF NORTH    :
 
            AMERICA (sued as CIGNA),      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-1803
 
            Claimant awarded 25% industrial disability based on actual 
 
            loss of earnings (28%); age (54); prior work experience 
 
            (unskilled and skilled labor); current employment status 
 
            (security guard); and mental state (feels depressed on some 
 
            days). 
 
            
 
 
 
 
 
 
 
 
 
 
 
 
 
 
           BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
_________________________________________________________________
 
            
 
WILLIAM LAWRENCE,     
 
            
 
     Claimant,                     File No. 928126
 
            
 
vs.                                  A P P E A L
 
            
 
A. Y. McDONALD MFG. CO.,            D E C I S I O N
 
            
 
     Employer,   
 
     Self-Insured,    
 
     Defendant.       
 
_________________________________________________________________
 
 
 
The record, including the transcript of the hearing before the deputy 
 
and all exhibits admitted into the record, has been reviewed de novo on 
 
appeal.
 
 
 
                                 ISSUE
 
 
 
Defendant states the following issue on appeal:
 
 
 
Whether the Claimant proved by a preponderance of the evidence that 
 
he sustained an additional 50% industrial disability (from 15% to 65%) 
 
as a result of the original injury subsequent to the date of the 
 
initial settlement, where Claimant's physical impairment rating was 
 
unchanged from the time of the initial settlement, and if so, whether 
 
the Claimant proved by a preponderance of the evidence that the alleged 
 
increased incapacity outside the scope of the initial settlement.
 
 
 
                           FINDINGS OF FACT
 
 
 
The findings of fact contained in the proposed agency decision filed 
 
May 12, 1994 are adopted as final agency action.
 
 
 
                             CONCLUSIONS OF LAW
 
 
 
The conclusions of law contained in the proposed agency decision filed 
 
May 12, 1994 are adopted as set forth below.  Segments designated by 
 
brackets ([ ]) indicate language that is in addition to the language of 
 
the proposed agency decision.
 
 
 
Pursuant to Iowa Code section 86.14(2), in a proceeding to reopen an 
 
award for payments, inquiry is to be made into whether or not the 
 
condition of the employee warrants an end to, diminishment of, or 
 
increase of compensation previously awarded.  A change in condition 
 
must be shown to justify changing the original award.  Henderson v. 
 
Iles, 250 Iowa 787; 96 N.W.2d 321 (1959).  It is not proper to merely 
 
redetermine the condition of the employee as adjudicated by the former 
 
award.  Stice v. Consolidated Ind. Coal Co., 228 Iowa 1031, 291 N.W. 
 
452 (1940).
 
 
 
A mere difference of opinion of experts or competent observers as to 
 
the degree of disability arising from the original injury is 
 
insufficient to justify a different determination on a petition for 
 
review-reopening; there must be substantial evidence of a worsening of 
 
the condition not contemplated at the time of the first award.  
 

 
 
 
 
 
 
 
 
 
Bousfield v. Sisters of Mercy, 249 Iowa 64, 86 N.W.2d 109 (1957).  A 
 
change in condition may be found where claimant has failed to improve 
 
to the extent initially anticipated, Meyers v. Holiday Inn of Cedar 
 
Falls, Iowa, 272     N.W.2d 24 (Iowa App. 1978).  Additionally, in 
 
cases not involving scheduled members, a change in earning capacity 
 
subsequent to the original award which is proximately caused by the 
 
original injury may constitute a change in condition.  Blacksmith v. 
 
All-American, Inc., 290 N.W.2d 348 (Iowa 1980).
 
 
 
The required change of condition to satisfy the requirements of 
 
review-reopening need not rest solely upon a change of physical 
 
condition if economic hardships causally related to a compensable 
 
injury but not contemplated within the initial award or agreement are 
 
demonstrated.  An increase in industrial disability may occur without a 
 
change in physical condition.  A change in earning capacity (subsequent 
 
to the original award) which is proximately caused by the original 
 
injury also constitutes a change in condition.  Black, 290 N.W.2d 348 
 
(Iowa 1980); McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980). 
 
 
 
 The question thus secondarily becomes whether or not claimant's 
 
industrial disability has changed.
 
 
 
Functional impairment is an element to be considered in determining 
 
industrial disability which is the reduction of earning capacity, but 
 
consideration must also be given to the injured employee's age, 
 
education, qualifications, experience and inability to engage in 
 
employment for which he is fitted.  Olson v. Goodyear Service Stores, 
 
255 Iowa 1112, 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.  This is so as 
 
impairment and disability are not synonymous.  Degree of industrial 
 
disability can in fact be much different than the degree of impairment 
 
because in the first instance reference is to loss of earning capacity 
 
and in the latter to anatomical or functional abnormality or loss.  
 
Although loss of function is to be considered and disability can rarely 
 
be found without it, it is not so that a degree of industrial 
 
disability is proportionally related to a degree of impairment of 
 
bodily function.
 
 
 
Factors to be considered in determining industrial disability include 
 
the employee's medical condition prior to the injury, immediately after 
 
the injury, and presently; the situs of the injury, its severity and 
 
the length of healing period; the work experience of the employee prior 
 
to the injury, after the injury and potential for rehabilitation; the 
 
employee's qualifications intellectually, emotionally and physically; 
 
earnings prior and subsequent to the injury; age; education; 
 
motivation; functional impairment as a result of the injury; and 
 
inability because of the injury to engage in employment for which the 
 
employee is fitted.  Loss of earnings caused by a job transfer for 
 
reasons related to the injury is also relevant.  These are 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 
 
disability.  See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, 
 

 
 
 
 
 
 
 
 
 
February 28, 1985);  Christensen v. Hagen, Inc., (Appeal Decision, 
 
March 26, l985).
 
 
 
The medical evidence corroborated by testimony from Dr. Weinstein and 
 
Dr. Faber, reveals that claimant had a failed back surgery.  Dr. 
 
Weinstein reported on February 8, 1993, that claimant's expectant 
 
length of healing from his injury and surgical procedure is estimated 
 
to be about six months.  Since he has surpassed this time and continues 
 
to be symptomatic it is evident that the surgical procedure failed.  
 
(Exhibit 1, page 11)  Dr. Faber characterized claimant as one of the 
 
unlucky 50 percent who do not have good results and some relief from 
 
pain after surgical intervention for a bulging disc.  (Ex. N, pp. 
 
23-25)  Claimant's physical condition continued to deteriorate as a 
 
result of his original injury and failed surgical procedure.  
 
Additionally, claimant's emotional condition has deteriorated and he is 
 
now significantly depressed, irritable, fatigued, socially withdrawn, 
 
and occasionally has thoughts of suicide.  (Ex. 10)  
 
 
 
In addition to a change in his physical and mental condition, claimant 
 
has a change in earning capacity which is proximately caused by the 
 
original injury.  Claimant's impairment precludes him from performing 
 
his prior work activity with employer.  In fact, he has been unable to 
 
procure other employment since he was laid off in February 1992.  
 
Although he was recalled in June 1992, he failed the physical 
 
examination and was declared ineligible for employment by Dr. Faber.  
 
 
 
Claimant's residual functional capacity to perform work-related 
 
activities is sedentary to very light, at best.  Curiously, Dr. Nemmers 
 
imposed a 50-pound lifting restriction on claimant September 13, 1990, 
 
prior to surgery and no restrictions after surgery.  Also, Dr. Nemmers 
 
released claimant to return to work less than three months after disc 
 
surgery and without prescribing any physical therapy or rehabilitation 
 
subsequent to surgery.  Claimant worked in pain from February 24, 1991 
 
through February 4, 1992.  His condition deteriorated between February 
 
and June of 1992.  Certainly, this deterioration was not contemplated 
 
by Dr. Nemmers.  A team of experts at the University of Iowa Spinal 
 
Diagnostic and Treatment Center, restricted claimant to occasional 
 
lifting of 20 pounds and repetitive lifting of 10 pounds.  These 
 
restrictions were not contemplated at the time of the first award.  All 
 
the medical experts involved in this case agree that claimant's current 
 
condition is causally related to his initial work injury.  Claimant's 
 
change in condition has resulted in further disability.  
 
 
 
[Claimant has shown a change of condition since the settlement in this 
 
case.  At the time of the settlement, claimant was still working and it 
 
was anticipated he would continue to be employed.  Claimant had no 
 
restrictions at that time, and claimant's surgery at that time was 
 
viewed as successful.  Now, claimant is no longer employed, has severe 
 
restrictions, and the medical testimony indicates that the surgery was 
 
not successful after all.  In addition, although defendants urge that 
 
they stood willing to rehire claimant and give him light duty work, the 
 
record fails to show that this was communicated to claimant until he 
 
was terminated by defendant for failing to return to work.  Claimant 
 
was under the impression that he would be returning to the same work as 
 
he performed at the time he was injured, which was not within his 
 
restrictions.
 
 
 
Claimant is entitled to further healing period benefits.  The period of 
 
time in question represents a period when claimant underwent various 
 
treatments and therapies.  Claimant's physical condition rendered him 
 
unable to work during this period.  Claimant is entitled to healing 
 
period benefits from June 29, 1992 to August 18, 1993.]
 
 
 
After carefully considering the evidence in this case, and employing 
 
agency expertise, it is determined that claimant has sustained 
 
additional permanent disability of 50 percent.  He is entitled to 
 
receive an additional 250 weeks of permanent partial disability 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
benefits at the stipulated rate of $247.34 per week.
 
 
 
Claimant's medical and mileage expenses were reviewed.  The dates of 
 
service were compared with the description of service contained on the 
 
bills and the identity of the providers.  The same are found to be 
 
consistent with the treatment which claimant received for his physical 
 
and mental condition.  Defendant is therefore responsible for full 
 
payment of those expenses.  
 
 
 
Finally, claimant is not entitled to penalty benefits pursuant to Iowa 
 
Code section 86.13 because there was a legitimate dispute as to extent 
 
of impairment.  Juste v. HyGrade Food Products Corp., IV Iowa 
 
Industrial Commissioner Reports, 190 (App. Dec. 1984).
 
 
 
WHEREFORE, the decision of the deputy is affirmed and modified.
 
 
 
                             ORDER
 
 
 
THEREFORE, it is ordered:
 
 
 
That defendant is to pay unto claimant healing period benefits from 
 
June 29, 1992 until August 18, 1993, at the rate of two hundred 
 
forty-seven and 34/100 dollars ($247.34) per week.
 
 
 
That defendant pay to claimant two hundred fifty (250) weeks of 
 
permanent partial disability benefits at the rate of two hundred 
 
forty-seven and 34/100 dollars ($247.34) per week commencing on the 
 
date of this decision.
 
 
 
That defendant pay for all medical and mileage expenses incurred for 
 
treatment of his work-related injury.
 
 
 
That defendant pay accrued amounts in a lump sum.
 
 
 
That defendant pay interest pursuant to Iowa Code section 85.30.
 
 
 
That defendant pay Dr. Weintstein's deposition costs not to exceed one 
 
hundred fifty dollars ($150) as set out in Iowa Code section 622.72.
 
 
 
That claimant and defendant shall share equally the costs of the appeal 
 
including transcription of the hearing.  Defendant shall pay all other 
 
costs.
 
 
 
That defendant file claim activity reports as required by the agency 
 
pursuant to rule 343 IAC 3.1(2).
 
 
 
 
 
Signed and filed this ____ day of January, 1994.                           
 
                              ________________________________                                     
 
                              BYRON K. ORTON                                
 
                              INDUSTRIAL COMMISSIONER
 
 
 
Copies To:
 
 
 
Mr. Mark J. Sullivan
 
Attorney at Law
 
P.O. Box 239
 
Dubuque, Iowa 52001
 
 
 
Mr. Les V. Reddick
 
Attorney at Law
 
2000 CyCare Plaza
 
Dubuque, Iowa 52001
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                5-2905
 
                                Filed January 31, 1995
 
                                Byron K. Orton
 
 
 
            BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
_________________________________________________________________
 
            
 
WILLIAM LAWRENCE,     
 
            
 
     Claimant,                     File No. 928126
 
            
 
vs.                                   A P P E A L
 
            
 
A. Y. McDONALD MFG. CO.,            D E C I S I O N
 
            
 
     Employer,   
 
     Self-Insured,    
 
     Defendant.       
 
_________________________________________________________________
 
 
 
5-2905
 
 
 
Claimant, on review-reopening, was found entitled to 50 percent 
 
additional industrial disability for a back condition which 
 
significantly worsened since a stipulation and agreement for settlement 
 
was entered into between the parties.
 
 
 
 
            
 
            
 
            
 
            
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ------------------------------------------------------------
 
            WILLIAM LAWRENCE,             :       File No. 928126
 
                                          :
 
                 Claimant,                :        R E V I E W - 
 
                                          :
 
            vs.                           :      R E O P E N I N G
 
                                          :      
 
            A.Y. MCDONALD MFG.,           :       D E C I S I O N
 
                                          : 
 
                 Self-Insured,            :
 
                 Employer,                :      
 
                 Defendant.               :
 
            ------------------------------------------------------------
 
            
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in review-reopening upon 
 
            claimant's petition filed on April 29, 1992.  Claimant 
 
            sustained a work injury to his back on August 24, 1989.  
 
            After filing a petition in arbitration on June 1, 1990, 
 
            seeking benefits under the Iowa Workers' Compensation Act 
 
            from self-insured defendant, A. Y. McDonald Manufacturing 
 
            Co., the parties entered into a stipulation and agreement 
 
            for settlement pursuant to Iowa Code section 86.13 which was 
 
            approved by a deputy industrial commissioner on August 16, 
 
            1991.
 
            
 
                 The settlement agreement provided in pertinent part 
 
            that all medical bills and temporary total disability 
 
            payments and time off work have been paid to claimant at the 
 
            rate of $247.34 per week.  In addition, the agreement 
 
            further provided that claimant had sustained a 15 percent 
 
            permanent partial disability to the body as a whole and he 
 
            was paid 75 weeks of benefits.  
 
            
 
                 A hearing on the review-reopening petition was held in 
 
            Dubuque, Iowa, on April 27, 1994.  The claimant was present 
 
            and testified.  Also present and testifying were Darleen 
 
            Lawrence and Jan Welter.  The record was considered fully 
 
            submitted at the close of the hearing.  The documentary 
 
            evidence identified in the record consists of claimant's 
 
            exhibits 1 through 18 (minus number 5) and defendant's 
 
            exhibits A through O (minus K).  
 
            
 
                                      ISSUES
 
            
 
                 Pursuant to the hearing report and order approving same 
 
            dated April 27, 1994, the parties have presented the 
 
            following issues for resolution:
 
            
 
                   Whether claimant's August 24, 1989 work injury has 
 
            caused additional temporary and permanent disability;
 
            
 
                   The extent of additional temporary and permanent 
 
            disability, if any;
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                   The extent of claimant's entitlement to medical 
 
            benefits;
 
            
 
                   Whether claimant is entitled to penalty benefits 
 
            pursuant to Iowa Code section 86.13; and
 
            
 
                   Taxation of costs and, in particular, whether the 
 
            costs of Dr. Weinstein's deposition exceeds the allowable 
 
            amount in Iowa Code section 622.72.
 
            
 
                                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:
 
            
 
                 The parties do not dispute that claimant sustained a 
 
            back injury arising out of and in the course of employment 
 
            with employer on August 24, 1989.  He developed thigh pain 
 
            and numbness in the big toe.  He was released to return to 
 
            work on November 1, 1989.  While working, his symptomatology 
 
            increased.  He was admitted to Finley Hospital for disc 
 
            surgery on November 14, 1990.  Surgery was performed by 
 
            Julian D. Nemmers, M.D.  The procedure was an excision of 
 
            the L4 disc and exploration of the L3 disc.  (exhibit 16, 
 
            pages 16-22).  
 
            
 
                 Claimant was released to return to work on February 4, 
 
            1991.  Claimant returned to work on February 24, 1991, in 
 
            the same salvage labor department where he had worked at the 
 
            time of his injury.  He worked without restriction until 
 
            February 4, 1992, when he was laid off.  Claimant testified 
 
            that although he had no medical restrictions, he worked in 
 
            pain.  Claimant continued to treat with Dr. Nemmers in 1991.  
 
            On March 20, 1991, he presented with numbness in his big toe 
 
            and back pain.  On May 8, 1991, he presented with severe low 
 
            back pain at the end of the work day.  (ex. E, p. 4).  
 
            Claimant testified that in the Fall of 1991 he was bumped 
 
            out of the salvage labor department and transferred to 
 
            machine operator.  He stated that this job was more 
 
            physically demanding than the salvage labor position.  It 
 
            required repetitive and extensive bending, lifting, 
 
            twisting, and turning.  
 
            
 
                 Claimant testified that his symptomatology increased in 
 
            the Fall of 1991.  His attorney requested that employer 
 
            authorize an independent medical examination.  Repeated 
 
            requests were made by claimant's attorney in October and 
 
            November 1991, but were denied by employer.  (ex. 9).  On 
 
            February 22, 1992, claimant, along with nine other 
 
            employees, was laid off.  He stated that his condition 
 
            became worse during the lay off period.  Pursuant to a 
 
            recall notice, claimant was required to be examined by Luke 
 
            C. Faber, M.D., on June 29, 1992, before being reinstated.  
 
            On examination, claimant had limited flexion to 80 degrees, 
 
            extension to 5 degrees and he was not able to chair mount.  
 
            Dr. Faber felt that he should undergo a B200, B-safe low 
 
            back assessment.  This was performed on July 2, 1992.  
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            Melvin Harvey, director of the physical therapy department 
 
            at Finley Hospital, testified at the hearing and also in a 
 
            deposition taken on April 21, 1994.  He testified that 
 
            claimant had only given minimal effort during testing at 
 
            this time.  His composite score was six.  This was reported 
 
            to Dr. Faber and he felt that claimant would not be able to 
 
            perform any of the jobs at the plant.  However, he also 
 
            recommended a total reevaluation of claimant's medical 
 
            condition.  (ex. 6, p. 6).  
 
            
 
                 On August 7, 1992, claimant underwent a lumbar MRI 
 
            examination.  As interpreted by the radiologist, W. T. 
 
            Correy, M.D., the results revealed previous right sided 
 
            L4-L5 laminotomy and diskectomy and residual or recurrent 
 
            posterolateral herniated nucleus pulposus at L4-L5 on the 
 
            right.  (ex. 16, p. 23).  
 
            
 
                 Claimant saw Dr. Faber on September 21, 1992, for 
 
            evaluation.  At this time, Dr. Faber initiated a review of 
 
            claimant's MRI and CAT scan.  (ex. 6, p. 9).  Claimant's 
 
            laboratory studies were reviewed by D. Kahle, M.D., on 
 
            October 7, 1992.  He concluded that the studies revealed a 
 
            small right recurrent or residual disc herniation at L4-5, 
 
            partially surrounded by a small amount of epidural scarring 
 
            and displacement of the nearby nerve root.  (ex. 16, p. 24).
 
            
 
                 Claimant testified that he was never told by either Dr. 
 
            Faber or Dr. Nemmers the results of the MRI scan taken in 
 
            August 1992.  However, Dr. Faber arranged to have him 
 
            evaluated at the University of Iowa Spine Diagnostic and 
 
            Treatment Center.  (ex. 6, p. 9).
 
            
 
                 Claimant presented to the University of Iowa Medical 
 
            Center on November 11, 1992, for evaluation of low back and 
 
            right sided leg pain and numbness in the dorsum of his right 
 
            foot and great toe.  He was seen by James Weinstein, M.D.  
 
            X-rays were taken of the lumbar spine.  Laminotomy defects 
 
            were observed and retrolisthesis of L4 on L5 with extension 
 
            was also noted.  Dr. Weinstein reviewed the MRI taken on 
 
            August 10, 1992, and noted that it revealed right sided L4-5 
 
            disc material that appeared to be surrounded by scar tissue.  
 
            Conservative therapy was initiated which included an 
 
            exercise program which emphasized stabilization activities.  
 
            (ex. 1, pp. 1-6).  Claimant returned to the University of 
 
            Iowa Clinic on December 16, 1992.  He stated that his 
 
            symptoms had not changed significantly despite faithfully 
 
            exercising.  He was then set up for an epidural steroid 
 
            injection.  (ex. 1, pp. 7-10a).  
 
            
 
                 On January 22, 1993, claimant underwent a lumbar facet 
 
            injection.  (ex. 1, pp. 10c-10d).  Claimant returned to the 
 
            clinic on February 8, 1993, with complaints that the 
 
            epidural injection on December 16, 1992, caused saddle 
 
            numbness and severe headaches for about five to six days.  
 
            He indicated that both injections relieved low back pain but 
 
            not his right lower extremity pain.  He also continued to 
 
            report numbness on the dorsum of the right foot.  Claimant's 
 
            symptoms were attributable to his previous surgery and 
 
            failed surgical procedure.  It was determined that he could 
 
            return to work performing light duty.  The possibility of 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            another surgical procedure with chances of success being in 
 
            the 40 to 50 percent range were also discussed as was a 
 
            nonsurgical protocol involving the Spine Rehabilitation 
 
            program with a 60 to 80 percent chance of return to regular 
 
            employment.  (ex. 1, p. 11).  
 
            
 
                 James Weinstein, M.D., director of the Spine Diagnostic 
 
            and Treatment Center, prescribed a low back pain 
 
            rehabilitation program evaluation for claimant in order to 
 
            determine whether he would be a candidate for a two-week 
 
            program at the treatment center.  This evaluation was 
 
            performed on March 30, 1993.  Claimant was seen by various 
 
            members of the spine team, including the spine surgeon, 
 
            physical therapist, psychologist, medical social worker, 
 
            director of rehabilitation programs, and vocational 
 
            rehabilitation specialist.  The findings were then reviewed 
 
            by Dr. Weinstein.  On April 5, 1993, Dr. Weinstein sent the 
 
            results to claimant and indicated that he had been accepted 
 
            as a candidate for the two-week low back pain rehabilitation 
 
            program.  The purpose of the program would be designed 
 
            specifically to increase his strength, flexion and endurance 
 
            and to teach him coping skills.  (ex. 2).  
 
            
 
                 Employer refused to authorize payment for claimant to 
 
            participate in the two-week rehabilitation program in Iowa 
 
            City.  (ex. 1, p. 14a).  Instead, they arranged for claimant 
 
            to undergo a modified functional capacity evaluation at 
 
            Cathedral Square Physical Therapy in Dubuque, Iowa.  On June 
 
            8, 1993, Melvin L. Harvey, physical therapist, conducted a 
 
            musculoskeletal evaluation and used the results of the 
 
            psychological and vocational rehabilitation evaluation done 
 
            at the University of Iowa on March 30, 1993, as a baseline 
 
            to begin the program.  At this time, claimant's lumbar range 
 
            of motion was 55 degrees of forward flexion and 23 degrees 
 
            of extension.  Right lateral flexion was 25 degrees and 
 
            lateral flexion 20 degrees.  Straight leg raising was 60 
 
            degrees bilaterally.  (ex. F, pp. 1-2).  
 
            
 
                 Claimant began a work hardening program at Cathedral 
 
            Square on June 8, 1993.  A repeat B-safe low back assessment 
 
            evaluation was performed and claimant's composite score 
 
            increased to 23.  This was much improved over the composite 
 
            score of 5 obtained on July 2, 1992.  (ex. F, pp. 3-4).  On 
 
            August 18, 1993, Mr. Harvey reported to Dr. Faber that 
 
            claimant had participated in at least 19 work hardening 
 
            sessions since June 1993.  Another B-safe evaluation was 
 
            completed on August 17 and claimant obtained a composite 
 
            score of 23.  A modified functional capacity evaluation was 
 
            also completed with the results essentially unchanged since 
 
            July 14, 1993.  (ex. F).
 
            
 
                 Claimant was seen in the Spine Diagnostic and Treatment 
 
            Center on July 26, 1993.  He presented with low back pain 
 
            and radicular symptoms in the right leg but no motor 
 
            weakness.  It was again felt that claimant would benefit 
 
            from their spine rehabilitation program.  (ex. 1, p. 17).  
 
            
 
                 Claimant presented to Dr. Weinstein on August 6, 1993.  
 
            He stated that the work hardening program was not helping 
 
            him.  Dr. Weinstein told claimant that the disc fragment was 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            not something that would be surgically correctable in a 
 
            predictable fashion and that rehabilitation was much more 
 
            predictable as far as outcome.  (ex. 1, p. 18).
 
            
 
                 Claimant saw Dr. Faber on August 25, 1993.  He 
 
            contacted Janet Welter, human resource department manager 
 
            with employer, and indicated that claimant could return to 
 
            work with the physical limitations suggested by the physical 
 
            therapist at Cathedral Square.  These limitations included 
 
            occasional lifting of 50 pounds, frequent lifting of 20 
 
            pounds and constant lifting of 10 pounds.  (ex. 6, p. 10).
 
            
 
                 Claimant was then notified by Janet Welter to report to 
 
            the salvage labor classification in department 22 on the day 
 
            following receipt of her letter which was dated August 26, 
 
            1993.  (ex. G).  Claimant called the University of Iowa 
 
            Clinic on August 27 expressing his concern about reporting 
 
            to work and asked for an appointment.  (ex. 1, p. 19).  Dr. 
 
            Weinstein then intervened on claimant's behalf and wrote a 
 
            letter to employer stating that claimant should not be 
 
            released to any type of employment until he is seen at the 
 
            center on September 13, 1993.  (ex. 3, p. 4).  In the 
 
            meantime, claimant received a letter from Janet Welter dated 
 
            August 31, 1993, terminating his employment with the company 
 
            effective September 1, 1993, for refusing to return to work 
 
            after being released to do so by Dr. Faber.  (ex. H).
 
            
 
                 Claimant saw Dr. Weinstein on September 13, 1993.  Dr. 
 
            Weinstein noted that claimant was becoming psychologically 
 
            and emotionally disturbed by the whole situation.  The work 
 
            hardening program was not improving his condition and 
 
            employer refused to finance the rehabilitation program in 
 
            Iowa City.  (ex. 1, p. 19a).  On September 23, 1993, Dr. 
 
            Weinstein reported that claimant is unable to perform any 
 
            job tasks with employer that involve repetitive bending, 
 
            stooping and reaching or lifting more than 20 pounds on a 
 
            one-time basis and repetitive lifting of not more than 12 
 
            pounds.  (ex. 3, p. 5).
 
            
 
                 On October 14, 1993, claimant telephoned Ted Wernimont, 
 
            M.S.W., at the University of Iowa, and stated that he was 
 
            ready to commit suicide.  He indicated that he had been 
 
            informed by employer that they would try to accommodate his 
 
            work situation.  He stated that he had an appointment with 
 
            vocational rehabilitation for testing.  (ex. 1, p. 20).
 
            
 
                 On October 15, 1993, claimant presented to Professional 
 
            Rehabilitation Services in Madison, Wisconsin for a 
 
            vocational assessment.  A comprehensive report was submitted 
 
            by Jill K. Shilbauer, M.S., vocational rehabilitation 
 
            counselor, and Ross K. Lynch, Ph.D., rehabilitation 
 
            psychologist, on November 9, 1993.  A detailed medical and 
 
            social history was taken and a variety of assessment tools 
 
            were administered.  Based upon the overall test results, 
 
            claimant has average to above-average learning ability, 
 
            understanding, reasoning and judgment.  His academic 
 
            achievement levels in mathematics, reading comprehension and 
 
            spelling were consistent with his education.  Due to his 
 
            physical complaints of permanent restrictions, he is limited 
 
            to sedentary and light-type jobs and therefore unable to 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            return to his previous employment.  In view of claimant's 
 
            limited work experiences in the mechanical/repair field, it 
 
            was determined that he would need additional education and 
 
            training to obtain other employment.  (ex. 14).  
 
            
 
                 Claimant testified that he completed the eleventh grade 
 
            of school and received his GED certificate in June 1993.  In 
 
            January 1994 he enrolled at Southwest Iowa Technical 
 
            Vocational School in the electronics program.  He stated 
 
            that he made an extensive job search between April 1992 and 
 
            December 1993 and was unable to procure other employment.  
 
            (ex. 15).  
 
            
 
                 On November 19, 1993, Dr. Weinstein again reiterated 
 
            his recommendation that claimant enroll in the two-week low 
 
            back pain rehabilitation program in Iowa City.  (ex. 3, p. 
 
            6). 
 
            
 
                 On February 22, 1994, claimant was evaluated by Thomas 
 
            J. Hughes, M.D., pursuant to his application for social 
 
            security disability benefits.  Dr. Hughes is an occupational 
 
            and environmental medicine specialist in Dubuque, Iowa.  
 
            After reviewing the claimant's medical history and noting 
 
            his complaints (pain in the low back, right hip and thigh to 
 
            the level of the foot, numbness in the right buttock and 
 
            inside the right foot with radiating pain down the back of 
 
            the leg), Dr. Hughes conducted a physical examination.  He 
 
            concluded that claimant was not only quite depressed but 
 
            also obviously impaired by his continued difficulties.  He 
 
            stated that claimant's capacity for sitting was probably no 
 
            more than 30 minutes at a time and standing no more than 5 
 
            to 10 minutes at a time.  He noted that his capacity for 
 
            lifting, bending and stooping was markedly impaired and he 
 
            has no real capacity for carrying.  X-rays taken of the 
 
            lumbar spine revealed moderate disc space narrowing at L5-S1 
 
            with an associated slightly exaggerated lordosis of the 
 
            lower lumbar spine.  (ex. 12). 
 
            
 
                 On March 8, 1994, claimant underwent a psychiatric 
 
            evaluation by John Roberts, M.D.  Dr. Roberts indicated that 
 
            claimant suffers from major depression with worsening 
 
            vegetative symptoms.  He suggested that he be seen at a pain 
 
            clinic.  (ex. 10).
 
            
 
                 On March 4, 1994, Dr. Weinstein opined that claimant 
 
            has a 15 percent permanent impairment rating as a result of 
 
            his work-related injury and subsequent surgical procedures.  
 
            (ex. 3, p. 7).
 
            
 
                 In addition to the aforementioned medical records, the 
 
            record contains depositions from Melvin Harvey, Dr. Luke 
 
            Faber and Dr. James Weinstein taken the week of April 21, 
 
            1994.  Dr. Weinstein testified that the physical 
 
            restrictions he imposed on claimant were based on the tests 
 
            performed in his facility.  (ex. 17, pp. 25-26).  Dr. Faber 
 
            testified that he gave claimant restrictions based on the 
 
            results of the evaluation done at Cathedral Square.  (ex. N, 
 
            p. 16).  Dr. Faber admitted that the work hardening program 
 
            at Cathedral Square differs from the program at the 
 
            rehabilitation and pain clinic in Iowa City.  He testified 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            that he accepted Dr. Weinstein's recommendations regarding 
 
            claimant's treatment in Iowa City, but, he is not authorized 
 
            to make the final decision in that regard.  Dr. Faber 
 
            insisted that his letter to Janet Welter dated August 25, 
 
            1993, did not authorize claimant to return to work, it only 
 
            discussed the limitations imposed by the physical therapy 
 
            evaluation at Cathedral Square.  (ex. N, p. 36).  Jan Welter 
 
            testified at the hearing.  She stated that employer does not 
 
            have light duty per se but they try to accommodate 
 
            claimant's physical restrictions by enlisting other 
 
            employers to help disabled employees accomplish their 
 
            lifting requirements.  
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 Pursuant to Iowa Code section 86.14(2), in a proceeding 
 
            to reopen an award for payments, inquiry is to be made into 
 
            whether or not the condition of the employee warrants an end 
 
            to, diminishment of, or increase of compensation previously 
 
            awarded.  A change in condition must be shown to justify 
 
            changing the original award.  Henderson v. Iles, 250 Iowa 
 
            787; 96 N.W.2d 321 (1959).  It is not proper to merely 
 
            redetermine the condition of the employee as adjudicated by 
 
            the former award.  Stice v. Consolidated Ind. Coal Co., 228 
 
            Iowa 1031, 291 N.W. 452 (1940).
 
            
 
                 A mere difference of opinion of experts or competent 
 
            observers as to the degree of disability arising from the 
 
            original injury is insufficient to justify a different 
 
            determination on a petition for review-reopening; there must 
 
            be substantial evidence of a worsening of the condition not 
 
            contemplated at the time of the first award.  Bousfield v. 
 
            Sisters of Mercy, 249 Iowa 64, 86 N.W.2d 109 (1957).  A 
 
            change in condition may be found where claimant has failed 
 
            to improve to the extent initially anticipated, Meyers v. 
 
            Holiday Inn of Cedar Falls, Iowa, 272     N.W.2d 24 (Iowa 
 
            App. 1978).  Additionally, in cases not involving scheduled 
 
            members, a change in earning capacity subsequent to the 
 
            original award which is proximately caused by the original 
 
            injury may constitute a change in condition.  Blacksmith v. 
 
            All-American, Inc., 290 N.W.2d 348 (Iowa 1980).
 
            
 
                 The required change of condition to satisfy the 
 
            requirements of review-reopening need not rest solely upon a 
 
            change of physical condition if economic hardships causally 
 
            related to a compensable injury but not contemplated within 
 
            the initial award or agreement are demonstrated.  An 
 
            increase in industrial disability may occur without a change 
 
            in physical condition.  A change in earning capacity 
 
            (subsequent to the original award) which is proximately 
 
            caused by the original injury also constitutes a change in 
 
            condition.  Black, 290 N.W.2d 348 (Iowa 1980); McSpadden v. 
 
            Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980).  The question 
 
            thus secondarily becomes whether or not claimant's 
 
            industrial disability has changed.
 
            
 
                 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 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            the injured employee's age, education, qualifications, 
 
            experience and inability to engage in employment for which 
 
            he is fitted.  Olson v. Goodyear Service Stores, 255 Iowa 
 
            1112, 125 N.W.2d 251 (1963).  Barton v. Nevada Poultry, 253 
 
            Iowa 285, 110 N.W.2d 660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial disabil
 
            ity.  This is so as impairment and disability are not syn
 
            onymous.  Degree of industrial disability can in fact be 
 
            much different than the degree of impairment because in the 
 
            first instance reference is to loss of earning capacity and 
 
            in the latter to anatomical or functional abnormality or 
 
            loss.  Although loss of function is to be considered and 
 
            disability can rarely be found without it, it is not so that 
 
            a degree of industrial disability is proportionally related 
 
            to a degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  These are matters which the 
 
            finder of fact considers collectively in arriving at the 
 
            determination of the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  There are no 
 
            guidelines which give, for example, age a weighted value of 
 
            ten percent of the total value, education a value of fifteen 
 
            percent of total, motivation - five percent; work experience 
 
            - thirty percent, etc.  Neither does a rating of functional 
 
            impairment directly correlate to a degree of industrial 
 
            disability to the body as a whole.  In other words, there 
 
            are no formulae which can be applied and then added up to 
 
            determine the degree of industrial disability.  It therefore 
 
            becomes necessary for the deputy or commissioner to draw 
 
            upon prior experience, general and specialized knowledge to 
 
            make the finding with regard to degree of industrial dis
 
            ability.  See Peterson v. Truck Haven Cafe, Inc., (Appeal 
 
            Decision, February 28, 1985);  Christensen v. Hagen, Inc., 
 
            (Appeal Decision, March 26, l985).
 
            
 
                 The medical evidence corroborated by testimony from Dr. 
 
            Weinstein and Dr. Faber, reveals that claimant had a failed 
 
            back surgery.  Dr. Weinstein reported on February 8, 1993, 
 
            that claimant's expectant length of healing from his injury 
 
            and surgical procedure is estimated to be about six months.  
 
            Since he has surpassed this time and continues to be 
 
            symptomatic it is evident that the surgical procedure 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            failed.  (ex. 1, p. 11).  Dr. Faber characterized claimant 
 
            as one of the unlucky 50 percent who do not have good 
 
            results and some relief from pain after surgical 
 
            intervention for a bulging disc.  (ex. N, pp. 23-25).  
 
            Claimant's physical condition continued to deteriorate as a 
 
            result of his original injury and failed surgical procedure.  
 
            Additionally, claimant's emotional condition has 
 
            deteriorated and he is now significantly depressed, 
 
            irritable, fatigued, socially withdrawn, and occasionally 
 
            has thoughts of suicide.  (ex. 10).  
 
            
 
                 In addition to a change in his physical and mental 
 
            condition, claimant has a change in earning capacity which 
 
            is proximately caused by the original injury.  Claimant's 
 
            impairment precludes him from performing his prior work 
 
            activity with employer.  In fact, he has been unable to 
 
            procure other employment since he was laid off in February 
 
            1992.  Although he was recalled in June 1992, he failed the 
 
            physical examination and was declared ineligible for 
 
            employment by Dr. Faber.  Claimant's residual functional 
 
            capacity to perform work-related activities is sedentary to 
 
            very light, at best.  Curiously, Dr. Nemmers imposed a 
 
            50-pound lifting restriction on claimant September 13, 1990, 
 
            prior to surgery and no restrictions after surgery.  Also, 
 
            Dr. Nemmers released claimant to return to work less than 
 
            three months after disc surgery and without prescribing any 
 
            physical therapy or rehabilitation subsequent to surgery.  
 
            Claimant worked in pain from February 24, 1991 through 
 
            February 4, 1992.  His condition deteriorated between 
 
            February and June of 1992.  Certainly, this deterioration 
 
            was not contemplated by Dr. Nemmers.  A team of experts at 
 
            the University of Iowa Spinal Diagnostic and Treatment 
 
            Center, restricted claimant to occasional lifting of 20 
 
            pounds and repetitive lifting of 10 pounds.  These 
 
            restrictions were not contemplated at the time of the first 
 
            award.  All the medical experts involved in this case agree 
 
            that claimant's current condition is causally related to his 
 
            initial work injury.  Claimant's change in condition has 
 
            resulted in further disability.  
 
            
 
                 After carefully considering the evidence in this case, 
 
            and employing agency expertise, it is determined that 
 
            claimant has sustained additional permanent disability of 50 
 
            percent.  He is entitled to receive an additional 250 weeks 
 
            of permanent partial disability benefits at the stipulated 
 
            rate of $247.34 per week.
 
            
 
                 Claimant's medical and mileage expenses were reviewed.  
 
            The dates of service were compared with the description of 
 
            service contained on the bills and the identity of the 
 
            providers.  The same are found to be consistent with the 
 
            treatment which claimant received for his physical and 
 
            mental condition.  Defendant is therefore responsible for 
 
            full payment of those expenses.  
 
            
 
                 Finally, claimant is not entitled to penalty benefits 
 
            pursuant to Iowa Code section 86.13 because there was a 
 
            legitimate dispute as to extent of impairment.  Juste v. 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            HyGrade Food Products Corp., IV Iowa Industrial Commissioner 
 
            Reports, 190 (App. Dec. 1984).
 
            
 
                                      ORDER
 
            
 
                 THEREFORE IT IS ORDERED;
 
            
 
                 That defendant pay to claimant two hundred fifty (250) 
 
            weeks of permanent partial disability benefits at the rate 
 
            of two hundred forty-seven and 34/100 dollars ($247.34) per 
 
            week commencing on the date of this decision.
 
            
 
                 That defendant pay for all medical and mileage expenses 
 
            incurred for treatment of his work-related injury.
 
            
 
                 That defendant pay accrued amounts in a lump sum.
 
            
 
                 That defendant pay interest pursuant to Iowa Code 
 
            section 85.30.
 
            
 
                 That defendant pay costs pursuant to rule 343 IAC 4.33.
 
            
 
                 That defendant pay Dr. Weintstein's deposition costs 
 
            not to exceed one hundred fifty dollars ($150) as set out in 
 
            Iowa Code section 622.72.
 
            
 
                 That defendant file claim activity reports as required 
 
            by the agency pursuant to rule 343 IAC 3.1(2).
 
            
 
                 Signed and filed this ________ day of May, 1994.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          JEAN M. INGRASSIA
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Mark Sullivan
 
            Attorney at Law
 
            222 Fischer Bldg
 
            PO Box 239
 
            Dubuque, Iowa  52004-0239
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            
 
            Mr. Les Reddick
 
            Attorney at Law
 
            200 Cycare Plaza
 
            700 Locust St
 
            Dubuque, Iowa  52001-6874
 
            
 
                 
 
            
 
 
            
 
            
 
            
 
            
 
                                                52905
 
                                                Filed May 12, 1994
 
                                                Jean M. Ingrassia
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ------------------------------------------------------------
 
            WILLIAM LAWRENCE,                  File No. 928126
 
                      
 
                 Claimant,                       R E V I E W - 
 
                      
 
            vs.                                R E O P E N I N G
 
                            
 
            A.Y. MCDONALD MFG.,                 D E C I S I O N
 
                       
 
                 Self-Insured,  
 
                 Employer,       
 
                 Defendant.     
 
            ------------------------------------------------------------
 
            
 
            
 
            52905
 
            
 
            Claimant, on review-reopening, was found entitled to 50 
 
            percent additional industrial disability for a back 
 
            condition which significantly worsened since a stipulation 
 
            and agreement for settlement was entered into between the 
 
            parties.