Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            KENNETH EARL CORNWELL,        :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 929175
 
            d/b/a GUS' FAMILY RESTAURANT  :
 
            (P & T INC.),                 :    A R B I T R A T I O N
 
                                          :
 
                 Employer,                :       D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            AMERICAN FAMILY INSURANCE     :
 
            GROUP,                        :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Kenneth 
 
            Earl Cornwell, claimant, against P & T, Inc., d/b/a Gus' 
 
            Family Restaurant, employer (hereinafter referred to as Gus' 
 
            Restaurant), and American Family Insurance Group, insurance 
 
            carrier, defendants, for workers' compensation benefits as a 
 
            result of an alleged injury on September 23, 1989.  On 
 
            October 1, 1991, a hearing was held on claimant's petition 
 
            and the matter was considered fully submitted at the close 
 
            of this hearing.
 
            
 
                 The parties have submitted a prehearing report of con
 
            tested issues and stipulations which was approved and 
 
            accepted as a part of the record of this case at the time of 
 
            hearing.  The oral testimony and written exhibits received 
 
            during the hearing are set forth in the hearing transcript.
 
            
 
                 According to the prehearing report, the parties have 
 
            stipulated to the following matters:
 
            
 
                 1.  An employee-employer relationship existed between 
 
            claimant and Gus' Restaurant at the time of the alleged 
 
            injury.
 
            
 
                 2.  If defendants are liable for the alleged injury, 
 
            claimant's entitlement to temporary total disability or 
 
            healing period benefits extends from September 23, 1989 
 
            through November 17, 1989.
 
            
 
                 3.  If the injury is found to have caused permanent 
 
            disability, the type of disability is an industrial disabil
 
            ity to the body as a whole.
 
            
 
                 4.  Claimant's gross rate of weekly compensation at the 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            time of the alleged injury was $117.25 per week.  Claimant's 
 
            marital status and entitlement to exemptions remains in dis
 
            pute with reference to the calculation of claimant's rate of 
 
            compensation.
 
            
 
                                      issues
 
            
 
                 The parties submitted the following issues for determi
 
            nation in this proceeding:
 
            
 
                   I.  Whether claimant received an injury arising out 
 
            of and in the course of his employment;
 
            
 
                  II.  The extent of claimant's entitlement to disabil
 
            ity benefits; and,
 
            
 
                 III.  The extent of claimant's entitlement to medical 
 
            benefits.
 
            
 
                                 findings of fact
 
            
 
                 Having heard the testimony and considered all the evi
 
            dence, the deputy industrial commissioner finds as follows:
 
            
 
                 Claimant, age 36, worked for Gus' Restaurant as a dish
 
            washer for approximately two weeks prior to the injury.  It 
 
            is unclear from the evidence what the customary number of 
 
            hours for employees were at Gus' Restaurant.  According to 
 
            exhibit 21, claimant worked a total of 70 hours at $3.35 per 
 
            hour while employed with Gus' Restaurant before and after 
 
            the injury.  The exhibit appears to be inconsistent with the 
 
            parties' stipulation with reference to temporary total dis
 
            ability or healing period entitlement.  The stipulation 
 
            indicated that claimant was off work immediately after the 
 
            alleged injury.  However, there may be more evidence other 
 
            than this exhibit to support the stipulation and the stipu
 
            lation will be honored.  Consequently, it is assumed by 
 
            virtue of the stipulation that claimant left work after the 
 
            injury.  Claimant has not returned to work at Gus' 
 
            Restaurant although he has been released to return to work 
 
            within physician imposed work restrictions.
 
            
 
                 On or about September 23, 1989, claimant injured his 
 
            low back while lifting a heavy load of dishes while working 
 
            at Gus' Restaurant.  This injury arose out of and in the 
 
            course of employment.  Claimant immediately reported the 
 
            injury to the head waitress and was told to go to the hospi
 
            tal for treatment of his complaints of severe low back pain.  
 
            At the emergency room, claimant was treated by physicians 
 
            for low back pain and numbness in his legs.  The diagnosis 
 
            was low back pain and spondylolisthesis (hereinafter 
 
            referred to as "spondy") at the L5, Sl vertebral level of 
 
            claimant's low back.  Physicians recommended that claimant 
 
            remain off work for three or four days.  Claimant remained 
 
            off work and returned for treatment at the hospital on two 
 
            more occasions in September and October 1989 with continued 
 
            complaints of low back pain and right leg pain.  Claimant 
 
            was then referred to an orthopedic surgeon and released to 
 
            return to work with the restriction of no lifting over 20 
 
            pounds.  Physicians at that time also recommended that 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            claimant use a back support brace or corset.
 
            
 
                 In early October 1989, claimant was treated by Duane 
 
            Nelson, M.D., an orthopedic surgeon, who diagnosed symp
 
            tomatic Grade II spondy.  Dr. Nelson treated claimant over 
 
            the next few weeks with a back brace and instructions to 
 
            avoid aggravating activity.  In a report dated January 1990, 
 
            Dr. Nelson opined that claimant's spondy was a permanent 
 
            condition that causes recurrent back pain and that this con
 
            dition consists of an eight percent body as a whole perma
 
            nent partial impairment according to the AMA rating guide
 
            lines.  Dr. Nelson recommended surgery to stabilize 
 
            claimant's low back if the back brace was not successful.  
 
            Claimant has to date rejected this surgical option to treat 
 
            his spondy condition.
 
            
 
                 The injury of September 23, 1989, was not the first 
 
            time claimant has experienced low back pain radiating into 
 
            his legs.  It was not the first time claimant had been diag
 
            nosed as suffering from spondy.  It also was not the first 
 
            time claimant had been advised to wear a back brace and 
 
            undergo surgery.  At the emergency room on September 23, 
 
            1989, claimant told his physicians that he had experienced 
 
            chronic low back pain in the past and received treatment 
 
            between 1982 and 1985.  He also stated to these physicians 
 
            that he had been advised in the past to have surgery to cor
 
            rect a defect in his back but had rejected this option and 
 
            consequently was experiencing occasional low back pain.
 
            
 
                 Claimant's history of back and leg pain extends back to 
 
            either 1977 or 1978 (the record is not precisely clear on 
 
            which date).  At that time claimant testified that he suf
 
            fered a work injury to his low back while performing heavy 
 
            lifting loading trucks in the State of California.  
 
            Treatment at that time involved physical therapy including 
 
            ultrasound, heat packs and massages.  Claimant was off work 
 
            for a period of time following this injury.  Claimant admit
 
            ted in his deposition testimony that this injury motivated 
 
            him to change his employment to a cook job because he felt 
 
            that work as a cook was lighter duty.
 
            
 
                 It should be noted that claimant was involved in a 
 
            motorcycle accident in 1979 in which he received a skull 
 
            fracture and a compression fracture of the cervical spine.  
 
            However, the medical records failed to show that he suffered 
 
            any low back injury or pain after this incident.
 
            
 
                 Claimant was first diagnosed as suffering from develop
 
            mental abnormalities at the L5, Sl level of his lower spine 
 
            in January 1985, by Richard D. Walter, M.D.  At this time 
 
            claimant suffered back pain while working in a job in the 
 
            State of Pennsylvania.  Dr. Walter described the condition 
 
            as anthrolithesis and spina bifida occulta.  In his deposi
 
            tion testimony, claimant explained that this was a different 
 
            term used by physicians in Pennsylvania for what he under
 
            stood to be the spondy condition.
 
            
 
                 Claimant was next treated in the State of Colorado for 
 
            low back pain and radiating pain in both legs in January 
 
            1988 by John L. Miller, M.D.  At this time claimant sought 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            disability benefits from the State of Colorado as a result 
 
            of his back problems.  According to Dr. Miller's records, 
 
            the onset of low back pain and leg pain occurred without a 
 
            specific injury, only after just heavy exertion.  The fact 
 
            that this pain occurred again in the winter time is consis
 
            tent with claimant's testimony at hearing and in his deposi
 
            tion that his low back condition worsens in wet damp cold 
 
            weather and improves in sunny warm weather such as in the 
 
            summertime.  Dr. Miller also diagnosed spina bifida occulta 
 
            at L5, Sl with low back pain.  He noted that this pain had 
 
            lasted for two years and had now begun to radiate into his 
 
            legs.  Dr. Miller examined claimant again in September 1988.  
 
            According to Dr. Miller's last report, claimant was suffer
 
            ing from a permanent condition due to his chronic low back 
 
            and leg pain.  Dr. Miller, at that time, imposed a work 
 
            activity restriction of no lifting over 20 pounds and no 
 
            frequent lifting over 10 pounds.  He also recommended that 
 
            claimant wear a back brace but, according to claimant's tes
 
            timony, the use of this back brace or corset did not help 
 
            his problems at that time.
 
            
 
                 In October 1988, claimant suffered two significant 
 
            falls down a stairway that were only two weeks apart.  The 
 
            last fall resulted in an injury to claimant's shoulder.  
 
            Claimant testified that these falls were caused when his 
 
            "legs locked up."  According to exhibit 7, a medical record 
 
            of the treatment claimant received after these incidents, 
 
            claimant suffered a shoulder joint separation in the last 
 
            fall down the stairway.
 
            
 
                 Claimant testified that he continues to have permanent 
 
            back and right leg pain since the September 1989 work 
 
            injury.  Although he has been released to return to work 
 
            within his restrictions, claimant has never returned to work 
 
            at Gus' Restaurant.  Why claimant did not do so is unclear 
 
            in the record.  Claimant had testified that he usually 
 
            attempted to stay within Dr. Miller's work restrictions when 
 
            he was working at Gus' Restaurant prior to the work injury.  
 
            Claimant stated that he was usually successful in staying 
 
            within his restrictions but on the day of the injury he was 
 
            in a hurry and had loaded down a tray with too many dishes.
 
            
 
                 Claimant has had three jobs since leaving Gus' 
 
            Restaurant.  He worked for a few weeks during the summer 
 
            following the work injury as a carpenter.  His employer in 
 
            this carpenter job testified at hearing that claimant was 
 
            required to lift heavy objects from 50 to 75 pounds while 
 
            working for him and that claimant exhibited no back problems 
 
            in performing this work.  Claimant worked briefly as a book
 
            store manager and is now working delivering laundry.  
 
            Claimant testified at hearing that the laundry job requires 
 
            very little heavy lifting but does require pushing carts of 
 
            laundry and loading and unloading a laundry truck.   
 
            Claimant is paid $3.85 per hour in his current job and works 
 
            approximately 20 hours a week.  Claimant states that his 
 
            back pain is now worse than it was in September 1989.
 
            
 
                 Claimant has failed to show that the work injury of 
 
            September 23, 1989, was a cause of permanent partial impair
 
            ment or a significant contributing factor in the imposition 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            of his current work restrictions limiting lifting and the 
 
            amount of standing, sitting and walking.  Claimant states 
 
            that although the work restrictions were imposed long before 
 
            he worked at Gus' Restaurant, he recovered from his back 
 
            problems and was able to perform heavy lifting in various 
 
            landscaping jobs prior to working at Gus' Restaurant.  He 
 
            also, for a brief time, was employed as an appliance repair
 
            man in a job requiring heavy lifting.  Immediately prior to 
 
            the employment at Gus' Restaurant, claimant worked for the 
 
            owner of the restaurant for a brief time in yard cleanup.  
 
            Claimant stated that he was required to perform heavy lift
 
            ing and repetitive lifting and stooping while doing this 
 
            yard work.  However, the evidence indicates that claimant 
 
            had been working in excess of his restrictions since working 
 
            at Gus' Restaurant and his release to return to work by Dr. 
 
            Nelson.  It is clear that claimant has a practice of exceed
 
            ing his limitations, especially in the summertime when his 
 
            back feels good.  At times when he does exceed his limita
 
            tions, these incidents lead to the onset of back pain 
 
            requiring medical treatment and absence from work.  The fact 
 
            remains that claimant's underlying condition continues to be 
 
            spondy and/or spina bifida occulta.  This condition remains 
 
            essentially the same since it was first diagnosed in 1985.
 
            
 
                 Claimant relies largely upon the views of a neurosur
 
            geon, Horst Blume, M.D., who examined claimant at the 
 
            request of claimant's lawyer in 1991.  Dr. Blume provided a 
 
            15 percent permanent partial impairment rating and causally 
 
            related this impairment to his "injuries."  Whether this 
 
            includes the injury in September 1989, is unclear from the 
 
            doctor's report.  However, Dr. Blume's causal connection 
 
            opinion is deficient on its face.  At no time does Dr. Blume 
 
            mention any of claimant's past back problems and it is 
 
            unknown whether claimant ever told Dr. Blume of these prior 
 
            problems.  Furthermore, Dr. Blume diagnoses the injury to be 
 
            an aggravation of a preexisting condition but does not 
 
            explain how he arrived at the conclusion that this aggrava
 
            tion led to permanency.  Defendants rely upon the views of 
 
            John J. Dougherty, M.D., an orthopedic surgeon who, after 
 
            reviewing claimant's medical records, concluded that the 
 
            spondy is not work related and congenital.  Dr. Dougherty, 
 
            however, never actually examined claimant.
 
            
 
                 There appears to be a consensus of medical opinion in 
 
            the record that the spondy or the spina bifida occulta is 
 
            the only permanent condition suffered by claimant and that 
 
            this condition is congenital and unrelated to the injury of 
 
            September 23, 1989.  Claimant has been suffering recurrent 
 
            episodes of low back and leg pain caused by aggravations of 
 
            this condition since 1985.  Dr. James Walston, M.D., who 
 
            examined claimant in September 1990, for the State 
 
            Department of Vocational Rehabilitation, refers to the 
 
            spondy as a congenital problem.  Dr. Walters, referred to 
 
            above, also refers to spondy as a developmental condition.  
 
            Dr. Dougherty likewise as mentioned above considers spondy 
 
            as congenital.  Dr. Blume refers to the injury as an aggra
 
            vation of a preexisting spondy condition.  Dr. Blume also 
 
            refers to a suspected ruptured disc but according to Dr. 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            Blume this can only be confirmed by further testing.  Such 
 
            testing has not been done.  Consequently, no findings could 
 
            be made as to Dr. Blume's suspicions.
 
            
 
                 Therefore, claimant certainly has a serious and perma
 
            nent back problem but this condition preexisted the injury 
 
            at Gus' Restaurant.  The injury at the restaurant only tem
 
            porarily aggravated the condition and claimant soon returned 
 
            to the same condition he was in prior to the injury.
 
            
 
                 There is a dispute with reference to claimant's rate of 
 
            compensation.  With reference to claimant's marital status, 
 
            the evidence indicates that claimant was divorced from both 
 
            of his prior spouses prior to the injury.  At the time of 
 
            the injury he was single.  Claimant has six children from 
 
            two prior marriages.  Claimant appears to have some obliga
 
            tion under existing divorce decrees to support these chil
 
            dren but has never done so.  There is no evidence to suggest 
 
            that claimant has ever claimed these children as exemptions 
 
            on his tax returns.  Claimant did not express regret in 
 
            failing to support his children and did not express any 
 
            interest in starting such support in the future.  Claimant 
 
            clearly has completely abandoned his parental obligations of 
 
            support long ago with reference to these children.
 
            
 
                    
 
            
 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            conclusions of law
 
            
 
                   I.  Claimant has the burden of proving by a prepon
 
            derance of the evidence that claimant received an injury 
 
            which arose out of and in the course of employment.  The 
 
            words "out of" refer to the cause or source of the injury.  
 
            The words "in the course of" refer to the time and place and 
 
            circumstances of the injury.  See Cedar Rapids Community 
 
            Sch. v. Cady, 278 N.W.2d 298 (Iowa 1979); Crowe v. DeSoto 
 
            Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955).  An 
 
            employer takes an employee subject to any active or dormant 
 
            health impairments, and a work connected injury which more 
 
            than slightly aggravates the condition is considered to be a 
 
            personal injury.  Ziegler v. United States Gypsum Co., 252 
 
            Iowa 613, 620, 106 N.W.2d 591 (1960) and cases cited 
 
            therein.
 
            
 
                 There is little question in this case that the work 
 
            injury occurred.  The fighting issue was the causal connec
 
            tion of this injury to the underlying spondy or spina bifida 
 
            occulta condition which is the only condition found to be 
 
            permanent in this case.  It was found that the injury was 
 
            not so causally connected and that the injury only caused a 
 
            temporary aggravation of a preexisting condition.
 
            
 
                  II.  As claimant only suffers from a temporary aggra
 
            vation, he is only entitled to temporary total disability.  
 
            The parties have stipulated to the extent of this entitle
 
            ment in the prehearing report.  With reference to the dis
 
            pute concerning claimant's rate of compensation, the gross 
 
            weekly rate was stipulated.  It was found that claimant was 
 
            single at the time of injury.  It was also found that 
 
            claimant has six children from two prior marriages but he 
 
            has never supported any of them.  It had been specifically 
 
            found that he had abandon his support obligation long ago.  
 
            It has been held by this agency that whether or not a 
 
            claimant is current in his child support payments, a legal 
 
            obligation based upon a court decree to support the children 
 
            is sufficient to qualify for exemptions under the workers' 
 
            compensation law even if the court decree conditions enti
 
            tlement to a tax exemption upon being current in payments.  
 
            Biggs v. Donner, II Iowa Industrial Commissioner Report 34 
 
            (Iowa 1982).  However, in the Biggs case, there was a clear 
 
            legal obligation and no actual abandonment of the children 
 
            by the claimant.  Claimant was simply not current in his 
 
            payments.  The case at bar is quite different.  The court 
 
            decrees are vague and claimant has never supported his chil
 
            dren.  It was quite clear at hearing that he had no inten
 
            tion of doing so in the future.  Allowing claimant to claim 
 
            an exemption for claimant's rate of compensation would be 
 
            illogical and wholly inconsistent with the statutory pur
 
            poses of providing for exemptions in calculating rate of 
 
            compensation.  Claimant's rate of compensation is therefore 
 
            $80.40 per week.  This was arrived at using the commis
 
            sioner's rate booklet for an injury in September 1989, given 
 
            a gross weekly rate of $117.25 with single status and enti
 
            tlement to one exemption.
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            
 
                 According to the prehearing report, claimant has been 
 
            paid 40 weeks of compensation at the rate of $80.40 per 
 
            week.  Claimant therefore has been paid in excess of his 
 
            entitlement to weekly benefits.  Defendants seek reimburse
 
            ment for this excess amount of payment.  It has been held 
 
            that this agency has no statutory authority or jurisdiction 
 
            to reimburse defendants for voluntary payment of weekly ben
 
            efits.  Comingore v. Shenandoah Art. Ice, Etc., Co., 208 
 
            Iowa 430, 437, 226 N.W. 124 (1929).
 
            
 
                 III.   Claimant seeks payment of the evaluation he 
 
            received from Dr. Blume under Iowa Code section 85.39 and/or 
 
            85.27.  Iowa Code section 85.39 allows for payment by defen
 
            dant of a second opinion on the extent of permanent disabil
 
            ity.  However, to be entitled to benefits under that code 
 
            section, the work injury must have caused some degree of 
 
            permanent disability.  Claimant failed to establish this 
 
            causal connection in this case.  Therefore, claimant is not 
 
            entitled to an independent examination under Iowa Code sec
 
            tion 85.39.
 
            
 
                 Claimant is also entitled to payment of reasonable med
 
            ical expenses for an injury.  However, Dr. Blume's examina
 
            tion did not appear to be treatment but only an evaluation 
 
            of the extent of disability for the purposes of rendering an 
 
            opinion on causal connection.  Therefore, claimant is not 
 
            entitled to payment of Dr. Blume's bill under either Iowa 
 
            Code section 85.27 or 85.39.
 
            
 
                                      order
 
            
 
                 1.  Claimant takes nothing from this proceeding and 
 
            claimant's petition is dismissed with prejudice.
 
            
 
                 2.  Claimant shall pay the costs of this action pur
 
            suant to rule 343 IAC 4.33.
 
            
 
            
 
            
 
                 Signed and filed this ____ day of November, 1991.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr. Dennis J. Mahr
 
            Attorney at Law
 
            318 Insurance Centre
 
            507 7th St
 
            Sioux City  IA  51101
 
            
 
            Mr. Jeffrey A. Sar
 
            Attorney at Law
 
            750 Pierce St
 
            P O Box 717
 
            Sioux City  IA  51101
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           5-1803; 3003
 
                           Filed November 12, 1991
 
                           LARRY P. WALSHIRE
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            KENNETH EARL CORNWELL,        :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 929175
 
            d/b/a GUS' FAMILY RESTAURANT  :
 
            (P & T INC.),                 :    A R B I T R A T I O N
 
                                          :
 
                 Employer,                :       D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            AMERICAN FAMILY INSURANCE     :
 
            GROUP,                        :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            5-1803
 
            Claim for permanent benefits denied for failure to show 
 
            causal connection.
 
            
 
            
 
            
 
            3003
 
            Child support obligation and entitlement to exemptions.
 
            Prior agency decision Biggs v. Donner, which held that 
 
            claimants are entitled to exemptions for children from 
 
            former marriages even though claimant is not current in 
 
            child support payments under court decrees was held 
 
            inapplicable to the facts of this case.  Claimant had six 
 
            children from two prior marriages.  He never supported any 
 
            of the children.  Held that a finding of complete 
 
            abandonment of the support obligation regardless of a court 
 
            support order and being simply behind in payments is 
 
            distinguishable to prevent application of the Biggs holding.  
 
            It was stated that it would be totally illogical and 
 
            contrary to the expressed intent of our statutes to allow 
 
            claimant in this case to claim exemptions for his children.
 
            
 
 
            
 
          
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            MICHAEL FLIER, 
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                              File No. 929228
 
            ART FLIER,     
 
                                          A R B I T R A T I O N
 
                 Employer, 
 
                                              D E C I S I O N
 
            and       
 
                      
 
            IMT INSURANCE COMPANY,   
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            
 
                             STATEMENT OF THE CASE
 
                 
 
                 This is a proceeding in arbitration brought by Michael 
 
            Flier, claimant, against Art Flier, employer, and IMT 
 
            Insurance Co., insurance carrier, defendants, for workers' 
 
            compensation benefits as a result of an alleged injury on 
 
            August 27, 1989.   On May 18, 1993,  a hearing was held on 
 
            claimant's petition and the matter was considered fully 
 
            submitted at the close of this hearing.
 
            
 
                 The parties have submitted a hearing report of 
 
            contested issues and stipulations which was approved and 
 
            accepted as a part of the record of this case at the time of 
 
            hearing.  The oral testimony and written exhibits received 
 
            during the hearing are set forth in the hearing transcript.      
 
            
 
                 According to the hearing report, the parties have 
 
            stipulated  to the following matters:
 
            
 
                 1.  On August 27, 1989,  claimant received an injury 
 
            arising out of and in the course of  employment with Art 
 
            Flier.
 
            
 
                 2. Claimant is entitled to temporary total or healing 
 
            period benefits and to permanent disability benefits, the 
 
            extent of which is in dispute.  
 
            
 
                 3.  At the time of injury,  claimant was married and 
 
            entitled to three exemptions.   
 
            
 
                 4.  Medical benefits are not in dispute.  
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                                 ISSUES
 
                 
 
                 The only issues submitted by the parties for 
 
            determination in this proceeding are the extent of 
 
            entitlement to disability benefits and weekly rate of 
 
            compensation.
 
                 
 
                              FINDINGS OF FACT
 
            
 
                 Having heard the testimony and considered all of the 
 
            evidence, the deputy industrial commissioner finds as 
 
            follows:
 
            
 
                 A credibility finding is necessary to this decision as 
 
            defendants placed claimant's credibility at issue during 
 
            cross- examination as to the nature and extent of the injury 
 
            and disability.   From his/her demeanor while testifying, 
 
            claimant is found credible.
 
            
 
                 Claimant is a 27-year-old farmer from Rock Rapids, 
 
            Iowa.  At the time of the injury herein, he was employed as 
 
            a farmer with his father.  This injury occurred when his leg 
 
            became entangled  in a rope,  buckling his left knee, while 
 
            working with cattle on the Flier farm.  Claimant has had 
 
            considerable problems with this knee ever since.
 
            
 
                 Claimant received immediate treatment for the knee 
 
            injury from a hospital emergency room.  Claimant's primary 
 
            orthopedic surgeon since the injury has been F. G. Alvine, 
 
            M.D..  His treatment has included, so far, three surgeries 
 
            to install a metal screw support, reconstruct tendons and 
 
            then remove the support screw.   According to Dr. Alvine, it 
 
            is possible that claimant will eventually require a full 
 
            knee replacement at some point in time over the next 20 
 
            years.  He recommended that any insurance settlement take 
 
            this factor into account.
 
            
 
                 Active treatment of the left knee by Dr. Alvine 
 
            extended form the date of injury until he gave a permanent 
 
            impairment rating on April 10, 1992.  Claimant was not 
 
            released to return to work until June 1992.   A one time 
 
            evaluator, Peter  Wirtz, M.D., another orthopedic surgeon 
 
            retained by defendants rated claimant's impairment in 
 
            January 1991, but this was before claimant's last surgery.   
 
            It is found that claimant did not reach maximum healing 
 
            until the rating by his primary physician on April 10, 1992.   
 
            According to exhibit 10 and claimant's testimony, claimant 
 
            partially returned to work from May 1, 1990 through November 
 
            20, 1990, but the particulars as to this employment and rate 
 
            of pay were not available in the record.  Claimant was off 
 
            work at all other times until the maximum healing date.  
 
            
 
                 With reference to permanent disability, Dr. Alvine 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            opined that claimant is suffering from a 16 percent 
 
            permanent disability to the leg as a result of the knee 
 
            injury based upon some sort of Minnesota rating statute, the 
 
            particulars of which is not available in the record.  Upon 
 
            further injury from attorneys in this case, Dr. Alvine 
 
            deferred to another orthopedic surgeon, John J. Dougherty 
 
            for a rating.   Dr. Dougherty opined that claimant suffers 
 
            from a 30 percent permanent partial impairment from the 
 
            injury.   Based upon the views of Dr. Dougherty, it is found 
 
            that the injury of August 27, 1989, was a cause of a 30 
 
            percent permanent partial impairment.
 
                 
 
                 Claimant also complains of back pain  which he 
 
            attributes to extra stress on his back due to his knee 
 
            problems.  It is found that such back pain is causally 
 
            connected to the knee injury herein.  However, Dr. Alvine 
 
            opines that this is not a significant injury and no 
 
            physician has opined that the back condition is permanent.  
 
            Therefore, it could not be found that the injury extends 
 
            beyond the leg and into the body as a whole.  The injury is 
 
            limited to the leg.
 
                 
 
                 Claimant credibility testified that his gross income on 
 
            the date of injury included not only his salary of between 
 
            $1100-1200 per month but also included $125 per month for 
 
            rent that was paid by his employer to a third person and to 
 
            meat and food products which he valued at $80-90 per month.  
 
            Based upon this uncontroverted testimony, it is found that 
 
            claimant's gross monthly income was $1360 per month 
 
            consisting of  $1150 in salary, $125 in rent, $85 in food.  
 
            Converting this monthly income into a weekly gross by 
 
            multiplying by 12 and dividing by 52, results in a gross 
 
            weekly wage at the time of injury of $313.85.
 
                 
 
                               CONCLUSIONS OF LAW
 
            
 
                 The  extent of claimant's entitlement to permanent 
 
            disability  benefits is determined as follows:   A permanent 
 
            partial disability is either scheduled or unscheduled.  A 
 
            scheduled disability is evaluated by the functional method.    
 
            The industrial method is used to evaluate an unscheduled 
 
            disability.  Martin v. Skelly Oil Co., 252 Iowa 128, 133 106 
 
            N.W. 2d 95, 98 (1960); Graves v.  Eagle Iron Works, 331 N.W. 
 
            2d 116 (Iowa 1983); Simbro v Delong's Sportswear 332 N.W. 2d 
 
            886, 997 (Iowa 1983).  When the result of an injury is loss 
 
            to a scheduled member, the compensation payable is limited 
 
            to that set forth in the appropriate subdivision of Code 
 
            section 85.34(2).  Barton v.  Nevada Poultry Company, 253 
 
            Iowa 285, 110 N.W. 2d 660 (1961).  "Loss of use" of a member 
 
            is equivalent to "loss" of the member.   Moses v. National 
 
            Union C.M. Co.,  184 N.W. 746 (1922).  Pursuant to Code 
 
            section 85.34(2)(u),  the industrial commissioner may 
 
            equitably prorate compensation payable in those cases where 
 
            the loss is something less than that provided for in the 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            schedule.  Blizek v. Eagle Signal Company, 164 N.W. 2d 84 
 
            (Iowa 1969).
 
            
 
                 In the case sub judice,  it was found that claimant's 
 
            injury was limited to a scheduled member, the leg.  It was 
 
            further found that he suffered a 30 percent permanent loss 
 
            of use of his leg.   Based upon such a finding, claimant is 
 
            entitled to 66 weeks of permanent partial disability 
 
            benefits under Iowa Code section 85.34(2)(o) which is 30 
 
            percent of 220 weeks, the maximum allowable weeks of 
 
            disability for an injury to the leg in that subsection.     
 
            Claimant has been paid 66 weeks for permanency but at a 
 
            different rate that was found in this case as will be 
 
            discussed below.  The fact that claimant may need a knee 
 
            replacement in the future was not included in assessing the 
 
            extent of liability.
 
            
 
                  Claimant's entitlement to permanent partial disability 
 
            also entitles him to weekly benefits for healing period 
 
            under Iowa Code section 85.34 from the date of injury until 
 
            claimant returns to work; until claimant is medically 
 
            capable of returning  to substantially similar work to the 
 
            work he/she  was performing at the time of injury; or, until 
 
            it is indicated that significant improvement from the injury 
 
            is not anticipated, whichever occurs first.  It was found 
 
            that claimant reached maximum healing on April 10, 1992, but 
 
            partially worked for a period of time before that.  Healing 
 
            period and temporary partial disability benefits will be 
 
            awarded accordingly.  Specific award, with reference to 
 
            partial disability benefits, cannot be made due to a lack of 
 
            specifics as to the partial employment.
 
            
 
                 As it was found that claimant was earning the sum of 
 
            $313.85 per week at the time of injury, given the 
 
            stipulations as to martial status and entitlement to 
 
            exemptions, claimant's weekly rate of compensation for an 
 
            injury during FY 90 is $208.01.  Therefore, as claimant has 
 
            been paid only a weekly rate to date of $176.31, claimant is 
 
            entitled to additional money even for permanent disability.
 
            
 
                                      ORDER
 
                      
 
                 1.  Defendants shall pay to claimant sixty-six (66) 
 
            weeks of permanent partial disability benefits at a rate of 
 
            two hundred eight and 01/100 dollars ( $208.01) per week 
 
            from April 11, 1992.
 
            
 
                 2.  Defendants shall pay to claimant healing period 
 
            benefits from August 27, 1989 through April 10, 1992, at the 
 
            rate of two hundred eight and 01/100 dollars ($208.01) per 
 
            week except for the period from May 1, 1990 through November 
 
            10,1990, for which claimant will be paid temporary partial 
 
            disability at a rate to be consistent with Iowa Code section 
 
            85.33.
 
            
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                 3.  Defendants shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against this award for all 
 
            benefits previously paid.  
 
            
 
                 4.  Defendants shall pay interest on weekly benefits 
 
            awarded herein as set forth in Iowa Code section 85.30. 
 
            
 
                 5.  Defendants shall pay the costs of this action 
 
            pursuant to D.I.S. Rule 343 IAC 4.33, including 
 
            reimbursement to claimant for any filing fee paid in this 
 
            matter.
 
            
 
                 6.  Defendants shall file activity reports on the 
 
            payment of this award as requested by this agency pursuant 
 
            to D.I.S. Rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of July, 1993.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. E. W. Wilcke
 
            Attorney at Law
 
            826 1/2 Lake Street
 
            P.O. Box 455
 
            Spirit Lake, IA  51360
 
            
 
            Mr. Timothy A. Clausen
 
            Attorney at Law
 
            Jackson Plaza, Suite 300
 
            Fourth and Jackson Streets
 
            P.O. Box 327
 
            Sioux City, IA  51102
 
            
 
 
           
 
         
 
 
 
 
 
                                                 5-1803
 
                                                 Filed July 23, 1993
 
                                                 Larry P. Walshire
 
            
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            MICHAEL FLIER, 
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                                 File No. 929228
 
            ART FLIER,     
 
                                            A R B I T R A T I O N
 
                 Employer, 
 
                                                 D E C I S I O N
 
            and       
 
                      
 
            IMT INSURANCE COMPANY,   
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            
 
            5-1803
 
            Non-precedential, extent of disability case.
 
                                                         
 
            
 
            
 
 
 
 
 
 
 
 
 
 
 
 
 
 
           BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
________________________________________________________________
 
          
 
RONALD C LATTA,    
 
          
 
     Claimant, 
 
          
 
vs.       
 
                                 File No. 929256 & 984828
 
LATTA AND SONS, INC.,   
 
                                 A R B I T R A T I O N
 
     Employer, 
 
                                   D E C I S I O N
 
and       
 
          
 
ALLIED GROUP, 
 
          
 
     Insurance Carrier,  
 
          
 
and       
 
          
 
SECOND INJURY FUND OF IOWA,   
 
          
 
     Defendants.    
 
________________________________________________________________
 
                     STATEMENT OF THE CASE
 
 
 
This decision concerns two proceedings in arbitration brought by Ronald 
 
C. Latta against his former employer Latta and Sons, Inc. based upon 
 
injuries that occurred on September 19, 1989 and April 18, 1991.  The 
 
rate of compensation is disputed for the 1989 injury.  Both injuries 
 
contain an issue of whether the disability that resulted is a scheduled 
 
disability or one that is unscheduled and should be compensated 
 
industrially.  Claimant seeks to recover expenses incurred in obtaining 
 
an independent medical examination and alternatively asserts that some 
 
portion of the expenses constitute treatment under section 85.27 if 
 
they are not covered by section 85.39.  The employer seeks credit under 
 
section 85.38(2) for payments paid to the claimant at the same time as 
 
weekly benefits were being paid by the insurance carrier.  Claimant 
 
also seeks to recover disability compensation from the Second Injury 
 
Fund of Iowa.  
 
 
 
The case was heard at Cedar Rapids, Iowa on February 6, 1995.  The 
 
record consists of testimony from Chris Simon, Patrick Latta and Ronald 
 
Claude Latta, the claimant.  The record also contains claimant's 
 
exhibits 2 through 6, 8 through 10, and 14 through 19 and defendants' 
 
exhibit A. 
 
 
 
                      FINDINGS OF FACTS
 
 
 
Latta and Sons, Inc. was a small family owned and family operated 
 
business that engaged primarily in the function of drilling water 
 
wells.  The business was started in approximately 1950 by claimant's 
 
father, Everett Latta.  Everett, claimant and claimant's brother Don 
 
had equal shares in the business until 1967 when Everett's health made 
 
him unable to participate.  Thereafter claimant's mother, Ermabelle 
 
Latta, became the owner of one-third of the business.  Ermabelle had 
 
been active in the day-to-day operation of the business until 1989 when 
 
she was hospitalized for health problems.  After recuperating she 
 
remained active in the business until approximately 1993.  (Exhibit 18, 
 
pages 4, 5, 9, 10)  Ermabelle managed the office while claimant and his 
 

 
 
 
 
 
 
 
 
 
 
 
brother Don operated drilling crews.  (Ex. 18, pp. 6, 10)  According to 
 
Ermabelle, the business had run smoothly until claimant's second injury 
 
and Don Latta was given control of the business.  (Ex. 18, p. 8)  She 
 
stated that the business became unprofitable but that if claimant had 
 
not been injured that it likely would have continued.  (Ex. 18, pp. 7, 
 
8, 15)  As a result of the problems with the business it was sold.  
 
 
 
The evidence from Chris Simon and Ermabelle Latta confirms that prior 
 
to the 1989 injury claimant was a robust individual fully capable of 
 
performing the very vigorous physical work associated with drilling 
 
wells.  After the first injury he never regained his prior level of 
 
activity.  He was able to supervise and operate equipment such as a 
 
trencher and backhoe.  The first injury produced loss of strength in 
 
his right arm and some loss of range of motion in his right shoulder.  
 
(Ex. 9, pp. 4, 5; Ex. 5, p. 5; Ex. 6)  The initial injury reports for 
 
the 1989 injury showed fractured seventh and eighth ribs with the 
 
seventh being a displaced fracture.  (Ex. 2, p. 1)  The injury was 
 
followed by continuing complaints of pain in the upper back, rib cage 
 
area and chest.  (Ex. 3)  Excessive abduction of the scapula was 
 
observed with forward shoulder posture.  (Ex. 3, p. 1)  The physical 
 
therapist reported that shoulder/scapula/thoracic injuries that were 
 
treated in 1989 are difficult to resolve completely and will often 
 
produce gradual weakness in the shoulder.  (Ex. 4)  Andrea J. McFadden, 
 
PA-C, has reported that following the 1989 injury claimant had residual 
 
musculoskeletal torso pain or post-injury neuralgia, either of which 
 
could be permanent.  More than a year after the injury claimant 
 
continued to have persistent right-sided thoracic pain and inability to 
 
use a pipe wrench, a common tool in the well drilling business.  (Ex. 
 
6)  Similar notes appear in the records of Charlotte H. Koenig, M.D., 
 
claimant's family physician.  (Ex. 5, pp. 5, 6)
 
 
 
It is found that the 1989 injury affected claimant's rib cage and right 
 
shoulder which in turn limited his ability to make full use of his 
 
right arm.  William A. Roberts, M.D., the orthopedic surgeon who 
 
treated claimant's 1991 fractured left arm, found claimant to have a 3 
 
percent impairment due to loss of right shoulder abduction, an amount 
 
which he considered to be equal to 6 percent of the right upper 
 
extremity.  (Ex. 9, pp. 4, 5)  Dr. Roberts made no attempt to provide 
 
any rating of impairment for residuals from the rib fractures.  (Ex. 9, 
 
p. 15)  Dr. Roberts did not, however, causally connect the right upper 
 
extremity impairment to the September 1989 injury.  (Ex. 9, p. 10)  He 
 
did not suggest any other possible origin for that impairment.  Andrea 
 
McFadden, PA-C, felt that the residual impairment on claimant's right 
 
side had resulted from the 1989 injury.  (Ex. 6)  Richard F. Neiman, 
 
M.D., evaluated claimant.  He found claimant to have an 8 percent 
 
impairment of the right upper extremity due to the shoulder and 
 
attributed that impairment to the 1989 injury.  (Ex. 10, p. 3)  He 
 
equated the impairment to 5 percent of the whole person or of the body 
 
as a whole.  It is found that the disability resulting from the 1989 
 
injury is not limited to claimant's right arm.  It extends into his 
 
shoulder and rib cage.  The arm itself was not known to have been 
 
injured in that accident.  The claimant has a loss of use of the right 
 
arm in the range of 6 percent as evaluated by Dr. Roberts but that loss 
 
of use is found to have its origin in claimant's right shoulder, 
 
scapula area and rib cage.  The precise physiological cause for the 
 
loss of use of the right arm has not been identified but it is clear 
 
that the seriousness of the 1989 injury, the crushing nature of the 
 
injury could readily have produced abnormalities which are not easily 
 
identified.  
 
 
 
Following the 1989 injury claimant was able to return to work, albeit 
 
in a somewhat different capacity.  He was no longer able to perform 
 
heavy physical labor.  He was still able to supervise and operate 
 
equipment such as trenchers and backhoes.  His inability to perform as 
 
he had prior to the injury required that another person be assigned to 
 
the drilling crew that he supervised.  Instead of the crew typically 
 
consisting of two people as it had before his injury, it was now 
 
necessary for the crew to consist of three people in order to 
 
accomplish the same tasks.  It is expected that the need for a third 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
person would adversely impact the profitability of the business.
 
Claimant's only relevant work experience is in the well drilling field. 
 
 
 
 The work was described at hearing as being quite physically demanding. 
 
 
 
 The loss of physical capability is a very large loss for a person 
 
employed in the well drilling business.  Despite his limitations, 
 
following the 1989 injury, claimant was able to resume working.  His 
 
earnings actually increased in 1990.  (Ex. A, p. 55; Ex. 15a, 15b, 15c) 
 
 
 
On April 18, 1991 claimant was operating a tractor when it flipped over 
 
backwards.  He suffered a severe fracture of his left arm as well as 
 
other lesser injuries.  Despite extensive efforts at physical therapy 
 
claimant has a very substantial loss of use of the left arm.  Dr. 
 
Roberts has rated it at 31 percent.  (Ex. 9, p. 10)  Dr. Neiman has 
 
rated the loss at 48 percent.  (Ex. 10, p. 3)  According to Dr. Neiman 
 
claimant has a frozen shoulder condition related to the 1989 injury and 
 
it is permanent.  (Ex. 19, pp. 11-13, 17, 18, 59, 60)  He has a 5 
 
percent impairment of the whole person due to that injury.  (Ex. 19, 
 
pp. 13-16)  Dr. Neiman acknowledged that claimant's description of the 
 
severity of his injuries in 1989 have been exaggerated.  (Ex. 19, p. 
 
37)  Dr. Neiman's impairment rating for the left upper extremity was 48 
 
percent.  (Ex. 19, pp. 26-29)
 
 
 
After recovering from the 1991 injury claimant resumed work in the 
 
company business.  He was still able to supervise much as he had 
 
following the 1989 injury.  He had additional limitations, however, due 
 
to the condition of his left arm.  This further limited his 
 
capabilities in the well drilling business.  
 
 
 
In early 1994 Latta and Sons, Inc. was sold.  (Ex. A, pp. 39-47)  
 
Claimant has not resumed employment or actively sought employment since 
 
the sale.  He applied for and received social security disability 
 
benefits.  He is now receiving retirement benefits from social 
 
security.  (Ex. A, pp. 59-67)  He was 65 years of age at the time of 
 
hearing and has a tenth grade education.  
 
 
 
Claimant's earnings are found in the record at exhibit 14, page 3.  The 
 
record of the case contains a little that describes the pay practices 
 
of the employer.  It is well established that claimant was injured on 
 
September 19, 1989 and did not work for several weeks thereafter.  The 
 
pay records, however, found at exhibit 14, page 3, show him to have 
 
worked overtime for the period ending September 22, 1989.  The period 
 
ending September 29, 1989 shows pay for a 40-hour week.  A 1989 
 
calendar shows September 19 to have been a Tuesday and September 22 and 
 
29 to be Fridays.  It is found that the date when paychecks were issued 
 
by the company reflects the earnings from the week before the week in 
 
which the paycheck was actually issued.  In other words, the pay shown 
 
for the period ending September 22, 1989 was based upon earnings for 
 
the work week ending September 15, 1989.  It would be virtually 
 
impossible for claimant to have worked 10.5 hours of overtime in 
 
addition to his regular 40 hours during the week when he was injured on 
 
Tuesday, September 19.  The 13 weeks to be used in computing the weekly 
 
rate of compensation therefore appear to be all the weeks shown on 
 
exhibit 14, page 3, except the week of September 29, 1989.  It also 
 
includes the week of June 30 shown on exhibit 14, page 2.  It should be 
 
noted that overtime was paid at time and one-half for the week of June 
 
30, 1989.  The correct amount to be used should therefore be $440.  
 
Claimant's earnings during the last completed 13 consecutive calendar 
 
weeks immediately preceding the injury are therefore $7,120.10.  The 
 
average weekly earnings are $547.70.  
 
 
 
Claimant was paid amounts by the employer while he was off work and 
 
receiving workers' compensation benefits.  The record of this case does 
 
not show the existence of any group plan.  Since the record does not 
 
show the existence of any group plan there is nothing to indicate that 
 
the payments which were paid to claimant would not have been payable 
 
when there was an injury that arose out of and in the course of 
 
employment.  The overwhelming majority of the payments appear to be in 
 
the nature of a supplementation of the workers' compensation benefits.  
 
The form 2A in the file shows the first payment to have been made on 
 
October 3, 1989 for the 1989 injury and the last to have been paid on 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
January 12, 1990.  It would not be uncommon, when dealing with a family 
 
owned and operated business, for the business to have paid the claimant 
 
during the time before compensation benefits were started and to have 
 
commenced paying him again as soon as he resumed working.  There is 
 
nothing in the record to indicate that the persons issuing the checks 
 
to claimant intended that they be paid in lieu of workers' 
 
compensation.  There is nothing to indicate that the intent of the 
 
employer business was anything other than to supplement the workers' 
 
compensation benefits.   The pay claimant received from the business on 
 
September 29, 1989 was actually pay for the work that he had performed 
 
during the week ending September 22, 1989.  The delay of one week 
 
between the time when work was actually performed and the week in which 
 
the paycheck was issued appears to have continued to be in effect at 
 
the time of the 1991 injury.  The fact that claimant's brother 
 
continued to be paid wages while he was off work for a nonoccupational 
 
condition is further evidence that the family business intended to 
 
provide for the family members in times of hardship regardless of the 
 
cause of the hardship.  It is not evidence that there was a formal 
 
group plan of some type. 
 
 
 
With regard to the charges from Dr. Neiman for the independent medical 
 
examination the record fails to show the necessity of conducting 
 
additional x-rays or EMG tests.  The record shows that such tests had 
 
previously been performed by other medical care providers.  In the 
 
absence of some justification for repeating those tests, it cannot be 
 
found that conducting them was reasonable.
 
 
 
There is evidence in the record that claimant has had problems with 
 
divorce, alcohol abuse and depression.  The record does not show that 
 
those conditions had any impact upon the nature or extent of his 
 
permanent disability from the 1989 and 1991 injuries.  
 
 
 
The record also reflects that claimant also suffers from diabetes.  The 
 
evidence is conflicting between Dr. Neiman and Dr. Peterson with regard 
 
to whether or not the diabetes has resulted in any neuropathy affecting 
 
claimant's upper extremities.  (Ex. 8, pp. 7, 8; Ex. 10, p. 3)  The 
 
record does not show that claimant has any other complications from his 
 
diabetes.  It seems to be reasonably well controlled.  It is certainly 
 
possible that diabetic neuropathy contributes to his loss of use of his 
 
arms, but the record fails to show that with any certainty or 
 
probability.  
 
 
 
The record of the case shows that claimant engages in social country 
 
dancing.  The record fails to give any indication of how the dancing 
 
has any impact upon his degree of disability or earning capacity.  
 
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. of App. P. 14(f).
 
 
 
The claimant has the burden of proving by a preponderance of the 
 
evidence that the alleged injury actually occurred and that it arose 
 
out of and in the course of employment.  McDowell v. Town of 
 
Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Cent. Tel. Co., 
 
261 Iowa 352, 154 N.W.2d 128 (1967).  The words "arising out of" refer 
 
to the cause or source of the injury.  The words "in the course of" 
 
refer to the time, place and circumstances of the injury.  Sheerin v. 
 
Holin Co., 380 N.W.2d 415 (Iowa 1986); McClure v. Union County, 188 
 
N.W.2d 283 (Iowa 1971).
 
 
 
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).
 
Industrial disability or loss of earning capacity is a concept that is 
 
quite similar to impairment of earning capacity, an element of damage 
 
in a tort case.  Impairment of physical capacity creates an inference 
 
of lessened earning capacity.  The basic element to be determined, 
 
however, is the reduction in value of the general earning capacity of 
 
the person, rather than the loss of wages or earnings in a specific 
 
occupation.  Post-injury earnings create a presumption of earning 
 
capacity.  The earnings are not synonymous with earning capacity and 
 
the presumption may be rebutted by evidence showing the earnings to be 
 
an unreliable indicator.  Bearce v. FMC Corp., 465 N.W.2d 531 (Iowa 
 
1991); DeWall v. Prentice, 224 N.W.2d 428, 435 (Iowa 1974); Carradus v. 
 
Lange, 203 N.W.2d 565 (Iowa 1973); Holmquist v. Volkswagon of America, 
 
Inc., 261 N.W.2d 516 (Iowa App. 1977) A.L.R.3d 143; Michael v. Harrison 
 
County, Thirty-fourth Biennial Report of the Industrial Commissioner 
 
218 (1979); 2 Larson Workmen's Compensation Law, sections 57.21 and 
 
57.31.
 
 
 
Claimant is an older worker and is in the age range where people in our 
 
society commonly retire.  The workers' compensation system is designed 
 
and intended to replace earnings that are lost due to injury.  It 
 
serves no legitimate purpose to award benefits for wage loss for times 
 
after when wages would have ceased due to retirement.  It is not 
 
intended to be a windfall in the nature of a supplemental retirement 
 
income benefits.  Cruz v Chevrolet Grey Iron Div. of Gen. Motors, 247 
 
N.W.2d 764, 775 (Mich 1976); Brecke v. Turner-Busch, Inc., 34th 
 
Biennial Report of the Industrial Commissioner 34, (App. 1979); Hainey 
 
v. Protein Blenders, Inc., file no. 708955 (App. 1985).  
 
 
 
Apportionment of disability between a preexisting condition and an 
 
injury is proper only when some ascertainable portion of the ultimate 
 
industrial disability existed independently before an 
 
employment-related aggravation of disability occurred.  Bearce v. FMC 
 
Corp., 465 N.W.2d 531 (Iowa 1991); Varied Enterprises, Inc. v. Sumner, 
 
353 N.W.2d 407 (Iowa 1984).  Hence, where employment is maintained and 
 
earnings are not reduced on account of a preexisting condition, that 
 
condition may not have produced any apportionable loss of earning 
 
capacity.  Bearce, 465 N.W.2d at 531.  Likewise, to be apportionable, 
 
the preexisting disability must not be the result of another injury 
 
with the same employer for which compensation was not paid.  Tussing v. 
 
George A. Hormel & Co., 461 N.W.2d 450 (Iowa 1990).
 
 
 
The burden of showing that disability is attributable to a preexisting 
 
condition is placed upon the defendant.  Where evidence to establish a 
 
proper apportionment is absent, the defendant is responsible for the 
 
entire disability that exists.  Bearce, 465 N.W.2d at 536-37; Sumner, 
 
353 N.W.2d at 410-11.
 
 
 
Section 85.64 governs Second Injury Fund liability.  Before liability 
 
of the Fund is triggered, three requirements must be met.  First, the 
 
employee must have lost or lost the use of a hand, arm, foot, leg or 
 
eye.  Second, the employee must sustain a loss or loss of use of 
 
another specified member or organ through a compensable injury.  Third, 
 
permanent disability must exist as to both the initial injury and the 
 
second injury.  
 
 
 
The Second Injury Fund Act exists to encourage the hiring of 
 
handicapped persons by making a current employer responsible only for 
 
the amount of disability related to an injury occurring while that 
 
employer employed the handicapped individual as if the individual had 
 
had no preexisting disability.  See Anderson v. Second Injury Fund, 262 
 
N.W.2d 789 (Iowa 1978); Lawyer and Higgs, Iowa Workers' 
 
Compensation-Law and Practice, section 17-1.
 
 
 
The Fund is responsible for the industrial disability caused by the 
 
second injury that exceeds the scheduled compensabile values of the 
 
disabilities attributable to the first and second injuries.  Section 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
85.64.  Second Injury Fund of Iowa v. Braden, 459 N.W.2d 467 (Iowa 
 
1990); Second Injury Fund v. Neelans, 436 N.W.2d 335 (Iowa 1989); 
 
Second Injury Fund v. Mich. Coal Co., 274 N.W.2d 300 (Iowa 1970).
 
 
 
The right of an employee to receive compensation for injuries sustained 
 
is statutory. The statute conferring this right can also fix the amount 
 
of compensation payable for different specific injuries.  The employee 
 
is not entitled to compensation except as the statute provides.  Soukup 
 
v. Shores Co., 222 Iowa 272, 268 N.W. 598 (1936).
 
 
 
Permanent partial disabilities are classified as either scheduled or 
 
unscheduled.  Compensation for scheduled permanent partial disability 
 
is determined under Iowa Code section  85.34(2)(a) - (t) according to 
 
the functional loss of use of the member without considering the impact 
 
of the injury upon the individual's earnings or earning capacity.  
 
Simbro v. Delong's Sportswear, 332 N.W.2d 886 (Iowa 1983); Graves v. 
 
Eagle Iron Works, 331 N.W.2d 116 (Iowa 1983); Martin v. Skelly Oil Co., 
 
252 Iowa 128, 106 N.W.2d 95 (1960); Moses v. Nat'l Union Coal Mining 
 
Co., 194 Iowa 819, 184 N.W. 746 (1921).
 
 
 
An injury to a scheduled member may, because of after effects or 
 
compensatory change, result in permanent impairment of the body as a 
 
whole.  Such impairment may in turn be the basis for a rating of 
 
industrial disability.  It is the anatomical situs of the permanent 
 
injury or impairment which determines whether the schedules in section 
 
85.34(2)(a) - (t) are applied.  Lauhoff Grain v. McIntosh, 395 N.W.2d 
 
834 (Iowa 1986); Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 
 
1980); Dailey v. Pooley Lbr. Co., 233 Iowa 758, 10 N.W.2d 569 (1943).  
 
Soukup v. Shores Co., 222 Iowa 272, 268 N.W. 598 (1936).
 
 
 
When disability is found in the shoulder, a body as a whole situation 
 
may exist.  Alm v. Morris Barick Cattle Co., 240 Iowa 1174, 38 N.W.2d 
 
161 (1949).  In Nazarenus v. Oscar Mayer & Co., II Iowa Industrial 
 
Commissioner Report 281 (App. 1982), a torn rotator cuff was found to 
 
cause disability to the body as a whole.
 
 
 
Section 85.39 permits an employee to be reimbursed for subsequent 
 
examination by a physician of the employee's choice where an 
 
employer-retained physician has previously evaluated "permanent 
 
disability" and the employee believes that the initial evaluation is 
 
too low.  The section also permits reimbursement for reasonably 
 
necessary transportation expenses incurred and for any wage loss 
 
occasioned by the employee's attending the subsequent examination.
 
 
 
Defendants are responsible only for reasonable fees associated with 
 
claimant's independent medical examination.  Claimant has the burden of 
 
proving the reasonableness of the expenses incurred for the 
 
examination.  See Schintgen v. Economy Fire & Casualty Co., File No. 
 
855298 (App. April 26, 1991).  Defendants' liability for claimant's 
 
injury must be established before defendants are obligated to reimburse 
 
claimant for independent medical examination.  McSpadden v. Big Ben 
 
Coal Co., 288 N.W.2d 181 (Iowa 1980).
 
 
 
It is concluded that the disability from the 1989 injury is not limited 
 
to a scheduled member.  The physiological change and abnormality that 
 
has been identified has not been confined to claimant's right arm.  The 
 
disability appears to be in the shoulder girdle, a part of the body 
 
which is not a scheduled member.  Accordingly, the disability resulting 
 
from the 1989 injury is to be compensated industrially based upon the 
 
loss of earning capacity that it produced.  
 
 
 
Claimant was able to resume accommodated work with his original 
 
employer following his recovery from the 1989 injury.  That is true in 
 
large part because he was, from a practical standpoint, his own 
 
employer.  It is unlikely that he, as a one-third owner of the 
 
business, would have refused to allow himself to return to work and 
 
earn a living.  He was still able to make a contribution to the 
 
business but his capabilities were limited.  It became necessary for 
 
the business to assign another person to perform those functions which 
 
he could no longer perform.  The fact that claimant's income appears to 
 
have increased from his previous full year of income is not highly 
 
probative under the circumstances of this case since the employment 
 
setting is not competitive employment in the broad labor market.  
 
 
 
Claimant liked the well drilling business and was knowledgeable about 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
the well drilling business.  If the family business had continued to be 
 
profitable and had not been sold he would likely still be functioning 
 
in that business.  That did not occur however.  As indicated by 
 
Ermabelle Latta, if claimant had not been injured the business likely 
 
would have continued to function smoothly and likely would not have 
 
been sold.  The fact that the business was disrupted by claimant's 
 
injury is not a direct factor affecting his degree of disability.  One 
 
might expect that the need to have others perform functions which 
 
claimant had previously performed adversely affected the profitability 
 
of the business.  Nevertheless, just as the peculiar owner-employee 
 
relationship in this case makes comparison of preinjury and postinjury 
 
earnings of little materiality to the issue of loss of earning 
 
capacity, the fact of closing the business likewise has little 
 
materiality to the issue of loss of earning capacity.  Earning capacity 
 
is based upon the broad labor market, not just a single employer.  The 
 
1989 injury caused claimant to no longer to be able to perform the full 
 
range of physical work associated with well drilling.  He still had 
 
knowledge and other valuable skills.  The number of positions in the 
 
well drilling business is quite limited.  Simply stated, there are not 
 
many opportunities for strictly supervisory employment in the well 
 
drilling industry.  When claimant's education, work experience and all 
 
other material factors are considered, it is determined that Ronald C. 
 
Latta sustained a 40 percent loss of earning capacity and permanent 
 
partial disability as a result of the September 19, 1989 injury.  This 
 
entitles him to receive 200 weeks of compensation for permanent partial 
 
disability payable commencing January 8, 1990.  Fifteen weeks of that 
 
entitlement has been previously paid.  
 
 
 
The April 18, 1991 injury produced disability that is limited to 
 
claimant's left arm.  The extent of that disability is found to be 40 
 
percent.  That entitles him to recover 100 weeks of compensation for 
 
permanent partial disability payable commencing December 12, 1991.  
 
Seventy-seven point five weeks of benefits have previously been paid.  
 
 
 
Since claimant lost a portion of the use of his right arm in the 1989 
 
injury and then lost a portion of the use his left arm in the 1991 
 
injury, the case meets the criteria for a claim against the Second 
 
Injury Fund.  In this case the first injury essentially limited the 
 
claimant to supervisory and light work.  His earning capacity was most 
 
greatly impacted by the 1989 injury.  Since the second injury is a 
 
scheduled injury the liability of the employer is no different than 
 
what it would be if there had been no preexisting disability.  The 1989 
 
injury was not limited to a scheduled member but the compensable value 
 
of that injury is a 6 percent loss of the arm or 15 weeks.  The extent 
 
of industrial disability that can be attributed to the 1991 injury is 
 
determined to be 20 percent, an amount equivalent to the employer's 
 
liability for the scheduled disability of the left arm.  It is 
 
therefore concluded that the claimant is not entitled to receive any 
 
recovery from the Second Injury Fund of Iowa.  
 
 
 
The rate of compensation for the 1989 injury is to be determined under 
 
section 85.36(6).  In view of the nature of the ownership of the 
 
business, the undersigned questions whether section 85.36(11) is the 
 
appropriate method but no evidence under that method was introduced.  
 
 
 
Accordingly, section 85.36(6) will be used.  As previously noted, the 
 
earnings to be used are those earnings from the 13 weeks preceding the 
 
week in which the injury occurred.  With some employers there is a 
 
delay between the week when earnings are earned and when they are 
 
actually paid to the employee.  The statute refers to earnings, not 
 
receipt.  Claimant's gross earnings for the appropriate 13 weeks are 
 
therefore $7,120.10.  The average is $547.70.  Since claimant was 
 
married and entitled to two exemptions the rate of compensation for the 
 
1989 injury is $336.26 per week.  
 
 
 
Claimant's entitlement under section 85.39 is to an independent medical 
 
examination of the degree of disability.  The entitlement does not 
 
normally include repeating diagnostic tests which have previously been 
 
conducted, though in some circumstances doing so might be reasonable.  
 
 
 
The burden of proving reasonableness of repeating tests rests upon the 
 
claimant.  The evidence in this case fails to show that it was 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
reasonable or necessary for the purpose of determining the degree of 
 
disability for those tests to be repeated.  Accordingly, claimant is 
 
not entitled to recover the costs of the x-rays and EMG tests which 
 
were directed by Dr. Neiman.  Dr. Neiman was not an authorized 
 
physician and the record provides no basis for considering the costs of 
 
those tests to be treatment expenses that would be recoverable under 
 
section 85.27.
 
 
 
Defendants seek credit under section 85.38(2) for the payments paid by 
 
the employer to claimant for periods of time when he was receiving 
 
workers' compensation benefits.  Section 85.38(1) clearly provides that 
 
the employer's obligation to pay compensation benefits is not reduced 
 
by payments received from other sources.  The majority of the amounts 
 
for which a credit is sought appear to have been paid to supplement 
 
workers' compensation benefits.  The workers' compensation and the 
 
supplement, when combined, do not exceed the claimant's customary 
 
earnings for most of the weeks.  The most controlling factor on this 
 
issue, however, is that the evidence fails to show the existence of a 
 
group plan.  The evidence fails to show that the payments paid by the 
 
employer to claimant would not have been payable even though there was 
 
an injury that was compensable under chapter 85 of the Code.  In view 
 
of the traumatic nature of claimant's injuries there was no question 
 
regarding their compensability under chapter 85 of the Code.  It is 
 
therefore concluded that defendants are not entitled to any credit 
 
under section 85.38(2).  When the employer's practice of paying wages 
 
during the week that follows the week during which the wages were 
 
earned, it becomes apparent that there is no basis for a credit under 
 
section 85.38(2) or otherwise.  
 
 
 
It is noted that there is some overlap with payment of permanent 
 
partial disability benefits from the 1989 injury and healing period and 
 
permanent partial disability compensation from the 1991 injury.  While 
 
a person cannot receive both healing period and permanency benefits 
 
from one injury at the same time there is no prohibition in law or 
 
logic against receiving permanency benefits from a prior injury at the 
 
same time as healing period or permanency benefits are being paid from 
 
a subsequent injury.  It is envisioned by the workers' compensation 
 
statutes that permanent partial disability benefits be paid while the 
 
employee is working and earning wages after recuperation from an injury 
 
and returning to work.  If a subsequent injury occurs and those 
 
earnings are then replaced by healing period benefits for the 
 
subsequent injury, that occurrence does not create any reason for 
 
interrupting or discontinuing the permanent partial disability benefits 
 
which are being paid for the prior injury.  The two injuries are 
 
separate and distinct and are to be treated as such.
 
 
 
                              ORDER
 
 
 
IT IS THEREFORE ORDERED that on account of the September 19, 1989 
 
injury in file number 929256 defendant employer and insurance carrier 
 
pay Ronald C. Latta two hundred (200) weeks of compensation for 
 
permanent partial disability at the rate of three hundred thirty-six 
 
and 26/100 dollars ($336.26) per week payable commencing January 8, 
 
1990.  Defendant employer and insurance carrier are entitled to credit 
 
in the amount of four thousand eight hundred sixty-six and 75/100 
 
dollars ($4,866.75) for the fifteen (15) weeks of benefits previously 
 
paid at the rate of three hundred twenty-five and 45/100 dollars 
 
($325.45) per week.  The remaining amount is past due and owing and 
 
shall be paid in a lump sum together with interest pursuant to section 
 
85.30.  Defendant employer and insurance carrier shall also make a lump 
 
sum payment to claimant, with interest, representing the difference 
 
between the healing period benefits which were paid at the incorrect 
 
rate and the rate of compensation that has been determined for the 1989 
 
injury in this decision.
 
 
 
It is further ordered that in file number 984828 defendant employer and 
 
insurance carrier pay claimant one hundred (100) weeks of compensation 
 
for permanent partial disability at the stipulated rate of three 
 
hundred forty-five and 72/100 dollars ($345.72) per week payable 
 
commencing December 12, 1991.  Defendants are entitled to credit for 
 
seventy-seven point five (77.5) weeks of benefits which have been 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
previously paid.  The remainder is past due and owing and shall be paid 
 
in a lump sum together with interest pursuant to section 85.30.  
 
It is further ordered that claimant take nothing from the Second Injury 
 
Fund of Iowa.  
 
 
 
It is further ordered that the costs of this action are assessed 
 
against defendants pursuant to rule 343 IAC 4.33.
 
 
 
It is further ordered that defendants file claim activity reports as 
 
requested by this agency pursuant to rule 343 IAC 3.1.
 
 
 
Signed and filed this __________ day of March, 1995.
 
                              ______________________________
 
                              MICHAEL G. TRIER
 
                              DEPUTY INDUSTRIAL COMMISSIONER    
 
 
 
Copies to:
 
 
 
Mr. Paul McAndrew Jr
 
Attorney at Law
 
122 S Linn
 
Iowa City, IA  52240
 
 
 
Ms Jane Lorentzen
 
2700 Grand Ave STE 111
 
Des Moines, Ia  50312
 
 
 
Ms. Shirley Steffe
 
Assistant Attorney General
 
Hoover State Office Bldg
 
Des Moines, IA  50319
 
 
 
 
 
 
 
 
 
 
 
 
 
 
     
 
                              1803 1803.1 3202 3001 1701 
 
                              1402.60 2502 2503
 
                              Filed March 22, 1995
 
                              Michael G. Trier
 
 
 
          BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
________________________________________________________________
 
RONALD C LATTA,    
 
          
 
     Claimant, 
 
          
 
vs.       
 
                               File No. 929256 & 984828
 
LATTA AND SONS, INC.,   
 
            A R B I T R A T I O N
 
     Employer, 
 
                D E C I S I O N
 
and       
 
          
 
ALLIED GROUP, 
 
          
 
     Insurance Carrier,  
 
     
 
and       
 
          
 
SECOND INJURY FUND OF IOWA,   
 
          
 
     Defendants.    
 
________________________________________________________________
 
 
 
1803 1803.1
 
Sixty-year-old claimant engaged in the well drilling industry sustained 
 
two injuries.  The first was found to extend into the body and was 
 
compensated industrially with an award of 40 percent permanent partial 
 
disability.  Proximity to retirement age is a factor at industrial 
 
disability.  If he had not been an owner of the business it likely 
 
would have eliminated him from the industry.  The first injury did 
 
cause a loss of use of his right arm.  The second injury caused a very 
 
substantial loss of use of the left arm and was held to be a scheduled 
 
injury.  Claimant awarded 40 percent permanent partial disability of 
 
the left arm.  
 
 
 
3202
 
Though the case qualified for benefits from the Second Injury Fund none 
 
were awarded as the degree of industrial disability that resulted from 
 
the second injury was no more than the amount of the scheduled injury 
 
benefit for the left arm.  
 
 
 
3001
 
The employer paid wages during the week following the week in which 
 
they were earned.  It was held that under section 85.36(6) the weeks to 
 
be used are the weeks of earnings, not the weeks during which the wages 
 
were actually paid.  
 
 
 
1701
 
Employer and insurance carrier denied credit for amounts paid to 
 
claimant as a supplement to his workers' compensation benefits during 
 
his healing period and also for wages paid after the injury that were 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
due to work performed prior to the injury.  Further, the business was a 
 
family owned business and that fact was relied upon to support 
 
claimant's contention that the wages were not paid in lieu of 
 
compensation but were rather paid in addition to compensation benefits. 
 
 
 
 
 
1402.60 2502 2503
 
Where the examining physician for the claimant, under section 85.39, 
 
performed additional x-rays and EMG, claimant was not allowed to 
 
recover the costs of those additional tests since the record showed no 
 
necessity for repeating those tests which had previously been 
 
conducted.
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
             BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
_________________________________________________________________
 
            
 
FRANKLIN K. DeTOYE,   
 
            
 
     Claimant,   
 
            
 
vs.         
 
                                          File No. 929259
 
CITY OF MADRID,       
 
                                            A P P E A L
 
     Employer,   
 
                                          D E C I S I O N
 
and         
 
            
 
EMPLOYERS MUTUAL COMPANIES,     
 
            
 
     Insurance Carrier,   
 
     Defendants.      
 
_________________________________________________________________
 
 
 
The record, including the transcript of the hearing before the deputy 
 
and all exhibits admitted into the record, has been reviewed de novo on 
 
appeal.  The decision of the deputy filed February 15, 1995 is affirmed 
 
and is adopted as the final agency action in this case.
 
 
 
Claimant shall pay the costs of the appeal, including the preparation 
 
of the hearing transcript.
 
Signed and filed this ____ day of June, 1995.          
 
                                   ________________________________                 
 
                                   BYRON K. ORTON           
 
                                   INDUSTRIAL COMMISSIONER
 
 
 
Copies To:
 
 
 
Mr. Michael H. Irvine
 
Attorney at Law
 
P.O. Box 2819
 
Cedar Rapids, Iowa 52406-2819
 
 
 
Mr. E. J. Giovannetti
 
Attorney at Law
 
2700 Grand Ave., Ste 111
 
Des Moines, Iowa 50312
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                       5-1108
 
                                       Filed June 21, 1995
 
                                       Byron K. Orton
 
 
 
           BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
_________________________________________________________________
 
            
 
FRANKLIN K. DeTOYE,  
 
            
 
     Claimant,  
 
            
 
vs.         
 
                                      File No. 929259
 
CITY OF MADRID,       
 
                                        A P P E A L
 
     Employer,   
 
                                     D E C I S I O N
 
and         
 
            
 
EMPLOYERS MUTUAL COMPANIES,     
 
            
 
     Insurance Carrier,    
 
     Defendants.      
 
_________________________________________________________________
 
5-1108
 
 
 
Claimant failed to prove causal nexus between minor motor vehicle 
 
accident and subsequent development of many symptoms.
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
           BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
________________________________________________________________
 
          
 
FRANKLIN DeTOYE,   
 
          
 
     Claimant, 
 
          
 
vs.       
 
                                    File No. 929259
 
CITY OF MADRID,    
 
                                     ARBITRATION
 
     Employer, 
 
                                      DECISION
 
and       
 
          
 
EMPLOYERS MUTUAL   
 
COMPANIES,     
 
          
 
     Insurance Carrier,  
 
     Defendants.    
 
________________________________________________________________
 
                   STATEMENT OF THE CASE
 
 
 
This is a contested case proceeding under Iowa Code chapter 17A.  
 
Claimant, Franklin K. DeToye, filed a petition in arbitration against 
 
his former employer, City of Madrid, and its insurance carrier, 
 
Employers Mutual Companies.  Mr. DeToye claims that he sustained a 
 
brain injury in the course of his duties as a police officer on 
 
September 19, 1989.
 
 
 
This case was heard and fully submitted in Des Moines, Iowa on August 
 
9, 1994.  The record consists of joint exhibits 1 through 39 and 41 
 
through 68 along with defendants' exhibits A and B.  Objections to 
 
joint exhibit 40 were taken under advisement and are at this time 
 
overruled.  Exhibit 40 is received.  In addition, testimony was 
 
received at hearing from claimant, Carol DeToye, John Brunner, Gary 
 
Munson and Daniel Brown.  
 
 
 
                          ISSUES
 
 
 
The parties have stipulated to the following:
 
 
 
1.  An employment relationship existed between claimant and City of      
 
  Madrid at the time of the alleged injury;
 
 
 
2.  Permanent disability, if any, should be compensated by the        
 
industrial method;
 
 
 
3.  The correct rate of weekly compensation is $299.94;
 
 
 
4.  With respect to disputed medical expenses, the cost is fair and        
 
reasonable and providers would testify as to the reasonableness of         
 
treatment in the absence of contrary evidence; also, expenses         are 
 
causally connected to the medical condition upon which the       claim 
 
of injury is based;
 
 
 
5.  Defendants voluntarily paid $55,180.96 in weekly benefits prior to       
 
   hearing.
 
 
 
Issues presented for resolution include:
 
 
 
1.  Whether claimant sustained injury arising out of and in the course      
 
    of employment;
 
 
 
2.  Whether the injury caused either temporary or permanent disability;
 
 
 
3.  The extent of temporary total disability or healing period        
 
entitlement;
 
 
 
4.  The extent and commencement date of permanent disability;
 
 
 
5.  Whether disputed medical expenses are causally connected to the       
 

 
 
 
 
 
 
 
 
 
claimed work injury.
 
 
 
Defendants also attempted to assert a defense of authorization to 
 
disputed medical expenses at hearing.  The defense was ruled invalid 
 
because defendants have denied liability on the claim, thus forfeiting 
 
the right to control the course of medical treatment.
 
 
 
                       FINDINGS OF FACT
 
 
 
The undersigned deputy industrial commissioner finds:
 
 
 
Franklin K. DeToye, 36 years of age at hearing, was employed as the 
 
chief of police in Madrid, Iowa on September 19, 1989.  Madrid is a 
 
typical small town located in central Iowa.  On the evening of 
 
September 19, Mr. DeToye was engaged in surveillance with one of his 
 
officers, John Brunner, who drove a squad car, with claimant as 
 
passenger.  A suspect vehicle drove by at a high rate of speed, 
 
triggering a chase.  During the chase, the patrol car swerved off the 
 
road into a ditch, jostling the occupants.  Brunner complained of a 
 
sore arm for a few days afterwards, while claimant asserts that his 
 
life has been devastated by the incident.  Mr. DeToye claims to suffer 
 
persistent seizures and pseudo-seizures, debilitating headaches and 
 
severe diminution of his intellectual capacity, including basic 
 
intelligence and the ability to concentrate.  The evidence also shows 
 
that Mr. DeToye has experienced significant changes in his personality 
 
in that he is now withdrawn and grumpy, whereas he was previously 
 
alert, active and gregarious.
 
 
 
The voluminous record in this case presents a welter of conflicting 
 
evidence both as to the surrounding facts of the accident itself, and 
 
as to the physical and psychological ramifications thereafter; 
 
especially, whether a causal link exists between the incident and the 
 
changes of which Mr. DeToye complains.
 
 
 
This decision concludes that claimant has failed to meet his burden of 
 
proof in establishing that causal link.  
 
 
 
Claimant himself has little if any independent memory of the events of 
 
September 19.  Indeed, the very pattern of his amnesia is itself most 
 
unusual in medical terms.  Accordingly, the events surrounding this 
 
incident are generally described by other witnesses and various police 
 
records.  However, Mr. DeToye has spoken much of his current condition, 
 
especially as contrasted to his previous condition.  Although 
 
claimant's demeanor at hearing impressed the finder of fact at the time 
 
as being credible, other evidence now convinces otherwise.  In addition 
 
to this litigation, claimant commenced a products liability action 
 
based on equipment in the patrol car which allegedly contributed to his 
 
injuries.  In a deposition taken in that litigation on March 1, 1991, 
 
Mr. DeToye provided a wealth of detailed recollection concerning the 
 
incidents of and around September 19.  He now claims that during that 
 
deposition, he merely reconstructed events from what he had 
 
subsequently learned.  Nonetheless, it remains obvious that his 
 
deposition testimony was in many respects false.  Claimant's 
 
willingness to give false testimony in his own behalf in that 
 
litigation casts serious and substantial doubt upon his truthfulness in 
 
this litigation.  Little weight can be given to his testimony.
 
 
 
According to John Brunner, the patrol car slid sideways into a shallow 
 
ditch on a winding gravel road at approximate 50 to 60 miles per hour 
 
and came to an abrupt stop.  Brunner was thrown against the driver's 
 
side door and claimant ended up with his head in Brunner's lap.  Later, 
 
perhaps by 15 to 45 minutes, Brunner says that Mr. DeToye stated he had 
 
"blacked out" just for a "split second."  However, no other complaints 
 
were made and Brunner noticed no other symptoms at this time.
 
 
 
At some time shortly after midnight, Brunner reports Mr. DeToye 
 
complaining of headache and nausea.  This testimony is of some 
 
significance because symptoms of a closed head injury typically appear 
 
almost immediately, rather than hours later.  On cross examination, 
 
Brunner conceded that the first time he had ever mentioned the midnight 
 
complaints may have been during his deposition in February 1994, some 
 
four and one half years later.  Generally speaking, Mr. Brunner 
 
exhibited some confusion as to the sequence and timing of events on 
 
September 19, so his report of midnight complaints is questionable.
 
Gary Munson, a Boone County deputy sheriff, was dispatched to provide 
 

 
 
 
 
 
 
 
 
 
assistance at 9:34 p.m. and met Officers DeToye and Brunner shortly 
 
after the unsuccessful termination of the chase.  Munson noticed clumps 
 
of grass on the front end of the patrol car and briefly talked to the 
 
two men.  He was not advised of any injury.
 
 
 
As was common practice, claimant stayed at Officer Brunner's home when 
 
they went off duty around midnight.  However, at some time between 
 
midnight and 2:43 a.m., claimant left the Brunner residence (also 
 
shared by the third member of the force, John Hillary) and ended in up 
 
in a confrontation with his brother and a suspected drug criminal to 
 
which Officer Brunner was eventually dispatched to give assistance at 
 
2:43 a.m.  
 
 
 
Upon arrival at a local supermarket parking lot, Brunner recalled 
 
finding claimant and his brother Phil engaged in an argument in front 
 
of an adjoining bowling alley.  Phil was disorderly and claimant was 
 
upset that Phil had been in association with the drug suspect, Frank 
 
Lawson.  
 
 
 
Lawson, incidentally, was at the same time attempting to enlist the aid 
 
of the Boone County Sheriff's Office in support of his complaint that 
 
he had been "beaten up by Madrid cop."  Deputy Sheriff Daniel Brown 
 
(who, coincidentally, had once been discharged by claimant from a 
 
part-time position with the Madrid force) was sent to investigate.  
 
Brown's contemporaneous report notes Lawson complaining that he had 
 
been struck in the chest with a closed fist by claimant, supposedly for 
 
no reason whatsoever.  Noting that Lawson had a "tendency to 
 
over-react," Brown concluded that no assault had been committed.  
 
However, he also took written statements from three witnesses, 
 
including Lawson.
 
 
 
Shari Argetsinger and Kristin Kruse reported what they had been told by 
 
Lawson and Marc Argetsinger:  that claimant had shoved and hit Lawson 
 
and offered to "forget" his status as a law officer in an apparent 
 
effort to provoke a fist fight.  Laswon's statement details that he and 
 
Phil DeToye had gone to look for Marc Argetsinger, who had left the 
 
group.  Claimant apparently drove by at this time (the earlier 
 
surveillance resulting in the chase had itself been directed at Lawson) 
 
and quickly confronted his brother over his choice of companions.  
 
Lawson goes on to complain that as he attempted to leave, claimant 
 
began to shove him around and offered to "forget all about he was a 
 
police officer."  Lawson took off running back to his house to call the 
 
Boone County Sheriff for aid, concluding:
 
 
 
As I was runing away he was jerking his brother around the bolling aley 
 
parking lot.
 
 
 
The record does not contain evidence demonstrating that the physical 
 
confrontation between claimant and his brother went beyond "jerking 
 
around."  A contemporaneous rumor floated around town to the effect 
 
that Phil had actually hit claimant in the head with a baseball bat, 
 
but there is absolutely no evidence that this ever took place.  
 
 
 
However, the mere fact that such a rumor got started tends to support 
 
the notion that there was some nature of physical confrontation between 
 
the two men.  In any event, it is clear that claimant was at the very 
 
least extremely upset over the incident .
 
 
 
Officer Brunner took Phil and claimant to the home they shared with 
 
claimant's wife, Carol DeToye.  While there, claimant first began 
 
showing significant symptoms, including severe vomiting, watering eyes 
 
and complaints of headache.  Brunner recalls leaving claimant with his 
 
wife and returning home, only to find Frank DeToye on his couch the 
 
next morning (according to Carol DeToye, Frank left to go home with 
 
Brunner).
 
 
 
Carol DeToye described claimant as out of control and looking odd as 
 
well with watery eyes, slurred speech, a flushed face and imbalance.  
 
As he left with Brunner, Frank fell to his knees by the squad car to 
 
vomit.
 
 
 
The next morning, Brunner found claimant feeling weak and complaining 
 
of nausea and headache.  Carol DeToye reports the same complaints, 
 
adding that claimant looked lost and confused.  She also claims to have 
 
seen drops of blood on claimant's pillow and on the right side of his 
 
head and ear.
 

 
 
 
 
 
 
 
 
 
 
 
By all accounts, claimant's condition deteriorated during the day.  
 
Carol reported confusion, slurred speech, loss of balance, vomiting and 
 
complaints of headache.  Officer Brunner returned later, and claimant 
 
was taken to the Boone County Hospital at 2:35 p.m.  
 
 
 
The admitting report notes that claimant stated he was not unconscious 
 
when he "rolled a car" the night before, but had severe headache, 
 
nausea and dizziness likened to drunkenness.  The records do not show 
 
that any sign of physical injury was discovered, much less the "goose 
 
egg" claimant testified to in his products liability litigation.  After 
 
a consultation with a neurosurgeon, S. Randy Winston, M.D., claimant 
 
was transferred by ambulance to Mercy Hospital in Des Moines.
 
 
 
Officer Brunner reported the incident to the City of Madrid on 
 
September 20.  City administrator/clerk Keith Kudej testified by 
 
deposition on February 21, 1994, that Brunner had actually been unsure 
 
whether claimant had been injured during the chase or in a "tackle 
 
basketball" accident in which claimant fell and hit his head in the 
 
days shortly before, probably September 16.  Brunner was described as 
 
"curious as to how Frank could have sustained that injury because they 
 
really didn't crash."  (Joint Exhibit 44, page 23)
 
 
 
A former deputy city clerk, Catherine Petersen, testified (by 
 
deposition on February 21, 1994) to what Brunner told her about the 
 
basketball game:  
 
 
 
A.  He was concerned about Frank because Frank was not  feeling well, 
 
and John Brunner was feeling very guilty because he had been involved 
 
in that same game, and he thought maybe he had been the one that had 
 
hurt him.
 
Q.  You say he didn't feel well.  What is your understanding of   when 
 
he didn't feel well?  Would it have been before September 19, 1989?
 
A.  It would have been before the 19th, yes.  It had been going  on 
 
since he had hurt his head at that party.  
 
Q.  And John Brunner told you that?
 
A.  Yes.
 
Q.  What did John tell you occurred at the party?
 
A.  That they were playing tackle basketball and they both went down 
 
and they both hit their heads on the cement but Frank hit his head 
 
harder.
 
(Jt. Ex. 45, pp. 8-9)
 
 
 
Ms. Petersen also reported that Carol DeToye spoke to her of the 
 
basketball incident at about the same time:  
 
 
 
Q.  What did Carol DeToye tell you about the basketball game?
 
A.  Not a lot about the game.  She told me that he had fallen; and 
 
since then he had had real bad headaches, could not remember 
 
a lot and had been acting strange.   (Jt. Ex. 45, p. 10)
 
 
 
Kudej and Petersen are disinterested witnesses, especially Catherine 
 
Petersen, who is no longer employed by the City of Madrid.  Substantial 
 
weight is given to the testimony of each.
 
 
 
The patrol car itself was subsequently examined by Keith Kudej and John 
 
Brunner twice, the second time with an insurance representative.  No 
 
obvious evidence of injury was found (although claimant testified in 
 
his products liability litigation to having left hair in the offending 
 
vehicle) and Brunner was unsuccessful in his attempts to reach with his 
 
head to a metal bolt or bracket thought to have been struck.
 
 
 
Claimant, incidentally, has a remarkable medical history including 
 
being knocked unconscious on six prior occasions in sporting, motor 
 
vehicle and parachute accidents.  He also was complaining of severe or 
 
persistent headaches at least as early as 1986.
 
 
 
During claimant's hospitalization at Mercy (he was released on October 
 
3), he was twice scanned by computerized tomography.  The first CAT 
 
scan, according to Dr. Winston (deposition of April 22, 1994) was 
 
questionable as to whether any variant actually existed, but may have 
 
suggested some swelling on the right side of the brain; a slight 
 
asymmetry.  Incidentally, a right-sided brain injury is not consistent 
 
with the right-sided extremity weakness claimant was reporting at the 
 
time.  A subsequent CAT scan was normal, leading Dr. Winston to 
 
conclude that the first scan had shown physical damage, which then 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
quickly resolved.
 
 
 
By the time claimant was released from the hospital, he showed no 
 
physical manifestations of injury and complained only of continued 
 
headaches.  Dr. Winston felt claimant had sustained a cerebral 
 
contusion which he attributed to the vehicle accident, although the 
 
doctor was not aware that symptoms had actually begun following the 
 
basketball accident several days before.  He characterized the severity 
 
of the injury as moderate and would not have anticipated residual 
 
problems, although residuals were possible.  He also considered 
 
development of symptoms several hours after the initial injury to be 
 
"inconsistent," but nonetheless possible, as brain swelling may not 
 
have occurred instantly.  It was only at his deposition that Dr. 
 
Winston learned for the first time that symptoms had not appeared 
 
immediately.  Dr. Winston also opined that proof of injury to brain 
 
fibers could best be found in behavioral testing.  
 
 
 
After his release from the hospital, claimant returned to work briefly, 
 
but developed startling new symptomotology beginning December 13, 1989: 
 
seizure activity.  Mr. DeToye now regularly develops grand mal type 
 
seizure symptoms involving apparent loss of voluntary muscle control, 
 
urination and defecation, shaking, falling and biting the inside of the 
 
mouth.  Claimant has been hospitalized on numerous occasions for these 
 
symptoms, and has even undergone these events while hooked to 
 
electroencephalograph machines on multiple occasions.  However, those 
 
EEG's have demonstrated conclusively that claimant suffers from 
 
"pseudo-seizures," that is, seizure-like activity which is not 
 
associated with abnormal electrical activity in the brain.
 
 
 
The expert opinion in the record establishes that pseudo-seizures may 
 
either be caused by conversion reactions, a form of psychological 
 
disturbance, or may be pure fakery.  They are, in any event, not caused 
 
by abnormal physical function, although they can in many cases be 
 
associated with true seizures.  That is, the diagnosis of 
 
pseudo-seizures does not necessarily exclude the possibility of 
 
epileptic seizures.  Nonetheless, in this case, there is no evidence 
 
that claimant has ever experienced a true epileptic seizure as opposed 
 
to the pseudo-seizures which have been diagnosed on multiple occasions.
 
Mr. DeToye's constellation of symptoms have been treated and evaluated 
 
by a large number of highly qualified physicians.  Not surprisingly, 
 
those physicians exhibit a wide diversity of opinion.
 
 
 
David L. Friedgood, D.O., a board certified neurologist, first saw 
 
claimant at Dr. Winston's referral on March 24, 1990, during a 
 
hospitalization for seizures.  Under Dr. Friedgood's care, claimant was 
 
hooked to an EEG machine when he experienced three separate seizure 
 
events:  EEG tracings were normal, leading Dr. Friedgood to diagnose 
 
pseudo-seizures with near absolute certainty.  Dr. Friedgood's final 
 
diagnosis, issued in a letter dated March 17, 1994, was of 
 
post-concussion syndrome, a condition which is not observable by 
 
radiographic means such as MRI or CT scans.  Based on the history given 
 
by Mr. DeToye (which included the car chase, but not the tackle 
 
basketball incident), Dr. Friedgood causally related claimant's 
 
condition to the claimed work injury of September 1989.  Referring to 
 
claimant as "one of a kind" in his deposition of May 25, 1994, Dr. 
 
Friedgood noted that claimant has no objectively observable physical 
 
residuals from the accident and deferred causation questions as to 
 
claimant's psychiatric disturbance to psychiatric experts.  Dr. 
 
Friedgood pointed out a number of unusual factors in claimant's case, 
 
including in particular the fact that symptoms first arose only several 
 
hours after the chase (again, Dr. Friedgood was not aware that claimant 
 
suffered symptoms following the basketball incident several days 
 
before) and noted how unusual it is that the gross nature of claimant's 
 
symptoms could have been caused by physical damage not detectable by 
 
MRI or CAT scan.  Dr. Friedgood would have expected to see a large 
 
scale injury to the brain in order to cause such "tremendous symptoms" 
 
as he complained of.
 
 
 
Claimant was also seen in 1990 and 1991 by Ashby T. Harris, M.D., in 
 
the state of Texas.  Dr. Harris concluded as of July 18, 1991, that 
 
claimant had suffered no permanent neurological deficit as a result of 
 

 
 
 
 
 
 
 
 
 
the accident, other than a tendency towards seizures.  However, Dr. 
 
Harris' report of October 18, 1990 discloses that he received a 
 
seriously defective history:  He believed that claimant had been 
 
knocked unconscious for about three to five minutes, then came around, 
 
then came around, then became unconscious again following the accident. 
 
 
 
Also, Dr. Harris was apparently unaware of the basketball incident 
 
several days before.
 
 
 
Daniel B. Johnson, M.D., also a board certified neurologist, testified 
 
by deposition on June 14, 1994.  Dr. Johnson treated claimant from 
 
February 1992 to February 1993, mostly with respect to seizure 
 
activity.  Dr. Johnson diagnosed a conversion disorder as causative of 
 
pseudo-seizures, but apparently was not impressed that claimant suffers 
 
a post-concussion syndrome.  As to the nature of conversion disorders, 
 
Dr. Johnson commented that the motivation "is deeply psychological and 
 
not based upon current events, necessarily."  Dr. Johnson did not 
 
believe that claimant was intentionally faking his seizure activity.
 
John R. McKee, M.D., also a board certified neurologist, testified by 
 
deposition on May 25, 1994.  Dr. McKee treated claimant during a 
 
hospitalization for seizure activity in December 1993.  Dr. McKee's 
 
discharge diagnosis was of pseudo-seizures and chronic daily headaches. 
 
 He noted that headaches are common, and believes it usually is unknown 
 
what might cause them; they are frequently spontaneous in nature.  Dr. 
 
McKee did not causally connect either post-concussion syndrome or 
 
pseudo-seizures to the September 19, 1989 incident under review.  He 
 
pointed out that the causal relationship between trauma and 
 
post-concussion syndrome is clearer, the more severe the trauma is.  
 
Pseudo-seizures are, again, either a conversion reaction or 
 
malingering.  Dr. McKee believes that the cause of pseudo-seizures is 
 
rarely, if ever known, and in particular, they do not ordinarily occur 
 
following a trauma.  Indeed, he specified that this is the first case 
 
he was aware of in which a conversion reaction was claimed to occur 
 
following an accident.  Onset is typically spontaneous in nature.
 
 
 
Jim Delperdang, M.D., is a board certified fellow in emergency medicine 
 
who testified by deposition on June 30, 1994.  Dr. Delperdang, who has 
 
extensive experience with seizures due to his specialty, treated 
 
claimant for seizure activity in February 1994.  Dr. Delperdang noted a 
 
number of actions inconsistent with true seizure activity, especially 
 
when claimant was being intubated before being given a powerful 
 
paralytic drug that would also paralyze the muscles necessary for 
 
respiration.  Claimant pulled the tube from his throat, a voluntary 
 
muscle action though apparently in the midst of a seizure.  Dr. 
 
Delperdang accordingly concluded that the seizure events were 
 
voluntarily controlled.  After learning that claimant had previously 
 
been diagnosed with pseudo-seizures, Dr. Delperdang acted as follows:
 
 
 
A.  I decided that we would stop aggressive seizure control and  
 
then I extubated the patient, and at that point we just  
 
basically monitored his vital signs.
 
Q.  Did you advise Mr. DeToye at that time as to what your  
 
action was to be?
 
A.  I went up to him, and in spite of the fact that he didn't 
 
seem to be responsive, I told him that he would not receive  
 
any further medications.
 
Q.  And what happened, Doctor?
 
A.  We had no more shaking spells.
 
Q.  Is that a voluntary or involuntary act at that point?
 
A.  Well, either very coincidentally or voluntary control.
 
Q.  Do you have an opinion in that regard?
 
A.  No.
 
 
 
Although Dr. Delperdang refused to express an opinion, it seems 
 
fair to infer that he considered this coincidence highly suspicious.  
 
 
 
Claimant has also been the object of several psychological work-ups.  
 
John D. Bayless, Ph.D., a neuropsychologist, testified (by deposition 
 
on June 6, 1994) that claimant suffers an organic affective personality 
 
disorder (post-injury behavioral changes) and concluded that claimant 
 
had significant impairment to memory, attention and concentration.  Dr. 
 
 
 
Bayless causally tied his diagnoses to the 1989 car chase. 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
Claimant was also evaluated at the University of Iowa Hospitals and 
 
Clinics on December 15, 1993.  Robert D. Jones, Ph.D., another 
 
neuropsychologist, testified by deposition on March 11, 1994.  Dr. 
 
Jones concluded that there was little evidence in this case of 
 
post-traumatic head injury syndrome or post-concussive syndrome.  
 
 
 
Although claimant's performances on numerous neuropsychological tests 
 
failed to meet expectations, Dr. Jones found the severe nature of 
 
deficiencies as inconsistent with other areas of preserved cognitive 
 
functioning that he would also expect to be impaired, other diagnostic 
 
tests which have been normal or inconsistently abnormal, the 
 
developmental course of claimant's impairments and the reported 
 
severity of the trauma.
 
 
 
At the behest of Dr. Friedgood, claimant was evaluated by 
 
neuropsychologist Michael D. Oliveri, Ph.D., in May 1990.  Dr. Oliveri 
 
concluded:
 
     
 
Results are suspect and indicate an atypical pattern of cognitive 
 
dysfunction, including deficits in general intellect (including 
 
abilities often unaffected by brain injury), verbal fluency, verbal 
 
learning and memory, delayed visual memory, tactile perception, 
 
right-left confusion, and reasoning abilities.  Personality testing 
 
suggests neurotic and somatization features found within the context of 
 
long-standing personality problems.
 
     
 
Comparison with available 12/89 results indicate dramatic changes, with 
 
new deficits appreciated in right-left discrimination, finger agnosia 
 
(bilateral), verbal fluency, and immediate serial digit recall.  Such 
 
changes would suggest rather significant newly acquired multifocal 
 
cerebral dysfunction (left anterior frontal, medial temporal, basal 
 
forebrain, and parietal) in the interim period.  These findings are 
 
significantly inconsistent with his known neurological status.  In 
 
addition, his qualitative performance on this examination was 
 
significant for resistance.  Taken together, such findings are 
 
suggestive of dissimulation.
 
 
 
Dr. Oliveri believed that secondary gain issues might be contributing 
 
factors and suggested that if claimant's motives changed and secondary 
 
gain issues could be resolved, a neuropsychological re-evaluation could 
 
be valid; at present, he did not recommend further examination.
 
 
 
                    CONCLUSIONS OF LAW
 
 
 
The claimant has the burden of proving by a preponderance of the 
 
evidence that the alleged injury actually occurred and that it arose 
 
out of and in the course of employment.  McDowell v. Town of 
 
Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Cent. Tel. Co., 
 
261 Iowa 352, 154 N.W.2d 128 (1967).  The words "arising out of" refer 
 
to the cause or source of the injury.  The words "in the course of" 
 
refer to the time, place and circumstances of the injury.  Sheerin v. 
 
Holin Co., 380 N.W.2d 415 (Iowa 1986); McClure v. Union County, 188 
 
N.W.2d 283 (Iowa 1971).
 
 
 
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).
 
 
 
Although there is certainly evidence going both directions, it is 
 
concluded that claimant has failed to meet his burden of proof in 
 

 
 
 
 
 
 
 
 
 
establishing injury arising out of and in the course of employment in 
 
the sense of any causal link between the squad car going off the road 
 
and claimant's current condition.  It is noted that the squad car 
 
impact was relatively minor (at least, in terms of any sustained loss 
 
of consciousness) and that symptoms either developed several hours 
 
afterwards, or more likely, developed several days before when claimant 
 
fell playing tackle basketball.  In addition, claimant was clearly 
 
involved in some nature of altercation with his brother a few hours 
 
later, and the psychological distress resulting from that incident was 
 
obviously incomparably greater than psychological distress resulting 
 
from going off the road.  The development of obvious symptoms are also 
 
much closer in point of time to this incident.
 
 
 
Claimant's seizure disorder is caused by a conversion reaction.  
 
Despite Dr. Delperdang's suspicions, this decision does not find that 
 
claimant is faking his seizure activity.  However, the expert opinion 
 
persuades that conversion disorders are not typically associated with 
 
physical trauma, and develop either spontaneously or, if in response to 
 
a purely psychological trauma, in this case would be more clearly 
 
associated with the confrontation between claimant and his brother.
 
 
 
Not only are there causal problems connecting the car chase to any 
 
claimed diminution in claimant's mental capacities (intelligence, 
 
concentration, etc.), but Dr. Oliveri has pointed out the many 
 
inconsistencies, along with Dr. Jones from the University of Iowa.
 
 
 
Taking all these factors into account, it is concluded that claimant 
 
has failed to meet his burden of proof.  Accordingly, defendants 
 
prevail on all disputed issues.
 
 
 
                              ORDER
 
 
 
THEREFORE IT IS ORDERED:
 
 
 
Claimant takes nothing further.
 
 
 
Costs are assessed to claimant.
 
 
 
Signed and filed this ____ day of February, 1995.      
 
                        ________________________________        
 
                        DAVID RASEY         
 
                        DEPUTY INDUSTRIAL COMMISSIONER
 
 
 
Copies To:
 
 
 
Mr. Michael H. Irvine
 
Attorney at Law
 
417 First Avenue SE
 
PO Box 2819
 
Cedar Rapids, Iowa 52406-2819
 
 
 
E. J. Giovannetti
 
Attorney at Law
 
2700 Grand Avenue
 
Des Moines, Iowa 50312
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                    5-1108
 
                                    Filed February 1995
 
                                    DAVID RASEY
 
 
 
           BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
________________________________________________________________
 
FRANKLIN DeTOYE,   
 
          
 
     Claimant, 
 
          
 
vs.       
 
                                      File No. 929259
 
CITY OF MADRID,    
 
                                       ARBITRATION
 
     Employer, 
 
                                        DECISION
 
and       
 
          
 
EMPLOYERS MUTUAL   
 
COMPANIES,     
 
          
 
     Insurance Carrier,  
 
     Defendants.    
 
________________________________________________________________
 
 
 
5-1108
 
Claimant failed to prove causal nexus between minor motor vehicle 
 
accident and subsequent development of many symptoms.