BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         ____________________________________________________________
 
                                       :
 
         PAULINE MILLER,               :
 
                                       :
 
              Claimant,                :
 
                                       :
 
         vs.                           :
 
                                       :       File No. 935811
 
         CASEY'S GENERAL STORE,        :
 
                                       :         A P P E A L
 
              Employer,                :
 
                                       :       D E C I S I O N
 
         and                           :
 
                                       :
 
         EMPLOYERS MUTUAL COMPANIES,   :
 
                                       :
 
              Insurance Carrier,       :
 
              Defendants.              :
 
         ___________________________________________________________
 
         
 
         
 
              The record, including the transcript of the hearing before 
 
         the deputy and all exhibits admitted into the record, has been 
 
         reviewed de novo on appeal.
 
         
 
                                      ISSUES
 
         
 
              Defendants state the following issues on appeal:
 
         
 
                 1.  Whether the claimant proved by a preponderance 
 
              of the evidence that there was a substantial change in 
 
              her condition entitling her to an increased award of 
 
              80% industrial disability.
 
         
 
                 2.  Whether or not the knee injury arose out of the 
 
              accident on October 11, 1989 thereby entitling her to 
 
              medical care for said knee injury.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              The findings of fact contained in the proposed agency 
 
         decision filed November 22, 1993 are adopted as set forth below.  
 
         Segments designated by asterisks (*****) indicate portions of the 
 
         language from the proposed agency decision that have been 
 
         intentionally deleted and do not form a part of this final agency 
 
         decision.
 
         
 
              Claimant is 46 years old and finished the seventh grade in 
 
         school and started the eighth grade but did not finish.  She has 
 
         not received her GED.  Claimant has received no other education 
 
         or technical training.
 
         
 
              Claimant related her work history.  Claimant began working 
 
         for defendant employer in the summer of 1988.  Official notice 
 
         was taken of claimant's prior decisions and the file in this 
 
         case.  In her testimony in the arbitration decision, which was 
 

 
         
 
         Page   2
 
         
 
         
 
         
 
         
 
         rendered in July 1991, claimant indicated she began working for 
 
         Casey's in August 1987.  She also, at that time, indicated she 
 
         had completed the tenth grade of school.
 
         
 
              The claimant described the nature of her work at Casey's 
 
         which involved working with the ice machines and filling the 
 
         coolers, working in the doughnut department lifting frosting, 
 
         mixing dough and also she helped unload trucks.
 
         
 
              Claimant related that prior to October 11, 1989, she had a 
 
         very active life.  She had a garden and did plumbing work.
 
         
 
              On October 11, 1989, claimant slipped and fell while walking 
 
         across the floor which had been sprayed by a grease material.  
 
         She twisted her back as she fell and went down on her left leg.  
 
         She indicated her ankle and knee cap also hurt.
 
         
 
              Thomas C. Bush, M.D., released claimant to return to 
 
         part-time employment commencing March 19, 1991.
 
         
 
              Leslie C. Hellbusch, M.D., released claimant to part-time 
 
         work as of March 18, 1991 and imposed restrictions of no lifting 
 
         over 20 pounds, no repetitive back bending and recommending 
 
         alternating between sitting and standing.  At that time the 
 
         doctor reported that claimant had a 20 percent permanent partial 
 
         disability to the body as a whole as a result of her low back 
 
         problem and surgical procedures.  He did not think that claimant 
 
         had reached her maximum level of recuperation yet but that she 
 
         would probably reach this within the next six to twelve months.  
 
         He thought that claimant eventually would be able to work an 
 
         eight hour day.
 
         
 
              Claimant testified that she got along great when she 
 
         returned to work and that she did not have to unload the truck.  
 
         She said she was not able to do that.  She testified as to the 
 
         weight of the doughnut flour which she estimated at 25 pounds.  
 
         She indicated she had to bend and twist and she had to stand all 
 
         the time as Casey's will not allow sitting.
 
         
 
              Claimant related that there were many years when she did not 
 
         have to work but in 1991, she needed to work because she needed 
 
         the money as her husband's business was not good.  Claimant said 
 
         she experienced pain when she returned to work and that this pain 
 
         affected her attitude and she became discouraged when she found 
 
         out she was going downhill.
 
         
 
              Claimant left Casey's in July 1991 as the pain was too much.  
 
         She indicated the doctor told her to give it up.  Claimant 
 
         indicated that she could not do things at home anymore because of 
 
         her pain and that the doctor prescribed Elavil for depression in 
 
         1991.
 
         
 
              Claimant said that Dr. Hellbusch indicated in September 1991 
 
         she should go to a pain clinic to learn to live with her pain.  
 
         She indicated she was scheduled to go to a clinic in Nebraska but 
 
         she had to get the workers' compensation carrier to okay her 
 
         going.  She said that the workers' compensation carrier would not 
 
         pay and she did not have insurance, so she was unable to go.
 

 
         
 
         Page   3
 
         
 
         
 
         
 
         
 
              Claimant said she has not applied for work after she left 
 
         Casey's because she cannot work and cannot stand because her pain 
 
         is so great.  She said she has only done physical work during her 
 
         life and has not done any typing and things of that nature.
 
         
 
              Claimant indicated her husband's business has failed and was 
 
         sold in July 1993.  Claimant related she is very depressed and 
 
         wants psychiatric help.  She said she is depressed because she 
 
         cannot work and that financially she needs to work and it is 
 
         important to her to be able to do things.  Claimant testified in 
 
         her prior arbitration hearing that in June of 1988, the doctor 
 
         noticed improvement as to claimant's previous symptoms in that 
 
         she no longer had any leg pain.  She was advised then to 
 
         gradually increase her walking.  Claimant now says that her left 
 
         knee swells and holds fluid when she gets active and gets a knot 
 
         two inches above the knee.  She said that in June of 1991 her 
 
         knee was not bothering her like it is now.  Claimant contends 
 
         that her disability has increased since June 1991, at which time 
 
         she thought she was able to work.  She now says she cannot do 
 
         anything.  Claimant would like to have her left knee examined as 
 
         she thinks it would help.  Claimant feels she is totally disabled 
 
         now and in 1991, she did not think so.
 
         
 
              Claimant said she now has pain in her cervical spine which 
 
         goes into her left arm and sometimes into her right arm and 
 
         shoulder.  She said she never had this pain prior to October 11, 
 
         1989.  She said her left upper extremity and neck pain came about 
 
         after her last trial.
 
         
 
              On cross-examination, claimant was referred to several areas 
 
         of her testimony from her first trial in June of 1991.  Several 
 
         of those areas were things claimant could not do then that she 
 
         also contends she cannot do now.  The question arose as to 
 
         whether claimant actually has any change of circumstances or 
 
         things she cannot do now that she could do then.  She 
 
         acknowledged that Casey's did not ask her to exceed her 
 
         restrictions.
 
         
 
              Claimant was asked concerning her depression and whether her 
 
         husband losing his business and selling their home and moving to 
 
         Florida had any effect on her.  Claimant indicated that knowing 
 
         her condition and having to move to Florida and her husband's 
 
         medical condition has upset her.  She indicated her husband has a 
 
         disease that will kill him in six to seven months.  She said all 
 
         of these events, including her husband's illness, has contributed 
 
         to her depression.
 
         
 
              Claimant again indicated that she has made no efforts since 
 
         July 31, 1991 to find employment or to obtain any further 
 
         education.  She said she would like to work if she could.  She 
 
         indicated Leslie C. Hellbusch, M.D., changed her restrictions 
 
         from 20 pounds to 25.  (Dr. Hellbusch's September 27, 1991 
 
         report, Jt. Ex. 27; May 24, 1991 report, Jt. Ex. 24)
 
         
 
              Claimant said she did not see Dr. Bush since her June 1991 
 
         hearing until February 25, 1993.  Claimant said the x-rays of her 
 
         left leg in February 1993 indicated she needed arthroscopy 
 

 
         
 
         Page   4
 
         
 
         
 
         
 
         
 
         surgery.
 
         
 
              Claimant's arbitration hearing on June 27, 1991 dealt 
 
         basically with claimant's complaint of low back pain and 
 
         left-sided leg pain.  Joint exhibit 2, page 5 of 8 pages of that 
 
         exhibit, shows that one day after said hearing, June 28, 1991, 
 
         claimant saw Wallace Carpenter, M.D., complaining of severe neck 
 
         pain, down the left arm and numbness.  Claimant was there July 2 
 
         and on July 10, 1991, at which time her neck was still hurting. 
 
         She was there for x-ray reports.  Dr. Carpenter indicated that 
 
         claimant should go back and see Dr. Hellbusch whom she saw for 
 
         her low back pain.
 
         
 
              On July 12, 1991, Dr. Carpenter's notes reflect that 
 
         claimant continues to have low back pain and has now developed 
 
         discomfort in her neck with pain, soreness and stiffness.  X-rays 
 
         showed a presence of some degenerative changes.  The doctor 
 
         indicated that he felt it would be detrimental for claimant to 
 
         continue any occupation where she must lift heavy objects, 
 
         especially while she might be looking up or to the side.  In May 
 
         of 1992, the doctor noted that claimant was starting to have some 
 
         degenerative changes in her knee joint and she had crepitus on 
 
         the left and there was already heat in it.  He also noted that 
 
         her weight has gone up to 161 pounds and was alarmed if she did 
 
         not reduce her weight.
 
         
 
              The January 7, 1993 notes of Dr. Carpenter reflect that 
 
         claimant continued to have a pain in her back and hip and the 
 
         inner aspect of her left knee.  It appears they are referring to 
 
         the low back and not to the cervical area.
 
         
 
              Joint exhibit 4 is a report of Dr. Carpenter.  In it he 
 
         opines that claimant had reached maximum benefit from the 
 
         operation and that he would rate her at 50 percent disabled to 
 
         the body as a whole.
 
         
 
              Leslie C. Hellbusch, M.D., a neurosurgeon, testified through 
 
         his deposition on October 11, 1993, represented by joint exhibit 
 
         54.  He testified his first contact with claimant was on April 
 
         17, 1990 which, at the time, she complained of back pain and 
 
         shooting pains to her left leg and tingling and numbness in the 
 
         whole left foot which she stated began when she fell at work in 
 
         October 1989.  
 
         
 
              The doctor acknowledged that claimant had microlumbar 
 
         dissector at L5-S1 on the left and a right partial 
 
         hemilaminectomy at L5-S1 with an operating microscope and a 
 
         bilateral posterior lateral fusion at L5-S1 by Dr. Bush, an 
 
         orthopedic surgeon.  He explained why they both did the surgeries 
 
         together on May 30, 1990.  (Jt. Ex. 54, pp. 6-6)  The doctor 
 
         acknowledged that when he was asked to form an opinion concerning 
 
         claimant's disability as a body as a whole regarding her first 
 
         trial, he rated claimant at 20 percent permanent disability to 
 
         the body as a whole and understood that it was the result of her 
 
         low back problem, in other words, the lumbar area and had nothing 
 
         to do with the left knee injury or injury to the cervical spine.
 
         
 
              The doctor acknowledged that at the time of his March 12, 
 

 
         
 
         Page   5
 
         
 
         
 
         
 
         
 
         1991 letter, he had returned claimant to work on a part-time 
 
         basis effective March 18, 1991, and that claimant's restrictions 
 
         at that time were no lifting over 20 pounds, no repetitive back 
 
         bending and that she would do best on a job in which she could 
 
         move from a sitting position to a standing position and vice 
 
         versa, as needed.  He also indicated that these would be in 
 
         effect for the next four to six weeks and anticipated that at the 
 
         end of that time the restrictions as far as lifting would become 
 
         less.  The doctor then acknowledged that per a letter of his of 
 
         May 24, 1991, he understood claimant was working approximately 
 
         half time and he felt that claimant would be back to an eight 
 
         hour day.  He had repeated the 20 pound lifting restriction and 
 
         no repetitive low back restrictions.
 
         
 
              Dr. Hellbusch then was referred to a deposition Dr. Bush had 
 
         given prior to claimant's June 27, 1991 trial.  He agreed with 
 
         Dr. Bush concerning Dr. Bush's explanation of the effect of scar 
 
         tissue of claimant's surgery upon her ability to do lifting and 
 
         that scarring of that type creates problems with people such as 
 
         claimant when they do lifting and carry weight.  He also agreed 
 
         with Dr. Bush as to the feeling that eventually claimant would be 
 
         able to go back to work eight hours days on a full-time basis and 
 
         that that feeling was incorporated in their 20 percent permanent 
 
         partial disability rating.  (Jt. Ex. 54, pp. 11-14)
 
         
 
              The doctor testified that the first time he saw claimant 
 
         after the June 27, 1991 trial was on September 26, 1991.  He 
 
         related claimant's complaints at that time.  He said claimant had 
 
         a decrease in range of motion in her back in all directions and 
 
         that he decreased her lifting no more than ten pounds and there 
 
         was to be no more repetitive low back bending.  An MRI was done 
 
         on the lower back and it was found that claimant had some 
 
         degenerative disc disease at those two levels and mild bulging at 
 
         the L4-5 disc.  He acknowledged that trauma will aggravate the 
 
         degenerative disc disease. (Jt. Ex. 54, pp. 15-16)
 
         
 
              The doctor then testified that he saw claimant again in 
 
         November of 1992 and February of 1993.  In November of 1992, he 
 
         put claimant on antidepressant medication as she was exhibiting 
 
         signs of depression.  He said by February 1993, Dr. Bush had 
 
         recommended an arthroscopy of the left knee.  She was on 
 
         medication for that.
 
         
 
              Dr. Hellbusch testified that he had told claimant on April 
 
         9, 1993, that she should try the University of Iowa Hospitals 
 
         pain clinic but claimant told him that it was turned down for 
 
         insurance reasons.  He then understood later that a complete 
 
         myelogram had been cancelled by the claimant because the 
 
         insurance company would not pay.
 
         
 
              The doctor acknowledged that the purpose of claimant's 
 
         myelogram and EMG was to evaluate further cause of claimant's 
 
         continued pain.  He indicated that there was a myelogram 
 
         conducted of claimant's cervical spine and her lumbar spine and 
 
         said that this was done with one insertion of the needle and one 
 
         inpatient admission.  (Jt. Ex. 54, pp. 21-22)
 
         
 
              The doctor then emphasized that when they are going to 
 

 
         
 
         Page   6
 
         
 
         
 
         
 
         inject a needle into a patient, they try to have the test as 
 
         comprehensive as possible.  The doctor indicated that when he 
 
         decided to do the myelogram to evaluate her low back problem, he 
 
         decided to do the cervical part of the test because she also had 
 
         some neck and arm complaints.
 
         
 
              The doctor acknowledged that when claimant saw him on 
 
         September 27, 1991, claimant was having problems with her neck 
 
         and he did not feel these were caused by her work accident on 
 
         October 19, 1989.
 
         
 
              The doctor said that he did not feel claimant's condition 
 
         had improved the way he had thought it would have but also 
 
         indicated that her permanent partial disability rating he had 
 
         earlier given her had not increased at that time in 1992.
 
         
 
              The doctor emphasized his suggestion that claimant go to the 
 
         pain clinic was because of her injury and pain in her lower back.  
 
         The doctor then at the end of his deposition further indicated he 
 
         based his observation that claimant had failed to improve to the 
 
         extent he had reasonably anticipated back in May of 1991 is 
 
         mainly because of claimant's objective inability to function 
 
         without pain.
 
         
 
              The doctor was cross-examined on several questions 
 
         concerning the medical bills and which ones were related to 
 
         claimant's low back and which ones to claimant's cervical spine, 
 
         the latter which the doctor acknowledged was not the result of 
 
         the October 1989 injury. (Jt. Ex. 54, pp. 29-37)
 
         
 
              Joint exhibits 9 through 24 is correspondence to or from 
 
         involving Dr. Hellbusch's treatment of claimant.  These documents 
 
         in many parts are referred to in Dr. Hellbusch's testimony in 
 
         joint exhibit 54 and will not be gone into in any further detail.  
 
         These exhibits were in reference to a point in time prior to 
 
         claimant's June 27, 1991 trial.
 
         
 
              Joint exhibit 28 is the June 29, 1992 letter of Dr. 
 
         Hellbusch in which he opined that claimant's condition regarding 
 
         her lower back and pain radiating into her legs has not worsened 
 
         since June 27, 1991 and that she still has a 20 percent permanent 
 
         partial disability of the body as a whole as a result of her low 
 
         back problem and surgical procedures.  He also said that 
 
         claimant's condition has failed to improve as well as he would 
 
         have hoped it would.
 
         
 
              The doctor reaffirmed his position in part on October 8, 
 
         1992, represented by joint exhibit 29.  Joint exhibit 31 is the 
 
         doctor's May 24, 1993 letter in which he affirmed that he asked 
 
         the claimant to have a complete myelogram and an EMG of her left 
 
         arm and left leg in a follow-up consultation with Dr. Bush which 
 
         was scheduled on May 4, 1993 but was cancelled for insurance 
 
         reasons.  He affirmed that prior to that he suggested she be seen 
 
         at the University Hospital pain clinic and this was also turned 
 
         down.  The doctor had referred to this situation in his 
 
         deposition testimony.
 
         
 
              Joint exhibits 33 through 40 are Dr. Bush's medical reports 
 

 
         
 
         Page   7
 
         
 
         
 
         
 
         dated prior to claimant's June 27, 1991 trial.  In his May 21, 
 
         1991 report, joint exhibit 39, he indicated he did not expect 
 
         claimant to be able to do heavy-type work in the future that 
 
         included bending, lifting, twisting, tugging or turning and did 
 
         not expect her to be able to lift over 15 or 20 pounds and that 
 
         it would not be at frequent intervals.  It is noted that Dr. 
 
         Hellbusch lowered that to 10 pounds since the trial.  There does 
 
         not appear to be in Dr. Bush's reports any acquiescence in that 
 
         change of circumstances as far as the amount of weight that can 
 
         be lifted since the June 27, 1991 hearing.
 
         
 
              Joint exhibit 41 is Dr. Bush's October 12, 1992 letter in 
 
         which he reaffirmed his 20 percent permanent partial disability 
 
         to the back as a whole opinion and indicated there is no change.  
 
         Whenever the doctors are using the word "disability," the reports 
 
         will be read to mean impairment and not industrial disability.
 
         
 
              Joint exhibit 42 is a February 22, 1993 letter of Dr. Bush 
 
         in which claimant was seen that date and had chondromalacia of 
 
         her left patella and a torn lateral meniscus.  Arthroscopy with 
 
         menisectomy was recommended.  On March 8, 1993, the doctor opined 
 
         that considering the patient's history and the type of condition 
 
         her left knee shows, those injuries were caused by claimant's 
 
         work injury on October 11, 1989. (Jt. Ex. 43)
 
         
 
              Joint exhibit 44(a) is a disability evaluation service 
 
         report dated September 24, 1993, in which D.M. Gammel, M.D., 
 
         opined that claimant had a 25 percent permanent impairment to her 
 
         body as a whole based on the AMA Guides to the Evaluation of 
 
         Permanent Impairment, using the combined value.  The doctor 
 
         indicated claimant had additionally developed depression over her 
 
         inability to pursue her normal daily activities and her chronic 
 
         pain.  In looking at this report, it is obvious that he 
 
         considered claimant's low back situation and her left knee only.  
 
         This is later set out in joint exhibit 44(b) as to how he arrived 
 
         at the 25 percent permanent impairment.
 
         
 
              Joint exhibit 47 is a report of Dr. Hellbusch and Kelly 
 
         Rydlund of August 24, 1993 which mentions the lumbar plus the 
 
         cervical neck problems of claimant.  Joint exhibit 46 is a report 
 
         of Dr. Hellbusch dated May 30, 1990 which was part of the first 
 
         trial and does not mention anything about claimant's cervical or 
 
         neck problems.
 
         
 
              Joint exhibit 48(a) is the Midlands Rehabilitation 
 
         Consultants' vocational evaluation which was dated June 1991, 
 
         prior to claimant's last hearing.  This same organization issued 
 
         a report on September 29, 1993, represented by joint exhibit 
 
         48(b).  In that report, the same certified professional counselor 
 
         opined that claimant's vocational capacity has deteriorated 
 
         currently with her medical condition and it is his opinion her 
 
         ability to perform employment has eroded from full-time 
 
         employment prior to the injury to part-time following the injury 
 
         to absolutely no employment since July 1991 to the present.  Said 
 
         counselor figured claimant was unemployable.  He further opined 
 
         that until the pain clinic and knee surgery are provided, there 
 
         simply does not exist a window of opportunity whereby vocational 
 
         rehabilitation services would be of benefit to the claimant.  He 
 

 
         
 
         Page   8
 
         
 
         
 
         
 
         went on to indicate that if these services were provided, he 
 
         would then be in a position to re-evaluate the claimant in terms 
 
         of determining whether she has potential to profit from 
 
         vocational rehabilitation services and if so a course of action 
 
         that would be most appropriate.  He referred to the fact that the 
 
         pain clinic procedures and surgical procedure recommended for the 
 
         knee impairment were not approved by defendant insurance company.
 
         
 
              Joint exhibits 55 and 56 are two of the medical bills that 
 
         are in dispute with defendants contending that it was also for 
 
         the cervical lumbar spine which defendants contend was not a part 
 
         of these proceedings and the most they would be responsible for 
 
         is that part that would have to do with the lumbar spine.
 
         
 
              Lileth Kahue testified through her deposition of September 
 
         30, 1993 that she knows claimant and had worked with her at 
 
         Casey's.  Ms. Kahue was the manager and had worked at Casey's six 
 
         years before claimant came to work for her.  She had high praise 
 
         for claimant who she indicated was a good and dedicated worker 
 
         and even continued finishing her work even though she had clocked 
 
         out.  She indicated claimant enjoyed her work and that it was 
 
         important to her.
 
         
 
              Gene Eaton testified through his deposition on September 30, 
 
         1993, that he is an attorney and that claimant took care of his 
 
         mother for a period of time.  He could not recall how long 
 
         claimant cared for his mother but it was several months.  He 
 
         testified as to what she did in caring for his mother which 
 
         included getting her in and out of bed, showering her and sitting 
 
         her in a chair.  He said as far as he knew she was a good worker 
 
         and had a good attitude.
 
         
 
              Claimant's exhibits 58 through 60 are bills that remain 
 
         unpaid.  Claimant's exhibit 59, which is a statement of court 
 
         costs from the arbitration action remaining unpaid, is of 
 
         concern.  Those were ordered paid in the arbitration decision 
 
         that was rendered on July 30, 1991.  Defendants were to pay the 
 
         costs of that action pursuant to rule 343 IAC 4.33.  Those costs 
 
         should not be an issue herein but claimant has remedies when 
 
         defendants do not comply with a decision and judgment 
 
         therein.*****
 
         
 
                 *****
 
         
 
              In this case at bar, the authorized doctors had recommended 
 
         certain treatment for this claimant and defendants refused to 
 
         give the treatment and to this date did not fully abide by the 
 
         authorized doctor's recommendations.
 
         
 
              On August 12, 1993, Deputy David Rasey heard an alternate 
 
         care hearing and in his decision indicated that defendants denied 
 
         that a causal nexus exists between the claimant's lower back and 
 
         lower extremity radicular symptoms.  The deputy indicated that 
 
         defendants have already been ordered to provide such medical care 
 
         by the arbitration decision and these recommendations are a part 
 
         of Dr. Hellbusch's ongoing treatment.  Defendants therefore were 
 
         accordingly ordered to furnish a lumbar myelogram and an EMG of 
 
         the left leg and an evaluation and treatment of those problems at 
 

 
         
 
         Page   9
 
         
 
         
 
         
 
         a pain clinic.  It appears that treatment at the pain clinic has 
 
         continued to be denied to this claimant by the defendants.  It 
 
         appears that part of this claimant's complaint is being litigated 
 
         for the second or third time.
 
         
 
              In the review-reopening action, claimant has the burden to 
 
         show a change of condition related to the injury since the 
 
         original award was made.  The change may be either economic or 
 
         physical or both.  Claimant's condition must have worsened or 
 
         deteriorated in a manner not contemplated at the time of the 
 
         initial award before an award on review-reopening is appropriate.
 
         
 
              Claimant has complained of cervical spine problems and 
 
         problems going into her upper extremity.  Although claimant 
 
         contends this is a result of her October 11, 1989 injury, the 
 
         record is very clear that claimant did not have cervical spine or 
 
         upper extremity complaint prior to her arbitration hearing on 
 
         June 27, 1991, and that her complaints in that respect began 
 
         after said date.  The medical evidence does not causally connect 
 
         claimant's cervical or upper extremity complaints or impairments 
 
         or disabilities to an October 11, 1989 injury.  It is therefore 
 
         found that any change in claimant's condition since June 27, 1991 
 
         involving the cervical spine and the upper extremities are not a 
 
         change of circumstances that are the responsibility of defendants 
 
         in this case and are not causally connected to an October 11, 
 
         1989 injury.
 
         
 
              Claimant contends an increase in problems to her left knee.  
 
         The greater weight of medical evidence indicates that claimant's 
 
         left knee problems are causally connected to claimant's October 
 
         11, 1989 injury and they have increased and are more severe since 
 
         her June 27, 1991 hearing.  It is not uncommon and it is the 
 
         agency's experience that when one has lumbar problems as claimant 
 
         has and surgeries claimant has had, this can affect other parts 
 
         of her body and, in particular, bring upon increased problems of 
 
         her lower extremity.  It is found that claimant's complaints are 
 
         more severe and there has been a change in the claimant's 
 
         physical condition since the arbitration hearing on June 27, 
 
         1991.
 
         
 
              Claimant contends that her lower back is worse than it was 
 
         at the time of her June 27, 1991 hearing.  Medical records show 
 
         that the doctors mainly involved in claimant's treatment as of 
 
         the June 27, 1991 hearing have not opined an increase in 
 
         claimant's percentage of impairment, namely, 20 percent, to the 
 
         present time.  In other words, as to those doctors, there has 
 
         been no increase in impairment.  There is medical evidence that 
 
         there is impairment higher than that opined by another doctor.  
 
         An impairment rating is only one item that is considered in 
 
         determining industrial disability.
 
         
 
              As to any other change since the June 27, 1991 hearing, 
 
         claimant has not worked since July of 1991 and therefore has had 
 
         no income.  As of her last hearing of June 1991, claimant was 
 
         working part-time and the medical evidence is clear that the 
 
         doctors mainly treating claimant anticipated claimant would get 
 
         better and would be able to return to full time employment.  It 
 
         is obvious at the time of the arbitration hearing that that was 
 

 
         
 
         Page  10
 
         
 
         
 
         
 
         the understanding of said deputy as the evidence was very clear 
 
         at that time of anticipation of claimant returning to full-time 
 
         employment with defendant employer.  This has not occurred.  
 
         Additionally, claimant's lifting restrictions of 25 pounds are 
 
         now 10 pounds. (Jt. Exs. 24 and 27)  The greater weight of 
 
         evidence shows that claimant is not able to perform the work she 
 
         was previously doing at Casey's and there is a question as to 
 
         whether sufficient accommodations could be made even with the 
 
         changed restrictions.
 
         
 
              The evidence shows that claimant has not made any effort to 
 
         find employment or to try to go back to Casey's.  There is no 
 
         recent evidence that Casey's has attempted to have claimant 
 
         return to work.
 
         
 
              Claimant contends that she has a psychological problem that 
 
         has developed since her June 1991 hearing and that this is 
 
         causally connected to her October 11, 1989 injury.  There is no 
 
         question this claimant has been fought at every stage of the game 
 
         and even, as indicated earlier, in questionable areas.  There 
 
         have been orders for defendants to do certain things and they 
 
         have not done it or it took another order to force them to do it.  
 
         This obviously can have a psychological effect on anyone.  
 
         Claimant has the burden of proof that her psychological problems 
 
         are the result of her injury of October 11, 1989 and have 
 
         occurred since her hearing of June 1991.  It is found that 
 
         claimant has failed to carry her burden of proof.  The evidence 
 
         shows that claimant has many other stresses in her life that 
 
         could bring about claimant's current situation.  Some of these 
 
         are, but not necessarily limited to, the fact that claimant 
 
         testified that she moved to Florida and it appears it was a move 
 
         she did not really want to make.  Her husband has apparently sold 
 
         his business and it appears he had to sell it and that he has a 
 
         disease that is terminal and she expects him to die in the very 
 
         near future.  She has had to sell her house even though she 
 
         indicated that was not stressful to her.  There is no psychiatric 
 
         report upon which to rely or determine what factors are the 
 
         greater cause of claimant's psychiatric problems.*****
 
         
 
              *****
 
         
 
              It would appear from the record that defendants should have 
 
         sent claimant to a pain clinic.  This might have solved some of 
 
         the defendants' exposure.  Although a pain clinic is not 
 
         necessarily a cure for the pain, it helps one to live with it and 
 
         hopefully stabilize a situation.  It is unknown what effect the 
 
         pain clinic might have.  Since defendants have previously been 
 
         ordered to send claimant to a pain clinic, it will be found that 
 
         claimant should be sent at defendants' expense to a pain clinic.
 
         
 
              It appears that the greater weight of medical evidence in 
 
         this case shows that claimant needs left knee surgery and that 
 
         this has been recommended by her authorized doctor(s).  
 
         Defendants shall provide a doctor to perform this knee surgery.  
 
         The doctors that shall be provided are those that are either 
 
         referred to by the current treating doctors or one chosen by the 
 
         employer in the locale where claimant lives which is presently a 
 
         particular town in the state of Florida. Any treatment or surgery 
 

 
         
 
         Page  11
 
         
 
         
 
         
 
         
 
         should be at a place convenient to the claimant.
 
         
 
              Claimant is not entitled to any additional healing period 
 
         that claimant allegedly claims she has incurred since the June 
 
         27, 1991 hearing.  Claimant has not carried her burden in this 
 
         regard under the total circumstances, there has not been a period 
 
         in which a healing period under the law could be granted.  There 
 
         is no question that upon claimant having any knee surgery, there 
 
         will be a healing period which defendants will be responsible 
 
         for.  There may be an argument later as to the extent of the 
 
         healing period but, at least, it is obvious there will be a 
 
         healing period involved.
 
         
 
              As to claimant going through the pain clinic and any healing 
 
         period that may allegedly be connected therewith, there would be 
 
         no healing period if the pain clinic is mainly the result of 
 
         going to the pain clinic to stabilize claimant's condition or 
 
         enable her to live with her disability or impairment.  If, in 
 
         fact, it is determined by medical evidence that the pain clinic 
 
         did, in fact, improve claimant's impairment or disability, then 
 
         in that case a healing period would be granted during that period 
 
         of time.*****Hopefully, defendants would posture themselves in a 
 
         mode to help the claimant and reduce its industrial disability 
 
         rather than set itself upon denying benefits and occurring 
 
         substantial legal fees, penalty and increased industrial 
 
         disability.
 
         
 
              *****
 
         
 
              Taking into consideration claimant's physical and economical 
 
         condition, now versus what existed on June 27, 1991; her age; her 
 
         present medical condition; her medical history and work history; 
 
         her education; the severity of her injury; the location; 
 
         functional impairment; the effect her present condition that has 
 
         resulted from her October 11, 1989 work injury has on her 
 
         employability; and, the fact that she is no longer employed, it 
 
         is found that the claimant currently has incurred a [60] percent 
 
         industrial disability and, therefor, has an additional [15] 
 
         percent industrial disability over and above what she had as of 
 
         June 27, 1991.
 
         
 
              The parties are disputing the payment of certain medical 
 
         bills.  The defendants contending that those parts of the bills 
 
         having to do with claimant's cervical spine should not be the 
 
         obligation of defendants.  As to claimant's exhibit 58, $2,209.80 
 
         should be all paid by defendants except for the $143 on August 
 
         24, 1993 titled "cervical spine-complete."  The medical testimony 
 
         supports that there was one injection made when the doctor was 
 
         doing a myelogram on the lumbar and cervical spine.  The doctor 
 
         also indicated that many of the supporting services would have 
 
         been done regardless of whether just the lumbar was done or the 
 
         cervical.  The doctor also indicated that it was best to have one 
 
         injection and cover both at the same time rather than to have two 
 
         different occasions in which there would be two injections.  It 
 
         is obvious from the medical testimony that the least number of 
 
         injections into the human body, particularly in the spine area, 
 
         the better it is for the claimant.  There are some expenses that 
 
         are not divisible.  The main reason originally was claimant's 
 

 
         
 
         Page  12
 
         
 
         
 
         
 
         lumbar spine complaints.
 
         
 
              As to claimant's exhibit 57 and the bill in the amount of 
 
         $168, defendants will pay this bill.  It appears that at the time 
 
         of going over the hearing assignment report, the parties agreed 
 
         before the beginning of testimony that there was no dis is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963).  
 
         Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961).
 
         
 
              A finding of impairment to the body as a whole found by a 
 
         medical evaluator does not equate to industrial disability.  This 
 
         is so as impairment and disability are not synonymous.  Degree of 
 
         industrial disability can in fact be much different than the 
 
         degree of impairment because in the first instance reference is 
 
         to loss of earning capacity and in the latter to anatomical or 
 
         functional abnormality or loss.  Although loss of function is to 
 
         be considered and disability can rarely be found without it, it 
 
         is not so that a degree of industrial disability is 
 
         proportionally related to a degree of impairment of bodily 
 
         function.
 
         
 
              Factors to be considered in determining industrial dis
 

 
         
 
         Page  13
 
         
 
         
 
         
 
         
 
         ability include the employee's medical condition prior to the 
 
         injury, immediately after the injury, and presently; the situs of 
 
         the injury, its severity and the length of healing period; the 
 
         work experience of the employee prior to the injury, after the 
 
         injury and potential for rehabilitation; the employee's 
 
         qualifications intellectually, emotionally and physically; 
 
         earnings prior and subsequent to the injury; age; education; 
 
         motivation; functional impairment as a result of the injury; and 
 
         inability because of the injury to engage in employment for which 
 
         the employee is fitted.  Loss of earnings caused by a job 
 
         transfer for reasons related to the injury is also relevant.  
 
         These are matters which the finder of fact considers collectively 
 
         in arriving at the determination of the degree of industrial 
 
         disability.
 
         
 
              There are no weighting guidelines that indicate how each of 
 
         the factors are to be considered.  There are no guidelines which 
 
         give, for example, age a weighted value of ten percent of the 
 
         total value, education a value of fifteen percent of total, 
 
         motivation - five percent; work experience - thirty percent, etc.  
 
         Neither does a rating of functional impairment directly correlate 
 
         to a degree of industrial disability to the body as a whole.  In 
 
         other words, there are no formulae which can be applied and then 
 
         added up to determine the degree of industrial disability.  It 
 
         therefore becomes necessary for the deputy or commissioner to 
 
         draw upon prior experience, general and specialized knowledge to 
 
         make the finding with regard to degree of industrial disability.  
 
         See Peters v. Truck Haven Cafe, Inc., (Appeal Decision, February 
 
         28, 1985); Christens v. Hagen, Inc., (Appeal Decision, March 26, 
 
         l985).
 
         
 
              Upon review-reopening, claimant has the burden to show a 
 
         change in condition related to the original injury since the 
 
         original award or settlement was made.  The change may be either 
 
         economic or physical.  Blacksmith v. All-American, Inc., 290 
 
         N.W.2d 348 (Iowa 1980); Henderson v. Iles, 250 Iowa 787, 96 
 
         N.W.2d 321 (1959).  A mere difference of opinion of experts as to 
 
         the percentage of disability arising from an original injury is 
 
         not sufficient to justify a different determination on a petition 
 
         for review-reopening.  Rather, claimant's condition must have 
 
         worsened or deteriorated in a manner not contemplated at the time 
 
         of the initial award or settlement before an award on 
 
         review-reopening is appropriate.  Bousfield v. Sisters of Mercy, 
 
         249 Iowa 64, 86 N.W.2d 109 (1957).  A failure of a condition to 
 
         improve to the extent anticipated originally may also constitute 
 
         a change of condition.  Meyers v. Holiday Inn of Cedar Falls, 
 
         Iowa, 272 N.W.2d 24 (Iowa Ct. App. 1978).
 
         
 
              It is further concluded that:
 
         
 
              Claimant has had a change of condition both physically and 
 
         economically since her arbitration hearing on June 27, 1991 and 
 
         that condition is causally connected to claimant's October 11, 
 
         1989 injury.
 
         
 
              Claimant has not incurred any additional healing period 
 
         since her June 27, 1991 arbitration hearing.
 
         
 

 
         
 
         Page  14
 
         
 
         
 
         
 
              Claimant currently has a 60 percent industrial disability 
 
         which has resulted in claimant incurring an additional 15 percent 
 
         industrial disability since her June 27, 1991 arbitration 
 
         hearing.
 
         
 
              Claimant is entitled to medical care in the form of 
 
         treatment in the pain clinic and also any left knee arthroscopic 
 
         surgery all at the defendants' expense.
 
         
 
              Defendants are responsible for the $168 medical bill 
 
         reflected on claimant's exhibit 57 and are responsible for all of 
 
         the medical bills on claimant's exhibit 58 except the $143 
 
         incurred on August 24, 1993 concerning a "cervical 
 
         spine-complete."*****
 
         
 
              Claimant's cervical spine complaints or medical condition 
 
         concerning her upper extremities are not the result of claimant's 
 
         October 11, 1989 injury.
 
         
 
              Claimant's psychological problems are not fully caused by 
 
         claimant's October 11, 1989 injury even though they have been 
 
         contributed to by claimant's medical condition and the conduct of 
 
         the defendants.  Claimant has failed to carry the burden to show 
 
         that said psychological problems were substantially or materially 
 
         aggravated, lighted up or heightened as a result of claimant's 
 
         October 11, 1989 injury.  There are other causes and stresses in 
 

 
         
 
         Page  15
 
         
 
         
 
         
 
         claimant's life that are as great if not greater than any cause 
 
         that might be contributed to claimant's work injury of October 
 
         11, 1989.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That defendants shall pay unto claimant an additional 
 
         seventy-five (75) weeks of permanent partial disability benefits 
 
         at the rate of one hundred twenty-seven and 13/100 dollars 
 
         ($127.13) beginning July 23, 1993.
 
         
 
              That defendants shall reimburse claimant or the medical 
 
         provider, if not already paid for those amounts shown on 
 
         claimant's exhibit 58 except for one hundred forty-three dollars 
 
         ($143) represented as a "cervical spine-complete" on August 24, 
 
         1993, and that bill represented on claimant's exhibit 57 in the 
 
         amount of one hundred sixty-eight dollars ($168).  Defendants' 
 
         total liability for medical bills is two thousand two hundred 
 
         thirty-four and 80/100 dollars ($2,234.80).
 
         
 
              That defendants shall pay for claimant's pain center clinic 
 
         treatment and a left knee surgery in the locality that claimant 
 
         resides unless defendants desire to pay all of claimant's 
 
         transportation expenses, including air fare, local expenses and 
 
         housing for her treatment here locally.
 
         
 
              That defendants shall pay accrued weekly benefits in a lump 
 
         sum and shall receive credit against the award for weekly 
 
         benefits previously paid.   The defendants have previously paid 
 
         two hundred twenty-five (225) weeks at the rate of one hundred 
 
         twenty-seven and 13/00 dollars ($127.13), which is the amount of 
 
         permanent partial disability originally ordered in the 
 
         arbitration decision filed on July 30, 1991.
 
         
 
              That defendants shall pay interest on benefits awarded 
 
         herein as set forth in Iowa Code section 85.30.
 
         
 
              That defendants shall pay the costs of this action, pursuant 
 
         to rule 343 IAC 4.33.
 
         
 
              That defendants shall file an activity report upon payment 
 
         of this award as required by this agency, pursuant to rule 343 
 
         IAC 3.1.
 
         
 
              Signed and filed this ____ day of May, 1994.
 
         
 
         
 
         
 
                                       ________________________________
 
                                                BYRON K. ORTON
 
                                           INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr Richard B Maher
 
         Attorney at Law
 

 
         
 
         Page  16
 
         
 
         
 
         
 
         
 
         
 
         
 
         421 W Broadway  Ste 500
 
         P O Box 1526
 
         Council Bluffs IA 51502
 
         
 
         Mr W Curtis Hewett
 
         Attorney at Law
 
         35 Main Pl  P O Box 249
 
         Council Bluffs IA 51502
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                         1803; 2908; 1108.20; 2700
 
                                         Filed May 26, 1994
 
                                         BYRON K. ORTON
 
                   
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         ____________________________________________________________
 
                                       :
 
         PAULINE MILLER,               :
 
                                       :
 
              Claimant,                :
 
                                       :
 
         vs.                           :
 
                                       :       File No. 935811
 
         CASEY'S GENERAL STORE,        :
 
                                       :         A P P E A L
 
              Employer,                :
 
                                       :       D E C I S I O N
 
         and                           :
 
                                       :
 
         EMPLOYERS MUTUAL COMPANIES,   :
 
                                       :
 
              Insurance Carrier,       :
 
              Defendants.              :
 
         ___________________________________________________________
 
         
 
         
 
         1803; 2908
 
         Found claimant had a change of circumstances, both physically and 
 
         economically, since her June 27, 1991 arbitration hearing.  At 
 
         time of prior hearing the doctors anticipated claimant could 
 
         return to full-time work at defendant employer.  Also, her 
 
         lifting restrictions were reduced from 20 to 10 pounds.  Deputy 
 
         found claimant now has a 60 percent industrial disability  which 
 
         is 15 percent greater than at the time of her first hearing.
 
         
 
         1108.20
 
         Found claimant's psychological problems were not materially and 
 
         substantially aggravated by her injury.  Claimant had other 
 
         stresses and causes in her life that were as great if not greater 
 
         contributors to her mental situation.
 
         
 
         2700
 
         Ordered defendants to send claimant to pain clinic and provide 
 
         for a knee operation.
 
         Defendants were admonished for not obeying prior deputy's 
 
         decision.
 
         
 
 
            
 
            
 
            
 
            
 
            
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            PAULINE MILLER,               :
 
                                          :       File No. 935811
 
                 Claimant,                :
 
                                          :
 
            vs.                           :         P A R T I A L
 
                                          :
 
            CASEY'S GENERAL STORE,        :     C O M M U T A T I O N
 
                                          :
 
                 Employer,                :        D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            EMPLOYERS MUTUAL COMPANIES,   :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This case came on for hearing on September 10, 1992, at 
 
            Council Bluffs, Iowa.  This is a proceeding in which the 
 
            claimant is asking for a partial commutation of benefits 
 
            that were awarded her pursuant to a decision rendered July 
 
            30, 1991.  The record consists of joint exhibits A through 
 
            D, and the testimony of the claimant.
 
            
 
                                      ISSUE
 
            
 
                 The sole issue in this proceeding is whether there 
 
            should be a partial commutation of benefits.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The undersigned deputy, having heard the testimony and 
 
            considered all the evidence, finds that:
 
            
 
                 Claimant is 45 years old and has an eighth grade 
 
            education.  She has two children still at home which are 
 
            twin boys age 17 and seniors in high school.  Claimant is 
 
            not employed as she is currently still having back problems.  
 
            Claimant's husband is self-employed and has his own steel 
 
            erection business.  He is basically the bread winner for the 
 
            family.  Claimant testified as to what she used her workers' 
 
            compensation payments for.
 
            
 
                 Claimant's exhibit B in detail sets out claimant's 
 
            statement concerning her reason for desiring partial 
 
            commutation.  The undersigned sees no reason to set out in 
 
            detail what is contained in this exhibit.  Basically, what 
 
            it amounts to is claimant would have $11,002.34 as the 
 
            amount that would result in the partial commutation.  Out of 
 
            this amount she would pay $7,952.70 to her attorney in full 
 
            and the remaining $3,049.64 she would put on the note at 
 
            Iowa State Bank, Hamburg, Iowa, running at 12 percent.  This 
 
            note was incurred when the claimant and her husband 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            purchased a 1990 van.
 
            
 
                 After a partial commutation, claimant would still have 
 
            44 weeks of benefits remaining payable at $127.13 per week.  
 
            Claimant has filed a review-reopening in March 1992.
 
            
 
                 Claimant explained, if there is a partial commutation, 
 
            her use of the remaining 44 weeks of benefits as they would 
 
            be paid on a weekly basis.   Claimant testified as to 
 
            certain expenses she would be applying those benefits 
 
            toward.
 
            
 
                 The law provides, in part, that when it can be shown to 
 
            the industrial commissioner's satisfaction that such 
 
            commutation will be for the best interest of the person or 
 
            persons entitled to compensation, a commutation can be 
 
            granted.  The undersigned sees no reason to further set out 
 
            matters in detail.  The evidence is substantial that the 
 
            partial commutation would be in the best interest of the 
 
            claimant.  The undersigned therefore finds that claimant's 
 
            petition for partial commutation is granted.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 Iowa Code section 85.45 provides in pertinent part:
 
            
 
                    Future payments of compensation may be commuted 
 
                 to a present worth lump sum payment on the 
 
                 following conditions:
 
            
 
                    1.  When the period during which compensation 
 
                 is payable can be definitely determined.
 
            
 
                    2.  When it shall be shown to the satisfaction 
 
                 of the industrial commissioner that such 
 
                 commutation will be for the best interest of the 
 
                 person or persons entitled to the compensation, or 
 
                 that periodical payments as compared with a lump 
 
                 sum payment will entail undue expense, hardship, 
 
                 or inconvenience upon the employer liable 
 
                 therefor.
 
            
 
                 The Iowa Supreme Court interpreted this statue in the 
 
            case of Dameron v. Neumann Bros., Inc., 339 N.W.2d 160 
 
            (1983):  "Commutation turns on what is in the best interest 
 
            of the worker, not on what is in the best interest of the 
 
            employer or insurance carrier."
 
            
 
                 Iowa Code section 85.48 provides for discount of future 
 
            payments in cases of partial commutation using the interest 
 
            rate for judgments as per Code section 535.3.
 
            
 
     
 
            
 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            It is further concluded that:
 
            
 
                 It is in the best interest of the claimant to have 104 
 
            weeks of her remaining 148 weeks of permanent partial 
 
            disability benefits commuted.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendants shall pay in a lump sum eleven thousand 
 
            two dollars and 34/100 ($11,002.34), which is a commuted 
 
            figure of one hundred four (104) weeks of permanent partial 
 
            disability benefits which the defendants owe claimant per an 
 
            arbitration decision filed on July 30, 1991.  Out of this 
 
            amount, seven thousand nine hundred fifty-two and 70/100 
 
            dollars ($7,952.70) will be paid by the claimant to her 
 
            attorney which will pay him in full for the services 
 
            rendered in this matter to date.  The remaining three 
 
            thousand forty-nine and 64/100 dollars ($3,049.64) claimant 
 
            will be applying on the Iowa State Bank note at Hamburg, 
 
            Iowa.
 
            
 
                 That the remaining forty-four (44) weeks of permanent 
 
            partial disability benefits that are payable under the July 
 
            30, 1991 arbitration decision shall be continued to be paid 
 
            on a weekly basis until paid in full at the one hundred 
 
            twenty-seven and 13/100 dollars ($127.13) per week amount.
 
            
 
                 That defendants shall pay the costs of this action, 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 That defendants shall file an activity report upon 
 
            payment of this award as required by this agency, pursuant 
 
            to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of September, 1992.
 
            
 
            
 
                                          ______________________________
 
                                          BERNARD J. O'MALLEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            Copies to:
 
            
 
            Mr Richard B Maher
 
            Attorney at Law
 
            421 W Broadway  Ste 500
 
            P O Box 1526
 
            Council Bluffs IA 51502
 
            
 
            Mr W Curtis Hewett
 
            Attorney at Law
 
            35 Main Pl
 
            P O Box 249
 
            Council Bluffs IA 51502
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                             5-3303.20
 
                                             Filed September 22, 1992
 
                                             Bernard J. O'Malley
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            PAULINE MILLER,               :
 
                                          :       File No. 935811
 
                 Claimant,                :
 
                                          :
 
            vs.                           :         P A R T I A L
 
                                          :
 
            CASEY'S GENERAL STORE,        :     C O M M U T A T I O N
 
                                          :
 
                 Employer,                :        D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            EMPLOYERS MUTUAL COMPANIES,   :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-3303.20
 
            Partial commutation was allowed as deputy determined it was 
 
            in best interest of claiman.
 
            
 
 
 
 
 
 
 
 
                                                2701
 
                                                Filed August 18, 1993
 
                                                DAVID R. RASEY
 
            
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            PAULINE MILLER,     
 
                      
 
                 Claimant,                       File No. 935811
 
                      
 
            vs.                                  MEMORANDUM   OF
 
                      
 
            CASEY'S GENERAL STORE,               DECISION   ON
 
                      
 
                 Employer,                        ALTERNATE
 
                      
 
            and                                     CARE
 
                      
 
            EMPLOYERS MUTUAL COMPANIES,   
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            
 
            2701
 
            Defendants were ordered to provide specified treatment to 
 
            the low back and leg (per liability determination in an 
 
            earlier arbitration action) but not treatment to other parts 
 
            of the body, where causal nexus was disputed.
 
            Claimant has moved to Florida.  Care was to be provided by 
 
            such local physicians as she may be referred to by the 
 
            treating physician.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      5-1802; 5-1803
 
                      Filed July 30, 1991
 
                      Jean M. Ingrassia
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            PAULINE MILLER,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 935811
 
            CASEY'S GENERAL STORE,        :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            EMPLOYERS MUTUAL COMPANIES,   :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-1802; 5-1803
 
            The parties agree that claimant sustained an injury to her 
 
            back on October 11, 1989, arising out of and in the course 
 
            of her employment with employer and that such injury 
 
            resulted in temporary and permanent disability.  They 
 
            dispute the extent of healing period benefits and permanent 
 
            disability.
 
            On January 26, 1990, claimant underwent a decompressive 
 
            laminotomy, foraminotomy at the L-5 level on the left.  Her 
 
            symptoms persisted and evaluation by another physician in 
 
            April 1990 revealed an L5-S1 herniated disc, root defect.  
 
            On May 30, 1990, a diskectomy, partial hemilaminectomy and 
 
            bilateral posterior fusion was performed.  She was released 
 
            to return to part-time employment, with restrictions, on 
 
            March 18, 1991.  Employer accommodated her restrictions and 
 
            she returned to work on March 19, 1991.
 
            Claimant was awarded healing period benefits from October 
 
            11, 1989 through March 18, 1991, when she was found to reach 
 
            maximum medical improvement.  She was awarded 45 percent 
 
            industrial disability after considering her age (44), 
 
            education (eighth grade), work experience (entry-level 
 
            minimum wage employment), loss of earnings and earning 
 
            capacity, return to work and employer's willingness to 
 
            accommodate her restrictions.
 
            
 
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            PAULINE MILLER,               :
 
                                          :
 
                 Claimant,                :       File No. 935811
 
                                          :
 
            vs.                           :       MEMORANDUM  OF
 
                                          :
 
            CASEY'S GENERAL STORE,        :        DECISION  ON
 
                                          :
 
                 Employer,                :         ALTERNATE
 
                                          :
 
            and                           :           CARE
 
                                          :
 
            EMPLOYERS MUTUAL COMPANIES,   :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 Claimant's petition for alternate medical care under 
 
            the summary provisions of rule 343 IAC 4.48 came on for 
 
            telephone conference hearing on August 12, 1993.  The record 
 
            consists of claimant's testimony, claimant's exhibits 1, 2, 
 
            3, and, through official notice being taken, the October 8, 
 
            1992 letter of Dr. Leslie Hellbusch (attached to defendants' 
 
            Answer to Petition Concerning Independent Medical 
 
            Examination), the October 12, 1992 letter of Dr. Thomas 
 
            Busch (attached to the same pleading) and the June 29, 1992 
 
            letter of Dr. Hellbusch (attached to defendants' Resistance 
 
            to Claimant's Application to Authorize Medical Care).
 
            
 
                 After considering the evidence, the undersigned ruled 
 
            on the record.  An earlier arbitration decision filed by 
 
            Deputy Ingrassia on July 30, 1991, awarded permanent partial 
 
            disability benefits and medical care with reference to a low 
 
            back injury sustained on October 11, 1989.  Claimant's 
 
            application for alternate medical care was based upon 
 
            defendants' refusal to furnish varies modalities recommended 
 
            by the treating physician, Dr. Hellbusch: a "complete" 
 
            myelogram and EMG of the left arm and left leg, follow up 
 
            consultation by Dr. Busch (relating, apparently, to Dr. 
 
            Busch's recommendation of arthroscopy surgery to the left 
 
            knee) and evaluation and treatment at the University 
 
            Hospital Pain Clinic.  Dr. Hellbusch specified that all of 
 
            those services were part of the treatment for injuries 
 
            claimant sustained in the original injury.  Claimant also 
 
            seeks psychiatric evaluation.
 
            
 
                 Defendants denied that a causal nexus exists between 
 
            the original and current cervical symptoms (including 
 
            radiating symptoms in the upper extremities), the left knee, 
 
            and claimant's current psychological condition.  It was 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            ruled that this causal nexus issue cannot be decided in the 
 
            forum provided by proceedings under rule 343 IAC 4.48.  No 
 
            relief was ordered with respect to those symptoms, but 
 
            claimant is at liberty to seek further relief at the hearing 
 
            of her current review-reopening application.  Defendants 
 
            were barred from hereafter raising any authorization defense 
 
            with respect to treatment of those symptoms.
 
            
 
                 Defendants also denied that a causal nexus exists 
 
            between claimant's lower back and lower extremity radicular 
 
            symptoms.  However, defendants have already been ordered to 
 
            provide such medical care by the arbitration decision, and 
 
            these recommendations are part and parcel of Dr. Hellbusch's 
 
            ongoing treatment.  Defendants were accordingly ordered to 
 
            furnish a lumbar myelogram and an EMG of the left leg and 
 
            evaluation and treatment of those problems at a pain clinic.
 
            
 
                 Claimant has recently moved to the state of Florida.  
 
            Defendants were ordered to provide those specified services 
 
            through such practitioners in the state of Florida as 
 
            claimant may be referred to by Dr. Hellbusch.  In the event 
 
            claimant must again be seen by that doctor, defendants are 
 
            not at this time required to reimburse transportation costs.
 
            
 
                 The undersigned has been delegated authority to issue 
 
            final agency action in this matter.  Appeal of this 
 
            decision, if any, would be by judicial review pursuant to 
 
            Iowa Code section 17A.19.
 
            
 
                 Signed and filed this ____ day of August, 1993.
 
            
 
            
 
            
 
            
 
                                          
 
                                        ________________________________
 
                                          DAVID R. RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr Richard B Maher
 
            Attorney at Law
 
            421 W Broadway Ste 500
 
            PO Box 1526
 
            Council Bluffs Iowa 51502
 
            
 
            Mr W Curtis Hewett
 
            Attorney at Law
 
            35 Main Place
 
            PO Box 249
 
            Council Bluffs Iowa 51502
 
            
 
 
         
 
         
 
         
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         ____________________________________________________________
 
                                       :
 
         PAULINE MILLER,               :
 
                                       :      File No. 935811
 
              Claimant,                :
 
                                       :
 
         vs.                           :        R E V I E W -
 
                                       :
 
         CASEY'S GENERAL STORE,        :      R E O P E N I N G
 
                                       :
 
              Employer,                :       D E C I S I O N
 
                                       :
 
         and                           :
 
                                       :
 
         EMPLOYERS MUTUAL COMPANIES,   :
 
                                       :
 
              Insurance Carrier,       :
 
              Defendants.              :
 
         ___________________________________________________________
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This case came on for hearing on October 21, 1993, at 
 
         Council Bluffs, Iowa.  This is a proceeding in review-reopening 
 
         wherein claimant seeks additional permanent partial disability 
 
         benefits as a result of an injury occurring on October 11, 1989.  
 
         The record in the proceeding consists of the testimony of the 
 
         claimant; joint exhibits 1 through 56; and, claimant's exhibits 
 
         57, 58, 59 and 60.
 
         
 
                                      ISSUES
 
         
 
              The issues for resolution are:
 
         
 
              1.  The nature and extent of claimant's disability and 
 
         entitlement to additional disability benefits;
 
         
 
              2.  Whether there is a causal connection as to any 
 
         additional healing period or permanent partial disability;
 
         
 
              3.  Iowa Code section 85.27 medical benefits, the issues in 
 
         that being alternate care, causal connection, reasonableness and 
 
         necessary treatment and authorization, but this is only as they 
 
         relate to any cervical spine injury.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              The undersigned deputy, having heard the testimony and 
 
         considered all the evidence, finds that:
 
         
 
              Claimant is 46 years old and finished the seventh grade in 
 
         school and started the eighth grade but didn't finish.  She has 
 
         not received her GED.  Claimant has received no other education 
 
         or technical training.
 
         
 
              Claimant related her work history.  Claimant began working 
 
         for defendant employer in the summer of 1988.  The undersigned 
 
         agreed to take official notice of claimant's prior decisions and 
 

 
         
 
         Page   2
 
         
 
         
 
         the file in this case.  The undersigned in her testimony in the 
 
         arbitration decision, which was rendered in July 1991, indicated 
 
         she began working for Casey's in August 1987.  She also at that 
 
         time indicated she had completed the tenth grade of school.  The 
 
         undersigned does not know why there is a difference in that 
 
         testimony.
 
         
 
              The claimant described the nature of her work at Casey's 
 
         which involved working with the ice machines and filling the 
 
         coolers, working in the doughnut department lifting frosting, 
 
         mixing dough and also she helped unload trucks.
 
         
 
              Claimant related that prior to October 11, 1989, she had a 
 
         very active life.  She had a garden and did plumbing work.
 
         
 
              On October 11, 1989, claimant slipped and fell while walking 
 
         across the floor which had been sprayed by a grease material.  
 
         She twisted her back as she fell and went down on her left leg.  
 
         She indicated her ankle and knee cap also hurt.
 
         
 
              Thomas C. Bush, M.D., released claimant to return to 
 
         part-time employment commencing March 19, 1991.
 
         
 
              Leslie C. Hellbusch, M.D., released claimant to part-time 
 
         work as of March 18, 1991, and imposed restrictions of no lifting 
 
         over 20 pounds, no repetitive back bending and recommending 
 
         alternating between sitting and standing.  At that time the 
 
         doctor reported that claimant had a 20 percent permanent partial 
 
         disability to the body as a whole as a result of her low back 
 
         problem and surgical procedures.  He didn't think that claimant 
 
         had reached her maximum level of recuperation yet but that she 
 
         would probably reach this within the next six to twelve months.  
 
         He thought that claimant eventually would be able to work an 
 
         eight hour day.
 
         
 
              Claimant testified that she got along great when she 
 
         returned to work and that she didn't have to unload the truck.  
 
         She said she wasn't able to do that.  She testified as to the 
 
         weight of the doughnut flour which she estimated at 25 pounds.  
 
         She indicated she had to bend and twist and she had to stand all 
 
         the time as Casey's will not allow sitting.
 
         
 
              Claimant related that there were many years when she did not 
 
         have to work but in 1991, she needed to work because she needed 
 
         the money as her husband's business was not good.  Claimant said 
 
         she experienced pain when she returned to work and that this pain 
 
         affected her attitude and she became discouraged when she found 
 
         out she was going downhill.
 
         
 
              Claimant left Casey's in July 1991 as the pain was too much.  
 
         She indicated the doctor told her to give it up.  Claimant 
 
         indicated that she couldn't do things at home anymore because of 
 
         her pain and that the doctor prescribed Elavil for depression in 
 
         1991.
 
         
 
              Claimant said that Dr. Hellbusch indicated in September 1991 
 
         she should go to a pain clinic to learn to live with her pain.  
 
         She indicated she was scheduled to go to a clinic in Nebraska but 
 
         she had to get the workers' compensation carrier to okay her 
 
         going.  She said that the workers' compensation carrier would not 
 

 
         
 
         Page   3
 
         
 
         
 
         pay and she did not have insurance, so she was unable to go.
 
         
 
              Claimant said she has not applied for work after she left 
 
         Casey's because she can't work and can't stand because her pain 
 
         is so great.  She said she has only done physical work during her 
 
         life and hasn't done any typing and things of that nature.
 
         
 
              Claimant indicated her husband's business has failed and was 
 
         sold in July 1993.  Claimant related she is very depressed and 
 
         wants psychiatric help.  She said she is depressed because she 
 
         can't work and that financially she needs to work and it is 
 
         important to her to be able to do things.  Claimant testified in 
 
         her prior arbitration hearing that in June of 1988, the doctor 
 
         noticed improvement as to claimant's previous symptoms in that 
 
         she no longer had any leg pain.  She was advised then to 
 
         gradually increase her walking.  Claimant now says that her left 
 
         knee swells and holds fluid when she gets active and gets a knot 
 
         two inches above the knee.  She said that in June of 1991 her 
 
         knee was not bothering her like it is now.  Claimant contends 
 
         that her disability has increased since June 1991, at which time 
 
         she thought she was able to work.  She now says she can't do 
 
         anything.  Claimant would like to have her left knee examined as 
 
         she thinks it would help.  Claimant feels she is totally disabled 
 
         now and in 1991, she didn't think so.
 
         
 
              Claimant said she now has pain in her cervical spine which 
 
         goes into her left arm and sometimes into her right arm and 
 
         shoulder.  She said she never had this pain prior to October 11, 
 
         1989.  She said her left upper extremity and neck pain came about 
 
         after her last trial.
 
         
 
              On cross-examination, claimant was referred to several areas 
 
         of her testimony from her first trial in June of 1991.  Several 
 
         of those areas were things claimant could not do then that she 
 
         also contends she can't do now.  The question arose as to whether 
 
         claimant actually has any change of circumstances or things she 
 
         can't do now that she could do then.  She acknowledged that 
 
         Casey's did not ask her to exceed her restrictions.
 
         
 
              Claimant was asked concerning her depression and whether her 
 
         husband losing his business, and their selling their home and 
 
         moving to Florida had any effect on her.  Claimant indicated that 
 
         knowing her condition and having to move to Florida and her 
 
         husband's medical condition has upset her.  She indicated her 
 
         husband has a disease that will kill him in six to seven months.  
 
         She said all of these events including her husband's illness, has 
 
         contributed to her depression.
 
         
 
              Claimant again indicated that she has made no efforts since 
 
         July 31, 1991 to find employment or to obtain any further 
 
         education.  She said she would like to work if she could.  She 
 
         indicated Leslie C. Hellbusch, M.D., changed her restrictions 
 
         from 20 pounds to 25.  (Dr. Hellbusch's September 27, 1991 
 
         report, Jt. Ex. 27; May 24, 1991 report, Jt. Ex. 24)
 
         
 
              Claimant said she did not see Dr. Bush since her June 1991 
 
         hearing until February 25, 1993.  Claimant said the x-rays of her 
 
         left leg in February 1993 indicated she needed arthroscopy 
 
         surgery.
 
         
 

 
         
 
         Page   4
 
         
 
         
 
              Claimant's arbitration hearing on June 27, 1991 dealt 
 
         basically with claimant's complaint of low back pain and 
 
         left-sided leg pain.  Joint exhibit 2, page 5 of 8 pages of that 
 
         exhibit, shows that one day after said hearing, June 28, 1991, 
 
         claimant saw Wallace Carpenter, M.D., complaining of severe neck 
 
         pain, down the left arm and numbness.  Claimant was there July 2 
 
         and on July 10, 1991, at which time her neck was still hurting. 
 
         She was there for x-ray reports.  Dr. Carpenter indicated that 
 
         claimant should go back and see Dr. Hellbusch whom she saw for 
 
         her low back pain.
 
         
 
              On July 12, 1991, Dr. Carpenter's notes reflect that 
 
         claimant continues to have low back pain and has now developed 
 
         discomfort in her neck with pain, soreness and stiffness.  X-rays 
 
         showed a presence of some degenerative changes.  The doctor 
 
         indicated that he felt it would be detrimental for claimant to 
 
         continue any occupation where she must lift heavy objects, 
 
         especially while she might be looking up or to the side.  In May 
 
         of 1992, the doctor noted that claimant was starting to have some 
 
         degenerative changes in her knee joint and she had crepitus on 
 
         the left and there was already heat in it.  He also noted that 
 
         her weight has gone up to 161 pounds and was alarmed if she did 
 
         not reduce her weight.
 
         
 
              The January 7, 1993 notes of Dr. Carpenter reflects that 
 
         claimant continued to have a pain in her back and hip and the 
 
         inner aspect of her left knee.  It appears to the undersigned at 
 
         this time they are referring to the low back and not to the 
 
         cervical area.
 
         
 
              Joint exhibit 4 is a report of Dr. Carpenter.  In it he 
 
         opines that claimant had reached maximum benefit from the 
 
         operation and that he would rate her at 50 percent disabled to 
 
         the body as a whole.
 
         
 
              Leslie C. Hellbusch, M.D., a neurosurgeon, testified through 
 
         his deposition on October 11, 1993, represented by joint exhibit 
 
         54.  He testified his first contact with claimant was on April 
 
         17, 1990, which at the time she complained of back pain and 
 
         shooting pains to her left leg and tingling and numbness in the 
 
         whole left foot which she stated began when she fell at work in 
 
         October 1989.  
 
         
 
              The doctor acknowledged that claimant had microlumbar 
 
         dissector at L5-S1 on the left and a right partial 
 
         hemilaminectomy at L5-S1 with an operating microscope and a 
 
         bilateral posterior lateral fusion at L5-S1 by Dr. Bush, an 
 
         orthopedic surgeon.  He explained why they both did the surgeries 
 
         together on May 30, 1990. (Jt. Ex. 54, pp. 6-6)  The doctor 
 
         acknowledged that when he was asked to form an opinion concerning 
 
         claimant's disability as a body as a whole regarding her first 
 
         trial, he rated claimant at 20 percent permanent disability to 
 
         the body as a whole and understood that it was the result of her 
 
         low back problem, in other words, the lumbar area and had nothing 
 
         to do with the left knee injury or injury to the cervical spine.
 
         
 
              The doctor acknowledged that at the time of his March 12, 
 
         1991 letter, he had returned claimant to work on a part-time 
 
         basis effective March 18, 1991, and that claimant's restrictions 
 
         at that time were no lifting over 20 pounds, no repetitive back 
 

 
         
 
         Page   5
 
         
 
         
 
         bending and that she would do best on a job in which she could 
 
         move from a sitting position to a standing position and vice 
 
         versa, as needed.  He also indicated that these would be in 
 
         effect for the next four to six weeks and anticipated that at the 
 
         end of that time the restrictions as far as lifting would become 
 
         less.  The doctor then acknowledged that per a letter of his of 
 
         May 24, 1991, he understood claimant was working approximately 
 
         half time and he felt that claimant would be back to an eight 
 
         hour day.  He had repeated the 20 pound lifting restriction and 
 
         no repetitive low back restrictions.
 
         
 
              Dr. Hellbusch then was referred to a deposition Dr. Bush had 
 
         given prior to claimant's June 27, 1991 trial.  He agreed with 
 
         Dr. Bush concerning Dr. Bush's explanation of the effect of scar 
 
         tissue of claimant's surgery upon her ability to do lifting and 
 
         that scarring of that type creates problems with people such as 
 
         claimant when they do lifting and carry weight.  He also agreed 
 
         with Dr. Bush as to the feeling that eventually claimant would be 
 
         able to go back to work eight hours days on a full-time basis and 
 
         that that feeling was incorporated in their 20 percent permanent 
 
         partial disability rating.  (Jt. Ex. 54, pp. 11-14)
 
         
 
              The doctor testified that the first time he saw claimant 
 
         after the June 27, 1991 trial was on September 26, 1991.  He 
 
         related claimant's complaints at that time.  He said claimant had 
 
         a decrease in range of motion in her back in all directions and 
 
         that he decreased her lifting no more than ten pounds and there 
 
         was to be no more repetitive low back bending.  An MRI was done 
 
         on the lower back and it was found that claimant had some 
 
         degenerative disc disease at those two levels and mild bulging at 
 
         the L4-5 disc.  He acknowledged that trauma will aggravate the 
 
         degenerative disc disease. (Jt. Ex. 54, pp. 15-16)
 
         
 
              The doctor then testified that he saw claimant again in 
 
         November of 1992 and February of 1993.  In November of 1992, he 
 
         put claimant on antidepressant medication as she was exhibiting 
 
         signs of depression.  He said by February 1993, Dr. Bush had 
 
         recommended an arthroscopy of the left knee.  She was on 
 
         medication for that.
 
         
 
              Dr. Hellbusch testified that he had told claimant on April 
 
         9, 1993, that she should try the University of Iowa Hospitals 
 
         pain clinic but claimant told him that it was turned down for 
 
         insurance reasons.  He then understood later that a complete 
 
         myelogram had been cancelled by the claimant because the 
 
         insurance company wouldn't pay.
 
         
 
              The doctor acknowledged that the purpose of claimant's 
 
         myelogram and EMG was to evaluate further cause of claimant's 
 
         continued pain.  He indicated that there was a myelogram 
 
         conducted of claimant's cervical spine and her lumbar spine and 
 
         said that this was done with one insertion of the needle and one 
 
         inpatient admission.  (Jt. Ex. 54, pp. 21-22)
 
         
 
              The doctor then emphasized that when they are going to 
 
         inject a needle into a patient, they try to have the test as 
 
         comprehensive as possible.  The doctor indicated that when he 
 
         decided to do the myelogram to evaluate her low back problem, he 
 
         decided to do the cervical part of the test because she also had 
 
         some neck and arm complaints.
 

 
         
 
         Page   6
 
         
 
         
 
         
 
              The doctor acknowledged that when claimant saw him on 
 
         September 27, 1991, claimant was having problems with her neck 
 
         and he did not feel these were caused by her work accident on 
 
         October 19, 1989.
 
         
 
              The doctor said that he did not feel claimant's condition 
 
         had improved the way he had thought it would have but also 
 
         indicated that her permanent partial disability rating he had 
 
         earlier given her had not increased at that time in 1992.
 
         
 
              The doctor emphasized his suggestion that claimant go to the 
 
         pain clinic was because of her injury and pain in her lower back.  
 
         The doctor then at the end of his deposition further indicated he 
 
         based his observation that claimant had failed to improve to the 
 
         extent he had reasonably anticipated back in May of 1991 is 
 
         mainly because of claimant's objective inability to function 
 
         without pain.
 
         
 
              The doctor was cross-examined on several questions 
 
         concerning the medical bills and which ones were related to 
 
         claimant's low back and which ones to claimant's cervical spine, 
 
         the latter which the doctor acknowledged was not the result of 
 
         the October 1989 injury. (Jt. Ex. 54, pp. 29-37)
 
         
 
              Joint exhibits 9 through 24 is correspondence to or from 
 
         involving Dr. Hellbusch's treatment of claimant.  These documents 
 
         in many parts are referred to in Dr. Hellbusch's testimony in 
 
         joint exhibit 54 and will not be gone into in any further detail.  
 
         These exhibits were in reference to a point in time prior to 
 
         claimant's June 27, 1991 trial.
 
         
 
              Joint exhibit 28 is the June 29, 1992 letter of Dr. 
 
         Hellbusch in which he opined that claimant's condition regarding 
 
         her lower back and pain radiating into her legs has not worsened 
 
         since June 27, 1991 and that she still has a 20 percent permanent 
 
         partial disability of the body as a whole as a result of her low 
 
         back problem and surgical procedures.  He also said that 
 
         claimant's condition has failed to improve as well as he would 
 
         have hoped it would.
 
         
 
              The doctor reaffirmed his position in part on October 8, 
 
         1992, represented by joint exhibit 29.  Joint exhibit 31 is the 
 
         doctor's May 24, 1993 letter in which he affirmed that he asked 
 
         the claimant to have a complete myelogram and an EMG of her left 
 
         arm and left leg in a follow-up consultation with Dr. Bush which 
 
         was scheduled on May 4, 1993 but was cancelled for insurance 
 
         reasons.  He affirmed that prior to that he suggested she be seen 
 
         at the University Hospital pain clinic and this was also turned 
 
         down.  The doctor had referred to this situation in his 
 
         deposition testimony.
 
         
 
              Joint exhibits 33 through 40 are Dr. Bush's medical reports 
 
         dated prior to claimant's June 27, 1991 trial.  In his May 21, 
 
         1991 report, joint exhibit 39, he indicated he did not expect 
 
         claimant to be able to do heavy-type work in the future that 
 
         included bending, lifting, twisting, tugging or turning and 
 
         didn't expect her to be able to lift over 15 or 20 pounds and 
 
         that it would not be at frequent intervals.  The undersigned 
 
         might note that Dr. Hellbusch lowered that to 10 pounds since the 
 

 
         
 
         Page   7
 
         
 
         
 
         trial.  It doesn't appear to be in Dr. Bush's reports any 
 
         acquiescence in that change of circumstances as far as the amount 
 
         of weight that can be lifted since the June 27, 1991 hearing.
 
         
 
              Joint exhibit 41 is Dr. Bush's October 12, 1992 letter in 
 
         which he reaffirmed his 20 percent permanent partial disability 
 
         to the back as a whole opinion and indicated there is no change.  
 
         The undersigned might note that whenever the doctors are using 
 
         the word "disability," the undersigned understands it to mean 
 
         impairment and not industrial disability.
 
         
 
              Joint exhibit 42 is a February 22, 1993 letter of Dr. Bush 
 
         in which claimant was seen that date and had chondromalacia of 
 
         her left patella and a torn lateral meniscus.  Arthroscopy with 
 
         menisectomy was recommended.  On March 8, 1993, the doctor opined 
 
         that considering the patient's history and the type of condition 
 
         her left knee shows, those injuries were caused by claimant's 
 
         work injury on October 11, 1989. (Jt. Ex. 43)
 
         
 
              Joint exhibit 44(a) is a disability evaluation service 
 
         report dated September 24, 1993, in which D.M. Gammel, M.D., 
 
         opined that claimant had a 25 percent permanent impairment to her 
 
         body as a whole based on the AMA Guides to the Evaluation of 
 
         Permanent Impairment, using the combined value.  The doctor 
 
         indicated claimant had additionally developed depression over her 
 
         inability to pursue her normal daily activities and her chronic 
 
         pain.  In looking at this report, it is obvious that he 
 
         considered claimant's low back situation and her left knee only.  
 
         This is later set out in joint exhibit 44(b) as to how he arrived 
 
         at the 25 percent permanent impairment.
 
         
 
              Joint exhibit 47 is a report of Dr. Hellbusch and Kelly 
 
         Rydlund of August 24, 1993 which mentions the lumbar plus the 
 
         cervical neck problems of claimant.  Joint exhibit 46 is a report 
 
         of Dr. Hellbusch dated May 30, 1990 which was part of the first 
 
         trial and does not mention anything about claimant's cervical or 
 
         neck problems.
 
         
 
              Joint exhibit 48(a) is the Midlands Rehabilitation 
 
         Consultants' vocational evaluation which was dated June 1991, 
 
         prior to claimant's last hearing.  This same organization issued 
 
         a report on September 29, 1993, represented by joint exhibit 
 
         48(b).  In that report, the same certified professional counselor 
 
         opined that claimant's vocational capacity has deteriorated 
 
         currently with her medical condition and it is his opinion her 
 
         ability to perform employment has eroded from full-time 
 
         employment prior to the injury to part-time following the injury 
 
         to absolutely no employment since July 1991 to the present.  Said 
 
         counselor figured claimant was unemployable.  He further opined 
 
         that until the pain clinic and knee surgery are provided, there 
 
         simply does not exist a window of opportunity whereby vocational 
 
         rehabilitation services would be of benefit to the claimant.  He 
 
         went on to indicate that if these services were provided, he 
 
         would then be in a position to re-evaluate the claimant in terms 
 
         of determining whether she has potential to profit from 
 
         vocational rehabilitation services and if so a course of action 
 
         that would be most appropriate.  He referred to the fact that the 
 
         pain clinic procedures and surgical procedure recommended for the 
 
         knee impairment were not approved by defendant insurance company.
 
         
 

 
         
 
         Page   8
 
         
 
              Joint exhibits 55 and 56 are two of the medical bills that 
 
         are in dispute with defendants contending that it was also for 
 
         the cervical lumbar spine which defendants contend was not a part 
 
         of these proceedings and the most they would be responsible for 
 
         is that part that would have to do with the lumbar spine.
 
         
 
              Lileth Kahue testified through her deposition of September 
 
         30, 1993 that she knows claimant and had worked with her at 
 
         Casey's.  Ms. Kahue was the manager and had worked at Casey's six 
 
         years before claimant came to work for her.  She had high praise 
 
         for claimant who she indicated was a good and dedicated worker 
 
         and even continued finishing her work even though she had clocked 
 
         out.  She indicated claimant enjoyed her work and that it was 
 
         important to her.
 
         
 
              Gene Eaton testified through his deposition on September 30, 
 
         1993, that he is an attorney and that claimant took care of his 
 
         mother for a period of time.  He couldn't recall how long 
 
         claimant cared for his mother but it was several months.  He 
 
         testified as to what she did in caring for his mother which 
 
         included getting her in and out of bed, showering her, sitting 
 
         her in a chair.  He said as far as he knew she was a good worker 
 
         and had a good attitude.
 
         
 
              Claimant's exhibits 58 through 60 are bills that remain 
 
         unpaid.  Claimant's exhibit 59, which is a statement of court 
 
         costs from the arbitration action remaining unpaid, concerns the 
 
         undersigned.  Those were ordered paid in the arbitration decision 
 
         that was rendered on July 30, 1991.  Defendants were to pay the 
 
         costs of that action pursuant to rule 343 IAC 4.33.  Those costs 
 
         should not be an issue herein but claimant has remedies when 
 
         defendants do not comply with a decision and judgment therein.  
 
         The undersigned is not determining whether all of those amounts 
 
         set out therein are actually court costs as the parties should 
 
         refer to the statute which has limits on what are court costs and 
 
         what amount of costs are in fact reimbursable by a party or to 
 
         pay the same per the statute.  The undersigned can only say that 
 
         it is absolutely ridiculous that defendants have not paid the 
 
         court costs in that prior arbitration case that are provided for 
 
         in the Iowa statute.
 
         
 
              The undersigned is taking official notice of this file.  It 
 
         is evident that there is considerable litigation in this case.  
 
         It seems to the undersigned that the litigious nature of this 
 
         case represented by this file is excessive.  Where the problem 
 
         lies the undersigned does not know but it appears defendant 
 
         insurance company or the office who hires the attorney is 
 
         contributing highly to it litigious atmosphere.  The undersigned 
 
         is reluctant to make this comment but it appears to be 
 
         uncalled-for that claimant has to come into this review-reopening 
 
         hearing and ask that I decide again that the defendants should 
 
         pay court costs that were ordered in a decision in excess of one 
 
         year ago.  Even the nature of defendants' resistance to a partial 
 
         commutation action that the undersigned heard in September of 
 
         1992 was unusual under the circumstances.
 
         
 
              In this case at bar, the authorized doctors had recommended 
 
         certain treatment for this claimant and defendants refused to 
 
         give the treatment and to this date did not fully abide by the 
 
         authorized doctor's recommendations.
 

 
         
 
         Page   9
 
         
 
              On August 12, 1993, Deputy David Rasey heard an alternate 
 
         care hearing and in his decision indicated that defendants denied 
 
         that a causal nexus exists between the claimant's lower back and 
 
         lower extremity radicular symptoms.  The deputy indicated that 
 
         defendants have already been ordered to provide such medical care 
 
         by the arbitration decision and these recommendations are a part 
 
         of Dr. Hellbusch's ongoing treatment.  Defendants therefore were 
 
         accordingly ordered to furnish a lumbar myelogram and an EMG of 
 
         the left leg and an evaluation and treatment of those problems at 
 
         a pain clinic.  It appears to the undersigned that treatment at 
 
         the pain clinic has continued to be denied to this claimant by 
 
         the defendants.  It appears that part of this claimant's 
 
         complaint is being litigated for the second or third time.
 
         
 
              In the review-reopening action, claimant has the burden to 
 
         show a change of condition related to the injury since the 
 
         original award was made.  The change may be either economic or 
 
         physical or both.  Claimant's condition must have worsened or 
 
         deteriorated in a manner not contemplated at the time of the 
 
         initial award before an award on review-reopening is appropriate.
 
         
 
              Claimant has complained of cervical spine problems and 
 
         problems going into her upper extremity.  Although claimant 
 
         contends this is a result of her October 11, 1989 injury, the 
 
         record is very clear that claimant did not have cervical spine or 
 
         upper extremity complaint prior to her arbitration hearing on 
 
         June 27, 1991, and that her complaints in that respect began 
 
         after said date.  The medical evidence does not causally connect 
 
         claimant's cervical or upper extremity complaints or impairments 
 
         or disabilities to an October 11, 1989 injury.  The undersigned 
 
         therefore finds that any change in claimant's condition since 
 
         June 27, 1991 involving the cervical spine and the upper 
 
         extremities are not a change of circumstances that are the 
 
         responsibility of defendants in this case and are not causally 
 
         connected to an October 11, 1989 injury.
 
         
 
              Claimant contends an increase in problems to her left knee.  
 
         The greater weight of medical evidence indicates that claimant's 
 
         left knee problems are causally connected to claimant's October 
 
         11, 1989 injury and they have increased and are more severe since 
 
         her June 27, 1991 hearing.  It is not uncommon and it is the 
 
         agency's experience that when one has lumbar problems as claimant 
 
         has and surgeries claimant has had, this can affect other parts 
 
         of her body and, in particular, bring upon increased problems of 
 
         her lower extremity.  The undersigned finds that claimant's 
 
         complaints are more severe and there has been a change in the 
 
         claimant's physical condition since the arbitration hearing on 
 
         June 27, 1991.
 
         
 
              Claimant contends that her lower back is worse than it was 
 
         at the time of her June 27, 1991 hearing.  Medical records show 
 
         that the doctors mainly involved in claimant's treatment as of 
 
         the June 27, 1991 hearing have not opined an increase in 
 
         claimant's percentage of impairment, namely, 20 percent, to the 
 
         present time.  In other words, as to those doctors, there has 
 
         been no increase in impairment.  There is medical evidence that 
 
         there is impairment higher than that opined by another doctor.  
 
         An impairment rating is only one item that is considered in 
 
         determining industrial disability.
 

 
         
 
         Page  10
 
         
 
         
 
         
 
              As to any other change since the June 27, 1991 hearing, 
 
         claimant has not worked since July of 1991 and therefore has had 
 
         no income.  As of her last hearing of June 1991, claimant was 
 
         working part-time and the medical evidence is clear that the 
 
         doctors mainly treating claimant anticipated claimant would get 
 
         better and would be able to return to full-time employment.  It 
 
         is obvious at the time of the arbitration hearing that that was 
 
         the understanding of said deputy as the evidence was very clear 
 
         at that time of anticipation of claimant returning to full-time 
 
         employment with defendant employer.  This has not occurred.  
 
         Additionally, claimant's lifting restrictions of 25 pounds are 
 
         now 10 pounds. (Jt. Exs. 24 and 27)  The greater weight of 
 
         evidence shows that claimant is not able to perform the work she 
 
         was previously doing at Casey's and there is a question as to 
 
         whether sufficient accommodations could be made even with the 
 
         changed restrictions.
 
         
 
              The evidence shows that claimant has not made any effort to 
 
         find employment or to try to go back to Casey's.  There is no 
 
         recent evidence that Casey's has attempted to have claimant 
 
         return to work.
 
         
 
              Claimant contends that she has a psychological problem that 
 
         has developed since her June 1991 hearing and that this is 
 
         causally connected to her October 11, 1989 injury.  There is no 
 
         question this claimant has been fought at every stage of the game 
 
         and even, as indicated earlier, in questionable areas.  There has 
 
         been orders for defendants to do certain things and they have not 
 
         done it or it took another order to force them to do it.  This 
 
         obviously can have a psychological effect on anyone.  Claimant 
 
         has the burden of proof that her psychological problems are the 
 
         result of her injury of October 11, 1989 and have occurred since 
 
         her hearing of June 1991.  The undersigned finds that claimant 
 
         has failed to carry her burden of proof.  The evidence shows that 
 
         claimant has many other stresses in her life that could bring 
 
         about claimant's current situation.  Some of these are, but not 
 
         necessarily limited to, the fact that claimant testified that she 
 
         moved to Florida and it appears it was a move she did not really 
 
         want to make.  Her husband has apparently sold his business and 
 
         it appears he had to sell it and that he has a disease that is 
 
         terminal and she expects him to die in the very near future.  She 
 
         has had to sell her house even though she indicated that was not 
 
         stressful to her.
 
         
 
              There is no psychiatric report upon which the undersigned 
 
         can rely or determine what factors are the greater cause of 
 
         claimant's psychiatric problems.  The undersigned does believe 
 
         that she does have some psychological problems that she didn't 
 
         have, at least to that extent, on June 27, 1991.
 
         
 
              The undersigned might add that this was a close issue taking 
 
         into consideration the obvious chronic pain that claimant has and 
 
         the way she has been treated by the defendants.
 
         
 
              It would appear from the record that defendants should have 
 
         sent claimant to a pain clinic.  It would appear to the 
 
         undersigned that this might have solved some of the defendants' 
 
         exposure.  Although a pain clinic is not necessarily a cure for 
 
         the pain and held in many instances that it isn't, it helps one 
 

 
         
 
         Page  11
 
         
 
         
 
         to live with it and hopefully stabilize a situation.  It is 
 
         unknown to the undersigned what effect the pain clinic might have 
 
         and the undersigned will not speculate.  Since the undersigned 
 
         feels that defendants have previously been ordered to send 
 
         claimant to a pain clinic, the undersigned so finds that claimant 
 
         should be sent at defendants' expense to a pain clinic.
 
         
 
              It appears to the undersigned that the greater weight of 
 
         medical evidence in this case shows that claimant needs left knee 
 
         surgery and that this has been recommended by her authorized 
 
         doctor(s).  The undersigned finds that defendants shall provide a 
 
         doctor to perform this knee surgery.  The doctors that shall be 
 
         provided are those that are either referred to by the current 
 
         treating doctors or one chosen by the employer in the locale 
 
         where claimant lives which is presently a particular town in the 
 
         state of Florida. Any treatment or surgery should be at a place 
 
         convenient to the claimant.
 
         
 
              The undersigned finds that claimant is not entitled to any 
 
         additional healing period that claimant allegedly claims she has 
 
         incurred since the June 27, 1991 hearing.  Claimant has not 
 
         carried her burden in this regard and the undersigned finds that 
 
         under the total circumstances, there has not been a period in 
 
         which a healing period under the law could be granted.  There is 
 
         no question that upon claimant having any knee surgery, there 
 
         will be a healing period which defendants will be responsible 
 
         for.  There may be an argument later as to the extent of the 
 
         healing period but, at least, it is obvious there will be a 
 
         healing period involved.
 
         
 
              As to claimant going through the pain clinic and any healing 
 
         period that may allegedly be connected therewith, there would be 
 
         no healing period if the pain clinic is mainly the result of 
 
         going to the pain clinic to stabilize claimant's condition or 
 
         enable her to live with her disability or impairment.  If in fact 
 
         it is determined by medical evidence that the pain clinic did in 
 
         fact improve claimant's impairment or disability, then in that 
 
         case the undersigned would find that a healing period would be 
 
         granted during that period of time.  Again, the undersigned 
 
         realizes that at this time any period of time could not be 
 
         determined because it is referring to something in the future, 
 
         but this decision may give some guideline for future actions to 
 
         these parties.  Hopefully defendants would posture themselves in 
 
         a mode to help the claimant and reduce its industrial disability 
 
         rather than set itself upon denying benefits and occurring 
 
         substantial legal fees, penalty and increased industrial 
 
         disability.
 
         
 
              In this decision it is not up to this deputy to agree, 
 
         disagree or decide whether the industrial disability in the 
 
         arbitration decision rendered after the June 27, 1991 hearing is 
 
         too low, too high or right.  The undersigned in this particular 
 
         case considers what the claimant's current disability is and the 
 
         increase will be that difference between what the undersigned now 
 
         finds and what was found previously in the arbitration hearing.
 
         
 
              The undersigned in taking into consideration claimant's 
 
         physical and economical condition now versus what existed on June 
 
         27, 1991; her age; her present medical condition; her medical 
 
         history and work history; her education; the severity of her 
 

 
         
 
         Page  12
 
         
 
         
 
         injury; the location; functional impairment; the effect her 
 
         present condition that has resulted from her October 11, 1989 
 
         work injury has on her employability; and, the fact that she is 
 
         now longer employed, the undersigned finds the claimant currently 
 
         has incurred an 80 percent industrial disability and, therefor, 
 
         has an additional 35 percent industrial disability over and above 
 
         what she had as of June 27, 1991.
 
         
 
              The parties are disputing the payment of certain medical 
 
         bills.  The defendants contending that those parts of the bills 
 
         having to do with claimant's cervical spine should not be the 
 
         obligation of defendants.  As to claimant's exhibit 58, the 
 
         undersigned finds that $2,209.80 should be all paid by defendants 
 
         except for the $143 on August 24, 1993 titled "cervical 
 
         spine-complete."  The undersigned finds and the medical testimony 
 
         supports that there was one injection made when the doctor was 
 
         doing a myelogram on the lumbar and cervical spine.  The doctor 
 
         also indicated that many of the supporting services would have 
 
         been done regardless of whether just the lumbar was done or the 
 
         cervical.  The doctor also indicated that it was best to have one 
 
         injection and cover both at the same time rather than to have two 
 
         different occasions in which there would be two injections.  It 
 
         is obvious from the medical testimony that the least number of 
 
         injections into the human body, particularly in the spine area, 
 
         the better it is for the claimant.  There are some expenses that 
 
         are not divisible and the undersigned again finds that the main 
 
         reason originally was claimant's lumbar spine complaints.
 
         
 
              As to claimant's exhibit 57 and the bill in the amount of 
 
         $168, the undersigned finds that defendants will pay this bill.  
 
         It appears that at the time of going over the hearing assignment 
 
         report, the parties agreed before the beginning of testimony that 
 
         there was no dispute as to the $168.  Just in case there is still 
 
         a misunderstanding, the undersigned has the above finding.
 
         
 
              As to claimant's exhibit 59, there is no dispute as these 
 
         were ordered to be paid in a prior decision.  As to claimant's 
 
         exhibit 60, there appears to be no dispute and the parties are 
 
         referred to the Iowa Administrative Code on the payment of costs.  
 
         As indicated earlier, the undersigned is not determining which of 
 
         those costs are or are not covered by the Code as the Iowa Code 
 
         is clear as to what is payable and what is not and the parties 
 
         indbe much different than the 
 
         degree of impairment because in the first instance reference is 
 
         to loss of earning capacity and in the latter to anatomical or 
 
         functional abnormality or loss.  Although loss of function is to 
 
         be considered and disability can rarely be found without it, it 
 
         is not so that a degree of industrial disability is 
 
         proportionally related to a degree of impairment of bodily 
 
         function.
 
         
 
              Factors to be considered in determining industrial dis
 
         ability include the employee's medical condition prior to the 
 
         injury, immediately after the injury, and presently; the situs of 
 
         the injury, its severity and the length of healing period; the 
 
         work experience of the employee prior to the injury, after the 
 
         injury and potential for rehabilitation; the employee's 
 
         qualifications intellectually, emotionally and physically; 
 
         earnings prior and subsequent to the injury; age; education; 
 
         motivation; functional impairment as a result of the injury; and 
 
         inability because of the injury to engage in employment for which 
 
         the employee is fitted.  Loss of earnings caused by a job 
 
         transfer for reasons related to the injury is also relevant.  
 
         These are matters which the finder of fact considers collectively 
 
         in arriving at the determination of the degree of industrial 
 
         disability.
 
         
 
              There are no weighting guidelines that indicate how each of 
 
         the factors are to be considered.  There are no guidelines which 
 
         give, for example, age a weighted value of ten percent of the 
 
         total value, education a value of fifteen percent of total, 
 
         motivation - five percent; work experience - thirty percent, etc.  
 
         Neither does a rating of functional impairment directly correlate 
 
         to a degree of industrial disability to the body as a whole.  In 
 
         other words, there are no formulae which can be applied and then 
 
         added up to determine the degree of industrial disability.  It 
 
         therefore becomes necessary for the deputy or commissioner to 
 
         draw upon prior experience, general and specialized knowledge to 
 
         make the finding with regard to degree of industrial disability.  
 
         See Peters v. Truck Haven Cafe, Inc., (Appeal Decision, February 
 
         28, 1985); Christens v. Hagen, Inc., (Appeal Decision, March 26, 
 
         l985).
 
         
 
              Upon review-reopening, claimant has the burden to show a 
 
         change in condition related to the original injury since the 
 
         original award or settlement was made.  The change may be either 
 
         economic or physical.  Blacksmith v. All-American, Inc., 290 
 

 
         
 
         Page  14
 
         
 
         
 
         N.W.2d 348 (Iowa 1980); Henderson v. Iles, 250 Iowa 787, 96 
 
         N.W.2d 321 (1959).  A mere difference of opinion of experts as to 
 
         the percentage of disability arising from an original injury is 
 
         not sufficient to justify a different determination on a petition 
 
         for review-reopening.  Rather, claimant's condition must have 
 
         worsened or deteriorated in a manner not contemplated at the time 
 
         of the initial award or settlement before an award on 
 
         review-reopening is appropriate.  Bousfield v. Sisters of Mercy, 
 
         249 Iowa 64, 86 N.W.2d 109 (1957).  A failure of a condition to 
 
         improve to the extent anticipated originally may also constitute 
 
         a change of condition.  Meyers v. Holiday Inn of Cedar Falls, 
 
         Iowa, 272 N.W.2d 24 (Iowa Ct. App. 1978).
 
         
 
              It is further concluded that:
 
         
 
              Claimant has had a change of condition both physically and 
 
         economically since her arbitration hearing on June 27, 1991, and 
 
         that condition is causally connected to claimant's October 11, 
 
         1989 injury.
 
         
 
              Claimant has not incurred any additional healing period 
 
         since her June 27, 1991 arbitration hearing.
 
         
 
              Claimant currently has an 80 percent industrial disability 
 
         which has resulted in claimant incurring an additional 35 percent 
 
         industrial disability since her June 27, 1991 arbitration 
 
         hearing.
 
         
 
              Claimant is entitled to medical care in the form of 
 
         treatment in the pain clinic and also any left knee arthroscopic 
 
         surgery all at the defendants' expense.
 
         
 
              Defendants are responsible for the $168 medical bill 
 
         reflected on Claimant's exhibit 57 and are responsible for all of 
 
         the medical bills on claimant's exhibit 58 except the $143 
 
         incurred on August 24, 1993 concerning a "cervical 
 
         spine-complete."  The undersigned finds that said bills were for 
 
         necessary treatment.
 
         
 
              Claimant's cervical spine complaints or medical condition 
 
         concerning her upper extremities are not the result of claimant's 
 
         October 11, 1989 injury.
 
         
 
              Claimant's psychological problems are not fully caused by 
 
         claimant's October 11, 1989 injury even though they have been 
 
         contributed to by claimant's medical condition and the conduct of 
 
         the defendants.  Claimant has failed to carry the burden to show 
 
         that said psychological problems were substantially or materially 
 
         aggravated, lighted up or heightened as a result of claimant's 
 
         October 11, 1989 injury.  There are other causes and stresses in 
 
         claimant's life that are as great if not greater than any cause 
 
         that might be contributed to claimant's work injury of October 
 
         11, 1989.
 
                                     ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That defendants shall pay unto claimant an additional one 
 
         hundred seventy-five (175) weeks of permanent partial disability 
 

 
         
 
         Page  15
 
         
 
         
 
         benefits at the rate of one hundred twenty-seven and 13/100 
 
         dollars ($127.13) beginning July 23, 1993.
 
         
 
              That defendants shall reimburse claimant or the medical 
 
         provider, if not already paid for those amounts shown on 
 
         claimant's exhibit 58 except for, one hundred forty-three dollars 
 
         ($143) represented as a "cervical spine-complete" on August 24, 
 
         1993, and that bill represented on claimant's exhibit 57 in the 
 
         amount of one hundred sixty-eight dollars ($168).  Defendants' 
 
         total liability for medical bills is two thousand two hundred 
 
         thirty-four and 80/100 dollars ($2,234.80).
 
         
 
              That defendants shall pay for claimant's pain center clinic 
 
         treatment and a left knee surgery in the locality that claimant 
 
         resides unless defendants desire to pay all of claimant's 
 
         transportation expenses, including air fare, local expenses and 
 
         housing for her treatment here locally.
 
         
 
              That defendants shall pay accrued weekly benefits in a lump 
 
         sum and shall receive credit against the award for weekly 
 
         benefits previously paid.   The defendants have previously paid 
 
         two hundred twenty-five (225) weeks at the rate of one hundred 
 
         twenty-seven and 13/00 dollars ($127.13), which is the amount of 
 
         permanent partial disability originally ordered in the 
 
         arbitration decision filed on July 30, 1991.
 
         
 
              That defendants shall pay interest on benefits awarded 
 
         herein as set forth in Iowa Code section 85.30.
 
         
 
              That defendants shall pay the costs of this action, pursuant 
 
         to rule 343 IAC 4.33.
 
         
 
              That defendants shall file an activity report upon payment 
 
         of this award as required by this agency, pursuant to rule 343 
 
         IAC 3.1.
 
         
 
              Signed and filed this ____ day of November, 1993.
 
         
 
         
 
         
 
                                       ______________________________
 
                                       BERNARD J. O'MALLEY
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies to:
 
         
 
         Mr Richard B Maher
 
         Attorney at Law
 
         421 W Broadway  Ste 500
 
         P O Box 1526
 
         Council Bluffs IA 51502
 
         
 
         Mr W Curtis Hewett
 
         Attorney at Law
 
         35 Main Pl
 
         P O Box 249
 
         Council Bluffs IA 51502
 
         
 
         
 
              
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                              1803; 2908
 
                                              1108.20; 2700
 
                                              Filed November 22, 1993
 
                                              Bernard J. O'Malley
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            PAULINE MILLER,               :
 
                                          :      File No. 935811
 
                 Claimant,                :
 
                                          :
 
            vs.                           :        R E V I E W -
 
                                          :
 
            CASEY'S GENERAL STORE,        :      R E O P E N I N G
 
                                          :
 
                 Employer,                :       D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            EMPLOYERS MUTUAL COMPANIES,   :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            1803; 2908
 
            Found claimant had a change of circumstances, both 
 
            physically and economically, since her June 27, 1991 
 
            arbitration hearing.  At time of prior hearing the doctors 
 
            anticipated claimant could return to full-time work at 
 
            defendant employer.  Also, her lifting restrictions were 
 
            reduced from 20 to 10 pounds.  Deputy found claimant now has 
 
            an 80 percent industrial disability  which is 35 percent 
 
            greater than at the time of her first hearing.
 
            
 
            1108.20
 
            Found claimant's psychological problems were not materially 
 
            and substantially aggravated by her injury.  Claimant had 
 
            other stresses and causes in her life that were as great if 
 
            not greater contributors to her mental situation.
 
            
 
            2700
 
            Ordered defendants to send claimant to pain clinic and 
 
            provide for a knee operation.
 
            Defendants were admonished for not obeying prior deputy's 
 
            decision.
 
            
 
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            LESLIE VAN LENNING,   
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                             File Nos. 935847/940652
 
            STOLLER FISHERIES, INC.,   
 
                                                 A P P E A L
 
                 Employer,   
 
                                              D E C I S I O N
 
            and         
 
                        
 
            LIBERTY MUTUAL,       
 
                        
 
                 Insurance Carrier,    
 
                 Defendants.      
 
            ____________________________________________________________
 
            The record, including the transcript of the hearing before 
 
            the deputy and all exhibits admitted into the record, has 
 
            been reviewed de novo on appeal.
 
 
 
                                    ISSUES
 
 
 
            Defendant states the following issue on appeal:  Whether the 
 
            deputy industrial commissioner's decision that Leslie Van 
 
            Lenning suffered a 20 percent permanent partial industrial 
 
            disability as a result of a work related injury on November 
 
            19, 1989 was excessive.
 
 
 
                               FINDINGS OF FACT
 
 
 
            The findings of fact contained in the proposed agency 
 
            decision filed February 12, 1992 are adopted as final agency 
 
            action.
 
  
 
                            CONCLUSIONS OF LAW
 
 
 
            The conclusions of law contained in the proposed agency 
 
            decision filed February 12, 1992 are adopted as set forth 
 
            below.  Segments designated by asterisks (*****) indicate 
 
            portions of the language from the proposed agency decision 
 
            that have been intentionally deleted and do not form a part 
 
            of this final agency decision.  Segments designated by 
 
            brackets ([ ]) indicate language that is in addition to the 
 
            language of the proposed agency decision.
 
            
 
                 There is no dispute between the parties that claimant 
 
            sustained injuries on April 19, 1989, and November 19, 1989.  
 
            
 
                 The first issue to be determined is whether claimant is 
 
            entitled to any workers' compensation benefits as a result 
 
            of the April 19, 1989, injury.  
 
            
 
                 The claimant testified and the record shows that he 
 
            lost no time from work as a result of his alleged April 19, 
 
            1989, injury.  
 

 
            
 
            Page   2
 
            
 
            
 
            
 
                 Temporary disability benefits are covered by Iowa Code 
 
            section 85.33(1) and start on the fourth day following the 
 
            injury.  Benefits are intended to compensate employees for 
 
            lost wages until they are able to return to gainful 
 
            employment when they cannot work due to injuries which will 
 
            not result in permanent disability.
 
            
 
                 Since claimant lost no time from work as a result of 
 
            his April 19, 1989 injury, he is not entitled to temporary 
 
            total disability or healing period benefits for this injury.
 
            
 
                 Claimant lost work and wages as a result of his 
 
            November 19, 1989 injury.  The parties agree that claimant 
 
            was paid workers' compensation benefits during the period of 
 
            time he was either off work or working part-time.  The issue 
 
            to be decided by the undersigned is whether claimant is 
 
            entitled to permanent partial disability benefits as a 
 
            result of the injury sustained on November 19, 1989.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of November 
 
            19, 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). 
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903 (Iowa 1974).  However, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Id., at 907.  Further, the weight to be given to such 
 
            an opinion is for the finder of fact, and that may be 
 
            affected by the completeness of the premise given the expert 
 
            and other surrounding circumstances.  Bodish, 257 Iowa 516, 
 
            133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
            Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
            
 
                 The record clearly indicates that claimant was 
 
            asymptomatic prior to November 19, 1989, and performed his 
 
            work activities without restrictions.  The greater weight of 
 
            the medical evidence supports the finding that claimant's 
 
            back condition is causally related to his work with 
 
            employer.  The medical evidence clearly demonstrates that 
 
            claimant has suffered a permanent injury.  Dr. Johnson, an 
 
            orthopedist, rated claimant's injury as 10 percent 
 
            impairment to the body as a whole.  In his deposition, Dr. 
 
            Johnson explained how he arrived at the 10 percent 
 
            functional impairment.
 
            
 
                 Q.  Okay.  Doctor, how did you arrive at the 10 
 
                 percent functional impairment?
 

 
            
 
            Page   3
 
            
 
            
 
            
 
                 A.  On my worksheet I assigned the soft tissue 
 
                 strain or low back strain without neurologic 
 
                 involvement in the lumbar region a 5 percent grade 
 
                 and his mild limitation of motion in the lumbar 
 
                 region of 75 degrees of flexion was rated at 4 
 
                 percent and his lateral flexion to the left was 
 
                 graded at 1 percent and the grand total was 10 
 
                 percent.
 
            
 
            (Claimant's Exhibit 1)
 
            
 
                 The parties have stipulated that if claimant's November 
 
            19, 1989 injury is found to be a cause of permanent 
 
            disability, such disability is an industrial disability to 
 
            the body as a whole.
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, expe
 
            rience and inability to engage in employment for which he is 
 
            fitted.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 
            125 N.W.2d 251 (1963).  Barton v. Nevada Poultry, 253 Iowa 
 
            285, 110 N.W.2d 660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial disabil
 
            ity.  This is so as impairment and disability are not syn
 
            onymous.  Degree of industrial disability can in fact be 
 
            much different than the degree of impairment because in the 
 
            first instance reference is to loss of earning capacity and 
 
            in the latter to anatomical or functional abnormality or 
 
            loss.  Although loss of function is to be considered and 
 
            disability can rarely be found without it, it is not so that 
 
            a degree of industrial disability is proportionally related 
 
            to a degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  These are matters which the 
 
            finder of fact considers collectively in arriving at the 
 
            determination of the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  There are no 
 
            guidelines which give, for example, age a weighted value of 
 
            ten percent of the total value, education a value of fifteen 
 
            percent of total, motivation - five percent; work experience 
 
            - thirty percent, etc.  Neither does a rating of functional 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            impairment directly correlate to a degree of industrial 
 
            disability to the body as a whole.  In other words, there 
 
            are no formulae which can be applied and then added up to 
 
            determine the degree of industrial disability.  It therefore 
 
            becomes necessary for the deputy or commissioner to draw 
 
            upon prior experience, general and specialized knowledge to 
 
            make the finding with regard to degree of industrial dis
 
            ability.   See Peterson v. Truck Haven Cafe, Inc., (Appeal 
 
            Decision, February 28, 1985); Christensen v. Hagen, Inc., 
 
            (Appeal Decision, March 26, 1985).
 
            
 
                 A disability to the body as a whole or "industrial 
 
            disability" is a loss of earning capacity resulting from the 
 
            work injury.  Diederich v. Tri-City R. Co., 219 Iowa 587, 
 
            593, 258 N.W. 899 (1935).  A physical impairment or 
 
            restriction on work activity may or may not result in such a 
 
            loss of earning capacity.  The extent to which a work injury 
 
            and a resulting medical condition has resulted in an 
 
            industrial disability is determined from examination of 
 
            several factors.  These factors include the employee's 
 
            medical condition prior to the injury, immediately after the 
 
            injury and presently; the situs of the injury, its severity 
 
            and length of healing period; the work experience of the 
 
            employee prior the injury, after the injury and potential 
 
            for rehabilitation; the employee's qualifications 
 
            intellectually, emotionally and physically; earnings prior 
 
            and subsequent to the injury; age; education; motivation; 
 
            functional impairment as a result of the injury and 
 
            inability because of the injury to engage in employment for 
 
            which the employee is fitted.
 
            
 
                 Claimant was born on May 12, 1955, and was 34 years old 
 
            at the time of his injury.  He is considered in the peak 
 
            earning years of employment and this makes his disability 
 
            worse than it would be for a younger or older employee.  
 
            Becke v. Turner-Busch, Inc., Thirty-fourth Biennial Report 
 
            of the Industrial Commissioner 34 (Appeal Decision  1979); 
 
            Walton v. B & H Tank Corp., II Iowa Industrial Commissioner 
 
            Report 426 (1981); McCoy v. Donaldson Company, Inc., file 
 
            numbers 782670 & 805200 (Appeal Decision 1989).
 
            
 
                 Claimant has a history of heavy manual labor and is 
 
            restricted to lifting no more than 60 pounds, and engaging 
 
            in minimal reaching, bending, stooping, and twisting.  His 
 
            condition does not require surgery.  Claimant has worked 
 
            full-time for employer since April 2, 1990.  He is 
 
            supervisor and manager of the meal plant.  He earns $6.75 
 
            per hour plus forty cents per hour incentive bonus.  
 
            Claimant has no difficulty performing his present job and is 
 
            a valued employee.  Nevertheless, he has suffered a loss of 
 
            earning capacity as a result of his injury.  Evidence was 
 
            presented that claimant engages in activities such as 
 
            bowling and playing softball.  He occasionally does not 
 
            abide by his lifting restrictions and has been observed 
 
            lifting weights in excess of 60 pounds and working on heavy 
 
            machinery.  
 
            
 
                 After considering all of the factors of industrial 
 
            disability, it is determined that claimant has sustained a 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            permanent partial disability of 10 percent to the body as a 
 
            whole entitling him to 50 weeks of permanent partial 
 
            disability benefits.  
 
            WHEREFORE, the decision of the deputy is affirmed and 
 
            modified.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That in file number 940652:
 
            
 
                 Claimant shall take nothing from these proceedings as a 
 
            result of his April 19, 1989, injury.
 
            
 
                 That in file number 935847:
 
            
 
                 Defendants shall pay to claimant fifty (50) weeks of 
 
            permanent partial disability benefits at the rate of two 
 
            hundred forty-eight and 92/100 dollars ($248.92) per week 
 
            commencing April 2, 1990.  
 
            
 
                 That defendants shall receive credit for any benefits 
 
            previously paid.
 
            
 
                 That defendants pay accrued amounts in a lump sum.
 
            
 
                 That defendants pay interest pursuant to Iowa Code 
 
            section 85.30.
 
            That claimant shall pay the costs of the appeal including 
 
            the transcription of the hearing.  Defendants shall pay all 
 
            other costs.
 
            
 
                 That defendants file claim activity reports as required 
 
            by this agency.
 
            Signed and filed this ____ day of November, 1992.
 
            
 
            
 
            
 
            
 
                                  ________________________________
 
                                          BYRON K. ORTON
 
                                     INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. E.W. Wilcke
 
            Attorney at Law
 
            826 1/2 Lake St.
 
            P.O. Box 455
 
            Spirit Lake, IA  51360
 
            
 
            Mr. Tito Trevino
 
            Attorney at Law
 
            801 Carver Bldg.
 
            P.O. Box 1680
 
            Fort Dodge, IA  50501
 
            
 
            Mr. Jerry Schnurr, III
 
            Attorney at Law
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            P.O. Box 952
 
            Fort Dodge, IA 50501-3977
 
            
 
 
            
 
 
 
 
 
 
 
 
 
                                             5-1801; 5-1803
 
                                             Filed November 9, 1992
 
                                             Byron K. Orton
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            LESLIE VAN LENNING,   
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                              File Nos. 935847/940652
 
            STOLLER FISHERIES, INC.,   
 
                                                   A P P E A L
 
                 Employer,   
 
                                                 D E C I S I O N
 
            and         
 
                        
 
            LIBERTY MUTUAL,       
 
                        
 
                 Insurance Carrier,    
 
                 Defendants.      
 
            ____________________________________________________________
 
            
 
            5-1801
 
            In file number 940652, claimant lost no time from work or 
 
            any wages as a result of the injury he sustained on April 
 
            19, 1989.  Therefore, he is not entitled to temporary total 
 
            disability benefits as a result of this injury.
 
            
 
            5-1803
 
            In file number 935847;
 
            Claimant is entitled to 50 weeks of permanent partial 
 
            disability as a result of a back injury sustained on 
 
            November 19, 1989.
 
            Claimant is 35 years old and at the peak of his earning 
 
            career.  He has a history of manual labor and has a 60-pound 
 
            lifting limitation as well as limitations on bending, 
 
            stooping, and reaching.  His wages today are not 
 
            substantially less than when he was injured, however, he has 
 
            a loss of earning capacity as a result of his back 
 
            impairment.  Functional impairment ratings ranged from 5 to 
 
            10 percent.  Claimant awarded 20 percent industrial 
 
            disability by the deputy.  The industrial commissioner 
 
            reduced the industrial disability to 10 percent.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            LESLIE VAN LENNING,           :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          : File Nos. 935847 & 940652
 
            STOLLER FISHERIES, INC.,      :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL,               :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                               PRELIMINARY MATTERS
 
            
 
                 Subsequent to the hearing, defendants submitted an 
 
            unsolicited post-trial memorandum presenting argument and 
 
            factual interpretation.  On February 10, 1992, claimant 
 
            filed a motion to strike defendants' memorandum.
 
            
 
                 Since the case was considered fully submitted at the 
 
            close of the hearing, defendants' memorandum is not part of 
 
            the evidence in this case and is not accorded weight and 
 
            consideration.
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Leslie 
 
            Van Lenning, claimant, against Stoller Fisheries, Inc., 
 
            employer and Liberty Mutual, insurance carrier, to recover 
 
            benefits under the Workers' Compensation Act as the result 
 
            of alleged injuries sustained on April 19, 1989, and 
 
            November 19, 1989.  This matter came on for hearing before 
 
            the undersigned deputy industrial commissioner on February 
 
            3, 1992, in Storm Lake, Iowa.  The record was considered 
 
            fully submitted at the close of the hearing.  The record 
 
            consists of testimony from claimant, Frank Edmunds, Bob 
 
            Holst, Connie Schanzenbaker, and Tom Opheim; claimant's 
 
            exhibits 1 through 8, 10 and 11; defendants' exhibits 1 
 
            through 15 and 17.  
 
            
 
                                      issues
 
            
 
                 Pursuant to the prehearing report and order dated 
 
            February 3, 1992, the parties have presented the following 
 
            issues for resolution:
 
            
 
                 .  Whether claimant's injuries were a cause of 
 
            temporary and permanent disability;
 
            
 
                 .  Whether claimant is entitled to weekly compensation 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            for temporary disability as a result of his April 19, 1989, 
 
            injury; and
 
            
 
                 .  Whether claimant is entitled to weekly compensation 
 
            for permanent disability as a result of his injuries, and, 
 
            if so, the extent thereof.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned has carefully considered all of the 
 
            testimony given at the hearing, arguments made, evidence 
 
            contained in the exhibits herein, and makes the following 
 
            findings:
 
            
 
                 Claimant was born on May 12, 1955, and completed the 
 
            twelfth grade of school.  His work history consists 
 
            primarily of manual labor.  
 
            
 
                 Claimant saw Harry William Hargett, chiropractor, on 
 
            April 18, 1989, for evaluation and treatment of low back 
 
            pain and bilateral leg discomfort suffered as a result of 
 
            lifting a 45-pound box of fish at Stoller Fisheries.  He was 
 
            diagnosed with intervertebral disc displacement at L5-S1 
 
            with lumbar spine degeneration and low back pain with muscle 
 
            spasm (claimant's exhibit 10, pages 44-46).
 
            
 
                 Claimant lost no time from work as a result of his 
 
            April 19, 1989, injury (defendants' ex. 1).  
 
            
 
                 On November 19, 1989, claimant slipped on some ice 
 
            while loading a truck at work and aggravated his back 
 
            problem.  He was seen by Dr. Hargett on November 20, 1989, 
 
            and x-rays were taken which revealed no evidence of fracture 
 
            or dislocation.  A lumbar CT scan was performed on November 
 
            27, 1989, which revealed minimal bulging of the L5-S1 disc, 
 
            but no herniation (cl. ex. 10, pp. 48-50).
 
            
 
                 Dr. Hargett returned claimant to limited work activity 
 
            on December 11, 1989, with a 20-pound lifting restriction.  
 
            Due to a slow recovery, Dr. Hargett referred claimant to 
 
            David L. Hoversten, M.D., orthopedist, for evaluation on 
 
            December 27, 1989.  Dr. Hoversten indicated that claimant's 
 
            symptoms came from bulging discs at L4-5 and L5-S1.  He 
 
            stated that intermittent flare-ups of back and sciatic pain 
 
            are common with this impairment (cl. ex. 6).  
 
            
 
                 Claimant was referred to L.T. Donovan, D.O., 
 
            orthopedist, for a second opinion on January 3, 1990.  After 
 
            reviewing the claimant's medical history and noting his 
 
            complaints, Dr. Donovan conducted a physical examination.  
 
            He also reviewed the results of prior x-rays and CT scan.  
 
            His impression was, "Mechanical low back pain."  (cl. ex. 
 
            8).  
 
            
 
                 Claimant saw Dr. Hoversten for follow-up evaluations on 
 
            January 25 and April 23, 1990.  A 60-pound lifting 
 
            restriction was imposed on April 23, 1990 (cl. ex. 6, p. 
 
            36).  
 
            
 
                 On June 8, 1990, Dr. Hargett reported that claimant had 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            reached maximum medical improvement and had sustained a 5 
 
            percent permanent impairment to his low back.  He 
 
            recommended a permanent 60-pound lifting restriction (cl. 
 
            ex. 4).  
 
            
 
                 Claimant was referred to Dennis L. Johnson, M.D., for 
 
            an independent medical examination on April 29, 1991.  Based 
 
            on his orthopedic examination, Dr. Johnson gave claimant a 
 
            permanent partial physical impairment rating of 10 percent 
 
            due to chronic low back strain without neurologic 
 
            involvement (cl. ex. 2).
 
            
 
                 Dr. Johnson testified in a deposition on June 24, 1991.  
 
            He stated that he concurred with Dr. Hoversten's 60-pound 
 
            lifting restriction and also imposed limited reaching, 
 
            twisting, bending, and sitting (ex. 1).
 
            
 
                 Dr. Hargett testified in a deposition dated December 
 
            19, 1991.  He stated that he concurred with Dr. Johnson's 
 
            assessment of claimant's permanent restrictions and 
 
            permanent impairment rating (ex. 10).
 
            
 
                                conclusions of law
 
            
 
                 There is no dispute between the parties that claimant 
 
            sustained injuries on April 19, 1989, and November 19, 1989.  
 
            
 
                 The first issue to be determined is whether claimant is 
 
            entitled to any workers' compensation benefits as a result 
 
            of the April 19, 1989, injury.  
 
            
 
                 The claimant testified and the record shows that he 
 
            lost no time from work as a result of his alleged April 19, 
 
            1989, injury.  
 
            
 
                 Temporary disability benefits are covered by Iowa Code 
 
            section 85.33(1) and start on the fourth day following the 
 
            injury.  Benefits are intended to compensate employees for 
 
            lost wages until they are able to return to gainful 
 
            employment when they cannot work due to injuries which will 
 
            not result in permanent disability.
 
            
 
                 Since claimant lost no time from work as a result of 
 
            his April 19, 1989, injury, he is not entitled to temporary 
 
            total disability or healing period benefits for this injury.
 
            
 
                 Claimant lost work and wages as a result of his 
 
            November 19, 1989, injury.  The parties agree that claimant 
 
            was paid workers' compensation benefits during the period of 
 
            time he was either off work or working part-time.  The issue 
 
            to be decided by the undersigned is whether claimant is 
 
            entitled to permanent partial disability benefits as a 
 
            result of the injury sustained on November 19, 1989.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of November 
 
            19, 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 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            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). 
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903 (Iowa 1974).  However, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Id., at 907.  Further, the weight to be given to such 
 
            an opinion is for the finder of fact, and that may be 
 
            affected by the completeness of the premise given the expert 
 
            and other surrounding circumstances.  Bodish, 257 Iowa 516, 
 
            133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
            Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
            
 
                 The record clearly indicates that claimant was 
 
            asymptomatic prior to November 19, 1989, and performed his 
 
            work activities without restrictions.  The greater weight of 
 
            the medical evidence supports the finding that claimant's 
 
            back condition is causally related to his work with 
 
            employer.  The medical evidence clearly demonstrates that 
 
            claimant has suffered a permanent injury.  Dr. Johnson, an 
 
            orthopedist, rated claimant's injury as 10 percent 
 
            impairment to the body as a whole.  In his deposition, Dr. 
 
            Johnson explained how he arrived at the 10 percent 
 
            functional impairment.
 
            
 
                 Q.  Okay.  Doctor, how did you arrive at the 10 
 
                 percent functional impairment?
 
            
 
                 A.  On my worksheet I assigned the soft tissue 
 
                 strain or low back strain without neurologic 
 
                 involvement in the lumbar region a 5 percent grade 
 
                 and his mild limitation of motion in the lumbar 
 
                 region of 75 degrees of flexion was rated at 4 
 
                 percent and his lateral flexion to the left was 
 
                 graded at 1 percent and the grand total was 10 
 
                 percent.
 
            
 
            (claimant's exhibit 1)
 
            
 
                 The parties have stipulated that if claimant's November 
 
            19, 1989, injury is found to be a cause of permanent 
 
            disability, such disability is an industrial disability to 
 
            the body as a whole.
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, expe
 
            rience and inability to engage in employment for which he is 
 
            fitted.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 
            125 N.W.2d 251 (1963).  Barton v. Nevada Poultry, 253 Iowa 
 
            285, 110 N.W.2d 660 (1961).
 
            
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial disabil
 
            ity.  This is so as impairment and disability are not syn
 
            onymous.  Degree of industrial disability can in fact be 
 
            much different than the degree of impairment because in the 
 
            first instance reference is to loss of earning capacity and 
 
            in the latter to anatomical or functional abnormality or 
 
            loss.  Although loss of function is to be considered and 
 
            disability can rarely be found without it, it is not so that 
 
            a degree of industrial disability is proportionally related 
 
            to a degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  These are matters which the 
 
            finder of fact considers collectively in arriving at the 
 
            determination of the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  There are no 
 
            guidelines which give, for example, age a weighted value of 
 
            ten percent of the total value, education a value of fifteen 
 
            percent of total, motivation - five percent; work experience 
 
            - thirty percent, etc.  Neither does a rating of functional 
 
            impairment directly correlate to a degree of industrial 
 
            disability to the body as a whole.  In other words, there 
 
            are no formulae which can be applied and then added up to 
 
            determine the degree of industrial disability.  It therefore 
 
            becomes necessary for the deputy or commissioner to draw 
 
            upon prior experience, general and specialized knowledge to 
 
            make the finding with regard to degree of industrial dis
 
            ability.   See Peterson v. Truck Haven Cafe, Inc., (Appeal 
 
            Decision, February 28, 1985); Christensen v. Hagen, Inc., 
 
            (Appeal Decision, March 26, l985).
 
            
 
                 A disability to the body as a whole or "industrial 
 
            disability" is a loss of earning capacity resulting from the 
 
            work injury.  Diederich v. Tri-City R. Co., 219 Iowa 587, 
 
            593, 258 N.W. 899 (1935).  A physical impairment or 
 
            restriction on work activity may or may not result in such a 
 
            loss of earning capacity.  The extent to which a work injury 
 
            and a resulting medical condition has resulted in an 
 
            industrial disability is determined from examination of 
 
            several factors.  These factors include the employee's 
 
            medical condition prior to the injury, immediately after the 
 
            injury and presently; the situs of the injury, its severity 
 
            and length of healing period; the work experience of the 
 
            employee prior the injury, after the injury and potential 
 
            for rehabilitation; the employee's qualifications 
 
            intellectually, emotionally and physically; earnings prior 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            and subsequent to the injury; age; education; motivation; 
 
            functional impairment as a result of the injury and 
 
            inability because of the injury to engage in employment for 
 
            which the employee is fitted.
 
            
 
                 Claimant was born on May 12, 1955, and was 34 years old 
 
            at the time of his injury.  He is considered in the peak 
 
            earning years of employment and this makes his disability 
 
            worse than it would be for a younger or older employee.  
 
            Becke v. Turner-Busch, Inc., Thirty-fourth Biennial Report 
 
            of the Industrial Commissioner 34 (Appeal Decision  1979); 
 
            Walton v. B & H Tank Corp., II Iowa Industrial Commissioner 
 
            Report 426 (1981); McCoy v. Donaldson Company, Inc., file 
 
            numbers 782670 & 805200 (Appeal Decision 1989).
 
            
 
                 Claimant has a history of heavy manual labor and is 
 
            restricted to lifting no more than 60 pounds, and engaging 
 
            in minimal reaching, bending, stooping, and twisting.  His 
 
            condition does not require surgery.  Claimant has worked 
 
            full-time for employer since April 2, 1990.  He is 
 
            supervisor and manager of the meal plant.  He earns $6.75 
 
            per hour plus forty cents per hour incentive bonus.  
 
            Claimant has no difficulty performing his present job and is 
 
            a valued employee.  Nevertheless, he has suffered a loss of 
 
            earning capacity as a result of his injury.  Evidence was 
 
            presented that claimant engages in activities such as 
 
            bowling and playing softball.  He occasionally does not 
 
            abide by his lifting restrictions and has been observed 
 
            lifting weights in excess of 60 pounds and working on heavy 
 
            machinery.  
 
            
 
                 After considering all of the factors of industrial 
 
            disability, it is determined that claimant has sustained a 
 
            permanent partial disability of 20 percent to the body as a 
 
            whole entitling him to 100 weeks of permanent partial 
 
            disability benefits.  
 
            
 
                                        
 
            
 
                                        
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 In file number 940652:
 
            
 
                 Claimant shall take nothing from these proceedings as a 
 
            result of his April 19, 1989, injury.
 
            
 
                 In file number 935847:
 
            
 
                 Claimant's motion to strike is overruled since 
 
            defendants' memorandum is not part of the evidence in this 
 
            case.
 
            
 
                 Defendants shall pay to claimant one hundred (100) 
 
            weeks of permanent partial disability benefits at the rate 
 
            of two hundred forty-eight and 92/100 dollars ($248.92) per 
 
            week commencing April 2, 1990.  Guide to Iowa Workers' 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            Compensation Claim Handling, July 1, 1989, edition.
 
            
 
                 That defendants shall receive credit for any benefits 
 
            previously paid.
 
            
 
                 That defendants pay accrued amounts in a lump sum.
 
            
 
                 That defendants pay interest pursuant to Iowa Code 
 
            section 85.30.
 
            
 
                 That defendants pay costs of this action pursuant to 
 
            rule 343 IAC 4.33.
 
            
 
                 That defendants file claim activity reports as required 
 
            by this agency.
 
            
 
                 Signed and filed this ____ day of February, 1992.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          JEAN M. INGRASSIA
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. E.W. Wilcke
 
            Attorney at Law
 
            826 1/2 Lake St.
 
            PO Box 455
 
            Spirit Lake, IA  51360
 
            
 
            
 
            
 
            
 
            
 
            
 
            Mr. Tito Trevino
 
            Mr. Jerry Schnurr, III
 
            Attorneys at Law
 
            801 Carver Bldg.
 
            PO Box 1680
 
            Fort Dodge, IA  50501
 
            
 
                 
 
            
 
 
         
 
         Page   1
 
         
 
         
 
         
 
         
 
                                       51801 51803
 
                                       Filed February 12, 1992
 
                                       Jean M. Ingrassia
 
         before the iowa industrial commissioner
 
         ____________________________________________________________
 
                                       :
 
         LESLIE VAN LENNING,           :
 
                                       :
 
              Claimant,                :
 
                                       :
 
         vs.                           :
 
                                       : File Nos. 935847 & 940652
 
         STOLLER FISHERIES, INC.,      :
 
                                       :  A R B I T R A T I O N
 
              Employer,                :
 
                                       :      D E C I S I O N
 
         and                           :
 
                                       :
 
         LIBERTY MUTUAL,               :
 
                                       :
 
              Insurance Carrier,       :
 
              Defendants.              :
 
         ___________________________________________________________
 
         
 
         51801
 
         In file number 940652, claimant lost no time from work or any 
 
         wages as a result of the injury he sustained on April 19, 1989.  
 
         Therefore, he is not entitled to temporary total disability 
 
         benefits as a result this injury.
 
         
 
         51803
 
         In file number 935847;
 
         Claimant is entitled to 100 weeks of permanent partial disability 
 
         as a result of a back injury sustained on November 19, 1989.  
 
         Claimant is 35 years old and at the peak of his earning career.  
 
         He has a history of manual labor and has a 60-pound lifting 
 
         limitation as well as limitations on bending, stooping, and 
 
         reaching.  His wages today are not substantially less than when 
 
         he was injured, however, he has a loss of earning capacity as a 
 
         result of his back impairment.  Functional impairment ratings 
 
         ranged from 5 to 10 percent.  Claimant awarded 20 percent 
 
         industrial disability.