BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
                     
 
         JOANN FISHER,    
 
                     
 
              Claimant,   
 
                     
 
         vs.         
 
                                                   File No. 939190
 
         VEGAS CORPORATION, d/b/a   
 
         McDONALD'S,      
 
                                                    A P P E A L
 
              Employer,   
 
                                                  D E C I S I O N
 
         and         
 
                     
 
         AMERICAN MOTORISTS INSURANCE   
 
         COMPANY,    
 
                     
 
              Insurance Carrier,    
 
              Defendants.      
 
         _________________________________________________________________
 
         The record, including the transcript of the hearing before the 
 
         deputy and all exhibits admitted into the record, has been 
 
         reviewed de novo on appeal.  The decision of the deputy filed 
 
         August 30, 1991 is affirmed and is adopted as the final agency 
 
         action in this case.
 
         Defendants shall pay the costs of the appeal, including the 
 
         preparation of the hearing transcript.
 
         Signed and filed this ____ day of November, 1992.
 
         
 
         
 
         
 
         
 
                                   ________________________________
 
                                           BYRON K. ORTON
 
                                     INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Virgil Moore
 
         Attorney at Law
 
         2454 S.W. Ninth
 
         Des Moines, Iowa 50315
 
         
 
         Mr. Paul C. Thune
 
         Attorney at Law
 
         P.O. Box 9130
 
         Des Moines, Iowa 50306
 
         
 
 
            
 
 
 
 
 
 
 
 
 
                                             9998
 
                                             Filed November 5, 1991
 
                                             Byron K. Orton
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            JOANN FISHER,    
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                                   File No. 939190
 
            VEGAS CORPORATION, d/b/a   
 
            McDONALD'S,      
 
                                                    A P P E A L
 
                 Employer,   
 
                                                  D E C I S I O N
 
            and         
 
                        
 
            AMERICAN MOTORISTS INSURANCE   
 
            COMPANY,    
 
                        
 
                 Insurance Carrier,    
 
                 Defendants.      
 
            ____________________________________________________________
 
            
 
            9998
 
            
 
                 Summary affirmance of deputy's decision filed August 
 
            30, 1991.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            JOANN FISHER,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :         File No. 939190
 
                                          :
 
            VEGAS CORPORATION, d/b/a      :      A R B I T R A T I O N
 
            McDONALD'S,                   :
 
                                          :         D E C I S I O N
 
                 Employer,                :
 
                                          :
 
            and                           :
 
                                          :
 
            AMERICAN MOTORISTS INSURANCE  :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Joann 
 
            Fisher against her former employer and its insurance carrier 
 
            based upon an injury that occurred on February 20, 1990.  
 
            Claimant seeks compensation for healing period, permanent 
 
            partial disability and section 85.27 benefits.  The primary 
 
            issues to be determined are whether the injury of February 
 
            20, 1990 is a proximate cause of any disability beyond that 
 
            for which she has previously been compensated, of any 
 
            permanent partial disability and of the treatment and 
 
            expenses directed by Jerome G. Bashara, M.D.
 
            
 
                 The case was heard at Des Moines, Iowa on August 28, 
 
            1991.  The evidence consists of testimony from Joann Fisher 
 
            and John Blanchard.  The evidence also contains joint 
 
            exhibits 1 through 17 and claimant's exhibit 18.
 
            
 
                                 findings of fact
 
            
 
                 Having considered all the evidence received, together 
 
            with the appearance and demeanor of the witnesses, the 
 
            following findings of fact are made.
 
            
 
                 Joann Fisher is a 50-year-old married woman who was 
 
            employed at the Altoona McDonald's restaurant operated by 
 
            the employer from November of 1988 until her injury on 
 
            February 20, 1990.  The injury occurred when Joann slipped 
 
            on butter, caught herself on a sink, but nevertheless fell 
 
            to the tile floor striking her knees.
 
            
 
                 After the incident, Joann went home and then 
 
            subsequently was seen at the Des Moines General Hospital 
 
            emergency room.  Joann then received her medical care from 
 
            James Egly, D.O., at Medical Services Southridge.  The 
 
            initial treatment notes show a small area of ecchymosis and 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            minimal swelling (exhibit 5, pages 1-6).
 
            
 
                 When Joann's complaints did not resolve, she was 
 
            referred to orthopaedic surgeon Mark B. Kirkland, D.O.  When 
 
            he first saw her on March 14, 1990, Dr. Kirkland formed the 
 
            impression that claimant had sustained a severe contusion 
 
            and twisting injury of her left knee and that she also had 
 
            post-surgical changes (exhibit 1, page 13).  A bone scan was 
 
            conducted on April 4, 1990 which showed excess fluid in the 
 
            lateral compartment of the left knee and other changes 
 
            reflective of osteoarthritis (exhibit 3, pages 11 and 12).  
 
            Joann had a reaction to the bone scan and returned to the 
 
            hospital emergency room.  On April 14, 1990, Dr. Kirkland 
 
            reported that claimant's physical examination produced 
 
            results which were somewhat inconsistent.  He suggested that 
 
            there might be some emotional overlay involved in her 
 
            failure to recover (exhibit 1, pages 15 and 17).
 
            
 
                 Claimant sought a second opinion and was sent to Des 
 
            Moines orthopaedic surgeon Peter D. Wirtz, M.D.  Her choice 
 
            of Scott Neff, D.O., was not honored.  Dr. Wirtz made an 
 
            initial diagnosis of acute patellar contusion, patellar 
 
            surface degeneration and patellar subluxation.  He 
 
            prescribed a knee sleeve and additional physical therapy 
 
            (exhibit 8, page 1).  His notes of May 11, 1990 indicate 
 
            that claimant was ambulating without difficulty, had no 
 
            swelling and a full range of motion.  The notes further 
 
            indicate that her subjective symptoms did not correlate with 
 
            any objective change in the knee (exhibit 8, page 2).  Dr. 
 
            Wirtz released claimant to resume work effective May 29, 
 
            1990 (exhibit 8, page 4).  In subsequent reports, Dr. Wirtz 
 
            confirmed that the February 20, 1990 injury did not injure 
 
            the lateral compartment or the lateral meniscus (exhibit 8, 
 
            pages 5-7).
 
            
 
                 Dr. Wirtz, in his August 9, 1990 report states:  "This 
 
            patient suffered a direct blow to her patella which would 
 
            relate only to patellar surface condition.  The physical 
 
            findings of 4/26/90 consisted of patellar tenderness and 
 
            diagnosis of patellar contusion.  The previous condition 
 
            included arthroscopic patellar shave because of patellar 
 
            surface degeneration."  Dr. Wirtz goes on to explain that 
 
            the anterior cruciate ligament was not injured.  On the 
 
            second page of that report, Dr. Wirtz goes on to state that 
 
            the interpretation of the MRI study which indicated that the 
 
            patellar articular surface was normal was an incorrect 
 
            interpretation.
 
            
 
                 Dr. Kirkland agreed with the assessment of the case 
 
            made by Dr. Wirtz (exhibit 1, pages 18-21).  He also stated 
 
            the opinion that the fall did not cause any aggravation to 
 
            any of the claimant's age-related or degenerative changes 
 
            which were in her knee.  Dr. Kirkland characterized the 
 
            injury as a severe contusion to her left knee anterior 
 
            structures (exhibit 1, page 21).
 
            
 
                 Dr. Bashara, who ultimately performed surgery on 
 
            claimant's knee, expressed his opinion that in the February 
 
            20, 1990 incident, claimant tore the lateral meniscus and 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            aggravated a preexisting patellar chondromalacia.  He 
 
            assigned an impairment rating of seven percent of the leg of 
 
            which five percent was due to the torn meniscus and two 
 
            percent to the aggravation of the preexisting chondromalacia 
 
            (exhibit 9, page 9).  A review of the report of operation 
 
            indicates that claimant had grade II chondromalacia of the 
 
            patella, a frayed tear of the inner aspect of the lateral 
 
            meniscus as well as marked hyperplasia of the anterolateral 
 
            fat pad with adhesions in the lateral compartment.  The 
 
            surgical procedures performed were a subtotal lateral 
 
            meniscectomy, a limited synovectomy of adhesions in the 
 
            lateral compartment of the knee and chondroplasty of the 
 
            patella (exhibit 3, page 25).
 
            
 
                 The fact that the tear in the lateral meniscus was 
 
            described in the operative report as being frayed tends to 
 
            lead credence to the opinions of Drs. Wirtz and Kirkland 
 
            that it was degenerative in nature rather than the result of 
 
            an acute trauma.  The other surgical findings are likewise 
 
            indicative of a long-term process, rather than acute trauma.  
 
            It is noted that one of the conditions objectively found in 
 
            the knee joint was further chondromalacia of the patella.  
 
            An early x-ray report indicates small spur formation off the 
 
            dorsal surface of the patella with patellofemoral narrowing 
 
            and mild degenerative arthritis of the patellofemoral 
 
            articulation (exhibit 2, page 18).  This is in direct 
 
            conflict with the MRI study which characterized the patellar 
 
            articular surface as being normal (exhibit 3, pages 19-21).
 
            
 
                 The appearance and demeanor of the claimant was 
 
            observed as she testified at hearing.  She testified that 
 
            her knee had been problem free immediately prior to the 1990 
 
            accident and that it had been quite good since her 1986 left 
 
            knee surgery.  The records show that she had undergone 
 
            arthroscopic surgery which included parapatellar 
 
            synovectomy, patellar shaving and debridement and lateral 
 
            retinaculum release (exhibit 3, page 1; exhibit 1, pages 
 
            10-11).  In 1976, she underwent surgery on her right knee 
 
            for degenerative chondromalacia of the patella (exhibit 1, 
 
            pages 2-4).  The situation which existed was that Joann 
 
            Fisher had a previously impaired knee.  It was, 
 
            nevertheless, asymptomatic prior to the time she fell on 
 
            February 20, 1990.  That fall caused the knee to become 
 
            symptomatic.  It is particularly noteworthy in this case 
 
            that the medical records fail to show any treatment for the 
 
            left knee after recovery from the 1986 surgery.  Her 
 
            co-worker and supervisor, John Blanchard, did not give any 
 
            indication that claimant had exhibited any problems with her 
 
            left knee or complained about her knee during the 
 
            approximate one and one-half years that they were both 
 
            employed at the same restaurant.
 
            
 
                 It is specifically found that the claimant's left knee 
 
            had been essentially asymptomatic immediately prior to the 
 
            fall that occurred on February 20, 1990 and that the fall 
 
            caused it to become quite symptomatic, most likely due to an 
 
            aggravation of the preexisting degenerative condition in the 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            knee, particularly that of the patella.  The medical records 
 
            in evidence show the claimant to be a person who is not at 
 
            all reluctant to voice her physical complaints.  She appears 
 
            to have had many over the years.  The undersigned is quite 
 
            certain that, if Joann's left knee had been bothering her 
 
            prior to February 20, 1990, her co-workers would have heard 
 
            her complaints and she would have sought medical treatment.  
 
            In view of the preexisting difficulty in her left knee, it 
 
            is quite easy to comprehend that the fall which occurred 
 
            aggravated that preexisting condition, causing it to become 
 
            symptomatic.
 
            
 
                 It is found that the fall did not cause a major 
 
            disruption of the internal structures of Joann's knee.  It 
 
            merely aggravated the preexisting patellar condition and 
 
            caused it to become symptomatic.  For Joann Fisher, the 
 
            symptoms were sufficiently severe to be disabling, even 
 
            though they might not have been disabling for some other 
 
            individuals.  As indicated by Dr. Kirkland, there probably 
 
            was a psychological component which resulted from the 
 
            injury.  The treatment provided by Dr. Bashara did not make 
 
            the claimant's knee perfect, but it did reduce the level of 
 
            symptoms and enable the claimant to regain a reasonable 
 
            level of activity.  The treatment provided by Dr. Bashara is 
 
            therefore found to have been reasonable and appropriate 
 
            under the conditions which existed.  His assessment as to 
 
            causation is accepted as it relates to aggravating the 
 
            preexisting degenerative condition affecting the claimant's 
 
            patella.  It is rejected as it relates to the tear of the 
 
            lateral meniscus.  His finding of a two percent permanent 
 
            impairment of the leg having resulted from the aggravation 
 
            of the preexisting condition is accepted as being correct.  
 
            It is supported by the claimant's testimony regarding an 
 
            increase in the level of her problems following the fall and 
 
            the lack of a complete resolution of those problems as a 
 
            result of Dr. Bashara's treatment.
 
            
 
                 It is further found that the claimant achieved maximum 
 
            significant medical improvement from the injury on October 
 
            2, 1990 when Dr. Bashara imposed permanent restrictions and 
 
            indicated that no further follow-up visits were scheduled 
 
            (exhibit 9, pages 7 and 8).
 
            
 
                 Claimant also seeks to recover medical expenses as set 
 
            forth in exhibit 14.  The charges from Mercy Medical Center 
 
            incurred on April 5, 1990 in the amount of $117.76 were 
 
            incurred as a result of a reaction to the bone scan 
 
            procedure which had been prescribed by Dr. Kirkland (exhibit 
 
            14, pages 6-8).  The charges from Medical Services 
 
            Southridge on April 23, 1990 (exhibit 14, pages 4, 9 and 10) 
 
            are primarily incurred for treatment of a neck condition 
 
            which preexisted the February 20, 1990 accident and which is 
 
            not shown to have been affected by that accident.  Further, 
 
            since claimant was under the treatment of a specialist at 
 
            that time, it was not reasonable for her to also seek 
 
            contemporaneous treatment from her family physician for the 
 
            knee condition.  It is found that the charges for treatment 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            from Dr. Bashara were incurred in treating an aggravation of 
 
            a preexisting condition in claimant's left knee (exhibit 14, 
 
            page 11).  In the prehearing report, it is stipulated that 
 
            the amount of all charges is fair and reasonable in relation 
 
            to the service provided.
 
            
 
                 Claimant also seeks to recover mileage expense for the 
 
            travel she performed in obtaining medical treatment (exhibit 
 
            17).  Claimant had not been paid any mileage expense prior 
 
            to hearing.  The record in the case does not contain the 
 
            number of miles traveled, although the amount of travel 
 
            performed can be determined.  The travel which the claimant 
 
            performed in obtaining treatment for the February 20, 1990 
 
            injury is determined to be as follows:  Des Moines General 
 
            Hospital on February 20, 1990; Medical Services Southridge 
 
            on February 22, February 26, March 5 and March 28, 1990 (4 
 
            trips); to Dr. Kirkland on March 14, March 28 and April 16, 
 
            1990 (3 trips); to Dr. Wirtz on April 26, May 9 and May 11, 
 
            1990 (3 trips); to physical therapist Duffy on March 20, 
 
            1990; to Physical Therapy and Sports Center on April 26, 
 
            April 30, May 4, May 9, May 11, May 14, May 16, May 21, May 
 
            22 and May 25 (10 trips); to Mercy Hospital on April 4, 
 
            April 5, June 6, June 25 and June 29, 1990 (5 trips); and to 
 
            Dr. Bashara on May 25, June 12, July 17, August 17 and 
 
            October 2, 1990 (5 trips).  The record does not contain the 
 
            number of miles traveled in making each of the foregoing 
 
            round trips.
 
            
 
                                conclusions of law
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that she received an injury on February 20, 
 
            1990 which arose out of and in the course of her employment. 
 
            McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 
 
            1976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 154 N.W.2d 
 
            128 (1967). 
 
            
 
                 The words "arising out of" refer to the cause or source 
 
            of the injury.  McClure v. Union County, 188 N.W.2d 283, 287 
 
            (Iowa 1971); Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 
 
            402, 68 N.W.2d 63 (1955).  The "arising out of" requirement 
 
            is satisfied by showing a causal relationship between the 
 
            employment and the injury.  Sheerin v. Holin Co., 380 N.W.2d 
 
            415, 417 (Iowa 1986).
 
            The claimant has the burden of proving by a preponderance of 
 
            the evidence that the injury of February 20, 1990 is 
 
            causally related to the disability on which she now bases 
 
            her 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 
 
            Hosp., 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 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            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. Cent. Tel. Co., 261 
 
            Iowa 352, 154 N.W.2d 128 (1967).
 
            
 
                 Aggravation of a preexisting condition is one form of 
 
            compensable injury.  While a claimant is not entitled to 
 
            compensation for the results of a preexisting injury or 
 
            disease, the mere existence at the time of a subsequent 
 
            injury is not a defense.  Rose v. John Deere Ottumwa Works, 
 
            247 Iowa 900, 908, 76 N.W.2d 756, 760-61 (1956).  If the 
 
            claimant had a preexisting condition or disability that is 
 
            aggravated, accelerated, worsened or lighted up so that it 
 
            results in disability, claimant is entitled to recover.  
 
            Nicks v. Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 
 
            812, 815 (1962).
 
            
 
                 A cause is proximate if it is a substantial factor in 
 
            bringing about the result.  It need not be the only cause.  
 
            Blacksmith v. All-American, Inc., 290 N.W.2d 348, 354 (Iowa 
 
            1980).  As indicated at hearing by the parties, there is no 
 
            real dispute with regard to matters occurring prior to the 
 
            date when Dr. Wirtz released the claimant to return to work 
 
            effective May 29, 1990 (exhibit 8, page 4).  The dispute 
 
            deals with the treatment provided by Dr. Bashara, the 
 
            surgery and the disability connected with the treatment and 
 
            surgery.  It has previously been found that the opinions 
 
            expressed by Drs. Wirtz and Kirkland are correct to the 
 
            extent that the problem with the claimant's meniscus was not 
 
            work related, but that the opinion of Dr. Bashara was 
 
            correct with regard to the fact of the injury aggravating 
 
            the preexisting degenerative condition of claimant's 
 
            patella.  It is therefore concluded that the injury of 
 
            February 20, 1990 proximately caused the increased symptoms 
 
            which necessitated the treatment provided by Dr. Bashara, 
 
            including the surgery he performed and the resulting 
 
            disability following surgery and the residual worsening of 
 
            the preexisting condition in the nature of an additional two 
 
            percent permanent impairment of the claimant's left leg.  
 
            The record contains no basis for apportioning those expenses 
 
            of treatment between the work-related aggravation of the 
 
            preexisting patellar condition and the nonwork-related 
 
            meniscal degeneration.  Bearce v. FMC Corp., 465 N.W.2d 531 
 
            (Iowa 1991); Tussing v. George A. Hormel & Co., 461 N.W.2d 
 
            450 (Iowa 1990); Varied Enterprises, Inc. v. Sumner, 353 
 
            N.W.2d 407 (Iowa 1984).
 
            
 
                 An injured worker is entitled to recover compensation 
 
            for healing period from the date of injury until the earlier 
 
            of the three events specified in section 85.34(1).  In this 
 
            case, that is October 2, 1990, the date when Dr. Bashara, by 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            imposing his permanent work restrictions and ceasing active 
 
            medical treatment, indicated that further significant 
 
            improvement from the injury was not anticipated.  The 
 
            healing period therefore ends October 2, 1990.  The total 
 
            healing period entitlement is a span of 32 and 1/7 weeks.
 
            
 
                 Since the injury is limited to the claimant's leg, all 
 
            compensation for permanent partial disability is evaluated 
 
            under Code section 85.34(2)(o).  Graves v. Eagle Iron Works, 
 
            331 N.W.2d 116 (Iowa 1983).  The two percent rating from Dr. 
 
            Bashara has been previously determined to be correct.  The 
 
            claimant is therefore entitled to recover 4.4 weeks of 
 
            compensation for permanent partial disability, payable 
 
            commencing October 3, 1990.
 
            
 
                 Defendants are responsible under the provisions of Code 
 
            section 85.27 for payment of the claimant's medical 
 
            expenses.  Based upon the evidence in the record, defendants 
 
            are required to pay claimant's expense with Mercy Hospital 
 
            incurred on April 5, 1990 in the amount of $117.76.  That 
 
            emergency room visit was a result of the bone scan which had 
 
            been administered under the direction of an authorized 
 
            treating physician.  The treatment was therefore proximately 
 
            caused by the injury.  Cross v. Hermanson Bros., 235 Iowa 
 
            739, 741, 16 N.W.2d 616, 617 (1944).
 
            
 
                 Claimant also seeks to recover for the expenses 
 
            incurred with Dr. Bashara.  The record shows those charges 
 
            to be $2,775.00.  While Dr. Bashara was not authorized, his 
 
            treatment was beneficial and did allow the claimant to 
 
            resume a reasonable level of activity and use of her leg.  
 
            His choice of treating rather than ignoring the complaints 
 
            was correct.  His diagnosis and course of treatment 
 
            ultimately proved to be correct.  Defendants are therefore 
 
            responsible for payment of his fees.  Richards v. Dep't of 
 
            Gen. Services, 1-3 State of Iowa Industrial Commissioner 
 
            Decisions 684 (App. Decn. 1985); 2 Larson Workmen's 
 
            Compensation Law, sections 61.12(a) and (e).
 
            
 
                 Defendants are also responsible for payment of the 
 
            claimant's transportation expenses, at the rate of $.21 per 
 
            mile, for all the trips indicated in the findings section of 
 
            this decision.
 
            
 
                                      order
 
            
 
                 IT IS THEREFORE ORDERED that defendants pay Joann 
 
            Fisher thirty-two and one-seventh (32 1/7) weeks of 
 
            compensation for healing period at the stipulated rate of 
 
            one hundred twenty-five and 02/100 dollars ($125.02) per 
 
            week payable commencing February 20, 1990.
 
            
 
                 IT IS FURTHER ORDERED that defendants pay Joann Fisher 
 
            four point four (4.4) weeks of compensation for permanent 
 
            partial disability at the stipulated rate of one hundred 
 
            twenty-five and 02/100 dollars ($125.02) per week payable 
 
            commencing October 3, 1990.  Defendants are entitled to 
 
            credit for fifteen (15) weeks of compensation paid prior to 
 
            hearing and shall pay the unpaid balance in a lump sum 
 
            together with interest pursuant to section 85.30.
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            
 
                 IT IS FURTHER ORDERED that defendants pay the 
 
            claimant's medical expenses with Mercy Medical Center in the 
 
            amount of one hundred seventeen and 76/100 dollars ($117.76) 
 
            relating to services performed on April 5, 1990 and the 
 
            expenses incurred in connection with the knee surgery 
 
            performed June 25, 1990.
 
            
 
                 IT IS FURTHER ORDERED that defendants pay claimant's 
 
            expenses with Dr. Bashara in the amount of two thousand 
 
            seven hundred seventy-five and 00/100 dollars ($2,775.00).
 
            
 
                 IT IS FURTHER ORDERED that defendants pay claimant's 
 
            mileage expenses at the rate of twenty-one cents ($.21) per 
 
            mile for all travel found to be causally connected to the 
 
            injury in this decision.
 
            
 
                 IT IS FURTHER ORDERED that defendants pay the costs of 
 
            this action pursuant to rule 343 IAC 4.33.
 
            
 
                 IT IS FURTHER ORDERED that defendants file claim 
 
            activity reports as requested by this agency pursuant to 
 
            rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ______ day of ____________, 1991.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Virgil Moore
 
            Attorney at Law
 
            2454 SW 9th Street
 
            Des Moines, Iowa  50315
 
            
 
            Mr. Paul C. Thune
 
            Attorney at Law
 
            Suite 300, Fleming Building
 
            P.O. Box 9130
 
            Des Moines, Iowa  50306-9130
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           5-1402.30; 5-2206
 
                           Filed August 30, 1991
 
                           MICHAEL G. TRIER
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            JOANN FISHER,  :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :         File No. 939190
 
                      :
 
            VEGAS CORPORATION, d/b/a :      A R B I T R A T I O N
 
            McDONALD'S,    :
 
                      :         D E C I S I O N
 
                 Employer, :
 
                      :
 
            and       :
 
                      :
 
            AMERICAN MOTORISTS INSURANCE  :
 
            COMPANY,  :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ____________________________________________________________
 
            
 
            5-1402.30; 5-2206
 
            Where expert medical testimony was conflicting, the fact 
 
            that claimant had been asymptomatic prior to the injury and 
 
            became symptomatic subsequent was relied upon to find that 
 
            the injury aggravated a preexisting condition, rather than 
 
            the symptoms and complaints having been simply a result of 
 
            the preexisting condition.  Claimant awarded healing period 
 
            and permanent partial disability based upon her chosen 
 
            physician who undertook treatment after the employer's 
 
            physicians had released her.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            SHARON K. MACK,     :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :      File No. 939197
 
            LETICA CORPORATION, :
 
                      :        A P P E A L
 
                 Employer, :
 
                      :      D E C I S I O N
 
            and       :
 
                      :
 
            GRANITE STATE INS. CO.,  :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
             The record has been reviewed de novo on appeal.  The ruling 
 
            of the deputy on defendants' motion for summary judgment 
 
            filed November 14, 1990 is affirmed and is adopted as the 
 
            final agency action in this case. 
 
            Claimant shall pay the costs of the appeal.
 
            Signed and filed this ____ day of April, 1991.
 
            
 
            
 
            
 
            
 
                      ________________________________
 
                               CLAIR R. CRAMER
 
                       ACTING INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. James P. Hoffman
 
            Attorney at Law
 
            Middle Road
 
            P.O. Box 1066
 
            Keokuk, Iowa 52632
 
            
 
            Mr. Richard G. Blane, II
 
            Attorney at Law
 
            803 Fleming Bldg.
 
            218 Sixth Avenue
 
            Des Moines, Iowa 50309
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            9998
 
            JMI
 
            Filed April 29, 1991
 
            Clair R. Cramer
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            SHARON K. MACK,     :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :      File No. 939197
 
            LETICA CORPORATION, :
 
                      :        A P P E A L
 
                 Employer, :
 
                      :      D E C I S I O N
 
            and       :
 
                      :
 
            GRANITE STATE INS. CO.,  :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            9998
 
            
 
                 Summary affirmance of deputy's motion for summary 
 
            judgment filed November 14, 1990.
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                        
 
            JAMES L. WYLDES,      
 
                        
 
                 Claimant,                      File No. 939198
 
                        
 
            vs.                                   A P P E A L
 
                        
 
            JOHN DEERE OTTUMWA WORKS,           D E C I S I O N
 
                        
 
                 Employer,   
 
                 Self-Insured,    
 
                 Defendant.       
 
            ____________________________________________________________
 
            
 
            The record, including the transcript of the hearing before 
 
            the deputy and all exhibits admitted into the record, has 
 
            been reviewed de novo on appeal.  The decision of the deputy 
 
            filed December 31, 1991 is affirmed and is adopted as the 
 
            final agency action in this case.
 
            
 
                 That defendant shall pay the costs of this matter 
 
            including transcription of the hearing and shall reimburse 
 
            claimant for the filing fee if previously paid by claimant.
 
            
 
            Signed and filed this ____ day of March, 1993.
 
            
 
            
 
            
 
            
 
                                    ________________________________
 
                                             BYRON K. ORTON
 
                                       INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Arthur C. Hedberg
 
            Attorney at Law
 
            840 Fifth Ave.
 
            Des Moines, Iowa 50309
 
            
 
            Mr. Walter F. Johnson
 
            Attorney at Law
 
            P.O. Box 716
 
            Ottumwa, Iowa 52501
 
            
 
 
            
 
 
 
               
 
                                               5-1804
 
                                               Filed March 26, 1993
 
                                               Byron K. Orton
 
                                               PJL
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                        
 
            JAMES L. WYLDES,      
 
                        
 
                 Claimant,                      File No. 939198
 
                        
 
            vs.                                   A P P E A L
 
                        
 
            JOHN DEERE OTTUMWA WORKS,           D E C I S I O N
 
                        
 
                 Employer,   
 
                 Self-Insured,    
 
                 Defendant.       
 
            ____________________________________________________________
 
           
 
            
 
            5-1804
 
            Claimant was moving a garden tractor out of the shop when 
 
            the garage door was released and hit him on the forehead.
 
            Since that time, claimant has continuously complained of 
 
            headaches and underwent two anterior fusions at the C6-7 
 
            level.
 
            
 
            Claimant continues to experience headaches, neck pain, and 
 
            severe depression, for which he has been hospitalized.
 
            Claimant awarded permanent, total disability benefits.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            JAMES L. WYLDES,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 939198
 
            JOHN DEERE OTTUMWA WORKS,     :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                 Self-Insured,            :       D E C I S I O N
 
                 Defendant.               :
 
                                          :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by 
 
            claimant, James Wyldes, against his former employer, John 
 
            Deere Ottumwa Works, as defendant.
 
            
 
                 The matter came on for hearing before the undersigned 
 
            on October 10, 1991, at Ottumwa, Iowa.
 
            
 
                 The record in this case consists of the testimony of 
 
            the claimant; Shirley Wyldes, claimant's wife; Judith 
 
            Linney, the occupational health plant nurse; and Keith Dow, 
 
            human resources and employee's benefits manager; and, joint 
 
            exhibits 1 and 2.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy, having reviewed all the 
 
            evidence received, finds the following facts:
 
            
 
                 James Wyldes was born on March 29, 1934.  At the time 
 
            of the hearing, he was 57 years of age.  He was married in 
 
            1954, and has three children.  The youngest child was born 
 
            in August of 1968.
 
            
 
                 Claimant began working for John Deere in 1973, when he 
 
            worked as a punch press and power brake operator. In October 
 
            of 1985, claimant was classified as a lathe operator, which 
 
            he described as a highly skilled position.  He was paid on a 
 
            piece work basis, and received a bonus if he produced more 
 
            than the base amount.  He continued as a production worker 
 
            until October 7, 1985, at which time he sustained an injury 
 
            which arose out of and in the course of his employment.
 
            
 
                 On October 7, 1985, claimant was working special duty, 
 
            which had been authorized by the employer.  Claimant was 
 
            operating a garden type tractor, and as he was driving out 
 
            of the garage, an overhead door was released, and hit him on 
 
            the forehead.  He was knocked off of the tractor.
 
            
 
                 Claimant testified that he initially remembered someone 
 
            holding him and hearing a voice.  He stated that he was in a 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            state of panic, and felt a burning sensation down his spine.  
 
            He was helped into the office, where he sat in a chair.  He 
 
            felt dizzy.
 
            
 
                 The nurse arrived, and claimant was taken to first aid 
 
            where a neck brace was applied.  He was then taken by 
 
            ambulance to St. Joseph Hospital in Ottumwa, Iowa.
 
            
 
                 While at the hospital, claimant was first treated by 
 
            Donald D. Berg, M.D.  Apparently, minimal treatment was 
 
            rendered on October 7, 1985, but claimant returned to Dr. 
 
            Berg on October 8, with pain in the neck and headaches after 
 
            the accident.  Claimant was then restricted to light duty 
 
            work, and returned to work the following day.
 
            
 
                 Nurses' notes indicate that claimant returned to work 
 
            on October 9, 1985.  He was assigned to a job which allowed 
 
            him to sit, and he was not to bend over.  Claimant 
 
            complained of soreness across his shoulders and a frontal 
 
            headache.  He was given aspirin.  During October, claimant 
 
            sought treatment from the plant nurse almost every day.  
 
            Usually, his complaints centered on stiffness in the neck, 
 
            shoulders and basil and occipital headaches, for which he 
 
            was treated with either aspirin or Tylenol (Joint Exhibit 2, 
 
            pages 15-17).  During this time, claimant also saw Dr. Berg, 
 
            who noted limited range of motion of the neck, and on 
 
            October 25, 1985, increased claimant's work capabilities 
 
            from light work to light work with a 25 pound lifting 
 
            restriction .  Claimant was to continue in this capacity for 
 
            one week (Jt. Ex. 1, Ex. 32, Dep. Ex. 3).
 
            
 
                 Claimant reported to the plant nurse on November 7 and 
 
            November 8, 1985.  Each time, he complained of headache, and 
 
            was given either Tylenol or aspirin for treatment of the 
 
            same (Jt. Ex. 2, p. 17).
 
            
 
                 On November 10, 1985, claimant was involved in an 
 
            automobile accident.  Apparently, claimant was driving the 
 
            family car, and his wife was a passenger.  As they were 
 
            traveling on the highway, a car approaching them from the 
 
            opposite direction pulled into their lane in an effort to 
 
            pass another vehicle.  Mrs. Wyldes stated that they saw the 
 
            car fishtailing towards them, pulled over to the side of the 
 
            road and then proceeded into a ditch which was between three 
 
            to five feet deep.  She stated that the ditch was soft, 
 
            which allowed them to come to a gradual stop.  Both claimant 
 
            and his wife indicated that the police arrived at the scene, 
 
            and that no one involved sought medical treatment nor were 
 
            there complaints of any injuries.  The Wyldes vehicle did 
 
            sustain approximately $3,000 in damage.  However, claimant 
 
            said his wife drove the car home from the site of the 
 
            accident.
 
            
 
                 The day following the accident, claimant reported to 
 
            work and again visited the plant nurse.  Her notes indicate 
 
            that he was still complaining of headaches, and stated that 
 
            Dr. Berg was to send him to Marc E. Hines, M.D., a 
 
            specialist in neurology.  Claimant had also been examined by 
 
            Walter Herrick, M.D., another physician who worked for 
 
            defendant employer.  Apparently, Dr. Herrick told claimant 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            to allow another six weeks for healing period (Jt. Ex. 2, p. 
 
            17).
 
            
 
                 Claimant continued to see the plant nurse throughout 
 
            November of 1985 through June of 1989, when claimant left 
 
            his employment and went on long-term disability (Jt. Ex. 2, 
 
            pp. 17-35).
 
            
 
                 Claimant was examined by Dr. Hines on December 10, 
 
            1985.  Dr. Hines was of the impression that claimant had 
 
            suffered a post-concussive syndrome.  Upon examination, Dr. 
 
            Hines noted considerable cervical muscle spasm which was 
 
            exacerbated by work.  Dr. Hines' notes indicate that 
 
            claimant had suffered from headaches since the accident on 
 
            October 7, 1985, with continued  greater symptoms of nausea, 
 
            photophobia and audiophobia.  Claimant began a program 
 
            consisting of prescription medication of Flexeril, Midrin 
 
            and Elavil in combination with restricted work duties for 
 
            two weeks (Jt. Ex. 1, Ex. 8, pp. 12-14).
 
            
 
                 Claimant returned to Dr. Hines on December 30, 1985.  
 
            At this point, he complained of the same symptoms, with 
 
            added episodes of difficulty remembering things.  It was 
 
            recommended that he undergo an EEG, which was taken on 
 
            January 7, 1986.  The results of the tests showed multifocal 
 
            irritative phenomenon.  With these results in mind, Dr. 
 
            Hines treated claimant with Tegretol and increased amounts 
 
            of Flexeril, Elavil and Midrin.  Claimant was to return to 
 
            Dr. Hines in one month (Jt. Ex. 1, Ex. 8, p. 15).
 
            
 
                 Claimant returned to Dr. Hines in February of 1986, com
 
            plaining of severe headaches which were causing him to miss 
 
            work.  Dr. Hines recommended a CT scan of the head and other 
 
            tests.  Claimant returned to Dr. Hines on February 26 
 
            complaining of seizures which amounted to two episodes where 
 
            he would simply stop talking.  Claimant was given another 
 
            prescription drug routine, and was to return in two weeks. 
 
            (Jt. Ex. 1, Ex. 8, p. 16).
 
            
 
                 Two days later, claimant was admitted to the St. Joseph 
 
            Hospital in Ottumwa, Iowa.  At this point, he was diagnosed 
 
            as having depression, severe headaches, post-whiplash 
 
            syndrome and seizures.  The depression had reached a point 
 
            where he was having suicidal ideation and had access to a 
 
            gun.  The hospitalization was necessary due to the suicidal 
 
            thoughts, and claimant stayed in the mental health unit for 
 
            approximately one week.  He was discharged on March 7, 1986, 
 
            and was given prescription medication, including Dilantin, 
 
            Imipramine, Feldine, Dantruin, and Midrin.  He was diagnosed 
 
            as having both the active depression and biological 
 
            depression, seizures, and headaches (Jt. Ex. 1, Ex. 6-7, pp. 
 
            8-11).
 
            
 
                 In March of 1986, Dr. Hines became aware of claimant's 
 
            automobile accident and noted that claimant did not feel the 
 
            accident was a significant contributing factor to his 
 
            current condition.  Dr. Hines referred claimant to the Mayo 
 
            Clinic, where claimant was seen by Randall C. Walker, M.D., 
 
            from May 25 through May 28, 1986.  Upon discharge, he was 
 
            diagnosed as having post-traumatic vascular and muscular 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            headaches with no neurologic deficit and no evidence of 
 
            seizure disorder.  Final examination and evaluation of the 
 
            claimant while at Mayo showed mild ataxia and a previous 
 
            lumbar laminectomy scar.  Various laboratory studies were 
 
            taken and revealed either normal or negative results.  An 
 
            outside CT scan of the head was reviewed and showed several 
 
            focal small areas of increased attenuation in the right 
 
            middle acranial fossa.  X-rays of the cervical spine showed 
 
            minimal narrowing of the C-6 interspace.  An MRI scan of the 
 
            head was negative.  There was no evidence of for epilepsy.  
 
            The claimant was encouraged to return to normal activities, 
 
            and was prescribed various medications for treatment of the 
 
            vascular-muscular headaches.  He was also instructed in a 
 
            home program using heat lamps, relaxation and stretching 
 
            exercises of the neck to relieve musculoskeletal neck pain 
 
            and headache (Jt. Ex. 1, Ex. 13, pp. 31-32).
 
            
 
                 Claimant continued to see Dr. Hines from June through 
 
            October of 1986.  At Dr. Hines' direction, he underwent a 
 
            cervical myelogram on October 29, 1986.  The results of the 
 
            myelogram showed spondylosis and a large osteophyte at the 
 
            C6-7 level which indented the thecal sac and a narrowing of 
 
            the anterior subarachnoid space.  However, no apparent 
 
            distortion of the spinal cord was noted (Jt. Ex. 1, Ex. 18, 
 
            pp. 39-490).
 
            
 
                 In November of 1986, claimant was referred to the neuro
 
            surgery outpatient clinic at the University of Iowa in Iowa 
 
            City.  At that time, he was examined by David Beck, M.D., 
 
            who upon examination noted full range of motion of the neck, 
 
            with right tricep weakness.  His evaluation of the cervical 
 
            spine revealed a large osteophyte and a degenerative disc at 
 
            the C6-7 level.  Dr. Beck indicated that the myelogram 
 
            revealed a root cutoff at the C6-7 level.  Due to the 
 
            headaches and neck pain, Dr. Beck recommended an anterior 
 
            fusion at the C6-7 level, which was performed on November 
 
            25, 1986 (Jt. Ex. 1, Ex. 22, pp. 49-51).
 
            
 
                 Claimant returned to Dr. Hines in January of 1987, and 
 
            continued to complain of headaches and neck pain.  Again, he 
 
            was put on a program of prescription medications and home 
 
            massage and exercise (Jt. Ex. 1, Ex. 8, p. 20).
 
            
 
                 Upon the advice of Dr. Herrick, claimant returned to 
 
            Dr. Berg in March of 1987.  Dr. Berg noted that claimant had 
 
            attempted to undergo a fusion of the C5-6 [sic], and there 
 
            was some question as to whether the surgery was successful.  
 
            Dr. Berg recommended therapy and recommended a cessation of 
 
            the medication.  However, in two weeks, claimant was 
 
            prescribed Soma Fiorinal.  Three days later, claimant again 
 
            had suicidal ideations and was referred to Dr. Hines (Jt. 
 
            Ex. 1, Ex. 1, p. 3).
 
            
 
                 The next records in evidence are dated March 30, 1987.  
 
            Again, these are Dr. Berg's progress notes, and he indicates 
 
            that claimant continued to have severe neck pain and 
 
            headaches.  Dr. Berg injected the neck area with cortisone 
 
            shots, and advised the patient to return to physical 
 
            therapy.  Throughout April of 1987, claimant continued to 
 
            complain of headaches and neck pain, and was eventually 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            referred to R. F. Neiman, M.D., at the Mercy Hospital in 
 
            Iowa City, Iowa (Jt. Ex. 1, Ex. 1, p. 3).
 
            
 
                 Dr. Neiman's notes indicate that claimant's complaints 
 
            remained consistent with prior medical notations.  Upon 
 
            examination, Dr. Berg found definite range of motion 
 
            limitations with respect to flexion and extension of the 
 
            neck and lateral rotation of the neck.  He ordered x-rays, 
 
            which demonstrated a significant osteophyte and an apparent 
 
            graft at the C-6,7 level.  Dr. Neiman anticipated that 
 
            claimant would continue with a chronic pain situation.  In 
 
            July of 1987, Dr. Neiman ordered yet another cervical 
 
            myelogram, which revealed the following:
 
            
 
                 On the patient's left side at C5-6 there is a 
 
                 blunting of the nerve root sheath and this would 
 
                 be suspicious for a disc, however, the patient 
 
                 also shows osteophyte changes at the 3-4 and 6-7 
 
                 levels and this should be listed as a differential 
 
                 possibility.  Clinical correlation is needed.
 
            
 
            (Jt. Ex. 1, Ex. 14, pp. 33-35; Jt. Ex. 1, Ex. 15, p. 36).
 
            
 
                 Dr. Neiman also ordered an EMG, which revealed the 
 
            following information:
 
            
 
                 This was an abnormal study with evidence of right 
 
                 greater than left denervation.  The C7 nerve root 
 
                 frankly looks to be normal.  Clinical correlation 
 
                 is advised.  The patient is planning to be seen by 
 
                 Dr. Howe around the 30th of this month.  I still 
 
                 question about the disc at the C3-4 level as well 
 
                 as a cut off at the C5-C6 level.
 
            
 
            (Jt. Ex. 1, Ex. 16, p. 37; Jt. Ex. 1, Ex. 17, p. 38)
 
            
 
                 The next medical documentation is dated October 15, 
 
            1987.  Claimant was being treated at the University of Iowa 
 
            Hospitals and Clinics.  These notes indicate that claimant 
 
            was scheduled for yet another myelogram and CT scan of both 
 
            the head and neck.  The results of these tests showed that 
 
            claimant had sustained a non-union at the fusion site of C6-
 
            7.  Because of claimant's unresponsiveness to conservative 
 
            treatment and the non-union of the fusion, claimant was 
 
            scheduled for a second surgery which was performed on 
 
            January 18, 1988.  Following the surgery, claimant returned 
 
            to the University with the same complaints as those that 
 
            began in 1985.  After 14 months, claimant displayed a 50 
 
            percent normal range of motion of the neck, and the 
 
            examination showed that his head listed to the left.  The 
 
            final impression taken by the various physicians at the 
 
            University of Iowa indicated that claimant was left with 
 
            chronic pain syndrome after a C6-7 posterior arthrodesis 
 
            with wiring.  He was to continue management through the pain 
 
            clinic, in conjunction with a neurologist and psychiatric 
 
            evaluation.  Claimant was finally released from the 
 
            University of Iowa care on March 2, 1989 (Jt. Ex. 1, Ex. 23, 
 
            pp. 52-57).
 
            
 
                 It is noted that in September 1988, claimant was again 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            admitted to the Ottumwa Regional Health Center for 
 
            psychiatric evaluation.  Upon physical examination, Dr. 
 
            Hines noted that "the patient is basically the same as he 
 
            has always been." (Jt. Ex. 1, Ex. 20, pp. 42-44).
 
            
 
                 In April of 1989, Dr. Hines released claimant to return 
 
            to work with the following restrictions:  "[I]t is my 
 
            opinion that Mr. Wyldes should not lift any object greater 
 
            than 25 pounds repeatedly or for any length of time and 
 
            should not use his arms above shoulder height repeatedly." 
 
            (Jt. Ex. 1, Ex. 21, p. 45)
 
            
 
                 Claimant continued to display bouts of depression and 
 
            chronic pain.  In June of 1989, Dr. Hines stated that 
 
            claimant was totally disabled on the basis of the depression 
 
            (Jt. Ex. 1, Ex. 11, p. 25).
 
            
 
                 In November of 1989, Dr. Hines made a series of 
 
            impairment ratings, including the following evaluations:
 
            
 
                    With regard to his physical disability; the 
 
                 patient's specific physical disability is related 
 
                 to the spinal nerve root involvement at C-6-7, 
 
                 secondary to osteophytosis, with severe neck pain 
 
                 secondary to this despite the removal of the large 
 
                 osteophytes impinging on the nerve roots at this 
 
                 level.  There is not, at this time, any 
 
                 significant muscle weakness or reflex change; the 
 
                 problems being primarily those of sensory deficit, 
 
                 pain, and discomfort.
 
            
 
                   Using Table 6-Unilateral Spinal Nerve Root 
 
                 Impairment, page 75, of the 2nd Edition of the AMA 
 
                 Guides to the Determination of Permanent Medical 
 
                 Impairment-the patient has, for C-6 and C-7, an 8% 
 
                 and 5% maximum loss of function due to sensory 
 
                 deficit, pain, and discomfort, for the C-6 and C-7 
 
                 nerve roots bilaterally.
 
            
 
                    Using Table 4, page 73-Grading Scheme and 
 
                 Procedure for Determining Impairment of Effect 
 
                 Body Part Due to Pain, Discomfort, or Loss of 
 
                 Sensation-the patient falls under description 
 
                 #4-decreased sensation, with or without pain, 
 
                 which may prevent activity-and has approximately 
 
                 an 80% grade from this, which gives him a 6.4% 
 
                 impairment for the C-6 nerve root on both sides, 
 
                 with a 4% impairment for the C-7 nerve root on 
 
                 both sides.  This gives a 10.4% impairment to the 
 
                 upper extremity on each side.
 
            
 
                    Using Table 11, page 81-Relationship of 
 
                 Impairment of the Upper Extremity to Impairment of 
 
                 the Whole Person-gives a 6% impairment to the 
 
                 whole person for each arm.
 
            
 
                    Using the Combined Values Tables, page 240, a 
 
                 6% impairment, when combined with a 6% impairment, 
 
                 gives a 9% impairment to the person as a whole.
 
            
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
                    Finally, the patient has significant headaches, 
 
                 which derives from the cervical osteophytosis and 
 
                 difficulties with neck pain, which can be 
 
                 determined to fall under Episodic Neurologic 
 
                 Disorders, page 63, description #2-an episodic 
 
                 neurologic disorder that is of such severity as to 
 
                 interfere moderately with activities of daily 
 
                 living, giving a 10% impairment to the whole 
 
                 person.
 
            
 
                    Using the Combined Values Tables, a 10% 
 
                 impairment to the whole person, when combined with 
 
                 a 9% impairment to the whole person, gives a 15% 
 
                 impairment to the whole person for this problem.
 
            
 
                    This is the impairment rating that I would give 
 
                 Mr. Wyldes for his neck discomfort, cervical 
 
                 radiculopathy, neck pain, and headaches.
 
            
 
            (Jt. Ex. 1, Ex. 21, pp. 46-48)
 
            
 
                 Claimant continued to see Dr. Hines through August of 
 
            1990 with no significant improvements (Jt. Ex. 1, Ex. 11, 
 
            pp. 26-29).
 
            
 
                 Claimant's treatment for psychiatric problems began in 
 
            June of 1989.  He has been treated by several psychiatrists, 
 
            including L. Elaine Ham, D.O.; Teresa Rosales, M.D.; and, 
 
            Michael Taylor, M.D., who apparently saw claimant for an 
 
            independent medical evaluation.  As noted previously, 
 
            claimant was hospitalized on two separate occasions for 
 
            depression and suicidal tendencies, and the psychiatric 
 
            evaluations note that claimant has continued to suffer from 
 
            depression, sleep disturbances, crying spells, weight loss, 
 
            mood swings, nervousness and anxiety.  He has been put on 
 
            several types of drug therapies, and has been diagnosed as 
 
            having major depressive episodes, suspected personality 
 
            disorders with a passive, aggressive features, and chronic 
 
            pain secondary to head and neck injuries (Jt. Ex. 1, Ex. 24, 
 
            pp. 58-64; Jt. Ex. 1, Ex. 26, p. 66; Jt. Ex. 1, Ex. 27, pp. 
 
            67-68).
 
            
 
                 There are a series of letters from the health care 
 
            providers that chronicles claimant's physical condition.  
 
            Notwithstanding Dr. Hines' assessment of his physical 
 
            functional impairment, both Drs. Ham and Rosales, 
 
            psychiatrists who treated claimant for one year and ten 
 
            months, respectively, have formed the opinion that claimant 
 
            would be unable to return to work due to chronic depression 
 
            caused by the work injury (Jt. Ex. 1, Ex. 29, p. 27; Jt. Ex. 
 
            1, Ex. 31).
 
            
 
                         analysis and conclusions of law
 
            
 
                 The first issue to be addressed is whether there is a 
 
            causal relationship between claimant's injury and his 
 
            disability.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury is a proximate 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            cause of the disability on which the claim is based.  A 
 
            cause is proximate if it is a substantial factor in bringing 
 
            about the result; it need not be the only cause.  A 
 
            preponderance of the evidence exists when the causal 
 
            connection is probable rather than merely possible.  
 
            Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 
 
            1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 
 
            (Iowa 1974).
 
            
 
                 The question of causal connection is essentially within 
 
            the domain of expert testimony.  The expert medical evidence 
 
            must be considered with all other evidence introduced 
 
            bearing on the causal connection between the injury and the 
 
            disability.  The weight to be given to any expert opinion is 
 
            determined by the finder of fact and may be affected by the 
 
            accuracy of the facts relied upon by the expert as well as 
 
            other surrounding circumstances.  The expert opinion may be 
 
            accepted or rejected, in whole or in part.  Sondag v. Ferris 
 
            Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar 
 
            Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, 
 
            Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
 
            
 
                 In this case, Dr. Berg was claimant's treating 
 
            physician for a short period of time, and he provided 
 
            treatment in conjunction with that of Dr. Hines.  On March 
 
            2, 1990, Dr. Berg rendered the following opinion:
 
            
 
                    He was injured at work when apparently he was 
 
                 driving a tractor and hit an overhead door at that 
 
                 time.  I saw him on October 8, 1985 and at that 
 
                 time, his complaints were that of neck pain 
 
                 associated with what I felt was a cervical strain 
 
                 and associated headaches.  He was able to tolerate 
 
                 light work so I felt he could continue with this.  
 
                 He was seen on several occasions in October 1985 
 
                 and then again on November 1, 1985.
 
            
 
                    At that time, he had improved a great deal.  He 
 
                 had excellent range of motion of his neck.  I 
 
                 recommended he continue on his light lifting 
 
                 status at work for another week and then may 
 
                 return to regular work duty.  He was told to 
 
                 report back as needed.  His only complaints at 
 
                 that time were that he was having a few headaches 
 
                 in the frontal portion of his head which were 
 
                 relieved by Tylenol.  It was my overall impression 
 
                 at that time that he was getting well and had 
 
                 fully recovered from his strain which had occurred 
 
                 after his accident at work on October 7, 1985.
 
            
 
                    Subsequent to this, apparently the patient was 
 
                 involved in another accident on November 10, 1985.  
 
                 I did not see the patient regarding this accident 
 
                 and have no knowledge of any problems concerning 
 
                 this accident.  I do note, that the patient as of 
 
                 the last visit on November 1, 1985, was moving his 
 
                 neck well and was essentially recovered from his 
 
                 problem and was going to return to regular work 
 
                 duty within one week.
 
            
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            (Jt. Ex. 1, Ex. 2, p. 4)
 
            
 
                 On March 8, 1990, Dr. Emerson, another plant physician, 
 
            rendered the following opinion:
 
            
 
                    After complete review of all records on Mr. 
 
                 Wyldes including the records at Health Concepts 
 
                 and including the psychiatrists and Dr. Hines, 
 
                 First Aid reports and records from Dr. Ham, Dr. 
 
                 Berg, Mayo Clinic, Dr. Clark, Dr Nieman [sic] that 
 
                 the only physicians who took care of Mr. Wyldes 
 
                 before and directly after the auto accident on 
 
                 11-10-85 were Dr. Berg and Dr. Herrick and 
 
                 therefore they are the only doctors who knew Mr. 
 
                 Wyldes connection and the effect of the auto 
 
                 accident of Mr. Wyldes.
 
            
 
                    ....
 
            
 
                    Therefore, the auto accident would be the cause 
 
                 of Mr. Wyldes condition according to the records 
 
                 and according to the only two doctors who were 
 
                 caring for Mr. Wyldes at the time of the auto 
 
                 accident.
 
            
 
            (Jt. Ex. 1, Ex. 28, p. 69)
 
            
 
                 Also rendering an opinion as to causation, is Dr. 
 
            Herrick:
 
            
 
                    Mr. Wyldes was reporting into First Aid daily 
 
                 before the auto accident on November 10, 1985.  
 
                 During this time, he had improved to the extent 
 
                 that he was essentially well as stated in Dr. 
 
                 Berg's letter.
 
            
 
                    On November 11, 1985, Dr. Wyldes requested Dr. 
 
                 Berg to send him to Dr. Hines because his 
 
                 headaches were worse, and he was seen by me.  On 
 
                 November 13, 1985, the symptoms had increased.  
 
                 The headaches were worse and now he was having 
 
                 tightness across the shoulders.
 
            
 
                    The increase in his symptomology was almost 
 
                 certainly due to an automobile accident on 
 
                 November 10, 1985, as noted in Dr. Hines' records.
 
            
 
            (Jt. Ex. 1, Ex. 28, p. 70)
 
            
 
                 Although initially, Dr. Hines was not aware of 
 
            claimant's automobile accident which occurred on November 
 
            10, 1985, subsequently, he became aware of the accident, and 
 
            still attributes claimant's chronic pain and physical 
 
            problems to the work-related injury (Jt. Ex. 1, ex. 10, p. 
 
            22).
 
            
 
                 When looking at the record as a whole, it is clear that 
 
            Dr. Hines can be labeled the treating physician.  As such, 
 
            he has had the most contact with the claimant, and has made 
 
            the effort to become completely involved with the case, not 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            only with the physical ailments, but also the type of 
 
            psychiatric care claimant has received.  As a result, his 
 
            opinion carries the greater weight, and it is found that 
 
            claimant's work-related injury caused the disability from 
 
            which he now suffers.
 
            
 
                 The next issue to be addressed is whether claimant is 
 
            entitled to temporary total or healing period benefits, or 
 
            permanent partial or permanent total disability benefits.
 
            
 
                 As a general rule, injured workers are awarded 
 
            temporary total disability payments when they are expected 
 
            to recover completely from a work-related injury.  Healing 
 
            period benefits are awarded during that time where claimant 
 
            is off of work, and it is anticipated that there will be 
 
            some type of permanent functional impairment due to a work-
 
            related injury.
 
            
 
                 Dr. Hines is the only physician who rendered any kind 
 
            of functional impairment due to the work-related injury.  As 
 
            noted under the Facts section of this decision, he is of the 
 
            opinion that claimant sustained a 15 percent impairment to 
 
            the body as a whole.  This assessment, coupled with three 
 
            psychiatrists who state that claimant is seriously impaired 
 
            due to depression, provides conclusive evidence that 
 
            claimant has sustained a permanent disability.
 
            
 
                 As claimant has sustained a permanent injury to his 
 
            neck, an analysis of his industrial disability is warranted.
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, expe
 
            rience and inability to engage in employment for which he is 
 
            fitted.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 
            125 N.W.2d 251 (1963).  Barton v. Nevada Poultry, 253 Iowa 
 
            285, 110 N.W.2d 660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial disabil
 
            ity.  This is so as impairment and disability are not syn
 
            onymous.  Degree of industrial disability can in fact be 
 
            much different than the degree of impairment because in the 
 
            first instance reference is to loss of earning capacity and 
 
            in the latter to anatomical or functional abnormality or 
 
            loss.  Although loss of function is to be considered and 
 
            disability can rarely be found without it, it is not so that 
 
            a degree of industrial disability is proportionally related 
 
            to a degree of impairment of bodily function.
 
            
 
                 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 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            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).
 
            
 
                 Claimant has been unable to continue to work, despite 
 
            periodic attempts at light duty, since that date of the 
 
            accident.
 
            
 
                 Defendants argue that claimant's current medical 
 
            condition is a result of the automobile accident he was 
 
            involved in in November of 1985.  They rely on the opinions 
 
            of company physicians as the basis of this argument.
 
            
 
                 The undersigned finds the argument almost completely 
 
            without merit.  The evidence clearly shows that claimant had 
 
            never completely recovered from the work accident.  He 
 
            continually sought treatment from the company nurse after he 
 
            was hit in the head by the garage door.  Nothing in the 
 
            record suggests that claimant had reached a maximum recovery 
 
            prior to the automobile accident.
 
            
 
                 There has been no indication that claimant is currently 
 
            able, or will be able in the near future to return to work.  
 
            As a result, it is concluded that claimant is permanently, 
 
            totally disabled.
 
            
 
                 The next issue to be addressed is claimant's correct 
 
            workers' compensation rate.
 
            
 
                 The parties stipulated that claimant's gross weekly 
 
            earnings amounted to $577.57 per week.  It was also 
 
            stipulated to that claimant was married at the time of the 
 
            accident.
 
            
 
                 The dispute revolves around whether one of claimant's 
 
            three children was still a dependent at the time of the 
 
            injury.
 
            
 
                 Both claimant and his wife testified that although 
 
            their youngest son had graduated early from high school, he 
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            was still living at home on October 7, 1985.  Claimant's 
 
            youngest child was born on August 31, 1968, and was 
 
            therefore 17 on the date of claimant's accident, October 7, 
 
            1985.  From the record, it appears that the youngest child 
 
            was dependent upon claimant and his wife for support.  
 
            Therefore, claimant is entitled to three exemptions.  
 
            According to the July 1, 1985 Guide to Iowa Workers' 
 
            Compensation Claim Handling, page 57, claimant's workers' 
 
            compensation rate is $344.28.
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That claimant is entitled to permanent total disability 
 
            payments paid at the rate of three hundred forty-four and 
 
            28/100 dollars ($344.28) per week commencing on May 31, 
 
            1989.
 
            
 
                 That defendant shall pay interest on benefits herein as 
 
            set forth in Iowa Code section 85.30.
 
            
 
                 That defendant shall receive credit for weekly benefits 
 
            previously paid.
 
            
 
                 That defendant shall pay the costs of this action, 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 That defendant shall file an activity report upon 
 
            payment of this award as required by this agency, pursuant 
 
            to rule 343 IAC 3.1.
 
            
 
     
 
            
 
            
 
            Page  13
 
            
 
            
 
            
 
            
 
            Signed and filed this ____ day of December, 1991.
 
            
 
            
 
            
 
            
 
                                          
 
            ________________________________
 
                                          PATRICIA J. LANTZ
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr Arthur C Hedberg
 
            Attorney at Law
 
            840 Fifth Ave
 
            Des Moines IA 50309
 
            
 
            Mr Walter F Johnson
 
            Attorney at Law
 
            111 W Second St
 
            P O Box 716
 
            Ottumwa IA 52501
 
            
 
            
 
                 
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          5-1804
 
                                          Filed December 31, 1991
 
                                          Patricia J. Lantz
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            JAMES L. WYLDES,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 939198
 
            JOHN DEERE OTTUMWA WORKS,     :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                 Self-Insured,            :       D E C I S I O N
 
                 Defendant.               :
 
                                          :
 
            ___________________________________________________________
 
            
 
            5-1804
 
            Claimant was moving a garden tractor out of the shop when 
 
            the garage door was released and hit him on the forehead.
 
            Since that time, claimant has continuously complained of 
 
            headaches and underwent two anterior fusions at the C6-7 
 
            level.
 
            Claimant continues to experience headaches, neck pain, and 
 
            severe depression, for which he has been hospitalized.
 
            Claimant awarded permanent, total disability benefits.
 
            
 
            
 
 
 
 
 
 
 
 
 
 
 
 
 
 
            BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
_________________________________________________________________
 
RICHARD R. AVENARIUS,      
 
            
 
     Claimant,                     File Nos. 939330/1017233
 
                                             1048142
 
vs.         
 
                                         A P P E A L
 
CITY OF DUBUQUE, IOWA,     
 
                                       D E C I S I O N
 
     Employer,   
 
     Self-Insured,    
 
     Defendant.       
 
_________________________________________________________________
 
 
 
The record, including the transcript of the hearing before the deputy 
 
and all exhibits admitted into the record, has been reviewed de novo on 
 
appeal.
 
 
 
                                 ISSUES
 
 
 
The issues on appeal are:
 
 
 
1.  Whether the deputy erred in awarding claimant an additional 20 
 
percent industrial disability as a result of claimant's March 23, 1993 
 
injury.
 
 
 
2.  Whether the deputy erred in computing claimant's weekly rates of 
 
compensation for his three dates of injury.
 
 
 
3.  Whether the deputy erred in assessing cost relative to the 
 
deposition testimony of R. Scott Cairns, M.D.
 
 
 
Claimant states as an additional issue on cross-appeal:
 
 
 
Whether the deputy erred in awarding claimant a five percent industrial 
 
disability as a result of claimant's January 8, 1990 injury.
 
 
 
                           FINDINGS OF FACT
 
 
 
The findings of fact contained in the proposed agency decision filed 
 
July 20, 1994 are adopted as set forth below.  Segments designated by 
 
asterisks (*****) indicate portions of the language from the proposed 
 
agency decision that have been intentionally deleted and do not form a 
 
part of this final agency decision.  Segments designated by brackets ([ 
 
]) indicate language that is in addition to the language of the 
 
proposed agency decision.
 
 
 
Claimant, Richard Avenarius, was born on August 3, 1942.  He is a high 
 
school graduate. *****  [He has 23 years seniority as a City of Dubuque 
 
employee.  Claimant has worked as a] bus driver and a dispatcher.  
 
*****  [For approximately 16 years, claimant has worked for the city's 
 
water department initially as a meter reader and then as a maintenance 
 
worker.  As a maintenance worker claimant did general water plant 
 
maintenance including snow-shoveling, grass-cutting and lifting and 
 
mixing 100 pound bags of chemicals.
 
 
 

 
 
 
 
 
 
 
 
 
At time of hearing claimant had been overseeing the operation of the 
 
water department's sludge plant operation for one year.  Claimant 
 
monitors and controls sludge product, fills out department work orders, 
 
"guides" truck drivers who haul away product and performs minor 
 
maintenance functions from greasing equipment to shoveling light 
 
amounts of sludge, a lime-water combination equal to wet sand.  
 
Claimant acknowledges he can perform his current duties.  Claimant's 
 
supervisor is happy with claimant's job performance and characterized 
 
the job as a secure position with the city of Dubuque.]
 
 
 
Prior to January 8, 1990, claimant had no ***** back problems [although 
 
he did have preexisting degenerative joint disease].  
 
 
 
On January 8, 1990, claimant incurred a low back injury due to a fall.  
 
Claimant was treated and eventually returned to work on or about 
 
January 29, 1990.  No specific work restrictions were imposed as a 
 
result of the January 8, 1990 work injury.  (Employer Exhibit P, Page 
 
15)
 
 
 
R. Scott Cairns, M.D., is a board certified orthopedic surgeon who 
 
treated claimant for the low back injury of January 8, 1990.  On July 
 
11, 1991, Dr. Cairns opined that claimant ***** has a 15] percent 
 
permanent partial impairment to the body as a whole and ***** the 
 
[seven percent of which results from January 8, 1990 work-related 
 
aggravation of claimant's previously asymptomatic degenerative joint 
 
disease.] ***** Dr. Cairns did not place any specific work restrictions 
 
on claimant as a result of the injury. *****
 
 
 
Everett Bragg, M.D., is a board certified orthopedic surgeon who 
 
examined claimant on November 8, 1991. *****  [He] opined that claimant 
 
***** [has a six] percent permanent partial impairment to the body as a 
 
whole ***** [three percent of which results from] an aggravation of 
 
preexisting joint disease.  (Claimant's Ex. 5, p. 8) 
 
 
 
Claimant was earning an effective rate of $10.82 per hour at the time 
 
of injury on January 8, 1990.  On May 6, 1992, claimant was earning an 
 
effective rate of $11.93 per hour.  On March 23, 1993, claimant was 
 
earning an effective rate of $12.40 per hour.  On or about July 1, 
 
1994, claimant's wage will again increase due to a union contract to 
 
approximately $12.76 per hour.  
 
 
 
     ***** 
 
 
 
Claimant was injured on May 6, 1992, in a work-related automobile 
 
accident.  Claimant sought medical treatment for the injury.  On 
 
December 4, 1992, claimant saw Dr. Cairns for the back problem and was 
 
told that he must return in May of 1993 to receive an impairment rating 
 
for this injury.  (Cl. Ex. 1, p. 14)  Prior to receiving a final 
 
impairment rating from Dr. Cairns, claimant incurred a third injury.  
 
 
 
It is found that claimant failed to establish by a preponderance of the 
 
evidence that the May 6, 1992 injury is causally connected to an 
 
increase in permanent partial impairment.  No specific impairment 
 
rating or additional work restrictions were imposed as a result of the 
 
May 6, 1992 injury.  
 
 
 
On March 23, 1993, claimant incurred a third work-related injury after 
 
shoveling snow.  Claimant was again treated by Dr. Cairns and taken off 
 
work for a period of time.  
 
 
 
As a result of the March 23, 1993 injury, Dr. Cairns was of the opinion 
 
that no additional permanent partial impairment was incurred.  (Cl. Ex. 
 
1, p. 17)  However, Dr. Cairns imposed permanent work restrictions 
 
including no lifting over 30 pounds, avoiding shoveling, weed whacking, 
 
prolonged standing, stooping, sitting, climbing, and extensive overhead 
 
reaching.  These work restrictions were a direct result of the injury 
 

 
 
 
 
 
 
 
 
 
which occurred on March 23, 1993.  (Cl. Ex. A1, p. 29) 
 
 
 
Dr. Bragg was of the opinion that the March 23, 1993 injury resulted in 
 
no change in permanent impairment as previously demonstrated in the 
 
November 6, 1991 report.  (Cl. Ex. 5, p. 2) 
 
 
 
Employer's exhibit Q demonstrates a 13-week wage history prior to the 
 
injury date May 6, 1992.  Seven of the 13 weeks are not representative 
 
of claimant's work history due to involvement in union activities.  
 
Claimant received pay from these outside union activities.  Testimony 
 
and evidence was not offered to establish the amount of money earned on 
 
each of the days when claimant was absent from work.  Substitute weeks 
 
for the injury date May 6, 1992 were not presented.  Claimant's average 
 
work week consisted of 40 hours.  Claimant's actual rate of pay as of 
 
May 6, 1992 was $11.93 per hour including longevity pay.  It is found 
 
that claimant's usual earnings for the time period prior to May 6, 1992 
 
would be $477.20 per week.  
 
 
 
Employer's exhibit Q demonstrates a 13-week wage history prior to the 
 
injury of March 23, 1993.  Four of the weeks do not represent 
 
claimant's average earnings from this employment due to involvement 
 
with union activities.  The specific amount of money claimant earned on 
 
each of the particular weeks was not offered by evidence or testimony 
 
at the time of hearing.  The 13-week wage history is not a 
 
representative example of claimant's earning capacity for the 13-week 
 
period prior to March 23, 1993.  Substitute weeks were not made 
 
available for the short weeks.  Claimant's average work week consisted 
 
of 40 hours.  Claimant's rate of pay on March 23, 1993 was $12.40 per 
 
hour, including longevity pay.  It is found that claimant's weekly wage 
 
for the period prior to March 23, 1993 is $496.  
 
 
 
                          CONCLUSIONS OF LAW
 
 
 
The conclusions of law contained in the proposed agency decision filed 
 
July 20, 1994 are adopted as set forth below.  Segments designated by 
 
asterisks (*****) indicate portions of the language from the proposed 
 
agency decision that have been intentionally deleted and do not form a 
 
part of this final agency decision.  Segments designated by brackets ([ 
 
]) indicate language that is in addition to the language of the 
 
proposed agency decision.
 
 
 
The first issue presented for determination is the extent of industrial 
 
disability caused by the January 8, 1990 low back injury in file number 
 
939330.  
 
 
 
Functional impairment is an element to be considered in determining 
 
industrial disability which is the reduction of earning capacity, but 
 
consideration must also be given to the injured employee's age, 
 
education, qualifications, experience and inability to engage in 
 
employment for which the employee is fitted.  Olson v. Goodyear Serv. 
 
Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); Barton v. Nevada Poultry, 
 
253 Iowa 285, 110 N.W.2d 660 (1961).
 
 
 
A finding of impairment to the body as a whole found by a medical 
 
evaluator does not equate to industrial disability.  Impairment and 
 
disability are not synonymous.  The degree of industrial disability can 
 
be much different than the degree of impairment because industrial 
 
disability references to loss of earning capacity and impairment 
 
references to anatomical or functional abnormality or loss.  Although 
 
loss of function is to be considered and disability can rarely be found 
 
without it, it is not so that a degree of industrial disability is 
 
proportionally related to a degree of impairment of bodily function.
 
 
 
Factors to be considered in determining industrial disability include 
 
the employee's medical condition prior to the injury, immediately after 
 
the injury, and presently; the situs of the injury, its severity and 
 

 
 
 
 
 
 
 
 
 
 
 
the length of the healing period; the work experience of the employee 
 
prior to the injury and after the injury and the potential for 
 
rehabilitation; the employee's qualifications intellectually, 
 
emotionally and physically; earnings prior and subsequent to the 
 
injury; age; education; motivation; functional impairment as a result 
 
of the injury; and inability because of the injury to engage in 
 
employment for which the employee is fitted.  Loss of earnings caused 
 
by a job transfer for reasons related to the injury is also relevant.  
 
Likewise, an employer's refusal to give any sort of work to an impaired 
 
employee may justify an award of disability.  McSpadden v. Big Ben Coal 
 
Co., 288 N.W.2d 181 (Iowa 1980).  These are matters which the finder of 
 
fact considers collectively in arriving at the determination of the 
 
degree of industrial disability.
 
 
 
There are no weighting guidelines that indicate how each of the factors 
 
are to be considered.  Neither does a rating of functional impairment 
 
directly correlate to a degree of industrial disability to the body as 
 
a whole.  In other words, there are no formulae which can be applied 
 
and then added up to determine the degree of industrial disability.  It 
 
therefore becomes necessary for the deputy or commissioner to draw upon 
 
prior experience as well as general and specialized knowledge to make 
 
the finding with regard to degree of industrial disability.  See 
 
Christensen v. Hagen, Inc., Vol. 1 No. 3 State of Iowa Industrial 
 
Commissioner Decisions 529 (App. March 26, 1985); Peterson v. Truck 
 
Haven Cafe, Inc., Vol. 1 No. 3 State of Iowa Industrial Commissioner 
 
Decisions 654 (App. February 28, 1985).
 
 
 
Compensation for permanent partial disability shall begin at the 
 
termination of the healing period.  Compensation shall be paid in 
 
relation to 500 weeks as the disability bears to the body as a whole.  
 
Section 85.34.
 
 
 
While a claimant is not entitled to compensation for the results of a 
 
preexisting injury or disease, its mere existence at the time of a 
 
subsequent injury is not a defense.  Rose v. John Deere Ottumwa Works, 
 
247 Iowa 900, 76 N.W.2d 756 (1956).  If the claimant had a preexisting 
 
condition or disability that is materially aggravated, accelerated, 
 
worsened or lighted up so that it results in disability, claimant is 
 
entitled to recover.  Nicks v. Davenport Produce Co., 254 Iowa 130, 115 
 
N.W.2d 812 (1962); Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 
 
112 N.W.2d 299 (1961).
 
 
 
Having considered all of the evidence and all of the factors used in 
 
determining industrial disability, it is held that claimant incurred 
 
five percent permanent partial disability as a result of the January 8, 
 
1990 work injury.  The lack of work restrictions and re-employment by 
 
the employer worked to keep this disability rating low, while the 
 
impairment ratings issued by the treating and examining doctors 
 
indicate that industrial disability had been incurred as a result of 
 
the injury.  
 
 
 
The second issue presented for determination is whether the May 6, 1992 
 
low back injury in file number 1017233 was a cause of industrial 
 
disability.  It is held that claimant has failed to establish that 
 
claimant incurred additional industrial disability as a result of the 
 
May 6, 1992 injury.  There were no additional work restrictions or 
 
permanent partial impairment ratings issued as a result of the May 6, 
 
1992 injury.  In the absence of such expert testimony and evidence 
 
claimant has failed in his burden of proof.  Claimant shall take no 
 
additional benefits in the form of industrial disability from file 
 
number 1017233.
 
 
 
The third issue to be addressed is whether claimant incurred additional 
 
industrial disability as a result of the March 23, 1993 low back injury 
 
in file number 1048142.  Upon considering all the material factors, it 
 
is found that the evidence in this case supports an award of an 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
additional ***** [10] percent permanent partial disability which 
 
entitles claimant to recover additional benefits.  
 
 
 
In summary, claimant has incurred an industrial disability of ***** 
 
[15] percent to the body as a whole with five percent stemming from the 
 
January 8, 1990 injury and an additional ***** [10] percent from the 
 
March 23, 1993 injury.  While all of the factors involved in 
 
determining industrial disability were considered, it was the increase 
 
in permanent work restrictions that weighed heavily toward an increase 
 
in industrial disability.  ***** The work restrictions will ***** limit 
 
claimant's access to the manual labor job market thereby resulting in 
 
***** [a loss of job mobility.     On the other hand, the employer's 
 
meaningful accommodation of claimant and claimant's long-term 
 
employment with the city make this loss of mobility less significant 
 
than it might well be for a less securely employed worker.]
 
 
 
The next issue to be considered concerns ***** [the] rate of weekly 
 
compensation for the May 6, 1992 injury in file number 1017233.  Iowa 
 
Code section 85.36(6) provides:
 
 
 
     In the case of an employer who is paid on a daily, or  
 
     hourly basis, or by the output of the employee, the 
 
     weekly earnings shall be computed by dividing by thirteen 
 
     the earnings, not including overtime or premium pay, of 
 
     said employee earned in the employ of the employer in 
 
     the last completed period of thirteen consecutive calendar 
 
     weeks immediately preceding the injury.
 
 
 
Weeks within the 13 consecutive weeks prior to an injury that contain 
 
absences for which the employer does not pay the employee are not 
 
representative of the employee's earnings and, therefore, are not 
 
included for determining the rate under section 85.36(6).  Such weeks 
 
are omitted and additional weeks included until 13 completed weeks are 
 
available for rate calculation.  This approach assumes that the weekly 
 
rate of compensation reflects a determination of earning to which an 
 
employee "would have been entitled had the employee worked the 
 
customary hours for the full pay period in which the employee was 
 
injured..." as the first unnumbered paragraph of section 85.36 
 
requires;  See Lawyer and Higgs, Iowa Workers' Compensation - Law and 
 
Practice (Second Ed.),  12-4.
 
 
 
Claimant's time off work while involved in non-city employee union 
 
activities were absences for which the city as employer did not pay 
 
claimant.  Therefore, claimant's city wages in those weeks are 
 
nonrepresentative.  For that reason,] ***** [t]he employer [has] failed 
 
to establish a 13-week pay history when [the] ***** short 
 
nonrepresentative weeks [are excluded.]  Iowa Code section 85.36(6) 
 
cannot be used [to calculate claimant's rate of compensation].  
 
 
 
Iowa Code section 85.36(8) provides:
 
 
 
If at the time of the injury the hourly earnings have not been fixed or 
 
cannot be ascertained, the earnings for the purpose of calculating 
 
compensation shall be taken to be the usual earnings for similar 
 
services where such services are rendered by paid employees.
 
 
 
It is held that the usual earnings for similar services for the injury 
 
date May 6, 1992 amounts to $477.20 per week.  This equates to a weekly 
 
benefit amount of $301.78 with the stipulated marital status as married 
 
and entitled to three exemptions.
 
 
 
The next issue presented for determination is the rate of weekly 
 
compensation for the injury date of March 23, 1993 in file number 
 
1048142.  The same reasoning applies with respect to the calculation of 
 
the weekly benefit rate as stated above.  It is held that claimant's 
 
weekly gross earnings for the injury date of March 23, 1993 amount to 
 
$496 which equates to a weekly benefit rate of $318.64 based on the 
 
stipulated marital status of married and entitled to three exemptions.
 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
A final issue exists as to whether Dr. Cairns' deposition testimony fee 
 
of May 18, 1994 should be taxed at the rate of $450.  ***** Iowa Code 
 
section 622.72 [expressly states that compensation for expert witness 
 
testimony shall not exceed $150 per day.  The section in no matter 
 
suggests that the cost should be multiplied where multiple adjudicative 
 
proceedings are involved.  From this one discerns a clear legislative 
 
intent that costs be related to the time the expert has expended in 
 
giving testimony not to the number of proceedings consolidated for 
 
hearing.  Dr. Cairns' testimony was obtained in the course of one 
 
afternoon.  Under section 622.72, the employer is taxed with cost of 
 
Dr. Cairns' deposition of $150.
 
 
 
WHEREFORE, the decision of the deputy is affirmed and modified.
 
 
 
                              ORDER
 
 
 
THEREFORE, it is ordered:
 
 
 
     In file number 939330:
 
 
 
Employer, self-insured, is to pay claimant permanent partial disability 
 
benefits at the rate of two hundred ninety-three and 27/100 dollars 
 
($293.27) per week commencing January 30, 1990, for twenty-five (25) 
 
weeks.
 
 
 
     In file number 1017233:
 
 
 
Claimant shall take nothing from this file with respect to permanent 
 
partial disability.  Claimant's weekly benefit rate is three hundred 
 
one and 78/100 dollars ($301.78).
 
 
 
     In file number 1048142:
 
 
 
Employer, self-insured, is to pay claimant fifty (50) weeks of 
 
permanent partial disability at the rate of three hundred eighteen and 
 
64/100 dollars ($318.64) per week commencing April 3, 1993.
 
 
 
It is further ordered that the weekly benefit rate is three hundred 
 
eighteen and 64/100 dollars ($318.64).
 
 
 
It is further ordered that in all file numbers, employer, self-insured, 
 
shall receive credit for benefits previously paid.
 
 
 
It is further ordered that all accrued benefits are to be paid in a 
 
lump sum.
 
 
 
It is further ordered that interest will accrue pursuant to Iowa Code 
 
section 85.30.
 
 
 
That claimant and defendant shall share equally the costs of the appeal 
 
including transcription of the hearing.  Defendant? shall pay all other 
 
costs including costs of the deposition of Dr. Cairns of one hundred 
 
and fifty dollars ($150.00).
 
 
 
It is further ordered that employer, self-insured, file claim activity 
 
reports as requested by this agency pursuant to rule 343 IAC 3.1.
 
 
 
Signed and filed this ____ day of March, 1995.         
 
                             _______________________________
 
                              BYRON K. ORTON           
 
                              INDUSTRIAL COMMISSIONER
 
 
 
Copies To:
 
 
 
Mr. Francis Lange
 
Attorney at Law
 
698 Central Ave
 
PO Box 1811
 

 
 
 
 
 
 
 
 
 
 
 
 
 
Dubuque, Iowa  52004-1811
 
 
 
Mr. Brendan Quann
 
Attorney at Law
 
700 Locust St. STE 200
 
Dubuque, Iowa  52001-6874
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                    1803; 3002; 2907
 
                                    Filed March, 1995
 
                                    Byron K. Orton
 
 
 
            BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
_________________________________________________________________
 
RICHARD R. AVENARIUS,      
 
            
 
     Claimant,                    File Nos. 939330/1017233
 
                                            1048142
 
vs.         
 
                                        A P P E A L
 
CITY OF DUBUQUE, IOWA,     
 
                                      D E C I S I O N
 
     Employer,   
 
     Self-Insured,    
 
     Defendant.       
 
_________________________________________________________________
 
1803; 3002; 2907
 
 
 
Claimant a 50-year-old manual laborer for the city of Dubuque incurred 
 
three injuries to the low back.  Claimant was allowed five percent 
 
industrial disability as a result of the first injury when he returned 
 
to work at his same rate of pay with no permanent work restrictions and 
 
three and seven percent permanent partial impairment ratings.  Claimant 
 
took no benefits from the second injury as no impairment rating or 
 
permanent work restrictions were established because claimant incurred 
 
a third injury before he could be rated.  Claimant took ten percent 
 
additional permanent partial disability to the body as a whole as a 
 
result of the third injury because restrictions imposed including a 30 
 
pound lifting restriction.  No additional permanent partial impairment 
 
was assigned to claimant as a result of the third injury.  Claimant 
 
returned to work with the employer at a higher rate of pay after the 
 
third injury.   Claimant has 23 years of seniority and a stable job 
 
where his restrictions can be and are accommodated.
 
 
 
Weeks claimant was absent from work on account of union business 
 
involving nonemployer employees ere nonrepresentative weeks where the 
 
employer did not pay claimant for that time.  The weekly rate of 
 
compensation was determined based upon an average work week when the 
 
parties failed to present evidence of additional weeks beyond the 13 
 
weeks prior to injury so as to act as substitute weeks for the 
 
nonrepresentative weeks.  Therefore, an average 40-hour work week was 
 
used at the regular rate of pay on the date of injury when determining 
 
the weekly benefit amount.
 
 
 
Section 622.72 expressly limits compensation for expert witnesses to 
 
$150 per day.  That time limitation controls taxation of expert witness 
 
costs even where multiple contested case files are consolidated in one 
 
proceeding.
 
 
 
 
            
 
            
 
            
 
            
 
            
 
                          BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ------------------------------------------------------------
 
            RICHARD R AVENARIUS,          :
 
                                          :    File Nos. 939330 1017233
 
                 Claimant,                :              1048142 
 
                                          :
 
            vs.                           :    A R B I T R A T I O N
 
                                          :      
 
            CITY OF DUBUQUE,              :       D E C I S I O N
 
                                          : 
 
                 Self-Insured,            :
 
                 Employer,                :      
 
                 Defendant.               :
 
            ------------------------------------------------------------
 
                              STATEMENT OF THE CASE
 
            
 
                 These are proceedings in arbitration brought by Richard 
 
            Avenarius as a result of injuries to his low back on January 
 
            8, 1990 in file number 939330; May 6, 1992 in file number 
 
            1017233; and March 23, 1993 in file number 1048142.  
 
            
 
                 This case was heard and fully submitted in Dubuque, 
 
            Iowa, on June 29, 1994.  The record in the proceedings 
 
            consists of claimant's exhibits 1 through 10, employer's 
 
            exhibits A through S; and testimony from claimant, Mary Kay 
 
            Avenarius, Robert Green, and Darlene Hantelmann.  
 
            
 
                 Claimant was represented by Francis J. Lange, Attorney 
 
            at Law.  Employer was represented by Brendon T. Quann, 
 
            Attorney at Law.  
 
            
 
                                      ISSUES
 
            
 
                 The issues presented for determination in file number 
 
            939330 are as follows:
 
            
 
                 .  The extent of industrial disability caused by the 
 
            January 8, 1990 low back injury and
 
            
 
                 .  The costs to be taxed as a result of the deposition 
 
            of Dr. Cairns.
 
            
 
                 The issues presented for determination in file number 
 
            1017233 are as follows:
 
            
 
                 .  The causal connection and extent of permanent 
 
            partial disability resulting from the May 6, 1992 injury;
 
            
 
                 .  The rate of weekly compensation; and
 
            
 
                 .  The costs to be taxed as a result of the deposition 
 
            of Dr. Cairns.
 
            
 
                 The issues presented for determination in file number 
 
            1048142 are as follows:
 

 
            
 
            Page   2
 
            
 
            
 
            
 
                 .  The causal connection and extent of permanent 
 
            partial disability resulting from the March 23, 1993 back 
 
            injury;
 
            
 
                 .  The rate of weekly compensation; and
 
            
 
                 .  The taxation of costs as a result of Dr. Cairns 
 
            deposition.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 Having heard the testimony and considered all of the 
 
            evidence in the record, the deputy industrial commissioner 
 
            finds:
 
            
 
                 Claimant, Richard Avenarius, was born on August 3, 
 
            1942.  He is a high school graduate and has worked for the 
 
            city of Dubuque for approximately 23 years.  Claimant's job 
 
            duties range from manual labor to bus driver and dispatcher.  
 
            Claimant also worked as a meter reader and general 
 
            maintenance worker.  The job duties have ranged from light 
 
            manual labor to lifting as much as 100 pounds.  
 
            
 
                 Prior to January 8, 1990, claimant had no prior back 
 
            problems.  
 
            
 
                 On January 8, 1990, claimant incurred a low back injury 
 
            due to a fall.  Claimant was treated and eventually returned 
 
            to work on or about January 29, 1990.  No specific work 
 
            restrictions were imposed as a result of the January 8, 1990 
 
            work injury.  (employer exhibit P, page 15).  
 
            
 
                 R. Scott Cairns, M.D., is a board certified orthopedic 
 
            surgeon who treated claimant for the low back injury of 
 
            January 8, 1990.  On July 11, 1991, Dr. Cairns opined that 
 
            claimant incurred 7 percent permanent partial impairment to 
 
            the body as a whole as a result of the January 8, 1990 
 
            injury.  Dr. Cairns did not place any specific work 
 
            restrictions on claimant as a result of the injury.  The 
 
            impairment was a result of an aggravation to a preexisting 
 
            degenerative joint disease which had previously been 
 
            asymptomatic. 
 
            
 
                 Everett Bragg, M.D., is a board certified orthopedic 
 
            surgeon who examined claimant on November 8, 1991, and 
 
            opined that claimant had incurred 3 percent permanent 
 
            partial impairment to the body as a whole as a result of an 
 
            aggravation of a preexisting joint disease.  (claimant's ex. 
 
            5, p. 8). 
 
            
 
                 Claimant was earning an effective rate of $10.82 per 
 
            hour at the time of injury on January 8, 1990.  On May 6, 
 
            1992, claimant was earning an effective rate of $11.93 per 
 
            hour.  On March 23, 1993, claimant was earning an effective 
 
            rate of $12.40 per hour.  On or about July 1, 1994, 
 
            claimant's wage will again increase due to a union contract 
 
            to approximately $12.76 per hour.  
 
            
 
                 Employer made a good faith effort to return claimant to 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            work and claimant is still employed in good standing at his 
 
            job with the city of Dubuque at the time of hearing on June 
 
            29, 1994.
 
            
 
                 Claimant was injured on May 6, 1992, in a work-related 
 
            automobile accident.  Claimant sought medical treatment for 
 
            the injury.  On December 4, 1992, claimant saw Dr. Cairns 
 
            for the back problem and was told that he must return in May 
 
            of 1993 to receive an impairment rating for this injury.  
 
            (cl. ex. 1, p. 14).  Prior to receiving a final impairment 
 
            rating from Dr. Cairns, claimant incurred a third injury.  
 
            
 
                 It is found that claimant failed to establish by a 
 
            preponderance of the evidence that the May 6, 1992 injury is 
 
            causally connected to an increase in permanent partial 
 
            impairment.  No specific impairment rating or additional 
 
            work restrictions were imposed as a result of the May 6, 
 
            1992 injury.  
 
            
 
                 On March 23, 1993, claimant incurred a third 
 
            work-related injury after shoveling snow.  Claimant was 
 
            again treated by Dr. Cairns and taken off work for a period 
 
            of time.  
 
            
 
                 As a result of the March 23, 1993 injury, Dr. Cairns 
 
            was of the opinion that no additional permanent partial 
 
            impairment was incurred.  (cl. ex. 1, p. 17).  However, Dr. 
 
            Cairns imposed permanent work restrictions including no 
 
            lifting over 30 pounds, avoiding shoveling, weed whacking, 
 
            prolonged standing, stooping, sitting, climbing, and 
 
            extensive overhead reaching.  These work restrictions were a 
 
            direct result of the injury which occurred on March 23, 
 
            1993.  (cl. ex. A1, p. 29).  
 
            
 
                 Dr. Bragg was of the opinion that the March 23, 1993 
 
            injury resulted in no change in permanent impairment as 
 
            previously demonstrated in the November 6, 1991 report.  
 
            (cl. ex. 5, p. 2).  
 
            
 
                 Employer's exhibit Q demonstrates a 13-week wage 
 
            history prior to the injury dated May 6, 1992.  Seven of the 
 
            13 weeks are not representative of claimant's work history 
 
            due to involvement in union activities.  Claimant received 
 
            pay from these outside union activities.  Testimony and 
 
            evidence was not offered to establish the amount of money 
 
            earned on each of the days when claimant was absent from 
 
            work.  Substitute weeks for the injury date May 6, 1992 were 
 
            not presented.  Claimant's average work week consisted of 40 
 
            hours.  Claimant's actual rate of pay as of May 6, 1992 was 
 
            $11.93 per hour including longevity pay.  It is found that 
 
            claimant's usual earnings for the time period prior to May 
 
            6, 1992 would be $477.20 per week.  
 
            
 
                 Employer's exhibit Q demonstrates a 13-week wage 
 
            history prior to the injury of March 23, 1993.  Four of the 
 
            weeks do not represent claimant's average earnings from this 
 
            employment due to involvement with union activities.  The 
 
            specific amount of money claimant earned on each of the 
 
            particular weeks was not offered by evidence or testimony at 
 
            the time of hearing.  The 13-week wage history is not a 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            representative example of claimant's earning capacity for 
 
            the 13-week period prior to March 23, 1993.  Substitute 
 
            weeks were not made available for the short weeks.  
 
            Claimant's average work week consisted of 40 hours.  
 
            Claimant's rate of pay on March 23, 1993 was $12.40 per 
 
            hour, including longevity pay.  It is found that claimant's 
 
            weekly wage for the period prior to March 23, 1993 is $496.  
 
            
 
             
 
            
 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                         REASONING AND CONCLUSIONS OF LAW
 
            
 
                 The first issue presented for determined is the extent 
 
            of industrial disability caused by the January 8, 1990 low 
 
            back injury in file number 939330.  
 
            
 
                 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 the 
 
            employee is fitted.  Olson v. Goodyear Serv. 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.  Impairment and disability are not synonymous.  
 
            The degree of industrial disability can be much different 
 
            than the degree of impairment because industrial disability 
 
            references to loss of earning capacity and impairment 
 
            references to anatomical or functional abnormality or loss.  
 
            Although loss of function is to be considered and disability 
 
            can rarely be found without it, it is not so that a degree 
 
            of industrial disability is proportionally related to a 
 
            degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of the 
 
            healing period; the work experience of the employee prior to 
 
            the injury and after the injury and the potential for 
 
            rehabilitation; the employee's qualifications 
 
            intellectually, emotionally and physically; earnings prior 
 
            and subsequent to the injury; age; education; motivation; 
 
            functional impairment as a result of the injury; and 
 
            inability because of the injury to engage in employment for 
 
            which the employee is fitted.  Loss of earnings caused by a 
 
            job transfer for reasons related to the injury is also 
 
            relevant.  Likewise, an employer's refusal to give any sort 
 
            of work to an impaired employee may justify an award of 
 
            disability.  McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 
 
            (Iowa 1980).  These are matters which the finder of fact 
 
            considers collectively in arriving at the determination of 
 
            the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  Neither does a 
 
            rating of functional impairment directly correlate to a 
 
            degree of industrial disability to the body as a whole.  In 
 
            other words, there are no formulae which can be applied and 
 
            then added up to determine the degree of industrial 
 
            disability.  It therefore becomes necessary for the deputy 
 
            or commissioner to draw upon prior experience as well as 
 
            general and specialized knowledge to make the finding with 
 
            regard to degree of industrial disability.  See Christensen 
 
            v. Hagen, Inc., Vol. 1 No. 3 State of Iowa Industrial 
 
            Commissioner Decisions 529 (App. March 26, 1985); Peterson 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            v. Truck Haven Cafe, Inc., Vol. 1 No. 3 State of Iowa 
 
            Industrial Commissioner Decisions 654 (App. February 28, 
 
            1985).
 
            
 
                 Compensation for permanent partial disability shall 
 
            begin at the termination of the healing period.  
 
            Compensation shall be paid in relation to 500 weeks as the 
 
            disability bears to the body as a whole.  Section 85.34.
 
            
 
                 While a claimant is not entitled to compensation for 
 
            the results of a preexisting injury or disease, its mere 
 
            existence at the time of a subsequent injury is not a 
 
            defense.  Rose v. John Deere Ottumwa Works, 247 Iowa 900, 76 
 
            N.W.2d 756 (1956).  If the claimant had a preexisting 
 
            condition or disability that is materially aggravated, 
 
            accelerated, worsened or lighted up so that it results in 
 
            disability, claimant is entitled to recover.  Nicks v. 
 
            Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812 (1962); 
 
            Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 
 
            N.W.2d 299 (1961).
 
            
 
                 Having considered all of the evidence and all of the 
 
            factors used in determining industrial disability, it is 
 
            held that claimant incurred 5 percent permanent partial 
 
            disability as a result of the January 8, 1990 work injury.  
 
            The lack of work restrictions and re-employment by the 
 
            employer worked to keep this disability rating low.  While 
 
            the impairment ratings issued by the treating and examining 
 
            doctors indicate that industrial disability had been 
 
            incurred as a result of the injury.  
 
            
 
                 The second issue presented for determination is whether 
 
            the May 6, 1992 low back injury in file number 1017233 was a 
 
            cause of industrial disability.  It is held that claimant 
 
            has failed to establish that claimant incurred additional 
 
            industrial disability as a result of the May 6, 1992 injury.  
 
            There were no additional work restrictions or permanent 
 
            partial impairment ratings issued as a result of the May 6, 
 
            1992 injury.  In the absence of such expert testimony and 
 
            evidence claimant has failed in his burden of proof.  
 
            Claimant shall take no additional benefits in the form of 
 
            industrial disability from file number 1017233.
 
            
 
                 The third issue to be addressed is whether claimant 
 
            incurred additional industrial disability as a result of the 
 
            March 23, 1993 low back injury in file number 1048142.  Upon 
 
            considering all the material factors, it is found that the 
 
            evidence in this case supports an award of an additional 20 
 
            percent permanent partial disability which entitles claimant 
 
            to recover additional benefits.  
 
            
 
                 In summary, claimant has incurred an industrial 
 
            disability of 25 percent to the body as a whole with 5 
 
            percent stemming from the January 8, 1990 injury and an 
 
            additional 20 percent from the March 23, 1993 injury.  While 
 
            all of the factors involved in determining industrial 
 
            disability were considered, it was the increase in permanent 
 
            work restrictions that weighed heavily toward an increase in 
 
            industrial disability.  On the other hand, employer's effort 
 
            to re-employ claimant worked to keep the industrial 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            disability rating low.  The work restrictions will 
 
            significantly limit claimant's access to the manual labor 
 
            job market thereby resulting in increased industrial 
 
            disability.
 
            
 
                 The next issue to be considered concerns that rate of 
 
            weekly compensation for the May 6, 1992 injury in file 
 
            number 1017233.  Iowa Code section 85.36(6) provides:
 
            
 
                    In the case of an employer who is paid on a 
 
                 daily, or hourly basis, or by the output of the 
 
                 employee, the weekly earnings shall be computed by 
 
                 dividing by thirteen the earnings, not including 
 
                 overtime or premium pay, of said employee earned 
 
                 in the employ of the employer in the last 
 
                 completed period of thirteen consecutive calendar 
 
                 weeks immediately preceding the injury.
 
            
 
                 Since the employer failed to establish a 13-week pay 
 
            history when excluding short nonrepresentative weeks, Iowa 
 
            Code section 85.36(6) cannot be used.  
 
            
 
                 Iowa Code section 85.36(8) provides:
 
            
 
                    If at the time of the injury the hourly 
 
                 earnings have not been fixed or cannot be 
 
                 ascertained, the earnings for the purpose of 
 
                 calculating compensation shall be taken to be the 
 
                 usual earnings for similar services where such 
 
                 services are rendered by paid employees.
 
            
 
                 It is held that the usual earnings for similar services 
 
            for the injury date May 6, 1992 amounts to $477.20 per week.  
 
            This equates to a weekly benefit amount of $301.78 with the 
 
            stipulated marital status as married and entitled to three 
 
            exemptions.
 
            
 
                 The next issue presented for determination is the rate 
 
            of weekly compensation for the injury date of March 23, 1993 
 
            in file number 1048142.  The same reasoning applies with 
 
            respect to the calculation of the weekly benefit rate as 
 
            stated above.  It is held that claimant's weekly gross 
 
            earnings for the injury date of March 23, 1993 amount to 
 
            $496 which equates to a weekly benefit rate of $318.64 based 
 
            on the stipulated marital status of married and entitled to 
 
            three exemptions.
 
            
 
                 A final issue exists as to whether Dr. Cairns' 
 
            deposition testimony fee of May 18, 1994 should be taxed at 
 
            the rate of $450.  The costs of expert testimony given is 
 
            limited by statute as $150.  Since three file numbers have 
 
            been litigated, the total cost is $450.  The employer is 
 
            taxed with the cost of Dr. Cairns' deposition in the amount 
 
            of $450.  Iowa Code section 622.72 
 
            
 
                                      ORDER
 
            
 
                 IT IS, THEREFORE, ORDERED:
 
            
 
                 In file number 939330:
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            
 
                 Employer, self-insured, is to pay claimant permanent 
 
            partial disability benefits at the rate of two hundred 
 
            ninety-three and 27/100 dollars ($293.27) per week 
 
            commencing January 30, 1990, for twenty-five (25) weeks.
 
            
 
                 In file number 1017233:
 
            
 
                 Claimant shall take nothing from this file with respect 
 
            to permanent partial disability.  Claimant's weekly benefit 
 
            rate is three hundred one and 78/100 dollars ($301.78).
 
            
 
                 In file number 1048142:
 
            
 
                 Employer, self-insured, is to pay claimant one hundered 
 
            (100) weeks of permanent partial disability at the rate of 
 
            three hundred eighteen and 64/100 dollars ($318.64) per week 
 
            commencing April 3, 1993.
 
            
 
                 It is further ordered that the weekly benefit rate is 
 
            three hundred eighteen and 64/100 dollars ($318.64).
 
            
 
                 It is further ordered in all file numbers That 
 
            employer, self-insured, shall receive credit for benefits 
 
            previously paid.
 
            
 
                 It is further ordered that all accrued benefits are to 
 
            be paid in a lump sum.
 
            
 
                 It is further ordered that interest will accrue 
 
            pursuant to Iowa Code section 85.30.
 
            
 
                 It is further ordered that the costs of this action are 
 
            assessed against employer, self-insured, pursuant to rule 
 
            343 IAC 4.33, including the four hundred fifty ($450) 
 
            witness fee for Dr. Cairns.
 
            
 
                 It is further ordered that employer, self-insured, file 
 
            claim activity reports as requested by this agency pursuant 
 
            to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this __________ day of July, 1994.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          MARLON D. MORMANN
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Francis Lange
 
            Attorney at Law
 
            698 Central Ave
 
            PO Box 1811
 
            Dubuque, Iowa  52004-1811
 
            
 
            Mr. Brendan Quann
 
            Attorney at Law
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            700 Locust St. STE 200
 
            Dubuque, Iowa  52001-6874
 
            
 
            
 
                 
 
            
 
 
            
 
            
 
            
 
            
 
                                                  51803 53002
 
                                                  Filed July 20, 1994
 
                                                  Marlon D Mormann
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ------------------------------------------------------------
 
            RICHARD R AVENARIUS,     
 
                                           File Nos. 939330 1017233
 
                 Claimant,                          1048142 
 
                      
 
            vs.                             A R B I T R A T I O N
 
                            
 
            CITY OF DUBUQUE,                   D E C I S I O N
 
                       
 
                 Self-Insured,  
 
                 Employer,       
 
                 Defendant.     
 
            ------------------------------------------------------------
 
            51803 53002
 
            
 
            Claimant a 50-year-old manual laborer for the city of 
 
            Dubuque incurred three injuries to the low back.  Claimant 
 
            was allowed 5 percent industrial disability as a result of 
 
            the first injury when he returned to work at his same rate 
 
            of pay with no permanent work restrictions and an average 5 
 
            percent permanent partial impairment rating.  Claimant took 
 
            no benefits from the second injury as no impairment rating 
 
            or permanent work restrictions were established because 
 
            claimant incurred a third injury before he could be rated.  
 
            Claimant took 20 percent additional permanent partial 
 
            disability to the body as a whole as a result of the third 
 
            injury because of lifting restrictions amounting to 30 
 
            pounds.  No additional permanent partial impairment was 
 
            assigned to claimant as a result of the third injury.  
 
            Claimant did return to the same employer at a higher rate of 
 
            pay after the third injury.
 
            
 
            The weekly rate of compensation was determined based upon an 
 
            average work week when the parties failed to present 
 
            evidence of additional weeks beyond the 13 weeks prior to 
 
            injury so as to act as substitute weeks for 
 
            nonrepresentative periods of time.  Therefore, an average 
 
            40-hour work week was used at the regular rate of pay on the 
 
            date of injury when determining the weekly benefit amount. 
 
            
 
 
 
 
 
 
 
 
 
 
 
 
 
 
            BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
____________________________________________________________
 
          
 
ORBRY WILLIAMS,    
 
          
 
     Claimant, 
 
          
 
vs.       
 
                               File Nos. 939345 & 1029965
 
MID-CENTRAL PLASTICS,   
 
                                 A R B I T R A T I O N
 
     Employer, 
 
                                   D E C I S I O N
 
and       
 
          
 
EMPLOYERS MUTUAL INSURANCE   
 
COMPANY,  
 
          
 
     Insurance Carrier,  
 
     Defendants.    
 
___________________________________________________________
 
                    STATEMENT OF THE CASE
 
 
 
This is a proceeding in arbitration and review-reopening brought by 
 
Orbry Williams as a result of injuries to his back which occurred on 
 
December 22, 1989 in file number 939345 and October 18, 1992 in file 
 
number 1029965.  The defendants admitted liability but contested the 
 
extent of permanent disability and whether claimant had a change in 
 
condition with respect to the 1989 injury resulting in additional 
 
permanent disability.  Entitlement to medical benefits was also 
 
disputed.
 
 
 
This case was heard and fully submitted at Des Moines, Iowa on March 2, 
 
1995.  The record in the proceeding consists of joint exhibits 1 
 
through 48 and testimony from Orbry Williams and Kemp Johnson, Jr.  
 
Claimant was represented by Robert W. Pratt, Attorney at Law.  
 
Defendants were represented by Steven M. Augspurger, Attorney at Law.
 
 
 
                              ISSUES
 
 
 
The issues presented for determination are as follows:
 
 
 
1.  Whether claimant has sustained a change in condition with respect 
 
to the December 22, 1989 injury resulting in additional industrial 
 
disability;
 
 
 
2.  The extent of industrial disability caused by the October 18, 1992 
 
injury; and
 
 
 
3.  Entitlement to Iowa Code section 85.27 medical expenses incurred 
 
for the October 18, 1992 injury and authorization as a defense to those 
 
expenses. 
 
 
 
                         FINDINGS OF FACT
 
 
 
Having heard the testimony of the witnesses and having examined all of 
 
the evidence in the record, the deputy industrial commissioner finds:
 
 
 
Claimant began work for the employer in September of 1985 as a 
 
full-time employee.  Claimant gradually worked his way through the 
 
ranks in order to gain greater salary and improved position within the 
 
company.  In 1989 claimant injured his low back and sought treatment 
 
from Dr. Robert A. Hayne, M.D.  Claimant had surgery performed on the 
 
lumbar spine as a result of that injury.  Claimant settled his workers' 
 
compensation claim against the employer by an agreement for settlement 
 
approved September 30, 1991.  That agreement for settlement allowed 
 
claimant 15 percent permanent partial disability to the body as a 
 

 
 
 
 
 
 
 
 
 
 
 
whole.  Claimant returned to work for the employer and continued in 
 
good standing until he injured his back due to a slip and fall on 
 
October 18, 1992.  Claimant was diagnosed as having a herniated disc.  
 
 
 
Certain medical records show a conflict as to whether claimant had pain 
 
raiding down the right leg or the left leg.  It is found that the 
 
medical records indicating left leg pain were errors in dictation.  It 
 
is quite common to see the left and right being confused by medical 
 
professionals.  Throughout claimant's records there was significant 
 
confusion as to which lumbar segment was involved.  Numerous records 
 
indicate L4/5.  Some records indicate L5/6 as claimant had an 
 
additional lumbar segment.  Other records indicate L5 S1.  These common 
 
errors indicate that a medical history of left leg pain was probably a 
 
medical history of right leg pain.  Furthermore, the incident of 
 
lifting noted by Rodothea Milatou, M.D., was merely a flare-up of the 
 
previous injury and cannot be classified as a new injury. 
 
 
 
Claimant eventually had surgery on April 6, 1993 for lumbar disc 
 
problem.  The surgery was performed by Robert Hayne, M.D., who was the 
 
same surgeon who had performed claimant's surgery for the 1989 injury.  
 
Dr. Hayne opined that claimant sustained an additional 2 percent body 
 
as a whole permanent impairment as a result of the 1992 injury.  
 
Keith W. Riggins, M.D., opined on September 15, 1994, that claimant 
 
sustained an additional 18 percent permanent impairment to the body as 
 
a whole as a result of the 1992 injury.  Dr. Riggins believed that the 
 
8 percent impairment resulting from the 1989 injury had remained 
 
unchanged. 
 
 
 
It is found that claimant has failed to establish a change in condition 
 
with respect to the December 22, 1989 injury.  The impairment and work 
 
restrictions appear to remain unchanged as a result of that injury.  
 
Therefore, claimant has failed to establish a change in condition not 
 
contemplated at the time of settlement.  
 
 
 
It is found that the October 18, 1992 injury is a cause of permanent 
 
disability as demonstrated by the credible opinions of Drs. Hayne and 
 
Riggins.  Both doctors believed that claimant had permanent work 
 
restrictions and permanent impairment resulting from the 1992 injury.  
 
Dr. Riggins opined that claimant should have a lifting restriction of 
 
30 pounds and frequent lifting of 20 pounds.  
 
 
 
Dr. Hayne generally described the lifting restriction of nothing over 
 
35 pounds.  
 
 
 
Several issues must be resolved with respect to the elements of 
 
industrial disability.  Claimant at the time of injury was age 46 with 
 
a high school education, several years of college and significant 
 
technical training.  Claimant has work experience received while in the 
 
military and considerable manual labor and production experience while 
 
employed for Mid-Central Plastics.  Claimant appeared as a highly 
 
motivated and skilled manual laborer.  The employer returned claimant 
 
to work in June of 1993 as a senior operator paid approximately $10.50 
 
per hour.  Claimant had previously been a senior technician being paid 
 
the same rate.  Work as a senior operator is slightly more physical 
 
than the work as a senior technician.  The senior operator position was 
 
a demotion with respect to status at Mid-Central Plastics.  The 
 
employer failed to give adequate explanation as to why the senior 
 
technician position was not offered to claimant in light of the fact 
 
that it was being vacated by a co-employee within the near future.  
 
 
 
Claimant did not wish to accept a demotion and returned to the treating 
 
doctor to obtain more rigid work restrictions which prevented him from 
 
performing that position.  However, claimant did not make an effort to 
 
perform the senior operator job in order to determine whether 
 
appropriate accommodation would be made by the employer.  Claimant has 
 
subsequent to his termination of employment with the employer obtained 
 
new employment at the rate of $10.00 per hour but lost significant 
 
fringe benefits in the process.  
 
 
 
At issue is the authorization of medical treatment by Dr. Hayne.  
 
Claimant had previously seen Dr. Hayne for treatment with respect to 
 
the 1989 injury.  The defendants became dissatisfied with Dr. Hayne's 
 
treatment and designated Daniel McGuire as the authorized treating 
 
orthopedic surgeon.  On December 17, 1992, Dr. McGuire noted that Dr. 
 

 
 
 
 
 
 
 
 
 
 
 
Hayne was a fine neurosurgeon.  On January 7, 1993, Dr. McGuire 
 
indicated that it was in claimant's best interest that care be given by 
 
Dr. Hayne.  On January 26, 1993, Dr. McGuire stated that he felt 
 
comfortable with Dr. Hayne performing the surgery.  Claimant provided 
 
credible testimony that Dr. McGuire had referred him to Dr. Hayne for 
 
surgery.  Claimant did receive surgery on April 6, 1993, for the lumbar 
 
laminectomy under the direction of Dr. Hayne.  It is found that Dr. 
 
McGuire, an authorized treating physician, referred claimant for 
 
surgery to Dr. Hayne.  The referral for surgery was a medical decision 
 
with respect to treatment as opposed to a choice of treating doctor.  
 
 
 
It was quite obvious that Dr. McGuire had decided that it was in 
 
claimant's best medical interest to obtain surgery from Dr. Hayne.  
 
Therefore, Dr. Hayne became an authorized treating physician as a 
 
result of the McGuire referral.
 
 
 
                 REASONING AND CONCLUSIONS OF LAW
 
 
 
The first issue is whether claimant sustained a change in condition 
 
with respect to the December 22, 1989 injury resulting in additional 
 
industrial disability.  
 
 
 
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 held that claimant has failed to establish a change in condition 
 
with respect to the 1989 injury.  No new work restrictions attributable 
 
to that injury were found to exist.  Furthermore, claimant's impairment 
 
did not change with respect to the injury.  Therefore, claimant shall 
 
take nothing from file number 939345.  
 
 
 
The second issue is the extent of industrial disability caused by the 
 
October 18, 1992 injury.
 
 
 
Since claimant has an impairment to the body as a whole, an industrial 
 
disability has been sustained.  Industrial disability was defined in 
 
Diederich v. Tri-City Ry. Co., 219 Iowa 587, 258 N.W.2d 899 (1935) as 
 
follows: "It is therefore plain that the legislature intended the term 
 
`disability' to mean `industrial disability' or loss of earning 
 
capacity and not a mere `functional disability' to be computed in the 
 
terms of percentages of the total physical and mental ability of a 
 
normal man."
 
 
 
Functional impairment is an element to be considered in determining 
 
industrial disability which is the reduction of earning capacity, but 
 
consideration must also be given to the injured employee's age, 
 
education, qualifications, experience, motivation, loss of earnings, 
 
severity and situs of the injury, work restrictions, inability to 
 
engage in employment for which the employee is fitted and the 
 
employer's offer of work or failure to so offer.  Olson v. Goodyear 
 
Serv. Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); McSpadden v. Big 
 
Ben Coal Co., 288 N.W.2d 181 (Iowa 1980); Barton v. Nevada Poultry Co., 
 
253 Iowa 285, 110 N.W.2d 660 (1961).
 
 
 
Compensation for permanent partial disability shall begin at the 
 
termination of the healing period.  Compensation shall be paid in 
 
relation to 500 weeks as the disability bears to the body as a whole.  
 
Section 85.34.
 
 
 
It is held that claimant sustained 15 percent industrial disability as 
 
a result of the October 18, 1992 work injury.  The additional work 
 
restrictions and permanent impairment given to claimant by the treating 
 
and examining physicians indicates an increase loss in access to the 
 

 
 
 
 
 
 
 
 
 
job market.  Furthermore, the employer's demotion of claimant upon his 
 
return to work indicates a loss of opportunity in access to advancement 
 
within that same company.  Claimant's education and technical skills 
 
mitigate against a finding of more significant industrial disability as 
 
does claimant's reemployment at $10.00 per hour.
 
 
 
The final issue concerns claimant's entitlement to Iowa Code section 
 
85.27 medical benefits.
 
 
 
The employer shall furnish reasonable surgical, medical, dental, 
 
osteopathic, chiropractic, podiatric, physical rehabilitation, nursing, 
 
ambulance and hospital services and supplies for all conditions 
 
compensable under the workers' compensation law.  The employer shall 
 
also allow reasonable and necessary transportation expenses incurred 
 
for those services.  The employer has the right to choose the provider 
 
of care, except where the employer has denied liability for the injury. 
 
 
 
 Section 85.27.  Holbert v. Townsend Engineering Co., Thirty-second 
 
Biennial Report of the Industrial Commissioner 78 (Review-reopen 1975).
 
 
 
It is held that the medical treatment received from Dr. Hayne was 
 
authorized pursuant to a referral by an authorized treating doctor.  
 
Dr. McGuire was specified as the authorized treating physician for 
 
claimant's low back condition.  Dr. McGuire directed that claimant 
 
receive treatment and surgery from Dr. Hayne for the low back 
 
condition.  Therefore, all treatment received as a result of Dr. 
 
Hayne's treatments is authorized and compensable.  Defendants shall 
 
reimburse claimant for any expenses paid out of his own pocket and pay 
 
the remaining outstanding medical bills direct to the medical provider.
 
 
 
                            ORDER
 
 
 
IT IS, THEREFORE, ORDERED:
 
 
 
Defendants shall pay claimant seventy-five (75) weeks of permanent 
 
partial disability benefits at the rate of two hundred eighty-four and 
 
70/100 dollars ($284.70) per week commencing June 9, 1993 in file 
 
number 1029965. 
 
 
 
It is further ordered that defendants shall pay for claimant's 
 
reasonable and necessary medical expenses as outlined in the opinion 
 
with Robert A. Hayne, M.D. and all surrounding expenses incurred as a 
 
result of the treatment by Robert A. Hayne, M.D.  Defendants shall 
 
reimburse claimant for actual expenses paid out of his own pocket and 
 
pay the remaining expenses direct to the medical providers.
 
 
 
It is further ordered that claimant shall take nothing from file number 
 
939345.
 
 
 
It is further ordered that defendants shall receive credit for benefits 
 
previously paid if applicable.
 
 
 
It is further ordered that all accrued benefits are to be paid in a 
 
lump sum.
 
 
 
It is further ordered that interest will accrue pursuant to Iowa Code 
 
section 85.30.
 
 
 
It is further ordered that costs of this action are assessed against 
 
defendants pursuant to rule 343 IAC 4.33.
 
 
 
It is further ordered that defendants shall file claim activity reports 
 
as requested by this agency pursuant to rule 343 IAC 3.1.
 
 
 
Signed and filed this ____ day of March, 1995.
 
                              ______________________________
 
                              MARLON D. MORMANN
 
                              DEPUTY INDUSTRIAL COMMISSIONER    
 
 
 
Copies to:
 
Mr. Robert W. Pratt
 
Attorney at Law
 
6959 University Ave.
 
Des Moines, IA  50311-1540
 
 
 
Mr. Steven M. Augspurger
 
Attorney at Law
 
801 Grand, Ste 3700
 
Des Moines, IA  50309-2727
 
 
 
 
 
 
 
 
 
 
     
 
                                  5-1803, 5-2700
 
                                  Filed March 9, 1995
 
                                  Marlon D. Mormann
 
 
 
         BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
____________________________________________________________
 
ORBRY WILLIAMS,    
 
          
 
     Claimant, 
 
          
 
vs.       
 
                             File Nos. 939345 & 1029965
 
MID-CENTRAL PLASTICS,   
 
                               A R B I T R A T I O N
 
     Employer, 
 
                                 D E C I S I O N
 
and       
 
          
 
EMPLOYERS MUTUAL INSURANCE   
 
COMPANY,  
 
          
 
     Insurance Carrier,  
 
     Defendants.    
 
___________________________________________________________
 
5-1803, 5-2700
 
This was a proceeding in arbitration and review-reopening.  Claimant 
 
had a back injury in 1989, which was settled for 15 percent permanent 
 
disability by an agreement for settlement.  It was established that no 
 
additional industrial disability was established as no change in 
 
condition resulted as of the time of hearing.
 
 
 
A low back injury to the same segment in 1992, resulted in an 
 
additional 15 percent industrial disability.  At the time of the second 
 
injury claimant was 46 years of age with a high school education, two 
 
years of college, advanced technical training and ten years of 
 
excellent work experience with the employer.  The employer offered to 
 
reemploy claimant in a demoted position but at the same rate of pay.  
 
 
 
Claimant's old job was available and the employer failed to offer it 
 
for no explained reason.  Claimant did not return to work for the 
 
employer but instead convinced the doctor to give additional work 
 
restrictions which disqualified him from the demoted position.  
 
Claimant was reemployed at $10.00 per hour in a new position.  Claimant 
 
had previously made $10.51 per hour.  The impairment ratings 
 
attributable to the second injury were 2 percent and 18 percent.  
 
Claimant had work restrictions of lifting no more than 30 to 35 pounds.
 
Medical treatment received from Dr. Hayne was held to be authorized as 
 
claimant was referred to Dr. Hayne by Dr. Daniel McGuire who believed 
 
that Dr. Hayne would provide better medical treatment.