Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            ROBIN RAY PICKEL,             :
 
                                          :
 
                 Claimant,                :         File No. 933555
 
                                          :
 
            vs.                           :      A R B I T R A T I O N
 
                                          :
 
            BRIAN'S STANDARD,             :         D E C I S I O N
 
            BRIAN J. VINCENT,             :
 
                                          :
 
                 Employer,                :
 
                 Defendant.               :
 
            ____________________________________________________________
 
            
 
                                   introduction
 
            
 
                 This is a proceeding in arbitration brought by Robin 
 
            Ray Pickel against his former employer, Brian J. Vincent, 
 
            d/b/a Brian's Standard.  The case was scheduled for hearing 
 
            at 8:00 a.m. on February 21, 1991 at the county courthouse 
 
            in Dubuque, Iowa.  Notice of the time and place of hearing 
 
            was given to the employer by certified mail as shown in the 
 
            agency file.  Claimant appeared in person with his attorney 
 
            of record, but there was no appearance by or on behalf of 
 
            the employer.  A review of the file demonstrated that the 
 
            Original Notice and Petition was served on the employer by 
 
            certified mail, but that the employer had not filed an 
 
            answer to the claimant's petition or otherwise defended 
 
            against the claim.  The employer was then found to be in 
 
            default as a result of his failure to appear for hearing.
 
            
 
                 The employer had also failed to provide a certified 
 
            shorthand reporter as had been ordered by the hearing 
 
            assignment order.  The claimant declined to provide such a 
 
            reporter and waived the requirement for recording the oral 
 
            proceeding.
 
            
 
                                      issues
 
            
 
                 The claimant seeks compensation for temporary total 
 
            disability and payment of medical expenses totalling 
 
            $2,365.90.
 
            
 
                                 findings of fact
 
            
 
                 Having considered all the evidence received, together 
 
            with the appearance and demeanor of the witness, the 
 
            following findings of fact are made.
 
            
 
                 Robin Ray Pickel was employed by Brian Vincent who 
 
            operates Brian's Standard located in Dubuque, Iowa.  Vincent 
 
            has operated the service station for approximately 19 years.  
 
            On June 30, 1989, Robin Pickel sustained burns while 
 
            attempting to repair a leak in the cooling system of a 
 
            customer's vehicle.  Brian Vincent was aware of the injury 
 
            immediately after it occurred and instructed Robin that he 
 
            should tell the physicians to charge the costs of treatment 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            to him, the employer.  Exhibit 2 which was received into 
 
            evidence shows some of the burns which affected the 
 
            claimant's right arm and chest.
 
            
 
                 Robin received treatment for the burn injury from 
 
            Finley Hospital, Mercy Health Center and Medical Associates 
 
            Clinic, P.C.  Their charges as shown in exhibit 1 total 
 
            $2,365.90.  In obtaining treatment for the injury, Robin 
 
            traveled 300 miles.  The amount charged by the providers of 
 
            medical care is found to be reasonable.  Robin has paid the 
 
            charges of Medical Associates Clinic, P.C., with his own 
 
            funds.  The charges from the other medical care providers 
 
            are currently unpaid.
 
            
 
                 At the time of injury, Robin Pickel was married and had 
 
            one child.  He earned $4.25 per hour for all hours worked 
 
            and had worked an average of 58 hours per week during the 13 
 
            weeks preceding the date of his burn injury.
 
            
 
                 Following the injury, Robin remained disabled until his 
 
            treating physician released him to return to work on August 
 
            1, 1989.  He has no permanent disability from the injury.
 
            
 
                                conclusions of law
 
            
 
                 This agency has jurisdiction of the subject matter of 
 
            this proceeding and of its parties.
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that he received an injury on June 30, 1989 
 
            which arose out of and in the course of his employment. 
 
            McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 
 
            1976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 154 N.W.2d 
 
            128 (1967). 
 
            
 
                 Robin Pickel performed services which were part of the 
 
            ordinary business of Brian's Standard.  He was paid by Brian 
 
            Vincent for those services.  It is therefore determined than 
 
            an employer-employee relationship existed at the time of 
 
            injury.
 
            
 
                 The function of repairing motor vehicles is part of the 
 
            ordinary business of a service station.  Claimant's 
 
            activities in seeking to repair the cooling system leak were 
 
            part of the normal duties performed by employees of a 
 
            service station.  The claimant was performing work as an 
 
            employee at the time the burn injury occurred.  It is 
 
            therefore concluded that the burn injury arose out of and in 
 
            the course of the claimant's employment with the employer.
 
            
 
                 Under Code section 85.33, an injured employee is 
 
            entitled to recover weekly compensation for temporary total 
 
            disability until the employee either returns to work or has 
 
            otherwise recovered from the injury.  In this case, it is 
 
            concluded that the claimant's entitlement to temporary total 
 
            disability compensation runs from the date of injury until 
 
            August 1, 1989 when he was released to return to work by his 
 
            treating physician.  The period of entitlement is therefore 
 
            four and five-sevenths weeks.
 
            
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                 According to the evidence of claimant's earnings, his 
 
            gross earnings averaged $246.50 per week.  Code sections 
 
            85.61(10) and 86.8(2) provide the statutory basis for the 
 
            benefit schedule published annually by the Division of 
 
            Industrial Services.  There is, however, no specific statute 
 
            or administrative rule which governs its contents other than 
 
            Code sections 85.36, 85.61 and 343 IAC 8.2.  The 
 
            instructions in the schedule require rounding of the gross 
 
            weekly earnings to the nearest whole dollar.  There is no 
 
            instruction for what is to occur when the actual gross 
 
            weekly earnings are midway between whole dollars as is 
 
            present in this case.  Two hundred forty-six dollars fifty 
 
            cents rounds to $246.00 or $247.00 depending upon which rule 
 
            of rounding is applied.  The Division has a long-standing 
 
            practice of rounding up, rather than down, whenever this 
 
            situation arises.  It can be justified by the judicial 
 
            precedents which direct that the workers' compensation laws 
 
            be construed in the manner most favorable to the injured 
 
            employee.  Caterpillar Tractor Co. v. Shook, 313 N.W.2d 503, 
 
            506 (Iowa 1981); McSpadden v. Big Ben Coal Co., 288 N.W.2d 
 
            181, 188 (Iowa 1980).  It is therefore concluded that the 
 
            practice of rounding up is the correct practice.  Robin 
 
            Pickel's gross weekly earnings are therefore $247.00 for use 
 
            of the benefit schedule.  He was married and had one child.  
 
            Using the July 1, 1988 benefit schedule, the rate of 
 
            compensation for a married worker with one child (3 
 
            exemptions) and gross weekly wages of $247.00 is $167.72 per 
 
            week.
 
            
 
                 Under the provisions of Code section 85.27, the 
 
            employer of an injured employee is responsible for payment 
 
            of the costs of medical treatment, including travel to and 
 
            from the places where medical treatment is provided.  Based 
 
            upon the previous findings, claimant is entitled to recover 
 
            the following expenses:
 
            
 
                 Finley Hospital                     $   75.00
 
                 Mercy Health Center                  2,168.40
 
                 Medical Associates Clinic, P.C.        122.50
 
                 Travel mileage (300 miles @ $.21)       63.00
 
                 Total                               $2,428.90
 
            
 
                                      order
 
            
 
                 IT IS THEREFORE ORDERED that Brian Vincent pay Robin 
 
            Ray Pickel four and five-sevenths (4 5/7) weeks of 
 
            compensation for temporary total disability at the rate of 
 
            one hundred sixty-seven and 72/100 dollars ($167.72) per 
 
            week payable commencing June 30, 1989.
 
            
 
                 IT IS FURTHER ORDERED that Brian Vincent pay Robin 
 
            Pickel interest on the foregoing temporary total disability 
 
            compensation computed from the date each weekly payment came 
 
            due until the date of actual payment at the rate of ten 
 
            percent (10%) per annum pursuant to Code section 85.30.
 
            
 
                 IT IS FURTHER ORDERED that Brian Vincent pay Robin 
 
            Pickel the sum of two thousand four hundred twenty-eight and 
 
            90/100 dollars ($2,428.90) in accordance with Code section 
 
            85.27.
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
                 IT IS FURTHER ORDERED that the costs of this action are 
 
            assessed against Brian Vincent pursuant to rule 343 IAC 
 
            4.33.
 
            
 
                 IT IS FURTHER ORDERED that Brian Vincent file claim 
 
            activity reports as requested by this agency pursuant to 
 
            rule 343 IAC 3.1.
 
            
 
                 IT IS FURTHER ORDERED that Brian Vincent file a first 
 
            report of injury with this agency within thirty (30) days of 
 
            the filing of this decision pursuant to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ______ day of ____________, 1991.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr. Joseph J. Bitter
 
            Attorney at Law
 
            5th & Locust
 
            Dubuque, Iowa  52001
 
            
 
            Brian's Standard
 
            Mr. Brian J. Vincent
 
            3205 Asbury
 
            Dubuque, Iowa  52001
 
            CERTIFIED AND REGULAR MAIL
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           5-1801; 5-2501; 2901
 
                           3002
 
                           Filed February 25, 1991
 
                           MICHAEL G. TRIER
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            ROBIN RAY PICKEL,   :
 
                      :
 
                 Claimant, :         File No. 933555
 
                      :
 
            vs.       :      A R B I T R A T I O N
 
                      :
 
            BRIAN'S STANDARD,   :         D E C I S I O N
 
            BRIAN J. VINCENT,   :
 
                      :
 
                 Employer, :
 
                 Defendant.     :
 
            ____________________________________________________________
 
            
 
            2901
 
            Where apparently uninsured employer failed to appear or 
 
            defend in the case, the employer was found in default at 
 
            time of hearing.
 
            
 
            5-1801; 5-2501
 
            Claimant, with moderate burn injuries and no evidence of 
 
            permanency, awarded four and five-sevenths weeks temporary 
 
            total disability and also awarded the full amount of the 
 
            medical expenses incurred in treating the injury.
 
            
 
            3002
 
            For use in the benefit schedule, gross weekly earnings are 
 
            rounded up to the higher dollar whenever the actual 
 
            earnings end with $_.50.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            FRAN SNYDER,                  :
 
                                          :
 
                 Claimant,                :         File No. 933564
 
                                          :
 
            vs.                           :      A R B I T R A T I O N
 
                                          :
 
            CITY OF SIOUX CITY, IOWA,     :         D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 Claimant Fran Snyder seeks benefits under the Iowa 
 
            Workers' Compensation Act upon her petition in arbitration 
 
            against self-insured defendant employer City of Sioux City 
 
            ("Sioux City") based on a back injury sustained in the 
 
            course of employment on July 30, 1987.
 
            
 
                 The cause came on for hearing in Sioux City, Iowa, on 
 
            April 27, 1992.  The record consists of the testimony of 
 
            claimant, Ronald Snyder, James Dawdy and Lynne Bormann and 
 
            claimant's exhibits 1 through 73, inclusive.  Defendant's 
 
            exhibit A was offered, but excluded upon objection.
 
            
 
                                      issues
 
            
 
                 The parties have stipulated that claimant sustained an 
 
            injury arising out of and in the course of her employment on 
 
            July 30, 1987, that the injury caused both temporary and 
 
            permanent disability, to claimant's marital status and 
 
            entitlement to exemptions, and that 246 weeks of benefits 
 
            had been voluntarily paid prior to hearing.
 
            
 
                 Issues presented for resolution include:
 
            
 
                 1.  The extent of temporary and/or permanent 
 
            disability, under the odd-lot theory of permanent total 
 
            disability or otherwise;
 
            
 
                 2.  The rate of compensation; and,
 
            
 
                 3.  Entitlement to medical treatment or evaluation 
 
            benefits under Iowa Code sections 85.27 or 85.39, 
 
            respectively.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy industrial commissioner finds:
 
            
 
                 Fran Snyder, 45 years of age at hearing, is a 1964 high 
 
            school graduate.  She was an average student and has no 
 
            post-high school education.  Following high school, claimant 
 
            worked as a sales clerk, a file clerk, and, since February 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            20, 1968, has been employed by Sioux City.  She began as a 
 
            clerk I and was an administrative secretary II when she was 
 
            injured.  The latter job was quite responsible and included 
 
            supervisory duties.  Much of the work had to be done sitting 
 
            at a desk.  Claimant's evaluations during her many years of 
 
            service have been uniformly good to excellent.
 
            
 
                 On July 30, 1987, claimant earned a biweekly salary 
 
            equal to $400.43 per week following a raise on June 26.  She 
 
            was married and entitled to two exemptions per stipulation.
 
            
 
                 In 1983, claimant sustained an injury causing a disc 
 
            herniation at L4-L5 and probable bulging disc at L5-S1.  On 
 
            April 4, 1983, she underwent chemonucleolysis at L4 by 
 
            injection of Chymopapain.  This procedure, undertaken 
 
            following discograms at L4 and L5, is intended to dissolve 
 
            herniated disc fragments.  In claimant's case, the procedure 
 
            was completely successful and she returned to work without 
 
            restriction.  From then until the subject injury, claimant 
 
            lost no time from work due to her back, experienced no back 
 
            pain and sought no medical treatment relating to the back.  
 
            The 1983 injury was not employment-related.
 
            
 
                 The work injury occurred on July 30, 1987, when 
 
            claimant slipped and fell while carrying a stack of papers 
 
            going up stairs.  Ms. Snyder fell on her left side and slid 
 
            down several steps.  Embarrassed, she did not particularly 
 
            notice severe pain at once, and continued working until 
 
            normal quitting time.  However, pain gradually intensified, 
 
            becoming severe by that night, and even more so by the 
 
            following morning.
 
            
 
                 Thus began what has proven to be a long and unusually 
 
            extensive course of medical treatment, including multiple 
 
            myelograms, surgical procedures, steroid epidural injections 
 
            and nerve root blocks.
 
            
 
                 On September 9, 1987, claimant underwent a left-sided 
 
            L4-5 hemilaminectomy with discectomy at the hands of Kevin 
 
            J. Liudahl, M.D.  Preoperative diagnosis was of herniated 
 
            L4-5 nucleus pulposis, left, and postoperative diagnosis was 
 
            the same, but with large extruded fragment.
 
            
 
                 On June 12, 1989, claimant underwent a reexploration of 
 
            the interspace at L4-5 with decompression of L5 nerve root 
 
            and repeat discectomy for recurrent herniation at the hands 
 
            of Quentin J. Durward, M.D.
 
            
 
                 Unfortunately, neither of these procedures alleviated 
 
            claimant's constant and throbbing pain.  It is this 
 
            pain--intractable pain--that constitutes the central fact of 
 
            this litigation.
 
            
 
                 On December 12, 1989, claimant underwent a left L5 
 
            sensory rhizotomy.  This extreme procedure severs the nerve 
 
            root, resulting in irrevocable sensory loss.  As Dr. Durward 
 
            pointed out in his surgical notes, Ms. Snyder was informed 
 
            before surgery that she had only a 50/50 chance of long-term 
 
            pain relief.  Unfortunately, the gamble failed.  Claimant is 
 
            left with a pattern of numbness down the outside of the left 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            leg and top of the foot, but no relief.
 
            
 
                 Extensive efforts at physical rehabilitation and pain 
 
            control have been attempted unsuccessfully.  Claimant was at 
 
            one time addicted to narcotic pain medication, but has 
 
            successfully weaned herself from the drug, no doubt at great 
 
            distress.
 
            
 
                 In January 1990, claimant made an ill-advised attempt 
 
            to return to work.  She was able to last only about 45 
 
            minutes each day.  Her reward was a particularly 
 
            mean-spirited disciplinary procedure for using the steps 
 
            going out instead of the handicapped ramp, and failing to 
 
            formally report absence for three days after the second 
 
            attempt.  This, in a long-term and loyal employee who, after 
 
            being off work for two and one-half years, was forced to 
 
            make the effort when defendant convinced one of Dr. 
 
            Durward's associates to sign a return to work slip while Dr. 
 
            Durward was temporarily out of the country.  Claimant has 
 
            now been reprimanded and, believe it or not, should she 
 
            again try to return to work, faces a three-day suspension.  
 
            City officials are indeed well-positioned to defend charges 
 
            of undue leniency in their treatment of this injured worker.
 
            
 
                 Claimant has not sought work since.  Although she can 
 
            still perform all the functions required by her job as 
 
            administrative secretary, she cannot do so for long.  In 
 
            particular, she is able to sit at her desk only a brief 
 
            time.
 
            
 
                 Dr. Durward assessed an 11 percent impairment rating, 
 
            but deferred restrictions to a functional capacity 
 
            assessment to be performed by John Kuhnlein, D.O., who 
 
            evaluated claimant in the Occupational Health Network Clinic 
 
            on July 25, 1991.  Dr. Kuhnlein suggested limiting lifting, 
 
            pushing or pulling to approximately ten pounds at present 
 
            and recommended occupational therapy for strengthening both 
 
            hands.  He would allow claimant to perform sitting, 
 
            standing, walking and reaching to tolerance with the ability 
 
            to change position as necessary, approximately every 20-30 
 
            minutes or less.  He suggested a gradual return to the work 
 
            place, beginning at two hours per day for approximately 2-3 
 
            weeks with increases as tolerated.  He noted that claimant 
 
            has significant psychological barriers to overcome, having 
 
            been off work and away from her position for some four years 
 
            and with great fear of reinjury.  Dr. Kuhnlein further 
 
            recommended that claimant be provided a fully adjustable 
 
            work station in order to allow her to perform her job in a 
 
            variety of positions as necessary.  Copies of this report, 
 
            dated August 1, 1991, were furnished to defendant.
 
            
 
                 However, defendant has never offered to implement Dr. 
 
            Kuhnlein's recommendations or taken action to help claimant 
 
            return to work.  Defendant has in fact refused to accept her 
 
            back to work, except on a full-time basis.  Claimant is 
 
            motivated to return to her job, but finds herself unable to 
 
            do so because of intractable pain.
 
            
 
                 Claimant also underwent a work evaluation assessment at 
 
            Marian Health Center on July 15, 1991.  Summary and 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            recommendations were:
 
            
 
                 Mrs. Snyder is a 45 yr. old, (R) handed female 
 
                 with a diagnosis of "residual pain" secondary to a 
 
                 fall at work per the client's report.  She has not 
 
                 worked since July of 1987 and attempted to return 
 
                 in January of 1990 but was not successful.  The 
 
                 biggest limiting factor for Mrs. Snyder at this 
 
                 time is her inability to work through her pain.  
 
                 Lifting was limited to 10#'s maximum with 
 
                 increased symptoms reported, especially when 
 
                 lifting the weight off the floor.  When working 
 
                 overhead, she reported more severe aching and a 
 
                 heavy feeling in her (L) leg.  She was unable to 
 
                 sit for approximately 30 mins. with constant 
 
                 weight shifting noted.  Pushing and pulling should 
 
                 be performed at a maximum weight of 20#'s with the 
 
                 (R) arm and 15#'s with the (L) arm.  The client 
 
                 performed a simulated typing activity, sitting for 
 
                 5 min. with weight shifting noted the entire time.  
 
                 She stated "I can't even concentrate on my 
 
                 typing."  Standing in one spot was also limited to 
 
                 approximately 10 mins. with reported symptoms.  
 
                 This client would need the freedom to change her 
 
                 postures often.  The ideal job situation would not 
 
                 include frequent lifting, pushing or pulling, or 
 
                 working overhead or at lower levels.  This client 
 
                 needs to work through her pain and take control 
 
                 over her symptoms so she can resume daily living 
 
                 and return to work.
 
            
 
            (Claimant's exhibit 48, page 3)
 
            
 
                 Dr. Kuhnlein testified by deposition on February 3, 
 
            1992.  He had no doubt but that claimant's pain is real to 
 
            her and believed that any reluctance on her part to fully 
 
            exert herself physically is due to fear of reinjury plus 
 
            deconditioning as the result of long inactivity.  He thought 
 
            any attempt at returning claimant to work might well fail.
 
            
 
                 Ms. Snyder was also seen for evaluation by John R. 
 
            Walker, M.D.  Dr. Walker reported on January 24, 1992, that 
 
            claimant has extreme pain in the left sacroiliac joint.  He 
 
            believed this to be probably a chronic sprain which had 
 
            never been previously recognized.  He suggested an injection 
 
            of local anesthetic and Cortisone and, if this tested 
 
            positive, potential sacroiliac arthrodesis.  Dr. Walker also 
 
            referred to claimant's radiating pain down the left lower 
 
            extremity as sacroarthrogenetic telalgia, or a referred pain 
 
            due to sacroiliac pathology, along with residuals of chronic 
 
            nerve injury and post-rhizotomy sequelae involving the left 
 
            L5 nerve root.  Assessing a 35 percent impairment rating to 
 
            the body as a whole, Dr. Walker opined that claimant was 
 
            currently unable to do any work, thus joining Dr. Durward's 
 
            opinion of February 15, 1990.
 
            
 
                                conclusions of law
 
            
 
                 It is stipulated that claimant suffered a work injury 
 
            that caused temporary and permanent disability to the body 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            as a whole.  The extent thereof is in dispute.
 
            
 
                 An injury to the body as a whole is compensated 
 
            industrially.  Industrial disability is a reduction in 
 
            earning capacity.  Diederich v. Tri-City Ry. Co., 219 Iowa 
 
            587, 258 N.W. 899 (1935); Second Injury Fund v. Hodgins, 461 
 
            N.W.2d 454 (Iowa 1990).  Claimant asserts that she is 
 
            totally disabled under the "odd-lot" theory or otherwise.
 
            
 
                 In Guyton v. Irving Jensen Co., 373 N.W.2d 101 (Iowa 
 
            1985), the Iowa court formally adopted the "odd-lot 
 
            doctrine."  Under that doctrine a worker becomes an odd-lot 
 
            employee when an injury makes the worker incapable of 
 
            obtaining employment in any well-known branch of the labor 
 
            market.  An odd-lot worker is thus totally disabled if the 
 
            only services the worker can perform are "so limited in 
 
            quality, dependability, or quantity that a reasonably stable 
 
            market for them does not exist."  Guyton, 373 N.W.2d at 105.
 
            
 
                 The burden of persuasion on the issue of industrial 
 
            disability always remains with the worker.  When a worker 
 
            makes a prima facie case of total disability by producing 
 
            substantial evidence that the worker is not employable in 
 
            the competitive labor market, the burden to produce evidence 
 
            of suitable employment shifts to the employer, however.  If 
 
            the employer fails to produce such evidence and if the trier 
 
            of fact finds the worker does fall in the odd-lot category, 
 
            the worker is entitled to a finding of total disability.  
 
            Guyton, 373 N.W.2d at 106.  Even under the odd-lot 
 
            doctrine, the trier of fact is free to determine the weight 
 
            and credibility of evidence in determining whether the 
 
            worker's burden of persuasion has been carried, and only in 
 
            an exceptional case would evidence be sufficiently strong as 
 
            to compel a finding of total disability as a matter of law.  
 
            Guyton, 373 N.W.2d at 106.
 
            
 
                 Under current agency precedent, claimant has not made a 
 
            prima facie case of establishing that she is an odd-lot 
 
            employee, because she has not made a diligent search for 
 
            employment in her area of residence.  Emshoff v. Petroleum 
 
            Transp. Services, Inc., File No. 753723 (App. Decn., March 
 
            21, 1987); Hingtgen v. Goodmann, File No. 737771 (App. 
 
            Decn., September 30, 1988).  She is too disabled to be 
 
            "odd-lot."
 
            
 
                 However, claimant cannot return to work.  By education 
 
            and work experience, she is suited for clerical work, but is 
 
            severely limited as a competitive employee by her medical 
 
            restrictions.  These include a 10-pound lifting restriction 
 
            and the ability to change position at will.  Dr. Liudahl 
 
            suggested special accommodations, consisting of a fully 
 
            adjustable work station and a very gradual return to work.   
 
            If Sioux City, claimant's employer for two decades and with 
 
            great incentive to return claimant to work (to show lessened 
 
            industrial disability) is unable or unwilling to make those 
 
            accommodations, what employer will?  Altogether apart from 
 
            those restrictions, claimant is unable to work because of 
 
            severe intractable pain.  Drs. Durward and Walker have so 
 
            opined.
 
            
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
                 Pain itself, of course, is experienced subjectively.  
 
            This agency has frequently viewed self-imposed restrictions 
 
            due to pain with suspicion where they exceed and are greatly 
 
            disproportionate to medically imposed restrictions.  
 
            However, in this case there is convincing proof of 
 
            claimant's perceived pain:  She has proven herself willing 
 
            to permanently forfeit sensation in the L5 dermatome, 
 
            gambling against only a 50/50 chance of pain relief.  It is 
 
            inconceivable that this claimant would have done so except 
 
            out of desperation and unbearable pain.  The medical history 
 
            and claimant's demeanor absolutely convince the undersigned 
 
            that Fran Snyder is now and for the foreseeable future 
 
            unable to return to her work because she experiences a 
 
            disabling degree of pain.  This constitutes permanent and 
 
            total disability.  Even though it is possible that claimant 
 
            may one day find it possible to withstand that pain, through 
 
            procedures advised by Dr. Walker or otherwise (this 
 
            treatment should be provided, should claimant so desire), it 
 
            is noted that the concept of permanent, total disability 
 
            does not mean forever or embrace the idea of absolute 
 
            perpetuity; it means for an indefinite or undeterminable 
 
            period.  Wallace v. Brotherhood, 230 Iowa 1127, 300 N.W. 322 
 
            (1941).
 
            
 
                 Accordingly, it is held that claimant is entitled to 
 
            benefits from the date of injury and during such time as she 
 
            remains permanently and totally disabled.
 
            
 
                 The parties also dispute the calculation of claimant's 
 
            rate of compensation.  Pursuant to Iowa Code section 
 
            85.36(2), "weekly earnings" in the case of an employee who 
 
            is paid biweekly, are one-half of the biweekly gross 
 
            earnings.  One-half of claimant's biweekly gross earnings on 
 
            the date of injury equals $400.43.  It is stipulated that 
 
            claimant was married and entitled to two exemptions on July 
 
            30, 1987.  The Guide to Iowa Workers' Compensation Claim 
 
            Handling published by this office and effective July 1, 
 
            1987, shows that an individual so situated is entitled to a 
 
            compensation rate of $251.90 per week.
 
            
 
                 Claimant also seeks compensation for the report of Dr. 
 
            Walker.  Dr. Walker's report was for evaluation and is 
 
            controlled by Iowa Code section 85.39, not Iowa Code section 
 
            85.27.  Section 85.39 was not preserved as an issue on the 
 
            hearing assignment order filed September 10, 1991.  
 
            Therefore, the undersigned lacks jurisdiction to make a 
 
            determination under that section.  However, $150.00 of Dr. 
 
            Walker's fee is assessed as costs under Iowa Code section 
 
            622.721.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Defendant shall pay unto claimant permanent total 
 
            disability benefits at the rate of two hundred fifty-one and 
 
            90/100 dollars ($251.90) per week from July 30, 1987, and 
 
            continuing during such time as she remains permanently and 
 
            totally disabled.
 
            
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
                 Defendant shall have credit for all voluntary payments.
 
            
 
                 All accrued, unpaid weekly benefits shall be paid in a 
 
            lump sum together with statutory interest pursuant to Iowa 
 
            Code section 85.30.
 
            
 
                 Costs of this action are assessed to defendant pursuant 
 
            to rule 343 IAC 4.33.
 
            
 
                 Defendant shall file claim activity reports as 
 
            requested by this agency pursuant to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ______ day of ____________, 1992.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          DAVID RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Charles T. Patterson
 
            Attorney at Law
 
            200 Home Federal Building
 
            P.O. Box 3086
 
            Sioux City, Iowa  51102
 
            
 
            Mr. James L. Abshier
 
            City Attorney
 
            Mr. Timothy A. Scherle
 
            Assistant City Attorney
 
            310 City Hall
 
            P.O. Box 447
 
            Sioux City, Iowa  51102
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               1804; 4100
 
                                               Filed May 15, 1992
 
                                               DAVID RASEY
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            FRAN SNYDER,                  :
 
                                          :
 
                 Claimant,                :         File No. 933564
 
                                          :
 
            vs.                           :      A R B I T R A T I O N
 
                                          :
 
            CITY OF SIOUX CITY, IOWA,     :         D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ____________________________________________________________
 
            
 
            1804
 
            Claimant proved permanent total disability due to pain and 
 
            medical restrictions following multiple failed back 
 
            surgeries.
 
            Although pain is subjective in nature, the extent to which 
 
            claimant suffers was demonstrated by her willingness to 
 
            undergo sensory rhizotomy.  This procedure entailed 
 
            permanent loss of sensation in the L5 dermatome against only 
 
            a 50/50 chance of pain relief.  The procedure failed.
 
            
 
            4100
 
            Under current agency precedent, permanently and totally 
 
            disabled claimant was not "odd-lot," since she was precluded 
 
            by pain and medical advice from conducting a diligent search 
 
            for employment.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               5-2909
 
                                               Filed January 4, 1994
 
                                               Bernard J. O'Malley
 
            
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            FRAN SNYDER,   
 
                                              File No. 933564
 
                 Claimant, 
 
                                          M E M O R A N D U M  O F
 
            vs.       
 
                                              D E C I S I O N
 
            CITY OF SIOUX CITY, 
 
                                                    O N
 
                 Employer, 
 
                 Self-Insured,              E X P E D I T E D
 
                 Defendant.     
 
                                             H E A R I N G
 
                      
 
                                             (343 IAC 4.44)
 
                      
 
            ____________________________________________________________
 
            
 
            5-2902
 
            A partial commutation only was granted to pay attorney fees 
 
            and any costs.
 
            
 
 
            
 
            
 
            
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            FRAN SNYDER,   
 
                                              File No. 933564
 
                 Claimant, 
 
                                          M E M O R A N D U M  O F
 
            vs.       
 
                                              D E C I S I O N
 
            CITY OF SIOUX CITY, 
 
                                                    O N
 
                 Employer, 
 
                 Self-Insured,               E X P E D I T E D
 
                 Defendant.     
 
                                              H E A R I N G
 
                      
 
                                              (343 IAC 4.44) 
 
            ____________________________________________________________
 
            
 
            An original notice and petition was filed on August 18, 
 
            1993,under rule 343 IAC 4.44.  January 4, 1994 was the date 
 
            set for a telephonic hearing.  All parties were given proper 
 
            notice.
 
            
 
            The claimant in this expedited proceeding is seeking 
 
            benefits under the provision of rule 343 IAC 4.44.  Claimant 
 
            wants a commutation of benefits.  There is no dispute that 
 
            an injury arose out of and in the course of claimant's 
 
            employment on July 30, 1987.
 
            
 
            The entire hearing was recorded via an audio tape.  The 
 
            detailed decision was dictated into the record on the day of 
 
            the hearing and will not be reproduced in typewritten form 
 
            unless there is an appeal by the parties at which time 
 
            procedures under the Administrative Code would be followed.  
 
            Any rights of appeal will run from the date of the decision 
 
            dictated into the record, namely, January 4, 1994.  This 
 
            memorandum is solely for the purposes of the agency file.
 
            The deputy ordered that a full commutation of benefits is 
 
            not granted, but a partial commutation to pay attorney fees 
 
            and any costs is granted.
 
            
 
                 Signed and filed this ____ day of January, 1994.
 
            
 
            
 
            
 

 
            
 
 
 
 
 
            Page   2
 
            
 
 
 
 
 
 
 
                                          --------------------------------
 
                                          BERNARD J. O'MALLEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
 
 
            Copies To:
 
            
 
            Mr. Charles L. Patterson
 
            Attoreny at Law
 
            701 Pierce St  Ste 200
 
            P O Box 3086
 
            Sioux City IA 51102
 
            
 
            Mr Timothy A Scherle
 
            Attorney at Law
 
            518 Orpheum Bldg
 
            Sioux City IA 51101
 
            
 
            
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DENNIS KOOKER,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 933568
 
            MIDWEST VIKING, INC.,         :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            AETNA CASUALTY & SURETY       :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by the 
 
            claimant, Dennis Kooker, against his employer, Midwest 
 
            Viking, Inc., and its insurance carrier, Aetna Casualty & 
 
            Surety Company, to recover benefits under the Iowa Workers' 
 
            Compensation Act as the result of an injury of August 17, 
 
            1989.  This matter came on for hearing before the 
 
            undersigned deputy industrial commissioner at Des Moines, 
 
            Iowa, on August 15, 1991.  A first report of injury has been 
 
            filed.
 
            
 
                 The record in this case consists of joint exhibits I 
 
            through VI; claimant's exhibits A through C; and, 
 
            defendants' exhibits 1 and 2.  Defendants' proposed exhibit 
 
            3 is a transcribed statement of Linda Taft, an individual 
 
            with whom claimant had had a romantic liaison in the past 
 
            and an individual who stated she would be more than happy to 
 
            take a lie detector test or anything the insurance carrier 
 
            would want her to do because, "he took me for a bunch of 
 
            money at a time when I could least afford it."  Ms. Taft's 
 
            statement is not the type of evidence on which reasonably 
 
            prudent persons are accustomed to rely for the conduct of 
 
            their serious affairs. See Iowa Code section 17A.14(1); see 
 
            also King v. Colonial Baking Co., File No. 863824 (Arb. 
 
            September 26, 1990).   The exhibit, therefore, lacks 
 
            credibility and is excluded from the evidence.
 
            
 
                 The record also consists of the testimony of claimant, 
 
            of Janette H. Whittle, and of Jan Renee Mier.
 
            
 
                                      issues
 
            
 
                 Pursuant to the hearing assignment order, the 
 
            prehearing report and the oral stipulation of the parties at 
 
            hearing, the parties have stipulated that claimant did 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            receive an injury arising out of and in the course of his 
 
            employment on August 17, 1989 and that that injury bore a 
 
            causal relationship to a period of temporary total or 
 
            healing period disability.  The parties further agreed that 
 
            defendants have paid 51 weeks of benefits at a rate of 
 
            $363.72.
 
            
 
                 Issues remaining to be decided are:
 
            
 
                 1.  Whether a causal relationship exists between 
 
            claimant's injury and claimed permanent partial disability;
 
            
 
                 2.  The nature and extent of any benefit entitlement;
 
            
 
                 3.  Whether claimant is entitled to payment of costs 
 
            related to chiropractic care;
 
            
 
                 4.  Whether a penalty shall be imposed upon defendants 
 
            for unreasonable denial or delay in commencement of 
 
            benefits; and,
 
            
 
                 5.  Claimant's appropriate rate of weekly compensation.
 
            
 
                                 findings of fact
 
            
 
                 The deputy, having heard the testimony and considered 
 
            the evidence, finds:
 
            
 
                 Claimant was born September 2, 1950.  He completed 
 
            eleventh grade and has not received a GED.  He has been 
 
            employed as a truck driver since age 18.  Claimant received 
 
            an injury which arose out of and in the course of his 
 
            employment on August 17, 1989 when he rolled the 
 
            semi-trailer truck he was driving for his employer.  
 
            Claimant was medically evacuated and hospitalized 
 
            immediately subsequent to that accident.  He was released 
 
            from the hospital less than 12 hours later.  He subsequently 
 
            was able to drive his damaged truck to the employer's place 
 
            of business in Des Moines.  Claimant then returned to his 
 
            own home in Buena Vista, Colorado, to recuperate.
 
            
 
                 Claimant married Verna Kooker in 1974 and was legally 
 
            married to Verna on August 17, 1989.  The couple had been 
 
            informally separated since 1983 with claimant living in 
 
            Colorado and Verna living in Missouri, however.  The couple 
 
            had two minor children on August 17, 1989, which children 
 
            were living with Verna in Missouri.  Claimant was not paying 
 
            child support on the date of injury and had no legal court 
 
            ordered obligation to do so on the date of the injury.  It 
 
            is found that claimant's wife and two minor children were 
 
            not actually dependent upon claimant on August 17, 1989.  It 
 
            is found that the maximum exemptions claimant could have 
 
            claimed on August 17, 1989 was one married person.
 
            
 
                 Claimant began his employment with Midwest Viking in 
 
            January 1989.  He was paid $.18 per mile plus apparently 
 
            $35.00 for each load loaded or unloaded in California and 
 
            $20.00 for each load loaded or unloaded in any other 
 
            jurisdiction.  Claimant received two separate checks:  one 
 
            reflecting payment of $.12 per mile off the odometer and the 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            other reflecting payment of $.06 per mile off the odometer.  
 
            The $.06 per mile payment was designated as a per diem.  
 
            Payroll taxes, FICA and unemployment compensation tax were 
 
            withheld from the $.12 per mile payment, but not from the 
 
            $.06 per mile payment.  The $.06 per mile payment was paid 
 
            solely on mileage driven and was not based on actual meal 
 
            expenses or other actual expenses.  Claimant was reimbursed 
 
            for any truck expenses that he paid out of pocket.  
 
            Claimant's employer explained the payment system, including 
 
            the amount designated as wages and the amount designated as 
 
            expense allowance or per diem at claimant's hire.  Claimant 
 
            understood that the per diem represented an amount for 
 
            meals.  It is expressly found that the per diem amount 
 
            represented an expense allowance excluded from gross 
 
            earnings under section 85.61(3).
 
            
 
                 Claimant's injury occurred on August 17, 1989.  
 
            Therefore, he did not work the full week of August 18, 1989.  
 
            Claimant was paid on a weekly basis, except for those weeks 
 
            when claimant did not submit his mileage and other paperwork 
 
            on a timely basis.  In those weeks, claimant received that 
 
            week's salary in the immediately subsequent week.  Claimant 
 
            did not work any short weeks or vacation weeks or holiday 
 
            weeks in the 13 weeks immediately preceding August 17, 1989.  
 
            Claimant apparently did not submit paperwork for the week of 
 
            August 11, 1989, the last week immediately preceding his 
 
            August 17, 1989 injury.  Claimant apparently received 
 
            compensation for that week and the week in which he was 
 
            injured on August 18, 1989.  As claimant did not work the 
 
            full week of August 18, 1989, salary received on August 18, 
 
            1989 is apportioned 60 percent to the week of August 11, 
 
            1989 and 40 percent to the week of August 18, 1989.  Sixty 
 
            percent of $942.12 is $565.27.  Claimant's total earnings 
 
            from the 13 full weeks immediately preceding August 17, 1989 
 
            were $5,989.87.
 
            
 
                 James A. Clark II, M.D., performed an x-ray 
 
            consultation relative to claimant on August 17, 1989.  Dr. 
 
            Clark interpreted x-rays of the cervical spine as showing 
 
            degenerative disc disease at C5-6 with reduction of the 
 
            intervertebral disc space height and formation of ventral 
 
            and dorsal osteophytes.  On returning to his home in Buena 
 
            Vista, Colorado, claimant sought treatment with William L. 
 
            Burson, D.C.  Dr. Burson referred claimant to William R. 
 
            Seybold, M.D.  On October 2, 1989, claimant presented to Dr. 
 
            Seybold with persistent cervical pain.  Dr. Seybold thought 
 
            that claimant's upper extremity paresthesis related 
 
            primarily to post-traumatic carpal tunnel syndrome.  An EMG 
 
            of October 2, 1989, had been positive for 
 
            Charcot-Marie-Tooth disease, a hereditary neuropathology.  
 
            Dr. Seybold stated, and it is so found, that 
 
            Charcot-Marie-Tooth disease can make nerves more susceptible 
 
            to traumatic insult.
 
            
 
                 William N. Needell, M.D., interpreted an MRI of October 
 
            6, 1989, as showing a disc herniation at C5-6 with bilateral 
 
            neural foraminal encroachment on the right resulting from 
 
            either a lateral disc extension or bony hypertrophy.  Dr. 
 
            Needell interpreted an MRI of the lower back of October 24, 
 
            1989, as showing a right-sided disc bulge or mild herniation 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            at L5-S1 with possible right S1 nerve root involvement and 
 
            disc desiccation of the L5-S1 disc.
 
            
 
                 The insurer authorized Ronald E. Walker, M.D., to treat 
 
            claimant.  On November 16, 1989, Dr. Walker related claimant 
 
            had a number of problems, most of which were secondary to 
 
            his underlying Charcot-Marie-Tooth disease involving the 
 
            lower extremities and underlying degenerative disc disease 
 
            involving especially the cervical spine.  The doctor's 
 
            primary diagnosis was of cervical strain with low back pain 
 
            secondary to myofascitis that had aggravated the underlying 
 
            changes in the Charcot-Marie-Tooth disease as a result of a 
 
            history of acute back problems due to injury.  The doctor 
 
            opined that claimant was not able to drive an 18-wheeler at 
 
            that time and that maximum medical improvement would be 
 
            expected in 5-6 months, assuming that no new objective 
 
            findings developed.  Dr. Walker saw claimant on December 4, 
 
            1989, where he noted that claimant's back was better 
 
            overall, but "made worse recently when he carried some 
 
            firewood."
 
            
 
                 Subsequent to receiving Dr. Walker's note, the insurer 
 
            on January 17, 1990, terminated claimant's benefits 
 
            effective February 15, 1990.  Claimant again saw Dr. Walker 
 
            on January 25, 1990.  Claimant stated to the doctor on that 
 
            date that claimant had not indicated he was carrying 
 
            firewood on December 4, 1989.  As the doctor's notes and 
 
            recollection differed, the doctor was disinclined to change 
 
            his note of December 4, 1989.  The doctor did state, 
 
            however, on January 25, 1990, that the doctor did not think 
 
            that any incident of carrying firewood was the cause of 
 
            claimant's then-present back pain and that the doctor 
 
            thought the symptoms were causally related to claimant's 
 
            initial injury.  The doctor released claimant to limited 
 
            duty "office type work" without lifting of greater than 
 
            10-15 pounds.  Claimant had no work experience in that area.  
 
            Office work is not work substantially similar to that which 
 
            claimant performed when injured.  The employer did not 
 
            recommence benefits until July 18, 1990, when Janette H. 
 
            Whittle, workers' compensation processor for the insurer, 
 
            advised claimant's counsel that the insurer would pay 
 
            claimant permanent partial disability benefits based on a 
 
            permanency of five percent of the body as a whole until the 
 
            insurer received a rating from Dr. Walker with payments to 
 
            commence immediately.
 
            
 
                 Claimant did not keep an appointment with Dr. Walker 
 
            scheduled for March 8, 1990.  Claimant explained that his 
 
            attorney advised him not to keep the appointment and that 
 
            claimant himself did not trust Dr. Walker subsequent to the 
 
            firewood incident.  On May 1, 1990, Dr. Walker stated that 
 
            he assumed claimant reached maximum medical improvement on 
 
            March 8, 1990, as that was the date that claimant failed to 
 
            keep the appointment and as the doctor assumed claimant 
 
            could return to original employment as of that date.
 
            
 
                 Dr. Walker referred claimant to D. James Sceats, Jr., 
 
            M.D., who saw claimant on December 11, 1989.  Dr. Sceats 
 
            suggested that claimant continue chiropractic manipulation 
 
            with Dr. Burson if claimant obtained relief from such.  It 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            is expressly found that, in continuing to seek care from Dr. 
 
            Burson, claimant was following the advice of a medical 
 
            specialist to whom his authorized physician had referred 
 
            claimant and that, therefore, the chiropractic care with Dr. 
 
            Burson represents care received under the direction and 
 
            advice of an authorized physician.
 
            
 
                 On June 13, 1990, Dr. Sceats opined that claimant's 
 
            neurologic deficits relate to his Charcot-Marie-Tooth 
 
            disease predominantly and that claimant had no specific 
 
            neurologic deficit related to his injury.  On October 29, 
 
            1990, Dr. Sceats stated that work hardening would represent 
 
            the most accurate means to determine if claimant had yet 
 
            reached maximum medical improvement.  Dr. Sceats reported 
 
            that claimant may or may not be at maximum medical 
 
            improvement as of that date.  He advised work hardening with 
 
            a repeat functional capacity evaluation subsequent to work 
 
            hardening.
 
            
 
                 Claimant underwent functional capacity evaluation and 
 
            work hardening at the Colorado Centers for Occupational 
 
            Rehabilitation.  Center findings were that claimant could 
 
            lift ten pounds infrequently and five pounds repetitively; 
 
            that claimant could sit for up to two hours at a time and up 
 
            to four hours intermittently; that claimant could stand and 
 
            walk for up to two hours at a time and up to four hours 
 
            intermittently; that claimant could only poorly tolerate on 
 
            an occasional basis bending, stooping, kneeling, and 
 
            crouching; that claimant could perform pushing and pulling 
 
            within a light range in an industrial setting; that claimant 
 
            could not climb; and, that reaching produced neck and low 
 
            back pain.  Claimant was found to have below average upper 
 
            extremity strength for an American male in his age group.
 
            
 
                 Claimant attended work hardening for approximately 
 
            three or four weeks beginning November 5, 1990, and ending 
 
            approximately November 30, 1990.  Three to four further 
 
            weeks had been recommended at that time.  Claimant stated he 
 
            quit work hardening because he could not afford to continue 
 
            it.  Claimant was not then receiving workers' compensation 
 
            benefits and had received no medical mileage reimbursement.  
 
            Claimant apparently did not seek medical mileage for his 
 
            travel to the work hardening program of his own accord.  
 
            Overall, claimant has incurred 1,959 miles of reimbursable 
 
            medical mileage.
 
            
 
                 Claimant acknowledged having received chiropractic 
 
            adjustments for back pain on five or six occasions prior to 
 
            his injury.
 
            
 
                 James J. O'Donnell, M.D., examined claimant on January 
 
            29, 1991.  His impression was of residuals of multiple 
 
            trauma in the nature of a soft tissue injury to the entire 
 
            spine.  He stated that claimant was then at maximum medical 
 
            improvement with no further active treatments advised, but 
 
            work hardening recommended.
 
            
 
                 Jerome G. Bashara, M.D., evaluated claimant on May 31, 
 
            1991.  Dr. Bashara diagnosed a herniated disc at L5-S1 
 
            secondary to an August 1989 accident.  He opined that 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            claimant had a five percent body as a whole permanent 
 
            partial impairment and imposed restrictions on excessive or 
 
            repetitive bending, stooping or twisting of the low back and 
 
            on lifting of above 20 pounds.
 
            
 
                 Drs. Walker, Seybold and Sceats had the most frequent 
 
            and ongoing contact with claimant.  Their opinions as to his 
 
            condition and the causal relationship to his injury are 
 
            therefore given greater weight.  It is expressly found that 
 
            claimant has a cervical strain with low back pain secondary 
 
            to myofascitis that has aggravated underlying changes in his 
 
            Charcot-Marie-Tooth disease as a result of acute low back 
 
            problems related to his August 17, 1989 injury.  It is also 
 
            expressly found that claimant has post-traumatic carpal 
 
            tunnel syndrome related to his August 17, 1989 injury, which 
 
            injury was a traumatic insult [to the nerves] to which 
 
            claimant's Charcot-Marie-Tooth disease made him more 
 
            susceptible.
 
            
 
                 Claimant obtained a truck driving job in February 1991 
 
            which he held through early May 1991.  Claimant indicated 
 
            that he performed the job as well as he could and that his 
 
            hours were about the same as his hours at Midwest Viking.  
 
            Claimant left that job to take his present job with Sutton 
 
            Trucking.  Claimant drives a tanker truck for Sutton.  He 
 
            characterized this as rougher riding than over-the-road semi 
 
            driving.  Claimant does no tarping and has limited loading 
 
            and unloading responsibilities with tanker driving.  He was 
 
            working 12- and 14-hour days in May and June 1991, logging 
 
            from 200-400 miles per day.  Claimant denied that he 
 
            receives greater income from the Sutton job than from his 
 
            job at Midwest Viking.  Claimant indicated that the Sutton 
 
            job is more seasonal in nature than his Midwest Viking job.  
 
            Claimant did not advise his current employer of his back 
 
            problems and believed that so doing would jeopardize his 
 
            continued employment.  Claimant currently has back problems 
 
            which start around noon and get progressively worse 
 
            throughout the day.  Claimant characterized the Sutton job 
 
            as his last resort at trucking because he "has to get home 
 
            every night."
 
            
 
                 Claimant acknowledged having had a personal 
 
            relationship with Linda Taft and that he was living with Ms. 
 
            Taft at the time of his injury.
 
            
 
                                conclusions of law
 
            
 
                 Our first issue is whether claimant has established a 
 
            casual connection between his work injury and his alleged 
 
            disabilities.
 
            
 
                 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 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            (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).
 
            
 
                 While a claimant is not entitled to compensation for 
 
            the results of a preexisting injury or disease, its mere 
 
            existence at the time of a subsequent injury is not a 
 
            defense.  Rose v. John Deere Ottumwa Works, 247 Iowa 900, 76 
 
            N.W.2d 756 (1956).  If the claimant had a preexisting 
 
            condition or disability that is materially aggravated, 
 
            accelerated, worsened or lighted up so that it results in 
 
            disability, claimant is entitled to recover.  Nicks v. 
 
            Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812 (1962); 
 
            Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 
 
            N.W.2d 299 (1961).
 
            
 
                 As noted in the above Findings of Fact, the medical 
 
            evidence demonstrates that claimant's injury of August 17, 
 
            1989, aggravated his underlying Charcot-Marie-Tooth disease 
 
            and thereby produced pain in the cervical spine and low back 
 
            as well as post-traumatic carpal tunnel syndrome.  Claimant 
 
            has established a causal relationship between his injury and 
 
            those claimed conditions.  No medical evidence supports 
 
            claimant's claim at hearing that he has headaches or 
 
            difficulty with memory and thinking on account of his work 
 
            injury.  Claimant has not established the requisite causal 
 
            connection between the injury and those claimed conditions.
 
            
 
                 Our next concern is the nature and extent of claimant's 
 
            disability.
 
            
 
                 We first consider whether claimant is entitled to 
 
            additional healing period benefits.
 
            
 
                 Section 85.34(1) provides that healing period benefits 
 
            are payable to an injured worker who has suffered permanent 
 
            partial disability until (1) the worker has returned to 
 
            work; (2) the worker is medically capable of returning to 
 
            substantially similar employment; or (3) the worker has 
 
            achieved maximum medical recovery.  The healing period can 
 
            be considered the period during which there is a reasonable 
 
            expectation of improvement of the disabling condition.  See 
 
            Armstrong Tire & Rubber Co. v. Kubli, 312 N.W.2d 60 (Iowa 
 
            Ct. App. 1981).  Healing period benefits can be interrupted 
 
            or intermittent.  Teel v. McCord, 394 N.W.2d 405 (Iowa 
 
            1986).
 
            
 
                 Defendants terminated claimant's temporary benefits 
 
            effective February 15, 1990.  On January 25, 1990, Dr. 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            Walker released claimant to light-duty office work.  
 
            Light-duty office work is not work substantially similar to 
 
            the work claimant was performing at the time of his injury.  
 
            Dr. Walker did not then indicate that claimant was at 
 
            maximum medical improvement.  Dr. Walker's opinion that 
 
            claimant was at maximum medical improvement on May 8, 1990, 
 
            was mere surmise based on claimant's failure to appear for 
 
            an appointment previously scheduled for that date.  Hence, 
 
            that date also is not a rational point at which it can be 
 
            determined that claimant reached maximum medical 
 
            improvement.  On October 29, 1990, Dr. Sceats indicated that 
 
            claimant may or may not have been at maximum medical 
 
            improvement as of that date, but that such could only be 
 
            determined after claimant underwent a work hardening program 
 
            and further functional capacity evaluation.  Claimant then 
 
            attended a work hardening program from November 5, 1990, to 
 
            approximately November 30, 1990, when he voluntarily 
 
            terminated with the program.  Claimant testified he did so 
 
            as he could no longer continue to pay the costs of attending 
 
            the program.  Defendants were not paying claimant weekly 
 
            compensation benefits while he was in attendance; defendants 
 
            also were not reimbursing claimant his mileage expenses.  
 
            Claimant, on the other hand, apparently did not seek 
 
            reimbursement prior to his voluntary termination.  Hence, 
 
            claimant did not take even the minimum appropriate steps 
 
            which might have assisted him in staying in the program.  
 
            His voluntary termination of that program suggests that 
 
            claimant was, at that time, at a place where further medical 
 
            improvement could not be achieved without claimant's full 
 
            cooperation.  For that reason, claimant is determined to 
 
            have reached maximum medical improvement on November 30, 
 
            1990.  Claimant's healing period runs from claimant's date 
 
            of injury through November 30, 1990.
 
            
 
                 We consider claimant's entitlement to permanent partial 
 
            disability benefits.
 
            
 
                 Since claimant has an impairment to the body as a 
 
            whole, an industrial disability has been sustained.  
 
            Industrial disability was defined in Diederich v. Tri-City 
 
            Ry. Co., 219 Iowa 587, 258 N.W.2d 899 (1935) as follows: "It 
 
            is therefore plain that the legislature intended the term 
 
            'disability' to mean 'industrial disability' or loss of 
 
            earning capacity and not a mere 'functional disability' to 
 
            be computed in the terms of percentages of the total 
 
            physical and mental ability of a normal man."
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, 
 
            experience, motivation, loss of earnings, severity and situs 
 
            of the injury, work restrictions, inability to engage in 
 
            employment for which the employee is fitted and the 
 
            employer's offer of work or failure to so offer.  Olson v. 
 
            Goodyear Serv. Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); 
 
            McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980); 
 
            Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            (1961).
 
            
 
                 Compensation for permanent partial disability shall 
 
            begin at the termination of the healing period.  
 
            Compensation shall be paid in relation to 500 weeks as the 
 
            disability bears to the body as a whole.  Section 85.34.
 
            
 
                 The only evidence as to permanent partial impairment is 
 
            Dr. Bashara's rating of five percent permanent partial 
 
            impairment for a herniated lumbar disc which the doctor 
 
            related to claimant's 1989 injury.  The record as a whole 
 
            does not support Dr. Bashara's finding that claimant's 
 
            herniated lumbar disc, if any, wholly relates to the injury.  
 
            Hence, the doctor's permanent partial impairment rating is 
 
            rejected.  The record as a whole does support that claimant 
 
            has some mild physical impairment related to his cervical 
 
            spine and low back pain and his post-traumatic carpal tunnel 
 
            syndrome.  Likewise, claimant is severely restricted on 
 
            lifting, being at best permitted to lift 20 pounds.  
 
            Claimant is restricted from bending, stooping, kneeling, 
 
            crouching, pushing, pulling and reaching as well as 
 
            climbing.  He can sit and stand for only intermittent 
 
            periods.  Claimant is currently working.  His current 
 
            trucking job permits him to be home each evening and that 
 
            apparently is a strong factor in his ability to continue 
 
            work.  Claimant did not tell his current employer of his 
 
            physical condition and fears that disclosure of such could 
 
            well endanger his job.  Claimant is unable to return to 
 
            long-haul trucking.  Claimant has limited education and 
 
            little work experience outside of the trucking industry.  
 
            While claimant appears of average intelligence, his 
 
            educational limitations when combined with his age might 
 
            well severely curtail any attempts at rehabilitation into 
 
            more sedentary work.
 
            
 
                 All of the above suggests that claimant has sustained 
 
            quite a substantial loss of earning capacity.  Such is found 
 
            to represent an industrial disability of 35 percent of the 
 
            body as a whole.
 
            
 
                 We next consider the question of payment of Dr. 
 
            Burson's costs.
 
            
 
                 Kittrell v. Allen Memorial Hospital, Thirty-fourth 
 
            Biennial Report of the Industrial Commissioner 164 
 
            (Review-reopen 1979) (aff'd by Indus. Comm'r), states:
 
            
 
                 Section 85.27 . . . requires an employer to 
 
                 provide the reasonable care necessary to treat the 
 
                 injury.  It follows then that when such a 
 
                 designated physician sees fit to refer a patient 
 
                 to another physician, he acts as the 
 
                 defendant-employer's agent, and permission for 
 
                 such referral from the defendants is not 
 
                 necessary.
 
            
 
                 In this case, Dr. Sceats, to whom claimant's authorized 
 
            physician, Dr. Walker, referred claimant, advised claimant 
 
            to continue seeing Dr. Burson for chiropractic manipulation 
 
            if claimant continued to receive benefit from such 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            manipulation.  While Dr. Burson is not a medical doctor, Dr. 
 
            Sceats' referral to him is not substantially different from 
 
            a referral to a physical therapist or any other practitioner 
 
            or healing arts other than a medical doctor.  Claimant acted 
 
            reasonably and within the directives of an authorized 
 
            physician in continuing treatment with Dr. Burson.  
 
            Defendants are liable for the costs of claimant's 
 
            chiropractic care with Dr. Burson.  Defendants are also 
 
            liable for claimant's medical mileage expenses with Dr. 
 
            Burson and with other care providers.  We note the 
 
            inconsistency in defendants' payment for medical care with 
 
            other providers, while failing to reimburse for medical 
 
            mileage as the law requires.
 
            
 
                 We consider the question of claimant's rate of 
 
            compensation.
 
            
 
                 Iowa Code section 85.36(6) states:
 
            
 
                 In the case of an employee who is paid on a daily, 
 
                 or hourly basis, or by the output of the employee, 
 
                 the weekly earnings shall be computed by dividing 
 
                 by thirteen the earnings, not including overtime 
 
                 or premium pay, of said employee earned in the 
 
                 employ of the employer in the last completed 
 
                 period of thirteen consecutive calendar weeks 
 
                 immediately preceding the injury.
 
            
 
                 Iowa Code sections 85.61(3) and (6)(b) state:
 
            
 
                 3.  "Gross earnings" means recurring payments by 
 
                 employer to the employee for employment, before 
 
                 any authorized or lawfully required deduction or 
 
                 withholding of funds by the employer, excluding 
 
                 irregular bonuses, retroactive pay, overtime, 
 
                 penalty pay, reimbursement of expenses, expense 
 
                 allowances, and the employer's contribution for 
 
                 welfare benefits.
 
            
 
                 . . . .
 
            
 
                 6.  "Payroll taxes" means an amount, determined by 
 
                 tables adopted by the industrial commissioner 
 
                 pursuant to chapter 17A, equal to the sum of the 
 
                 following:
 
            
 
                 . . . .
 
            
 
                 b.  An amount equal to the amount which would be 
 
                 withheld pursuant to withholding tables in effect 
 
                 on July 1 preceding the injury under chapter 422, 
 
                 and any rules pursuant thereto, as though the 
 
                 employee had elected to claim the maximum number 
 
                 of exemptions for actual dependency, blindness and 
 
                 old age to which the employee is entitled on the 
 
                 date on which the employee was injured.
 
            
 
                 As noted above, claimant's per diem amounts represented 
 
            an expense allowance and are excluded from gross earnings.  
 
            The maximum number of exemptions to which claimant was 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            entitled when injured was that of a married person entitled 
 
            to one exemption.  Claimant's total gross earnings in the 13 
 
            full weeks immediately preceding August 17, 1989 were 
 
            $5,989.87.  Such represents a gross weekly wage of $460.76.  
 
            Under the rate table in effect on August 17, 1989, 
 
            claimant's weekly rate of compensation then is $280.42.
 
            
 
                 We consider the penalty question.
 
            
 
                 Section 86.13 permits an award of up to 50 percent of 
 
            the amount of benefits delayed or denied if a delay in 
 
            commencement or termination of benefits occurs without 
 
            reasonable or probable cause or excuse.  The standard for 
 
            evaluating the reasonableness of defendants' delay in 
 
            commencement or termination is whether the claim is fairly 
 
            debatable.  Where a claim is shown to be fairly debatable, 
 
            defendants do not act unreasonably in denying payment.  See 
 
            Stanley v. Wilson Foods Corp., File No. 753405 (App. August 
 
            23, 1990); Seydel v. Univ. of Iowa Physical Plant, File No. 
 
            818849 (App. November 1, 1989).
 
            
 
                 Defendants terminated claimant's temporary total or 
 
            healing period benefit effective February 15, 1990 after Dr. 
 
            Walker made a reference to claimant's back pain worsening 
 
            subsequent to carrying firewood.  Defendants terminated on 
 
            the guise that the medical note indicated an aggravation on 
 
            account of carrying firewood.  Defendants' authorized 
 
            physician, in his January 25, 1990 medical note, while not 
 
            retracting the statement that claimant had stated claimant 
 
            carried firewood, clearly stated that claimant's 
 
            then-current symptomatology related to the underlying work 
 
            injury.  Defendants did not reinstate benefits.  While the 
 
            doctor had also released claimant for light-duty work as of 
 
            that date, it is clear that the doctor's light-duty release 
 
            did not permit claimant to do work substantially similar to 
 
            the work he had been doing when injured.  It cannot be said 
 
            that defendant's choice to terminate benefits effective 
 
            February 15, 1990 and then not reinstate them after receipt 
 
            of Dr. Walker's medical note of January 25, 1990, was 
 
            reasonable.  Given Dr. Walker's express statement in his 
 
            note of January 25, 1990, claimant's entitlement to 
 
            temporary total disability or healing period benefits at 
 
            that time was not fairly debatable.  Defendants did not 
 
            recommence benefits until July 18, 1990 when they 
 
            recommenced benefits which they characterized as permanent 
 
            partial disability benefits.  As noted above, any 
 
            recommenced benefits received through November 30, 1990 are 
 
            properly characterized as healing period benefits.  Claimant 
 
            is entitled to an award of additional benefits for the 
 
            period from February 15, 1990 through July 18, 1990, which 
 
            award of additional benefits shall be in the amount of 25 
 
            percent of benefits to which claimant was entitled in that 
 
            period.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Defendants pay claimant healing period benefits at the 
 
            rate of two hundred eighty and 42/100 dollars ($280.42) per 
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            week from his date of injury through November 30, 1990.
 
            
 
                 Defendants pay claimant permanent partial disability 
 
            benefits for one hundred seventy-five (175) weeks at the 
 
            rate of two hundred eighty and 42/100 dollars ($280.42) per 
 
            week with those payments to commence on December 1, 1990.
 
            
 
                 Defendants pay claimant twenty-five percent (25%) 
 
            additional benefits for benefits denied claimant from 
 
            February 15, 1990 through July 18, 1990.
 
            
 
                 Defendants pay claimant costs related to claimant's 
 
            chiropractic care with Dr. Burson in the total amount of two 
 
            thousand nine hundred thirty-seven and 53/100 dollars 
 
            ($2,937.53).
 
            
 
                 Defendants pay claimant mileage expenses totalling one 
 
            thousand nine hundred fifty-nine (1,959) miles at the rate 
 
            of twenty-one cents ($.21) per mile.
 
            
 
                 Defendants pay accrued amounts in a lump sum.
 
            
 
                 Defendants receive credit for benefits previously paid.
 
            
 
                 Defendants pay interest pursuant to section 85.30, as 
 
            amended.
 
            
 
                 Defendants pay costs pursuant to rule 343 IAC 4.33.
 
            
 
                 Defendants file claim activity reports as requested by 
 
            the agency pursuant to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ______ day of ____________, 1991.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          HELENJEAN WALLESER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Richard G. Book
 
            Attorney at Law
 
            500 Liberty Building
 
            Des Moines, Iowa  50309
 
            
 
            Mr. Timothy C. Hogan
 
            Attorney at Law
 
            4th Floor, Equitable Building
 
            Des Moines, Iowa  50309
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
                           5-1108; 1802; 5-1803
 
                           2500; 3001; 3002; 4000.2
 
                           Filed November 1, 1991
 
                           HELENJEAN WALLESER
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            DENNIS KOOKER, :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :         File No. 933568
 
            MIDWEST VIKING, INC.,    :
 
                      :      A R B I T R A T I O N
 
                 Employer, :
 
                      :         D E C I S I O N
 
            and       :
 
                      :
 
            AETNA CASUALTY & SURETY  :
 
            COMPANY,  :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ____________________________________________________________
 
            
 
            5-1108; 5-1803
 
            Forty-year-old male claimant, whose only work experience was 
 
            as a trucker and whose injury precluded long-haul trucking 
 
            as well as heavy lifting and who had completed eleventh 
 
            grade, awarded 35 percent permanent partial disability.
 
            
 
            1802
 
            Healing period ran until claimant terminated recommended 
 
            work hardening.  While claimant testified he could not 
 
            afford to continue program, claimant did not seek mileage 
 
            reimbursement to permit his attendance.
 
            
 
            3001; 3002
 
            Per diem amount, expressly designated as meal expense and so 
 
            explained to claimant, was an expense allowance and not part 
 
            of gross weekly wage.  Married claimant, who was informally 
 
            separated from his wife and two minor children on date of 
 
            injury and who paid no support and had no court ordered 
 
            obligation to pay support, was married entitled to one 
 
            exemption on date of injury.
 
            
 
            4000.2
 
            Penalty of 25 percent of benefits wrongfully terminated 
 
            awarded where defendants terminated benefits as a result of 
 
            medical note reporting nonwork aggravation of claimant's 
 
            condition and did not reinstate them after doctor expressly 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            related claimant's symptoms to work injury and then released 
 
            claimant for light duty for which claimant was not qualified 
 
            and which was not work substantially similar to claimant's 
 
            work on date of injury.
 
            
 
            2500
 
            Where physician to whom authorized physician had referred 
 
            claimant advised claimant to continue chiropractic 
 
            manipulation if claimant received benefit from chiropractic 
 
            manipulation, claimant was entitled to payment of costs of 
 
            chiropractic care.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            HERBERT BEAMON, JR.,          :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :  File Nos.  933573 & 933574
 
            LENNOX INDUSTRIES,            :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            EMPLOYERS MUTUAL,             :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                               STATMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Herbert 
 
            Beamon, Jr., as a result of injuries to his back, neck, 
 
            right elbow, right shoulder, left leg and groin which 
 
            occurred on November 21, 1989 and November 29, 1989.  
 
            Defendants denied compensability for the injuries, paid no 
 
            weekly benefits and paid some medical expenses.
 
            
 
                 The case was heard and fully submitted at Des Moines, 
 
            Iowa, on March 22, 1991.  The record in the proceeding 
 
            consists of joint exhibits 1 through 35 and testimony from 
 
            claimant.
 
            
 
                                      issues
 
            
 
                 The issues presented for determination in both file 
 
            numbers are as follows:
 
            
 
                 1.  Arising out of and in the course of employment;
 
            
 
                 2.  Casual connection to temporary disability and the 
 
            extent of temporary disability;
 
            
 
                 3.  Causal connection to permanent disability and the 
 
            extent of industrial disability;
 
            
 
                 4.  Commencement date for permanent partial disability;
 
            
 
                 5.  Iowa Code section 85.27 medical benefits; and
 
            
 
                 6.  Taxation of costs.
 
            
 
                                 findings of fact
 
            
 
                 Having considered all the evidence received the 
 
            following findings of fact are made:
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                 Claimant, now age 34, began work for employer Lennox 
 
            Industries in August 1986 as a production worker.  On 
 
            November 21, 1989, claimant worked in employer's factory as 
 
            an assemblyman.  Claimant testified that on November 21, 
 
            1989, he stepped off a platform near his work area and 
 
            injured his low back.  Claimant described his injury as 
 
            lumbar strain.  Claimant stated that he completed the day of 
 
            work for employer and did not immediately seek medical 
 
            treatment.  Claimant testified that he first sought medical 
 
            treatment for the low back pain on November 27, 1989, from 
 
            Lloyd Thurston, D.O.
 
            
 
                 On November 29, 1989, claimant stated that while at 
 
            work for employer he fell on his right elbow and right low 
 
            back when crossing some rails.  Claimant stated that after 
 
            20 to 25 minutes, he felt pain in his groin and went to 
 
            employer's nurse's station for treatment.  Claimant saw Dr. 
 
            Thurston for treatment and was released to work light duty 
 
            (exhibit 5).  Employer offered claimant light duty work and 
 
            no lost time resulted at that time.
 
            
 
                 The diagnosis by Dr. Thurston was acute lumbar 
 
            paraspinous muscle strain.  Claimant received physical 
 
            therapy for a period of time and was returned to employment 
 
            without work restrictions on December 12, 1989 (exhibit 8).  
 
            
 
                 Claimant continued working for employer until February 
 
            14, 1990, when he was discharged from employment allegedly 
 
            due to an unauthorized absence.
 
            
 
                 Claimant has not worked nor has he sought employment 
 
            subsequent to February 14, 1990.
 
            
 
                 In October 1990 claimant was severely beaten about the 
 
            head and chest.  He was hospitalized for about five days as 
 
            a result of the incident.
 
            
 
                 At the time of hearing, claimant alleged that he is 
 
            unable to bend over, has pain in his neck, right elbow and 
 
            left leg.  Claimant also alleged that he has headaches and 
 
            cannot sit for long periods of time.
 
            
 
                 The first issue concerns whether claimant sustained an 
 
            injury to his low back on November 21, 1989, arising out of 
 
            and in the course of employment with employer.  It is 
 
            claimant's burden to prove by a preponderance of the 
 
            evidence that the low back pain was caused by an injury of 
 
            November 21, 1989. 
 
            
 
                 In this case it is found that claimant has failed to 
 
            prove that an injury occurred November 21, 1989.  First, 
 
            claimant did not seek medical treatment on November 21, 
 
            1989.  It is documented that claimant took off five point 
 
            eight hours of time for personal business on November 21, 
 
            1989 (ex. 3).  Claimant then delayed his request for 
 
            treatment until November 27, 1989.  It is noted that a 
 
            holiday weekend occurred between the alleged injury of 
 
            November 21, 1989, and the first treatment on November 27, 
 
            1989.
 
            
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                 In summary, claimant offered insufficient evidence 
 
            which links his back pain to an incident which occurred at 
 
            work on November 21, 1989 (ex. 10).  Claimant has failed to 
 
            prove an injury on November 21, 1989, that arose out of and 
 
            in the course of employment with employer and his petition 
 
            in file number 933574 is dismissed.  Claimant takes nothing 
 
            from file number 933574.
 
            
 
                 The next issue in file number 933573 concerns whether 
 
            claimant sustained an injury on November 29, 1989, arising 
 
            out of and in the course of employment with employer.
 
            
 
                 Claimant's testimony that he slipped and fell while 
 
            working for employer was essentially unchallenged.  The 
 
            medical records and claimant's testimony revealed that on 
 
            November 29, 1989, claimant sustained an abrasion to the 
 
            right upper extremity and a right shoulder strain (ex. 4). 
 
            
 
                 Based upon claimant's unrefuted testimony and the 
 
            corroborating medical records it is found that on November 
 
            29, 1989, claimant sustained an injury to his right 
 
            shoulder, back and right elbow arising out of and in the 
 
            course of employment with employer.
 
            
 
                 The next issue concerns claimant's entitlement to Iowa 
 
            Code section 85.27 medical benefits.  Claimant sought 
 
            treatment from numerous medical providers.  However, the 
 
            only medical expenses that are appropriately compensable are 
 
            those which are causally connected to treatment for the 
 
            November 29, 1989 injury.
 
            
 
                 In this matter, claimant began his medical treatment on 
 
            November 29, 1989, and continued seeking treatment through 
 
            the date of the hearing.  It is obvious from the medical 
 
            reports that the medical providers had difficulty relating 
 
            the treatment to the November 29, 1989 injury.  No one 
 
            medical provider specifically found that claimant had 
 
            symptoms directly caused by the injury of November 29, 1989.  
 
            However, Dr. Thurston continuously restricted claimant from 
 
            full duty work until December 21, 1989 (ex. 8).  On that 
 
            date claimant was given an unrestricted released to return 
 
            to work.  This release to work indicates that claimant had 
 
            achieved a point where significant improvement was not 
 
            expected in claimant's condition.  It is also noted that on 
 
            December 14, 1989, the physical therapist documented 
 
            claimant's limp as much less pronounced when he wasn't aware 
 
            of being observed (ex. 6).
 
            
 
                 The medical evidence when considered in connection with 
 
            the fact that claimant had been able to work continually 
 
            until December 21, 1989, leads to the conclusion that the 
 
            work injury had resolved itself by December 21, 1989.  It is 
 
            found that starting November 29, 1991, and continuing 
 
            through December 21, 1989, claimant incurred medical 
 
            expenses which were reasonable and necessary for the 
 
            treatment of his November 29, 1989 injury.  All medical 
 
            expenses incurred for treatment of pain during that period 
 
            are compensable.
 
            
 
                 Subsequent to December 21, 1989, claimant incurred Iowa 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            Code section 85.27 expenses with numerous doctors.  The 
 
            various medical providers were unable to causally connect 
 
            the examinations and treatment to the November 21, 1989, 
 
            work injury (exs. 10, 24, 27).  The medical reports for the 
 
            most part revealed normal findings subsequent to December 
 
            21, 1989 (exs. 10, 11, 14, and 24).  Only J.C. Schoon, D.O., 
 
            found some positive symptoms (ex. 26).  Dr. Schoon's opinion 
 
            is rejected as he saw claimant on only one occasion long 
 
            after the incident in question.  Dr. Thurston's opinions and 
 
            conclusions are found to be more reliable as he was 
 
            claimant's family physician and was far more familiar with 
 
            claimant's overall medical history.
 
            
 
                 In conclusion, claimant has failed to prove by a 
 
            preponderance of the evidence that the medical treatment 
 
            received subsequent to December 21, 1989, was causally 
 
            connected to the November 29, 1989 injury.  All medical 
 
            expenses incurred subsequent to December 21, 1989, are not 
 
            compensable.
 
            
 
                 The next issue is whether the November 29, 1989, injury 
 
            is a cause of permanent disability.  No medical professional 
 
            opined that claimant suffered permanent impairment as a 
 
            result of the November 29, 1989 injury.  Dr. Thurston opined 
 
            on April 30, 1990, that no permanent disability resulted 
 
            from the injury (ex. 24).
 
            
 
                 Dr. Thurston did impose a 30-pound permanent work 
 
            restriction upon claimant in January 1990 (ex. 10).  
 
            However, the work restrictions was not linked to the injury 
 
            of November 29, 1989.  It is found that claimant has failed 
 
            to prove by a preponderance of the evidence that the 
 
            November 29, 1989, injury was a cause of permanent 
 
            disability.
 
            
 
                 The next issue concerns claimant's entitlement to 
 
            temporary disability.  Claimant's entitlement to lost time 
 
            benefits ends when claimant returns to work or is capable of 
 
            performing work similar to that performed at the time of 
 
            injury.  In this matter claimant lost no time from work 
 
            until  his discharge in February 1990.  Having already found 
 
            that claimant reached his healing plateau on December 21, 
 
            1989, it follows that claimant has failed to prove that the 
 
            November 19, 1989, injury is a cause of temporary disability 
 
            as claimant immediately returned to work after the injury.
 
            
 
                 The final issue concerns taxation of costs.  Since each 
 
            party prevailed in one case it follows that the parties 
 
            should pay their own respective costs.  Defendants are to 
 
            pay for the attendance of the court reporter at the hearing 
 
            of March 22, 1991.
 
            
 
                                conclusions of law
 
            
 
                 The injury must both arise out of and be in the course 
 
            of the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 
 
            Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 
 
            of the Iowa Report.  See also Sister Mary Benedict v. St. 
 
            Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (l963) and Hansen 
 
            v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958).
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
                 The words "out of" refer to the cause or source of the 
 
            injury.  Crowe, 246 Iowa 402, 68 N.W.2d 63. 
 
            
 
                 The words "in the course of" refer to the time and 
 
            place and circumstances of the injury.  McClure v. Union 
 
            et al. Counties, 188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 
 
            402, 68 N.W.2d 63. 
 
            
 
                 Claimant has failed to prove that he sustained an 
 
            injury to his low back on November 21, 1989, arising out of 
 
            and in the course of employment with employer.  Claimant 
 
            shall take nothing in file number 933574.
 
            
 
                 Claimant has sustained his burden in proving that he 
 
            sustained an injury to his right shoulder, back and right 
 
            elbow on November 29, 1989, arising out of and in the course 
 
            of employment with employer in file number 935573.
 
            
 
                 The employer, for all injuries compensable under 
 
            chapter 85 or chapter 85A, shall furnish reasonable 
 
            surgical, medical, dental, osteopathic, chiropractic, 
 
            podiatric, physical rehabilitation, nursing, ambulance and 
 
            hospital services and supplies; therefore, and shall allow 
 
            reasonable necessary transportation expenses incurred for 
 
            such services.  The employer has the right to choose the 
 
            provider of care.  Iowa Code section 85.27.
 
            
 
                  "Claimant is not entitled to reimbursement for medical 
 
            bills unless he shows that he paid them from his own funds."  
 
            See Caylor v. Employers Mut. Cas. Co., 337 N.W.2d 890 
 
            (Iowa App. 1983).
 
            
 
                 Claimant has proven entitlement to medical benefits in 
 
            file number 933573 beginning November 29, 1989, and 
 
            continuing through December 21, 1989.  Claimant is entitled 
 
            to reimbursement for such expenses only to the extent they 
 
            were paid for by claimant's funds.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of November 
 
            29, 1989, is causally related to the disability on which he 
 
            now bases his claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 
 
            133 N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 
 
            296, 18 N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 Section 85.34(1), Code of Iowa, provides that healing 
 
            period benefits are payable to an injured worker who has 
 
            suffered permanent partial disability until (1) he has 
 
            returned to work; (2) is medically capable of returning to 
 
            substantially similar employment; or (3) has achieved 
 
            maximum medical recovery.  The industrial commissioner has 
 
            recognized that healing period benefits can be interrupted 
 
            or intermittent.  Willis v. Lehigh Portland Cement Company, 
 
            Vol. 2-1, State of Iowa Industrial Commissioner Decisions, 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            485 (1984).
 
            
 
                 The end of the healing period occurs at the time when 
 
            the physicians indicate that no further improvement is 
 
            forthcoming.  It is not determined by hindsight looking back 
 
            to find the point at which recovery ceased.  Thomas v. 
 
            William Knudson & Son, Inc., 394 N.W.2d 124, 126 (Iowa App. 
 
            1984); Armstrong Tire & Rubber Co. v. Kubli, 312 N.W.2d 60 
 
            (Iowa App. 1981).
 
            
 
                 Claimant has failed to prove by a preponderance of the 
 
            evidence that the injury of November 29, 1989, caused 
 
            temporary and/or permanent disability.
 
            
 
                 All costs incurred in the hearing before the deputy 
 
            commissioner shall be taxed in the discretion of the deputy 
 
            commissioner unless otherwise required by the rule of civil 
 
            procedure governing discovery.  Iowa Code section 86.40.  
 
            Rule 343 IAC 4.33.
 
            
 
                 The parties are to pay their own respective costs with 
 
            defendants paying for the court reporter attendance.
 
            
 
                                      order
 
            
 
                 IT IS THEREFORE, ORDERED:
 
            
 
                 Claimant shall take nothing in file number 933574.
 
            
 
                 Claimant's petition in file number 933574 is dismissed.
 
            
 
                 In file number 933573 claimant is entitled to medical 
 
            benefits related to treatment of the November 29, 1989 
 
            injury beginning November 29, 1989 and ending December 21, 
 
            1989.
 
            
 
                 The parties shall pay their own costs and defendants 
 
            shall pay for the attendance of the court reporter at 
 
            hearing.
 
            
 
                 Signed and filed this ____ day of May, 1991.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          MARLON D. MORMANN
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Thomas P. Slater
 
            Attorney at Law
 
            STE 500 Saddlery Bldg.
 
            309 Court Ave.
 
            Des Moines, Iowa  50309
 
            
 
            Mr. D. Brian Scieszinski 
 
            Attorney at Law
 
            801 Grand Ave STE 3700
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            Des Moines, Iowa  50309
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      5-1100; 51402.30; 51801;
 
                      51803; 52500
 
                      Filed May 1, 1991
 
                      MARLON D. MORMANN
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            HERBERT BEAMON, JR.,     :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :      File No.933573 & 933574
 
            LENNOX INDUSTRIES,  :
 
                      :       A R B I T R A T I O N
 
                 Employer, :
 
                      :          D E C I S I O N
 
            and       :
 
                      :
 
            EMPLOYERS MUTUAL,   :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            51100; 51402.30; 51801; 51803; 52500
 
            Claimant alleged two back injuries while working for 
 
            employer.  Claimant lost no work from either injury until 
 
            his discharge which occurred 4 months after the injury.  
 
            Claimant failed to prove first alleged injury but did prove 
 
            that the second back injury.  Medical benefits awarded 
 
            during the period that the treating doctor found causation.  
 
            No evidence of permanent disability.  Doctors unable to 
 
            objectively verify any injury or reason for pain.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      5-1100; 51402.30; 51801;
 
                      51803; 52500
 
                      Filed May 1, 1991
 
                      MARLON D. MORMANN
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            HERBERT BEAMON, JR.,     :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :      File No.933573 & 933574
 
            LENNOX INDUSTRIES,  :
 
                      :       A R B I T R A T I O N
 
                 Employer, :
 
                      :          D E C I S I O N
 
            and       :
 
                      :
 
            EMPLOYERS MUTUAL,   :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            51100; 51402.30; 51801; 51803; 52500
 
            Claimant alleged two back injuries while working for 
 
            employer.  Claimant lost no work from either injury until 
 
            his discharge which occurred 4 months after the injury.  
 
            Claimant failed to prove first alleged injury but did prove 
 
            that the second back injury.  Medical benefits awarded 
 
            during the period that the treating doctor found causation.  
 
            No evidence of permanent disability.  Doctors unable to 
 
            objectively verify any injury or reason for pain.