Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            KEVIN J HOUGLAND,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 933391
 
            AMERICAN WELDING & TANK CO.,  :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            INSURANCE COMPANY of NORTH    :
 
            AMERICAN (CIGNA),             :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Kevin J. 
 
            Hougland, claimant, against American Welding and Tank 
 
            Company, employer and Insurance Company of America (Cigna), 
 
            insurance carrier, to recover benefits under the Iowa 
 
            Workers' Compensation Act as a result of an injury sustained 
 
            on October 5, 1989.  This matter came on for hearing before 
 
            the undersigned deputy industrial commissioner on February 
 
            24, 1992, in Ottumwa, Iowa.  The record in this case was 
 
            considered fully submitted at the close of the hearing.  The 
 
            record consists of claimant's testimony and testimony from 
 
            Jerry Batterson and Bruce Jones; as well as joint exhibits 1 
 
            through 17.
 
            
 
                                      issue
 
            
 
                 Pursuant to the prehearing and order dated February 24, 
 
            1992, and statements from the parties at the hearing in this 
 
            matter, the only issue presented for resolution is whether 
 
            claimant is entitled to additional healing period benefits 
 
            from December 16, 1989 to October 14, 1990.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned has carefully considered all the 
 
            testimony given at the hearing, arguments made, evidence 
 
            contained in the exhibits herein, and makes the following 
 
            findings:
 
            
 
                 There is no dispute that on October 5, 1989, claimant 
 
            injured his right foot while working for employer.  On the 
 
            date of his injury, he was assigned to moving a 1000 gallon 
 
            tank which he attempted to push into the painting booth.  
 
            While leaning forward with his shoulder and pushing on the 
 
            tank, he put considerable stress on his right foot.  He 
 
            experienced some pain and soreness.  On returning to work he 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            reported the injury to his supervisor.  He was referred to 
 
            the plant physician, who then referred him to Michael 
 
            Durkee, M.D., an orthopedist.  On examination in November 
 
            1989, Dr. Durkee noted that claimant was status post-triple 
 
            arthrodesis of the right foot for apparent spasticity.  He 
 
            also noted that claimant's right foot was shorter than his 
 
            left and had a very high arch.  He observed that claimant is 
 
            at high risk for foot problems because his calcaneous is in 
 
            a varus position rather than a normal valgus position.  He 
 
            recommended a built-up shoe and a work boot fitted to his 
 
            foot with an arch support built-up for leg length 
 
            discrepancy (exhibit 2, page 4).
 
            
 
                 On November 14, 1989, claimant was fitted with an 
 
            arthrosis.  On December 5, 1989, Dr. Durkee released 
 
            claimant to return to light work with restrictions of no 
 
            standing over six hours per day, no continuous walking and 
 
            no lifting over 40 pounds (ex. 2, pp. 1-2).
 
            
 
                 Dr. Durkee felt that claimant would be able to return 
 
            to work on December 11, 1989, with the restrictions he 
 
            imposed on December 5, 1989 (ex. 2, p. 3).
 
            
 
                 Claimant testified that he returned to work on December 
 
            11, 1989, and was offered a job on the production line.  He 
 
            was assigned an inside longitudinal seam welding job which 
 
            involved heavy lifting in excess of 60 pounds and pushing 
 
            500-pound tanks up an incline.  He worked 4.2 hours that day 
 
            and returned home without completing his work shift.  He 
 
            testified that he was unable to perform the physical demands 
 
            of this job.  Claimant testified that he went to see John J. 
 
            Finneran, M.D., the next day but there are no medical 
 
            records in evidence supporting his claim.  
 
            
 
                 Mr. Jerry Batterson, plant manager in 1989, testified 
 
            that he met with claimant on December 15, 1989, to discuss 
 
            job opportunities at the plant.  It was his opinion that 
 
            claimant was capable of performing the longitudinal seam 
 
            welding job but claimant felt that the requirements exceeded 
 
            his restrictions.  
 
            
 
                 There is disagreement between Mr. Batterson and 
 
            claimant as to whether claimant voluntarily quit because he 
 
            felt that there were no jobs at the plant that he could 
 
            perform or whether Mr. Batterson terminated claimant's 
 
            employment because he refused to accept the job offered him.  
 
            In any event, claimant was discharged on December 15, 1989 
 
            (ex. 15, pp. 1-2).
 
            
 
                 On December 18, 1989, claimant applied for unemployment 
 
            compensation benefits holding himself out as ready, willing 
 
            and able to work (ex. 16, pp. 5-9).
 
            
 
                 On July 12, 1990, claimant was referred by the 
 
            insurance company to W.J. Robb, M.D., orthopedist, for 
 
            examination and a second opinion.  After reviewing the 
 
            claimant's medical history and noting his complaints, Dr. 
 
            Robb diagnosed musculoligamentous strain with aggravation of 
 
            right foot triple arthrodesis.  He felt that claimant 
 
            strained the posterior tibial and peroneal tendons attaching 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            to his right foot and anticipated six months to a year of 
 
            graduated exercise to reach maximum recovery.  He indicated 
 
            that claimant's work capacity was severely limited by his 
 
            inability to climb.  He recommended work activity with 
 
            alternating sitting and standing and lifting no more than 35 
 
            pounds (ex. 1, pp. 4-5).
 
            
 
                 Claimant testified that he returned to work activity as 
 
            a welder on October 14, 1990, with Werts Corporation 
 
            Structural Steel Company.  
 
            
 
                 Claimant was reexamined by Dr. Robb on September 17, 
 
            1991.  At this time, he noted improvement in claimant's 
 
            right foot symptomatology and assigned a 5 percent permanent 
 
            impairment rating of the right lower extremity as a result 
 
            of the October 1989 injury (ex. 1, pp. 7-9).
 
            
 
                                conclusions of law
 
            
 
                 The issue to be determined by the undersigned is 
 
            whether claimant is entitled to additional healing period 
 
            benefits during his time off work from December 16, 1989 to 
 
            October 14, 1990.
 
            
 
                 Section 85.34(1), Code of Iowa, provides that healing 
 
            period benefits are payable to an injured worker who has 
 
            suffered permanent partial disability until (1) he has 
 
            returned to work; (2) is medically capable of returning to 
 
            substantial employment; or (3) has achieved maximum medical 
 
            recovery.
 
            
 
                 Healing period benefits may be characterized as that 
 
            period during which there is a reasonable expectation of 
 
            improvement of a disabling condition and ends when maximum 
 
            medical improvement is reached.  Armstrong Tire & Rubber Co. 
 
            v. Kubli, Iowa App., 312 N.W.2d 60, 65 (1981).  In 
 
            discussing the concept of healing period as contemplated by 
 
            Iowa Code section 85.34(1), the Kubli court observed that 
 
            recuperation refers to that condition in which healing is 
 
            complete and the extent of the disability can be determined.  
 
            Kubli, Iowa App., 312 N.W.2d 60, 65.  The healing period 
 
            generally terminates at the time the attending physician 
 
            determines that the employee has recovered as far as 
 
            possible from the effects of the injury.  Kubli, Iowa App., 
 
            312 N.W.2d 60, 65.  When a permanent rating is given, it 
 
            indicates that the physician does not expect the claimant to 
 
            improve and this conclusion meets the criteria of Iowa Code 
 
            section 85.34(1) and Thomas v. William Knudson & Sons, Inc., 
 
            349 N.W.2d 124, 126 (Ia. Ct. App. 1984).
 
            
 
                 Claimant's healing period began on October 12, 1989, 
 
            when he was taken off work.  The dispute involved in this 
 
            case revolves around whether claimant's healing period 
 
            should continue to October 14, 1990, when he returned to 
 
            work activity or should it terminate on December 15, 1989, 
 
            when he was released for light duty work.
 
            
 
                 The record clearly indicates that Dr. Durkee released 
 
            claimant to light work, with restrictions, on December 11, 
 
            1989.  Claimant did return to work on December 11, 1989, and 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            was allegedly offered what employer felt was light duty 
 
            work.  However, both Mr. Batterson and Mr. Jones admitted 
 
            that the job offered to claimant involved lifting in excess 
 
            of 60 pounds and involved prolonged standing and pushing of 
 
            objects weighing more than 40 pounds.  Clearly these 
 
            activities exceed the restrictions given claimant by Dr. 
 
            Durkee.  Claimant found it impossible to perform this job 
 
            and felt that he had no other alternative but to quit.  
 
            Employer admitted that he did not offer claimant any other 
 
            position in the plant either on December 11, 1989, or 
 
            anytime thereafter.  Claimant's out-of-work status required 
 
            him to apply for unemployment compensation benefits and he 
 
            held himself as ready, willing and able to work within his 
 
            medical restrictions.  On October 14, 1990, claimant 
 
            obtained a position as a welder with another company.  
 
            Claimant returned to work activity on that date ending all 
 
            entitlement to healing period benefits pursuant to Iowa Code 
 
            section 85.34(1).
 
            
 
                 It is evident from the testimony received at the 
 
            hearing that employer did not have light work available to 
 
            claimant when he was released to return to work on December 
 
            11, 1989.  Claimant was assigned to the line and asked to 
 
            perform heavy work activity.  Dr. Robb in July 1990, felt 
 
            that this job was beyond claimant's capability.  In fact, he 
 
            indicated that claimant would not reach maximum medical 
 
            improvement for at least another six months to one year 
 
            after graduated exercise and bracing with a lacing boot (ex. 
 
            1, pp. 1-5).  Claimant was able to find suitable work in 
 
            October 1990 and returned to the competitive job market at 
 
            that time.
 
            
 
                 Pursuant to Iowa Code section 85.34(1), claimant's 
 
            healing period ended when he returned to work activity.  
 
            
 
                 Claimant is therefore entitled to additional healing 
 
            period benefits from December 16, 1989 to October 14, 1990, 
 
            at the stipulated rate of $197.74.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 That defendants pay to claimant forty-three point one 
 
            four three (43.143) weeks of healing period benefits at the 
 
            stipulated rate of one hundred ninety-seven and 74/100 
 
            dollars ($197.74) per week for the period of December 16, 
 
            1989 to October 14, 1990.
 
            
 
                 That defendants pay all costs pursuant to rule 343 IAC 
 
            4.33.
 
            
 
                 That defendants receive credit for any benefits 
 
            previously paid.
 
            
 
                 That defendants pay accrued amounts in a lump sum.
 
            
 
                 That defendants pay interest pursuant to Iowa Code 
 
            section 85.30.
 
            
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                 That defendants file claim activity reports as required 
 
            by this agency.
 
            
 
                 Signed and filed this ____ day of March, 1992.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          JEAN M. INGRASSIA
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Edwin H. Detlie
 
            Attorney at Law
 
            114 N. Market St
 
            Ottumwa, Iowa  52501
 
            
 
            Mr. Charles E. Cutler
 
            Ms. Coreen K. Sweeney
 
            Attorneys at Law
 
            729 Ins Exchange Bldg
 
            Des Moines, Iowa  50309
 
            
 
                 
 
            
 
 
            
 
            
 
            
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ------------------------------------------------------------
 
            KEVIN J HOUGLAND,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :        File No. 933391
 
            AMERICAN WELDING & TANK,      :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :        D E C I S I O N
 
            and                           :
 
                                          :
 
            INSURANCE CO. OF AMERICA,     :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ------------------------------------------------------------
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Kevin 
 
            Hougland against American Tank and Welding and its insurance 
 
            carrier based upon an injury of October 5, 1989.  Claimant 
 
            seeks to have the disability compensated industrially and 
 
            asserts that the injury is not limited to a scheduled 
 
            member.  The procedural issue to be addressed is whether 
 
            this should be considered a review-reopening proceeding 
 
            which requires a showing of a change of condition rather 
 
            than an arbitration proceeding.  A further issue exists with 
 
            regard to whether or not the claim for industrial disability 
 
            is barred by the doctrine of preclusion.  There is also an 
 
            issue with regard to the correct rate of compensation.
 
            
 
                 The case was heard at Oskaloosa, Iowa, on May 3, 1994.  
 
            The record consists of testimony from Kevin Hougland and 
 
            Bruce Jones.  The record also contains joints exhibits 7a, 
 
            8a, 17, 18 and defendants' exhibit 19.  Official notice was 
 
            taken of the joint exhibits which were received into 
 
            evidence at the prior hearing that was conducted in this 
 
            case on February 24, 1992.
 
            
 
                                   ISSUE I
 
            
 
                         ARBITRATION OR REVIEW-REOPENING 
 
            
 
                 Prior to the previous hearing that was conducted in 
 
            this case, the claimant answered discovery requests 
 
            indicating that he made no claim that the injury extended 
 
            beyond a scheduled member.  He sought to amend that position 
 
            at the time of the prehearing conference but was not allowed 
 
            to do so by the deputy industrial commissioner presiding at 
 
            the conference.  The case proceeded to hearing.  The only 
 
            issue which was addressed was the duration of the healing 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            period.  Neither party appealed from the order of the deputy 
 
            industrial commissioner entered at the time of the 
 
            prehearing conference or at the time of the arbitration 
 
            decision which was entered on March 3, 1992.  Those rulings, 
 
            having not been appealed, became the law of the case.  
 
            
 
                 Shortly after the prior arbitration decision was 
 
            entered on March 3, 1992, claimant filed a petition 
 
            designated as in review-reopening on or about December 11, 
 
            1992.  Defendants moved for summary judgment.  That motion 
 
            was ruled upon by the deputy industrial commissioner who 
 
            presided at the prehearing conference.  The deputy 
 
            industrial commissioner ruled that the result of the 
 
            prehearing conference was the bifurcation of the claim for 
 
            industrial disability and that this proceeding which is now 
 
            under consideration should be considered as a proceeding in 
 
            arbitration rather than review-reopening.  
 
            
 
                 The claimant does not assert that his condition has 
 
            changed as a basis for making the claim for industrial 
 
            disability.  He has never previously been permitted to make 
 
            a claim for industrial disability.  Since the disability 
 
            issue has never been determined, there is no prior decision 
 
            on the extent of disability from which a review-reopening 
 
            proceeding could be taken.  It is therefore determined, in 
 
            conformance with the ruling on the motion for summary 
 
            judgment, that this case is properly characterized as a 
 
            proceeding in arbitration.  
 
            
 
                                  ISSUE II
 
            
 
                        BIFURCATED OR BARRED BY PRECLUSION
 
            
 
                 The claimant has not previously litigated the issue of 
 
            the nature and extent of his disability.  He was prevented 
 
            from doing so by the order of the deputy industrial 
 
            commissioner who conducted the prehearing conference.  That 
 
            same deputy industrial commissioner has ruled that the 
 
            disability issue was bifurcated.  Since the issue of the 
 
            nature and extent of disability has never been fully and 
 
            fairly litigated, it is readily apparent that the doctrine 
 
            of claim preclusion does not bar the claimant's current 
 
            attempt to recover industrial disability benefits.  Board of 
 
            Supervisors, Carroll Co. v. Chicago and N.W. Transp. Co., 
 
            260 N.W.2D 813 (Iowa 1977); Aid Insurance Company v. Chrest, 
 
            336 N.W.2d 437 (Iowa 1983); Hunter v. City of Des Moines, 
 
            300 N.W.2d 121 (Iowa 1981).  
 
            
 
                                   ISSUE III
 
            
 
                               RATE OF COMPENSATION 
 
            
 
                 In the prior arbitration decision, the rate of 
 
            compensation was established to be $197.74 per week.  That 
 
            adjudication was not appealed and became a final agency 
 
            adjudication.  The rate of compensation, once established in 
 
            any case, cannot thereafter change.  Accordingly, the rate 
 
            of compensation for all benefits in this case is $197.74 per 
 
            week.  The doctrine of preclusion does apply to the prior 
 
            determination of the rate of compensation. 
 

 
            
 
            Page   3
 
            
 
            
 
           
 
            
 
                                  ISSUE IV
 
            
 
                        NATURE AND EXTENT OF DISABILITY
 
            
 
                 Claimant's original injury was to his ankle.  As 
 
            indicated in the discovery responses, he originally appears 
 
            to have agreed that the injury was a scheduled injury.
 
            
 
                 This claimant had back surgery at the age of 12 or 13 
 
            and had a surgery on his right ankle which was apparently in 
 
            the nature of a triple arthrodesis in his youth.  He walked 
 
            with a limp.  Nevertheless, he engaged in occupations which 
 
            involved strenuous physical activity.  Claimant related that 
 
            he had no particular problems with his back or right ankle 
 
            prior to the time of the October 5, 1989 injury.
 
            
 
                 After claimant's back complaints began, he sought 
 
            medical care.  On September 17, 1991, he was examined by 
 
            W.J. Robb, M.D., who indicated that claimant had a 5 percent 
 
            permanent impairment of the right lower extremity and that 
 
            with an appropriate exercise program the mechanical back 
 
            strain would be subject to correction and would not present 
 
            a permanent injury.  He had diagnosed a chronic lumbosacral 
 
            strain secondary to the type of work claimant was performing 
 
            and secondary to favoring his right foot which had been 
 
            injured on October 5, 1989.  (exhibit 1, pages 7-9).
 
            
 
                 Claimant's principle treating physician for the injury 
 
            which is the subject of this case was Michael M. Durkee, 
 
            M.D.  He released claimant to return to restricted work on 
 
            December 5, 1989 with restrictions against standing more 
 
            than six hours, no continuous walking and no lifting greater 
 
            than 40 pounds.  (ex. 2, pp. 2-3).  The records indicate 
 
            that claimant was fitted with an arthrosis.  (ex. 2, p. 1).  
 
            In a subsequent report dated February 7, 1990, Dr. Durkee 
 
            acknowledged that claimant had problems with his foot and 
 
            back.  He speaks of the October 1989 injury as being an 
 
            aggravation of his preexisting condition.  The report does 
 
            not specify whether the doctor is referring to either the 
 
            ankle or the foot or both.  In an undated report found at 
 
            page 4 of exhibit 2, the doctor makes reference in the 
 
            second paragraph to claimant having been "down in the back."  
 
            The last paragraph, however, indicates that the problem 
 
            being treated was pain in the midportion of the right foot.  
 
            It went on to discuss a treatment plan.  No mention was made 
 
            of any treatment for claimant's back.  
 
            
 
                 Claimant was also treated by Richard F. Nieman, M.D.  
 
            Dr. Nieman expressed the opinion that claimant had injured 
 
            his back because he had to walk upon his ankle.  (ex. 6, p. 
 
            1).  He opines, based upon the history provided by claimant, 
 
            that the back condition was causally related to the 1989 
 
            ankle injury.  (ex. 6, p. 2).  Dr. Nieman explained that the 
 
            alteration of claimant's walk caused the back problems and 
 
            he rated those problems at a 5 percent permanent impairment 
 
            of the whole person.  (ex. 6, p. 3).  The records from Dr. 
 
            Nieman do not indicate that he was aware that claimant 
 
            walked with a limp prior to the time of the October 5, 1989 
 
            injury.  
 
            
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                 Claimant was working as a painter, spray painting 
 
            anhydrous and L.P. tanks at the time of his injury.  He left 
 
            the defendant employer in December 1989 and then went nearly 
 
            a year without having a job.  Since then he has had three 
 
            different jobs where he worked as a welder.  One paid $6.75 
 
            per hour and involved no lifting.  He was there six or seven 
 
            months and was then laid off.  He worked for approximately 
 
            one month at another job which provided low pay and work 
 
            which aggravated his back.  He resigned from that 
 
            employment.  
 
            
 
                 At the time of hearing, claimant was employed by Winco 
 
            working as a welder.  He was earning $10.50 per hour.  That 
 
            amount exceeds what he would be earning if he had remained 
 
            employed by American Welding and Tank Company.  The employer 
 
            does not accommodate any disability and claimant works 
 
            without following any medically imposed activity 
 
            restrictions.  According to claimant he had not left any job 
 
            due to being unable to handle the job.  Claimant stated that 
 
            his principle problem is that when his ankle gets bad, he 
 
            has back pain.  He related that he now stands a lot on his 
 
            good leg.  He has quit most of his coon hunting recreational 
 
            activities.  He avoids lifting.  He related that he is 
 
            unable to manhandle things such as pushing tanks, activities 
 
            which were part of his job at American Welding and Tank Co.  
 
            American Welding and Tank refused to reemploy him after he 
 
            recovered from the 1989 injury.
 
            
 
                 Of the three physicians who have treated or evaluated 
 
            claimant, only Dr. Nieman has related the claimant's back 
 
            complaints to the 1989 injury.  He does so based upon an 
 
            incomplete history.  The critical missing part is the fact 
 
            that claimant walked with a limp prior to the 1989 injury.  
 
            Claimant himself testifies that his back pain has worsened 
 
            and actually had its onset since the 1989 injury.  Claimant 
 
            appeared at hearing and his demeanor was quite believable.  
 
            It is therefore found that claimant's back pain is related 
 
            to the condition of his ankle and that the ankle condition 
 
            was in fact worsened by the October 5, 1989 injury.  That 
 
            injury is a substantial factor in the back pain which now 
 
            afflicts claimant.
 
            
 
                 Dr. Nieman has assigned a 5 percent permanent 
 
            impairment rating of the whole person based on the condition 
 
            of claimant's back.  He does so absent significant objective 
 
            indicators of impairment.  His rating appears to be based 
 
            primarily on complaints of pain.  Pain is not quantifiable. 
 
            The record in this case shows that claimant performs his 
 
            work without complying with any medical activity 
 
            restrictions.  The pain apparently is present at most times, 
 
            but is especially exacerbated when claimant's ankle is most 
 
            highly symptomatic.  Dr. Robb does not assign any permanent 
 
            disability to claimant's back.  Neither does Dr. Durkee.  It 
 
            is found that while claimant does have back pain, that the 
 
            pain does not rise to the level of constituting a 
 
            disability, a permanent functional impairment under 
 
            recognized standards, or a handicap.  
 
            
 
                               
 

 
            
 
            Page   6
 
            
 
            
 
            
 
                                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 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 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).
 
            
 
                 Compensation for permanent partial disability begins at 
 
            termination of the healing period.  Section 85.34(2).  
 
            Permanent partial disabilities are classified as either 
 
            scheduled or unscheduled.  A specific scheduled disability 
 
            is evaluated by the functional method; the industrial method 
 
            is used to evaluate an unscheduled disability. 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).
 
            
 
                 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, 290 N.W.2d 348; 
 
            Dailey v. Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 569 
 
            (1943).  Soukup, 222 Iowa 272, 268 N.W. 598.
 
            
 
                 The evidence in this case fails to prove, by a 
 
            preponderance of the evidence, that it is probable that the 
 
            October 5, 1989 injury, either directly or indirectly, 
 
            produced any permanent disability other than that found in 
 
            claimant's foot and ankle.  While claimant has back pain, 
 
            the record of this case does not show any physiological or 
 
            anatomical change other than that in claimant's foot and 
 
            ankle.  The existence of pain is not necessarily equivalent 
 
            to disability.  It is therefore determined that claimant has 
 
            failed to prove by a preponderance of the evidence that the 
 
            permanent disability in this case is anything other than a 
 
            scheduled disability.
 
            
 
                                      ORDER
 
            
 
                 IT IS THEREFORE ORDERED that claimant take nothing in 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            this proceeding beyond the scheduled permanent partial 
 
            disability benefit which has previously been voluntarily 
 
            paid.  
 
            
 
                 It is further ordered that the costs of this action are 
 
            assessed against defendants.
 
            
 
     
 
            
 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            Signed and filed this __________ day of August, 1994.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. H. Edwin Detlie
 
            Attorney at Law
 
            114 N. Market St
 
            Ottumwa, Iowa  52501
 
            
 
            Mr. Charles Cutler
 
            Ms. Coreen K. Bezdicek
 
            Attorneys at Law
 
            729 Insurance Exchange Bldg
 
            Des Moines, Iowa  50309
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
                                          51802
 
                                          Filed March 3, 1992
 
                                          Jean M. Ingrassia
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            KEVIN J HOUGLAND,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 933391
 
            AMERICAN WELDING & TANK CO.,  :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            INSURANCE COMPANY of NORTH    :
 
            AMERICAN (CIGNA),             :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            51802
 
            Claimant proved entitlement to additional healing period 
 
            benefits from December 16, 1989 to October 14, 1990.  
 
            Claimant was released to return to light duty on December 
 
            11, 1989, however, employer put claimant on a heavy duty job 
 
            which he was unable to perform and which exceeded the 
 
            restrictions imposed by his treating physician.  Claimant 
 
            was off work from December 16, 1989 through October 14, 
 
            1990, and maximum medical improvement was not anticipated 
 
            until September 1991.  However, claimant obtained a job with 
 
            another employer on October 14, 1990, and returned to 
 
            full-time work activity.  Healing period benefits, 
 
            therefore, ended on October 14, 1990, pursuant to Iowa Code 
 
            section 85.34(1).
 
            
 
 
            
 
            
 
            
 
            
 
                                        2901 3002 1402.40 1803.1
 
                                        Filed August 24, 1994
 
                                        Michael G. Trier
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ------------------------------------------------------------
 
            KEVIN J HOUGLAND,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :        File No. 933391
 
            AMERICAN WELDING & TANK,      :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :        D E C I S I O N
 
            and                           :
 
                                          :
 
            INSURANCE CO. OF AMERICA,     :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ------------------------------------------------------------
 
            2901
 
            The case was held to be in arbitration.  The issue of 
 
            industrial disability was bifurcated at the prehearing 
 
            conference.  The prior hearing did not address it.  Since it 
 
            had not been previously determined there was no basis for a 
 
            change of condition.
 
            
 
            3002
 
            Once the rate is determined in a decision it cannot be 
 
            changed.
 
            
 
            1402.40 1803.1
 
            Claimant failed to prove that back pain which resulted from 
 
            an ankle injury constituted disability beyond the schedule.
 
            
 
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            STEVE MCKAY,     
 
                        
 
                 Claimant,   
 
                                               File Nos. 933473
 
            vs.                                          1023150
 
                        
 
            ROLSCREEN,                           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.
 
            
 
                                        ISSUES
 
            
 
            The issue on appeal is:  Whether claimant is entitled to 
 
            temporary total disability benefits for the time period 
 
            December 22, 1992 through May 7, 1993 as a result of a 
 
            work-related injury.
 
            
 
                              FINDINGS OF FACT
 
            
 
            The findings of fact contained in the proposed agency 
 
            decision filed October 7, 1993 are adopted as set forth 
 
            below.  Segments designated by asterisks (*****) indicate 
 
            portions of the language from the proposed agency decision 
 
            that have been intentionally deleted and do not form a part 
 
            of this final agency decision.  Segments designated by 
 
            brackets ([ ]) indicate language that is in addition to the 
 
            language of the proposed agency decision.
 
            
 
            Claimant, Steve McKay, is 35 years old.  He has lived most 
 
            of his life in Knoxville, Iowa.  He graduated from high 
 
            school in 1976, and has not pursued any additional 
 
            education. 
 
            
 
            In 1987, claimant obtained full-time employment with the 
 
            defendant employer.  When he started his employment, he had 
 
            no injuries and no job restrictions. 
 
            
 
            For the first four months, claimant worked in the entrance 
 
            door department.  Tasks included sanding, inspecting, 
 
            finishing and packaging solid wood and veneer doors.  His 
 
            job involved heavy lifting and an extensive amount of 
 
            physical labor.  
 
            Claimant transferred to the panel line which involved 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            unloading, lifting and cutting large glass panels that were 
 
            heavy.  
 
            In 1988, claimant hurt his back while at work.  He was sent 
 
            to William Boulden, M.D., who recommended surgery after a CT 
 
            scan was performed.  Claimant underwent a laminectomy at the 
 
            L4-5 level in September of 1988 and in 1989, a discectomy 
 
            was performed at the L4-5 level.  Both surgeries were 
 
            administered by Dr. Boulden.  The records reflect that 
 
            claimant received follow-up treatment from Dr. Boulden 
 
            throughout much of 1990, with additional notations 
 
            concerning a possible problem with dependency on 
 
            prescription painkillers, as well as a poor attitude about 
 
            and subsequent dismissal from physical therapy and work 
 
            hardening programs in Des Moines (Defendant exhibit B).  
 
            Subsequently, claimant successfully completed a physical 
 
            therapy program at the University of Iowa.
 
            The evidence shows that claimant's next medical attention 
 
            for his back was rendered by E.J. McKeever, M.D., who is 
 
            claimant's family physician, and who at one time was 
 
            apparently the company physician.  Dr. McKeever's notes 
 
            indicate that on September 6, 1991 claimant had visited the 
 
            emergency room at the Knoxville hospital and received 
 
            Tylenol III.  On March 2, 1992, claimant visited Dr. 
 
            McKeever with complaints of increased back pain on the left 
 
            side, with radiating pain into the left leg and large toe on 
 
            the left foot.  Claimant had not worked since February 24, 
 
            and was wearing a back brace intermittently.  Dr. McKeever's 
 
            examination showed that claimant was tender in the left 
 
            paralumbar musculature, but straight leg raising tests were 
 
            negative.  Claimant was given prescriptions for a variety of 
 
            medications, including parafon forte, fioricet, lodine, and 
 
            ansaid.  He was to be off of work until March 3, 1992, 
 
            possibly longer (Cl. Ex. 1, p. 19).
 
            Claimant was involved in an altercation with a friend (now 
 
            ex-friend) of his on March 4, 1992.  The fight took place at 
 
            claimant's home, and was intense, as fists flew, bodies were 
 
            tossed through fences and double pane windows and car 
 
            windows were smashed (Def. Ex. G).  Claimant went to the 
 
            emergency room for treatment.  While the notes are extremely 
 
            difficult to read, the undersigned believes that claimant 
 
            was complaining of neck pain, low back pain when he raised 
 
            his right leg and pain in the left buttock, but not pain 
 
            radiating down the left leg (Def. Ex. D).
 
            Claimant returned to Dr. McKeever on March 9, 1992, whose 
 
            notes state that claimant "[c]ontinues to have severe low 
 
            back pain radiating into left buttock and left leg."  A 
 
            physical examination showed, among other things, pain upon 
 
            back flexion, with positive straight leg raising tests 
 
            bilaterally.  Dr. McKeever stated that the assault 
 
            aggravated a preexisting condition, but "in no way 
 
            interfered with or changed the permanent damage which has 
 
            resulted in patient's previously work-related injury."  
 
            Claimant was to remain off of work until March 17, 1992 (Cl. 
 
            Ex. 1, p. 18).
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            After an additional follow-up visit with Dr. McKeever, 
 
            claimant visited Dr. Boulden in May of 1992.  Dr. Boulden 
 
            was of the opinion that claimant's continued back problems 
 
            were a result of claimant's spine "instability and lack of 
 
            maintenance of his exercises."  He recommended dedication to 
 
            stabilization exercises (Def. Ex. B, p. 4).
 
            Claimant returned to Dr. McKeever on 12 occasions from June, 
 
            1992 through March of 1993.  He continued to receive 
 
            prescription medications, and displayed loss of range of 
 
            motion in the back, as well as positive results of the 
 
            straight leg raising tests.  Dr. McKeever's diagnosis was 
 
            post laminectomy back pain, and he recommended less than 
 
            eight hours of work per day, physical therapy, a pain clinic 
 
            and a different occupation (Cl. Ex. 1, pp. 1-17; Def. Ex. 
 
            C).  
 
            [In the period August 25, 1992 through November 24, 1992 
 
            claimant worked intermittently and had various returns to 
 
            work (Def. Ex. A).  Dr. McKeever's records also indicate 
 
            that claimant returned to work during this time (Def. Ex. 
 
            C., p. 7).  On October 21, 1992 Dr. McKeever noted that he 
 
            had advised claimant of the following options:  undergo 
 
            rehabilitation; enter into a different occupation; limit his 
 
            working days; consider a pain clinic; work hard on his 
 
            program.  He noted claimant's unwillingness to participate 
 
            in any of these suggestions (Def. Ex. C., p. 9).  Claimant 
 
            worked December 16 and 17 (Ex. G, pp. 2,3; Tr., pp. 87-89).  
 
            Claimant saw Dr. McKeever on December 21, 1992.  Dr. 
 
            McKeever offered him the same options he had offered on 
 
            October 21, 1992 (Cl. Ex. 1, p. 9).
 
            In a note dated December 22, 1992 Dr. Boulden recommended 
 
            that claimant see a psychologist (Def. Ex. B, p. 5).  The 
 
            recommendation was based on claimant having problems with 
 
            pain in his leg and mental stresses.  Claimant was evaluated 
 
            by Robert A. Straight, Ph.D., a licensed psychologist, on 
 
            December 22, 1992.  In a letter dated January 11, 1993 an 
 
            associate of Dr. Straight, Sam L. Graham, Ph.D., wrote:
 
              I believe Mr. McKay would benefit from an aggressive pain 
 
            and stress management program.  He has been scheduled to 
 
            return to see me on January 8, 1993, to begin that program.  
 
            It is my opinion, with a reasonable degree of psychological 
 
            certainty, that the dysthymia Mr. McKay is experiencing is 
 
            causally related to his chronic pain disorder and if the 
 
            chronic pain disorder is related to a work injury, it would 
 
            my opinion with a reasonable degree of certainty that his 
 
            psychological/psychiatric disorders are in fact, work 
 
            related.
 
            
 
            (Cl. Ex. 3, p. 25)  Dr. Straight referred claimant to Debbie 
 
            R. Carter, M.D., a psychiatrist.  Dr. Carter saw claimant 
 
            for a semi-structured interview and evaluated him on 
 
            December 30, 1992.  Dr. Carter recommended an integrated 
 
            chronic pain management program, participation in utilizing 
 
            biofeedback to manage his pain and patient follow-up with 
 
            her, as needed.  On January 29, 1993 Dr. Carter saw claimant 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            again and informed him that she would send a letter to his 
 
            primary care physician and orthopedic surgeon about the need 
 
            for developing a comprehensive plan for pain management (Cl. 
 
            Ex. 4, pp. 32-35).
 
            Claimant underwent four pain management sessions with Dr. 
 
            Graham on January 1, 1993, January 15, 1993, January 18, 
 
            1993 and January 19, 1993.  Dr. Graham's note dated January 
 
            8, 1993 noted that claimant was "working productively."  
 
            (Cl. Ex. C., p. 27)
 
            A February 2, 1993 office note of Dr. McKeever states that 
 
            claimant had been given an additional month of work off by 
 
            Dr. Carter and that he had nothing further to offer this 
 
            patient other than attempting to coordinate claimant's 
 
            medical care (Cl. Ex. 1, p. 8).  On March 3, 1993 Dr. 
 
            McKeever noted that claimant was unable to work at that time 
 
            (Cl. Ex. 1, p. 7).  In a note dated March 3, 1993 Dr. 
 
            McKeever noted that claimant had been advised by Dr. Graham 
 
            to not work in January and by Dr. Carter to not work in 
 
            February (Cl. Ex. 1, p. 6).  On March 15, 1993 Dr. McKeever 
 
            gave the claimant a note to remain off work until April 1, 
 
            1993 (Cl. Ex. 1, p. 5).  On March 31, 1993 Dr. McKeever 
 
            extended the time for claimant to be off work until May 1, 
 
            1993, at least (Cl. Ex. 1, p. 4).]
 
            *****
 
            In April of 1993, claimant was evaluated by Daniel McGuire, 
 
            M.D.  His impression was that of low back and left leg pain 
 
            of unknown etiology.  He thought claimant had 
 
            characteristics of an alcohol and other drug abuser, and 
 
            felt claimant was severely deconditioned.  He did not 
 
            believe that claimant was in need of any additional surgery, 
 
            believed claimant should be able to perform better at work 
 
            based on the treatment given, and endorsed further home 
 
            exercising (Cl. Ex. 6; Def. Ex. E).
 
            In May, 1993, claimant apparently began a one-month program 
 
            of physical therapy treatments at Pella Community Hospital.  
 
            He was discharged with instructions in a home exercise 
 
            program and was to increase work hours up to an eight hour 
 
            day in one month (Cl. Ex. 5).
 
            Other evidence submitted includes notations from claimant's 
 
            log or diary and mileage used in visiting various physicians 
 
            and health care facilities (Def. Ex. F and G).
 
                              CONCLUSIONS OF LAW
 
            
 
            The conclusions of law contained in the proposed agency 
 
            decision filed October 7, 1993 are adopted as set forth 
 
            below.  Segments designated by asterisks (*****) indicate 
 
            portions of the language from the proposed agency decision 
 
            that have been intentionally deleted and do not form a part 
 
            of this final agency decision.  Segments designated by 
 
            brackets ([ ]) indicate language that is in addition to the 
 
            language of the proposed agency decision.
 
            The sole issue to address is whether claimant is entitled to 
 
            healing period or temporary total disability benefits 
 
            commencing December 17, 1992. 
 
            
 
                 The party who would suffer loss if an issue were not 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            established has the burden of proving that issue by a 
 
            preponderance of the evidence.  Iowa R. App. P. 14(f).
 
            Iowa Code section 85.33 states, in relevant part:
 
               Except as provided in subsection 2 of this section, the 
 
            employer shall pay to an employee for injury producing 
 
            temporary total disability weekly compensation 
 
            benefits...until the employee has returned to work or is 
 
            medically capable of returning to employment substantially 
 
            similar to the employment in which the employee was engaged 
 
            at the time of injury, whichever occurs first.
 
            *****
 
            Defendants argue that the altercation in which claimant was 
 
            involved in March of 1992 is the precipitating event to his 
 
            continued back problems.  
 
            The record reflects that since the surgeries, claimant has 
 
            complained of back pain.  At various times, he has been 
 
            taken off of work because of the pain.  This happened even 
 
            before the altercation. 
 
            Claimant did not receive any follow-up treatment for any 
 
            other injuries he sustained in the fight.  Likewise, he had 
 
            been to see Dr. McKeever two days prior to the altercation, 
 
            and was complaining of back pain.  Dr. McKeever was of the 
 
            opinion that the fight did not cause any additional 
 
            permanent damage.  While the altercation probably did not 
 
            help claimant's back condition in any way, at the time of 
 
            the fight claimant was already off of work and wearing a 
 
            back brace to relieve the pain.  [In addition, claimant 
 
            returned to work shortly after the altercation (March 17, 
 
            1992).]
 
            As a result, it is found that claimant has shown by a 
 
            preponderance of the evidence that his continued back 
 
            problems are related to the original injuries and surgeries. 
 
            [The testimony of claimant (Tr., pp. 13-17 and 43-56) 
 
            clearly indicates that claimant had a pattern of back 
 
            problems and attempted returns to work beginning in 1990 and 
 
            continuing through May 1993.  The medical evidence also 
 
            shows the pattern of care for claimant during this time and 
 
            various attempts to either resolve claimant's problems or 
 
            attempt to facilitate claimant's continued employment.  
 
            Claimant has had continuing problems following his two back 
 
            surgeries.  Those problems resulted in claimant periodically 
 
            missing work.  In January 1993 he again missed work.  It was 
 
            during this time that he was trying to solve or cope with 
 
            his problems by participating in a pain management program.  
 
            Claimant was off work beginning December 22, 1992.  At that 
 
            time Dr. Boulden was concerned enough about claimant's 
 
            condition that he referred claimant to a psychologist who in 
 
            turn referred claimant to a psychiatrist.  Dr. McKeever 
 
            eventually extended claimant's time to be off from work 
 
            until at least May 1, 1993.
 
            There is no evidence that as of May 7, 1993 claimant had 
 
            returned to work or any medical evidence that claimant was 
 
            capable of returning to substantially similar employment.  
 
            Merely because Dr. McGuire thought that claimant was not in 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            need of surgery does not mean that claimant was capable of 
 
            returning to employment.  Claimant has proved entitlement to 
 
            temporary total disability benefits from those times he was 
 
            off work from December 22, 1992 through May 7, 1993.
 
            The issue of which work injury caused the temporary total 
 
            disability has not been raised on appeal.  Therefore, it is 
 
            concluded that claimant's temporary total disability for the 
 
            period December 22, 1992 through May 7, 1993 is causally 
 
            related to a work injury other than the one alleged to have 
 
            occurred on October 4, 1989.]
 
            *****
 
            WHEREFORE, the decision of the deputy is affirmed.
 
            
 
                                    ORDER
 
            
 
            THEREFORE, it is ordered:
 
            That defendant shall pay claimant temporary total disability 
 
            payments at the rate of two hundred sixty-six and 62/100 
 
            dollars ($266.62) per week commencing December 17, 1992 
 
            through May 7, 1993. 
 
            Signed and filed this ____ day of April, 1994.
 
            
 
            
 
            
 
            
 
                                   ________________________________
 
                                           BYRON K. ORTON
 
                                     INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. David D. Drake
 
            Attorney at Law
 
            West Towers Office Complex
 
            1200 35th Street, Suite 500
 
            West Des Moines, Iowa  50266
 
            
 
            Mr. Cecil L. Goettsch
 
            Attorney at Law
 
            801 Grand Ave., Ste 3700
 
            Des Moines, Iowa  50309-2727
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                             5-1801; 5-2909
 
                                             Filed April 21, 1994
 
                                             BYRON K. ORTON
 
                      
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            STEVE MCKAY,     
 
                        
 
                 Claimant,   
 
                                               File Nos. 933473
 
            vs.                                         1023150
 
                        
 
            ROLSCREEN,                           A P P E A L
 
                        
 
                 Employer,                     D E C I S I O N
 
                        
 
            and         
 
                        
 
            EMPLOYERS MUTUAL COMPANIES,     
 
                        
 
                 Insurance Carrier,    
 
                 Defendants.      
 
            ____________________________________________________________
 
            
 
            5-1801
 
            Claimant was found to be entitled to temporary total 
 
            disability.  The record showed that claimant had continuing 
 
            problems following two back surgeries.  He periodically 
 
            returned to work and then missed work because of back pain.  
 
            Claimant had undergone work hardening and physical therapy.  
 
            He eventually went to a pain management program.  His 
 
            temporary total disability was related to work.  An 
 
            altercation unrelated to work perhaps temporarily aggravated 
 
            his condition but resolved shortly after the altercation.
 
            
 
            5-2909
 
            Claimant filed two accelerated determinations pursuant to 
 
            the expedited rules.
 
            He was awarded temporary total disability benefits from 
 
            December 17, 1992 through May 7, 1993.
 
            
 
 
            
 
 
 
 
 
 
 
                                              5-2909
 
                                              Filed October 7, 1993
 
                                              Patricia J. Lantz
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            STEVE McKAY,                  :
 
                                          :     File Nos. 1023150
 
                 Claimant,                :                933473
 
                                          :
 
            vs.                           :       D E C I S I O N
 
                                          :
 
            ROLSCREEN,                    :             O N
 
                                          :
 
                 Employer,                :      E X P E D I T E D
 
                                          :
 
            and                           :        H E A R I N G
 
                                          :
 
            EMPLOYERS MUTUAL COMPANIES,   :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-2909
 
            Claimant filed two accelerated determinations pursuant to 
 
            the expedited rules.
 
            He was awarded temporary total disability benefits from 
 
            December 17, 1992 through May 7, 1993.
 
            
 
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            STEVE McKAY,                  :
 
                                          :     File Nos. 1023150
 
                 Claimant,                :                933473
 
                                          :
 
            vs.                           :       D E C I S I O N
 
                                          :
 
            ROLSCREEN,                    :             O N
 
                                          :
 
                 Employer,                :      E X P E D I T E D
 
                                          :
 
            and                           :        H E A R I N G
 
                                          :
 
            EMPLOYERS MUTUAL COMPANIES,   :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
                          STATEMENT OF THE CASE
 
            
 
            This is an accelerated determination pursuant to the 
 
            expedited proceedings governed by 343 IAC 4.44(1)(k).  Iowa 
 
            Administrative Code 343-4.44 states, in relevant part:
 
               
 
               Expedited proceeding--criteria.  An expedited proceeding 
 
            is available in any type of contested case described in 
 
            subrule 4.44(1), or any combination thereof, if a final 
 
            agency decision will adjudicate all currently pending 
 
            disputes between the parties in that case.
 
                 
 
                 The expedited proceeding is also available to provide 
 
            an accelerated determination of issues described in subrule 
 
            4.44(1), paragraph "k," "l" or "m," in order to facilitate 
 
            progress of the case or reduce unnecessary hardship 
 
            experienced by either party, even though other issues will 
 
            remain to be litigated in this or another proceeding.
 
               ....
 
               k.  A claim to commence weekly compensation benefits 
 
            under Iowa Code sections 85.33 or 85.34(1) where the 
 
            employee has been totally disabled for not less than 30 days 
 
            and is not receiving wages or wage replacement benefits 
 
            attributable to the employer which equal or exceed 50 
 
            percent of the gross weekly earnings of the employee at the 
 
            time of the injury. (emphasis added)
 
            A prior ruling deemed claimant's cause of action could be 
 
            litigated pursuant to rule 343 IAC 4.44(l)(k).  Defendants 
 
            did not object.
 
            Claimant, Steve McKay, filed two petitions, and requests 
 
            commencement of weekly compensation benefits.  Claimant also 
 
            requested payment of medical expenses in the amount of 
 
            $3,909.65, but it was determined by a prior ruling that this 
 
            issue could not be attached to an accelerated proceeding.
 
            Claimant has alleged two injury dates:  October 4, 1989 
 

 
            
 
            Page   2
 
             
 
             
 
            (file number x-933473) and March 13, 1991 (file number x-
 
            1023150).  Both petitions pray for weekly benefits to 
 
            commence on December 22, 1992.  At the hearing, claimant and 
 
            defendants agreed that in the event claimant prevails, the 
 
            weekly benefits should be paid from December 17, 1992 
 
            through May 7, 1993.  Defendants also argue that the 
 
            benefits could be for a lesser period.
 
            The record in this case consists of testimony from the 
 
            claimant; Altha Clendenen, occupational health nurse; Lewis 
 
            Dennis, cost center manager; Arlin Harvey, personnel 
 
            supervisor; and Myron Linn, manager of compensation and 
 
            government affairs; claimant's exhibits 1-6; and, 
 
            defendants' exhibits A-G.  
 
            
 
            The matter came on for hearing before the undersigned deputy 
 
            industrial commissioner on September 14, 1993 at Des Moines, 
 
            Iowa.  
 
            
 
                              FINDINGS OF FACT
 
            
 
            Claimant, Steve McKay, is 35 years old.  He has lived most 
 
            of his life in Knoxville, Iowa.  He graduated from high 
 
            school in 1976, and has not pursued any additional 
 
            education. 
 
            
 
            In 1987, claimant obtained full-time employment with the 
 
            defendant employer.  When he started his employment, he had 
 
            no injuries and no job restrictions. 
 
            For the first four months, claimant worked in the entrance 
 
            door department.  Tasks included sanding, inspecting, 
 
            finishing and packaging solid wood and veneer doors.  His 
 
            job involved heavy lifting and an extensive amount of 
 
            physical labor.  
 
            Claimant transferred to the panel line which involved 
 
            unloading, lifting and cutting large glass panels that were 
 
            heavy.  
 
            In 1988, claimant hurt his back while at work.  He was sent 
 
            to William Boulden, M.D., who recommended surgery after a CT 
 
            scan was performed.  Claimant underwent a laminectomy at the 
 
            L4-5 level in September of 1988 and in 1989, a discectomy 
 
            was performed at the L4-5 level.  Both surgeries were 
 
            administered by Dr. Boulden.  The records reflect that 
 
            claimant received follow-up treatment from Dr. Boulden 
 
            throughout much of 1990, with additional notations 
 
            concerning a possible problem with dependency on 
 
            prescription painkillers, as well as a poor attitude about 
 
            and subsequent dismissal from physical therapy and work 
 
            hardening programs in Des Moines (Defendant exhibit B).  
 
            Subsequently, claimant successfully completed a physical 
 
            therapy program at the University of Iowa.
 
            The evidence shows that claimant's next medical attention 
 
            for his back was rendered by E.J. McKeever, M.D., who is 
 
            claimant's family physician, and who at one time was 
 
            apparently the company physician.  Dr. McKeever's notes 
 
            indicate that on September 6, 1991 claimant had visited the 
 
            emergency room at the Knoxville hospital and received 
 
            Tylenol III.  On March 2, 1992, claimant visited Dr. 
 
            McKeever with complaints of increased back pain on the left 
 

 
            
 
            Page   3
 
            
 
            
 
            side, with radiating pain into the left leg and large toe on 
 
            the left foot.  Claimant had not worked since February 24, 
 
            and was wearing a back brace intermittently.  Dr. McKeever's 
 
            examination showed that claimant was tender in the left 
 
            paralumbar musculature, but straight leg raising tests were 
 
            negative.  Claimant was given prescriptions for a variety of 
 
            medications, including parafon forte, fioricet, lodine, and 
 
            ansaid.  He was to be off of work until March 3, 1992, 
 
            possibly longer (Cl. Ex. 1, p. 19).
 
            
 
            Claimant was involved in an altercation with a friend (now 
 
            ex-friend) of his on March 4, 1992.  The fight took place at 
 
            claimant's home, and was intense, as fists flew, bodies were 
 
            tossed through fences and double pane windows and car 
 
            windows were smashed (Def. Ex. G).  Claimant went to the 
 
            emergency room for treatment.  While the notes are extremely 
 
            difficult to read, the undersigned believes that claimant 
 
            was complaining of neck pain, low back pain when he raised 
 
            his right leg and pain in the left buttock, but not pain 
 
            radiating down the left leg (Def. Ex. D).
 
            
 
            Claimant returned to Dr. McKeever on March 9, 1992, whose 
 
            notes state that claimant "[c]ontinues to have severe low 
 
            back pain radiating into left buttock and left leg."  A 
 
            physical examination showed, among other things, pain upon 
 
            back flexion, with positive straight leg raising tests 
 
            bilaterally.  Dr. McKeever stated that the assault 
 
            aggravated a preexisting condition, but "in no way 
 
            interfered with or changed the permanent damage which has 
 
            resulted in patient's previously work-related injury."  
 
            Claimant was to remain off of work until March 17, 1992 (Cl. 
 
            Ex. 1, p. 18).
 
            After an additional follow-up visit with Dr. McKeever, 
 
            claimant visited Dr. Boulden in May of 1992.  Dr. Boulden 
 
            was of the opinion that claimant's continued back problems 
 
            were a result of claimant's spine "instability and lack of 
 
            maintenance of his exercises."  He recommended dedication to 
 
            stabilization exercises (Def. Ex. B, p. 4).
 
            Claimant returned to Dr. McKeever on 12 occasions from June, 
 
            1992 through March of 1993.  He continued to receive 
 
            prescription medications, and displayed loss of range of 
 
            motion in the back, as well as positive results of the 
 
            straight leg raising tests.  Dr. McKeever's diagnosis was 
 
            post laminectomy back pain, and he recommended less than 
 
            eight hours of work per day, physical therapy, a pain clinic 
 
            and a different occupation (Cl. Ex. 1, pp. 1-17; Def. Ex. 
 
            C).  
 
            In December of 1992, claimant returned to Dr. Boulden, who 
 
            recommended that claimant see a psychologist, and claimant 
 
            began therapy with Robert Straight, Ph.D., and Debbie 
 
            Carter, M.D. Biofeedback, pain and stress management 
 
            programs were recommended  (Cl. Ex. 2-4; Def. Ex. B).
 
            In April of 1993, claimant was evaluated by Daniel McGuire, 
 
            M.D.  His impression was that of low back and left leg pain 
 
            of unknown etiology.  He thought claimant had 
 
            characteristics of an alcohol and other drug abuser, and 
 

 
            
 
            Page   4
 
            
 
             
 
            felt claimant was severely deconditioned.  He did not 
 
            believe that claimant was in need of any additional surgery, 
 
            believed claimant should be able to perform better at work 
 
            based on the treatment given, and endorsed further home 
 
            exercising (Cl. Ex. 6; Def. Ex. E).
 
            In May, 1993, claimant apparently began a one-month program 
 
            of physical therapy treatments at Pella Community Hospital.  
 
            He was discharged with instructions in a home exercise 
 
            program and was to increase work hours up to an eight hour 
 
            day in one month (Cl. Ex. 5).
 
            Other evidence submitted includes notations from claimant's 
 
            log or diary and mileage used in visiting various physicians 
 
            and health care facilities (Def. Ex. F and G).
 
            
 
                        ANALYSIS AND CONCLUSIONS OF LAW
 
            
 
            The sole issue to address is whether claimant is entitled to 
 
            healing period or temporary total disability benefits 
 
            commencing December 17, 1992. 
 
            
 
                 The party who would suffer loss if an issue were not 
 
            established has the burden of proving that issue by a 
 
            preponderance of the evidence.  Iowa R. App. P. 14(f).
 
            Iowa Code section 85.33 states, in relevant part:
 
               Except as provided in subsection 2 of this section, the 
 
            employer shall pay to an employee for injury producing 
 
            temporary total disability weekly compensation 
 
            benefits...until the employee has returned to work or is 
 
            medically capable of returning to employment substantially 
 
            similar to the employment in which the employee was engaged 
 
            at the time of injury, whichever occurs first.
 
            Iowa Code section 85.34 states, in relevant part:
 
               Compensation for permanent disabilities and during a 
 
            healing period for permanent partial disabilities shall be 
 
            payable to an employee as provided in this section....
 
                 1. Healing period.  If an employee has suffered a 
 
            personal injury causing permanent partial disability for 
 
            which compensation is payable as provided in subsection 2 of 
 
            this section, the employer shall
 
            pay to the employee compensation for a healing 
 
            period...beginning on the date of injury, and until the 
 
            employee has returned to work or it is medically indicated 
 
            that significant improvement from the injury is not 
 
            anticipated or until the employee is medically capable of 
 
            returning to employment substantially similar to the 
 
            employment in which the employee was engaged at the time of 
 
            the injury, whichever occurs first.
 
            Defendants argue that the altercation in which claimant was 
 
            involved in March of 1992 is the precipitating event to his 
 
            continued back problems.  
 
            The record reflects that since the surgeries, claimant has 
 
            complained of back pain.  At various times, he has been 
 
            taken off of work because of the pain.  This happened even 
 
            before the altercation. 
 
            Claimant did not receive any follow-up treatment for any 
 
            other injuries he sustained in the fight.  Likewise, he had 
 
            been to see Dr. McKeever two days prior to the altercation, 
 

 
            
 
            Page   5
 
            
 
           
 
            and was complaining of back pain.  Dr. McKeever was of the 
 
            opinion that the fight did not cause any additional 
 
            permanent damage.  While the altercation probably did not 
 
            help claimant's back condition in any way, at the time of 
 
            the fight claimant was already off of work and wearing a 
 
            back brace to relieve the pain.   
 
            As a result, it is found that claimant has shown by a 
 
            preponderance of the evidence that his continued back 
 
            problems are related to the original injuries and surgeries. 
 
            Therefore, he is entitled to temporary total or healing 
 
            period benefits for those times he was off of work from 
 
            December 17, 1991 through May 7, 1993.
 
            The undersigned believes that the more difficult issue is 
 
            whether claimant's continued back problems are related to 
 
            the first injury in 1989, or the second injury in 1991. 
 
            This issue must be determined in order to establish the 
 
            casual nexus between the injury and the subsequent 
 
            disability.  
 
            After the first injury, claimant was eventually released to 
 
            return to work, and did return to work in the "GI" or the 
 
            glass area.  This job involved heavy lifting, twisting, 
 
            turning and bending.  Claimant was to maneuver large pieces 
 
            of glass for placement in shipping and cutting.  There is no 
 
            evidence that he had any permanent impairment, or permanent 
 
            work or activity restrictions.  
 
            After the second injury, claimant's condition deteriorated.  
 
            He never returned to the same type of job he was performing 
 
            prior to the second injury, and has since been in a light 
 
            duty capacity.  
 
            As a result, it is found that claimant's time off of work 
 
            from December 17, 1992 through May 7, 1993 is related to the 
 
            second injury.  
 
            As the issue of whether claimant has a permanent injury is 
 
            not an issue to be decided in this proceeding, claimant is 
 
            awarded temporary total disability benefits.
 
            
 
                                     ORDER
 
            
 
            THEREFORE, it is ordered:
 
            That defendant shall pay claimant temporary total disability 
 
            payments at the rate of two hundred sixty-six and 62/100 
 
            dollars ($266.62) per week commencing December 17, 1992 
 
            through May 7, 1993. 
 
            Signed and filed this ____ day of October, 1993.
 
            
 
            
 
            
 
            
 
                                           ________________________________
 
                                           PATRICIA J. LANTZ
 
                                           DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr David D Drake
 
            Attorney at Law
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            1200 34th St  Ste 500
 
            W Des Moines IA 50266
 
            
 
            Mr Cecil L Goettsch
 
            Attorney at Law
 
            801 Grand Ave  Ste 3700
 
            Des Moines IA 50309