BEFORE THE IOWA INDUSTRIAL COMMISSIONER          
 
 
 
JERI L. DAHL, 
 
         
 
     Claimant, 
 
         
 
vs.                                        File No. 954639
 
         
 
JOHN MORRELL & CO.,                     A R B I T R A T I O N
 
         
 
     Employer,                             D E C I S I O N
 
         
 
and      
 
         
 
HOME INSURANCE COMPANY, 
 
         
 
      Insurance Carrier,  
 
      Defendants.    
 
----------------------------------------------------------------         
 
                   STATEMENT OF THE CASE
 
         
 
Claimant, Jeri L. Dahl, has filed a petition 
 
in arbitration and seeks workers' compensation 
 
benefits from John Morrell & Co., defendant 
 
         
 

 
         
 
 
 
 
 
 
 
employer, and Home Insurance Company, defendant 
 
insurance carrier, on account of an injury 
 
arising out of and in the course of her 
 
employment on June 6, 1990.  The hearing was 
 
held before the undersigned on January 10, 1995 
 
at Sioux City, Iowa.  The evidence in this case 
 
consists of the testimony of claimant, Charles 
 
Newton, Sharon Johnson; claimant's exhibit A, 
 
pages 1 through 181, except page 144, claimant's 
 
exhibit B, pages 5, 6, 10-18, 20, 24-27, 29, 30, 
 
40-44, 144, and defendants' exhibits 2, 4, 7-9, 
 
13-15, 18, 19, 22, 26, 31A, 33, 34, 41-45 and 
 
47-62.  Claimant and defendants each filed a post 
 
hearing brief on February 21, 1995.  The case 
 
was considered fully submitted at the close of 
 
the hearing.
 
         
 
                    PROCEDURAL MATTERS
 
         
 
On February 21, 1995, claimant filed a 
 
motion to allow additional exhibits into the 
 
record.  Defendants filed a resistance on 
 
February 24, 1995.  On February 21, 1995, 
 
defendants filed a motion to substitute a 
 
complete copy of  exhibit A, page 9.  No 
 
resistance was filed by claimant.  Rule 343 IAC 
 
4.31 provides: "No evidence shall be taken after 
 
the hearing."  Based on the above cited rule, 
 
the motion by claimant to allow additional 
 
exhibits to be entered into the record and the 
 
motion by defendants to substitute a complete 
 
copy of exhibit A, page 9, are denied.
 
         
 
                    ISSUES
 
         
 
The Parties presented to the following 
 
issues for resolution:
 
         
 

 
         
 
 
 
 
 
 
 
1.  Whether claimant's injury resulted in 
 
any permanent disability and, if so, whether 
 
that disability is causally connected to her 
 
work injury of June 6, 1990;
 
         
 
2.  Whether claimant is entitled to any 
 
additional healing period benefits or temporary 
 
total disability benefits;
 
         
 
3.  Whether claimant is entitled to 
 
permanent partial disability benefits, and if 
 
so, the nature and extent of those benefits and 
 
the appropriate commencement date for benefits;
 
         
 
4.  Whether claimant is entitled to payment 
 
of certain medical expenses;
 
         
 
5.  Whether claimant's injury was willful 
 
under Iowa Code section 85.16; 
 
         
 
6.  Whether a portion of claimant's 
 
disability is due to a preexisting condition 
 
that resulted from a previous injury; and,
 
         
 
7.  Specific taxation of costs.
 
         
 
                    FINDINGS OF FACT
 
         
 
The undersigned deputy industrial 
 
commissioner, having reviewed all of the 
 
evidence received, finds the following facts:
 
         
 
Claimant was 42 years old, married and the 
 
mother of six children, four of whom were minors 
 
on the day of the hearing.  Claimant was not a 
 
credible witness on her own behalf.  
 
         
 
She graduated from high school in 1972 and 
 
went to work for IBP, inc. the same year.  She 
 
worked for IBP, inc. until approximately 1984 or 
 
1985. (Transcript, page 14)   While working for 
 
IBP, inc. she sustained a work-related injury to 
 
her right hand in September of 1984.  Claimant 
 
         
 

 
         
 
 
 
 
 
 
 
was specifically asked by defendants, through an 
 
interrogatory, if she had ever sustained a work-
 
related injury before or made a claim for 
 
workers' compensation before this injury.  She 
 
stated under oath that she had not.  
 
(Defendant's exhibit 61, page 3)  Claimant's 
 
answer was clearly less than complete, at best, 
 
as is evidenced by her previous workers' 
 
compensation claim with IBP, Inc.  Claimant's 
 
previous claim went to hearing in Nebraska and 
 
then was resolved after hearing by payment to 
 
claimant of over $15,000 dollars.  It is not 
 
believable that claimant forgot her previous 
 
claim.  It was previously determined that 
 
claimant had sustained a 5 percent permanent 
 
partial disability impairment to each hand.  
 
(Def. Ex. 43, p. 3, 4)
 
         
 
Her work for defendant employer required her 
 
to stack boxes after they came out of a machine.  
 
This work required that she use her hands, 
 
wrists, and arms in a repetitive manner.  She 
 
also worked wrapping loins which required 
 
repetitive use of her hands and wrists.
 
 
 
On March 19, 1990, claimant suffered a work-
 
related injury to her shoulder, that is not the 
 
subject of this case, when she was pulling on a 
 
pallet that was stuck. (Def. Ex. 59) 
 
         
 
Restrictions that were placed on her left arm 
 
were lifted by May 29, 1990.  (Cl. Ex. A, p. 41, 
 
43)  On June 6, 1990, claimant reported swelling 
 
and pain in both wrists.  (Cl. Ex. A, p. 52)  
 
 
 
She was examined by Gerald McGowan, M.D., on 
 
June 12, 1990 as a follow-up to her shoulder 
 
         
 

 
         
 
 
 
 
 
 
 
 
 
complaint.  He noted that claimant had little 
 
bursa or ganglions on her wrist which did not 
 
impress him too much.  He recommended no 
 
treatment.  (Cl. Ex. A, p. 47)
 
         
 
On July 3, 1990, claimant complained of pain 
 
in both wrists.  She had swelling along the 
 
tendon of both wrists on the volar side, which 
 
he did not think was anything.  He recommended 
 
no treatment.  (Cl. Ex. A, p. 49)  On July 3, 
 
1990 Dr. McGowan recommended that for the next 
 
two weeks claimant reduce repetitive wrist 
 
motion and lift no more than 10 pounds 
 
occasionally.  (Cl. Ex. A, p. 50, 51)  Claimant 
 
asked to be referred to an orthopedic surgeon.
 
         
 
She was first seen by A. Pechacek, M.D., on 
 
July 9, 1990.  He suspected ganglion cysts were 
 
the source of her pain and irritation.  He 
 
recommended limited use of her wrists and if 
 
that failed he recommended surgical removal of 
 
the swollen tissue, which he thought was 
 
probably a ganglion cyst.  (Cl. Ex. A, p. 56)  
 
X-rays of claimant's wrists done on July 9, 1990 
 
were normal.  (Def. Ex. 8)  Dr. Pechacek took 
 
claimant off work beginning July 9, 1990.  (Cl. 
 
Ex. A, p. 59, 60)
 
         
 
Dr. Pechacek performed surgery on claimant's 
 
left wrist on August 1, 1990.  Instead of a 
 
ganglion cyst, he found hypertrophic muscle 
 
tissue.  The tissue was removed, decompressing 
 
the ulnar nerve.  Neither the ulnar nerve nor 
 
the artery appeared to have sustained any 
 
permanent damage.  (Cl. Ex. A, p. 63, 64)  
 
         
 
Claimant remained off work.  (Cl. Ex. A, p. 73-
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
80)
 
         
 
On October 11, 1990, Dr. Pechacek noted that 
 
her range of motion was normal.  She had no 
 
atrophy in her hand.  Her thumb and finger 
 
motions were normal.  She was encouraged to move 
 
and use her wrist, hand and fingers.  She was 
 
still unable to return to work in a packing 
 
house doing manual work activities.  A recheck 
 
visit in four to six weeks was planned.  (Cl. 
 
Ex. A, p. 81)
 
         
 
Dr. Pechacek never examined or treated 
 
claimant again because she moved to Arlington, 
 
South Dakota in November of 1990.  (Trans. p. 
 
66)  Arlington is 148 miles away from Sioux 
 
City, where the John Morrell plant is located.  
 
         
 
It would take claimant two hours to drive one 
 
way to Sioux City.  (Trans. p. 64)  It is clear 
 
that claimant never intended to return to work 
 
for defendant employer after she moved to 
 
Arlington, South Dakota.  When she was asked 
 
whether she would commute to Sioux City she 
 
indicated that if she had returned to work she 
 
would have been transferred to defendant 
 
employer's Sioux Falls plant.  (Trans. p. 82)  
 
Claimant never asked for a transfer to the Sioux 
 
Falls plant.  
 
         
 
After claimant moved to South Dakota 
 
defendants authorized treatment by John Ramsay, 
 
M.D.  He first evaluated claimant on November 
 
21, 1990 where she exhibited a positive Tinel's 
 
test.  (Cl. Ex. A, p. 95)  Nerve conduction 
 
studies done on December 3, 1990 were normal for 
 
each median, ulnar and radial nerves. (Def. Ex. 
 
         
 

 
         
 
 
 
 
 
 
 
13)  On December 10, 1990, claimant informed Dr. 
 
Ramsay that she was pregnant with her sixth 
 
child.  Conservative treatment, including 
 
minimal medications and lots of range of motion 
 
and functional activity for the hand, was 
 
prescribed, but not the hard and persistent work 
 
which was required for any type of gainful 
 
employment. (Cl. Ex. A, p. 95)  Claimant 
 
remained off work.
 
         
 
Her sixth child was born on April 22, 1991.
 
Claimant indicated to the GAB representative 
 
that she and her husband were going to move back 
 
to the Sioux City area so an appointment with 
 
John Kuhnlein was scheduled on May 16, 1991 to 
 
evaluate her current status.  Claimant did not 
 
show up for the appointment. (Def. Ex. 14)  
 
Another appointment was scheduled for June 6, 
 
1991.  
 
         
 
Claimant reported symptoms of numbness in 
 
all five fingers of her left hand with continued 
 
pain at the incision site in her left wrist.  
 
The pain was better with rest and worse with 
 
activity.  Her pain was somewhat improved since 
 
the surgery.  She told Dr. Kuhnlein that Dr. 
 
Ramsay wanted to perform ulnar nerve 
 
decompression at both elbows.  That statement is 
 
not supported by Dr. Ramsay's notes.  Nowhere 
 
does he mention that claimant needed ulnar 
 
decompression especially in light of her normal 
 
nerve conduction studies of December 1990.  (Cl. 
 
Ex. A, p. 100)  When Dr. Kuhnlein asked her 
 
about the scar on her right wrist, claimant 
 
forgot that she had carpal tunnel surgery in 
 
         
 

 
         
 
 
 
 
 
 
 
1984. (Cl Ex. A, p. 100)  Tinel's, Finkelstein's 
 
and Allen's tests were negative.  Phalen's test 
 
produced some numbness in the second through 
 
fifth digits in both hands.  Dr. Kuhnlein's 
 
impression was pain of unknown etiology.  Her 
 
pain has continued unabated in the approximate 
 
nine to ten months since surgery despite the 
 
fact that she was completely off work.  (Cl. Ex. 
 
A, p. 100)  Dr. Kuhnlein did not perform tests 
 
or provide any treatment to claimant because she 
 
did not relocate to Sioux City.
 
         
 
When the GAB representative found out in 
 
September of 1991 that claimant planned to 
 
continue living in South Dakota he asked Dr. 
 
Ramsay to again examine and treat claimant if 
 
treatment was necessary.  Dr. Ramsay refused 
 
further treatment of claimant, because he 
 
believed claimant had forged his signature on 
 
off work slips in order to obtain group 
 
disability benefits from Enterprise Financial 
 
Group.
 
         
 
Claimant filed for group disability benefits 
 
and submitted forms dated January 3, 1991, 
 
February 2, 1991, March 3, 1991, April 1, 1991, 
 
May 2, 1991 and June 2, 1991 which indicated 
 
that Dr. Ramsay had continued to provide 
 
treatment to claimant on a monthly basis through 
 
May 3, 1991.  (Def. Ex. 18, pp. 1, 3, 5, 7, 9, 
 
11; Cl. Ex. A, p. 86, 87, 90, 91, 92, 94)  
 
Enterprise, which had paid group disability 
 
benefits to the claimant for the period July 3, 
 
1990 through May 2, 1991 based on the claim 
 
forms submitted to them by claimant, asked Dr. 
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
Ramsay to review the forms. Caroline Hsing, 
 
claims analyst for Enterprise, notified claimant 
 
by letter on June 10, 1991 that she had 
 
"contacted Dr. Ramsay's office and spoke to Ms. 
 
Eris Lenz who handles all the insurance 
 
paperwork.  She requested that we [Enterprise] 
 
fax her all physician's statements completed 
 
from December 1990 through the present for 
 
verification of completion.  She then contacted 
 
our office adviseing [sic] that the forms were 
 
not completed by Dr. Ramsay nor anyone in the 
 
office."  (Def. Ex. 45)  Dr. Ramsay specifically 
 
certified that each of the physician's 
 
statements from January 3, 1991 through June 2, 
 
1991 were not completed by himself or by anyone 
 
authorized by him to complete them.  (Def. Ex. 
 
18, p. 2, 4, 6, 8, 10, 12)  Contrary to 
 
claimant's assertion, it is clear that Dr. 
 
Ramsay believes that claimant, or someone acting 
 
on her behalf, forged his signature.  The 
 
evidence supports his conclusion and the 
 
undersigned also believes that claimant or 
 
someone acting on her behalf forged the off work 
 
slips.  On September 25, 1991 Dr. Ramsay wrote 
 
to GAB and stated:
 
         
 
Jeri Dahl was a 37-year-old white female 
 
when I first saw her in November of 1990 after 
 
her move to the Brookings area and she was 
 
evaluated concerning her complaints of pain and 
 
numbness in her left wrist and also with 
 
complaints in her right wrist.  Subsequent o 
 
that evaluation the patient provided other 
 
history about her pregnancy and aggressive 
 
         
 

 
         
 
 
 
 
 
 
 
therapy was halted until her delivery.  My last 
 
contact with her was on December 10, 1990.  Over 
 
the first four to six months of 1991 we began to 
 
get form letters from Workmen's Compensation 
 
Insurance about her availability for work and 
 
upon further investigation it was determined 
 
that my signature on these forms authorizing 
 
release from work were forged.  At that point in 
 
time I contacted the patient and related to her 
 
that I no longer felt comfortable and confident 
 
in our doctor/patient relationship and I 
 
suggested that she continue her follow up with 
 
another physician.  I am still of this opinion 
 
and therefore can not honor your request for 
 
further evaluation and treatment on this 
 
patient.  If she needs assistance in 
 
facilitating referral to another physician, I 
 
will be more than happy to help in any way that 
 
I can.    (Def. Ex. 19)
 
         
 
When GAB learned that claimant had falsified 
 
work releases her temporary total disability 
 
benefits were terminated effective November 1, 
 
1991. (Def. Ex. 47)  GAB refused to recommence 
 
payment of disability benefits unless Dr. Ramsay 
 
would reverse his statement regarding the 
 
forgery of his signature.  (Cl. Ex. A, p. 113)  
 
         
 
Dr. Ramsay would not reverse his statement.  
 
(Cl. Ex. A, p. 113)
 
         
 
On October 11, 1991, claimant filled out and 
 
sent to the industrial commissioner's office, 
 
what is labeled "Petition To Change Primary 
 
         
 

 
         
 
 
 
 
 
 
 
Physicians" (Cl. Ex. A, p. 108)  The undersigned 
 
is unclear why claimant did not comply with Iowa 
 
Code section 85.27 and the rules set out at 343 
 
IAC 4.48 et. seq. if she desired alternate 
 
medical care.  In any event, claimant's exhibit 
 
A, page 108, does not act to authorize claimant 
 
to secure treatment from unauthorized 
 
physicians, nor is it a proper petition for 
 
alternate medical care.  
 
         
 
Claimant was informed that she could seek an 
 
independent medical examination pursuant to Iowa 
 
Code section 85.39, in order to establish a 
 
basis for resumption of her temporary total 
 
disability benefits.  (Cl. Ex. A, p. 113, Def. 
 
Ex. 48)  Claimant never petitioned for an 85.39 
 
independent medical examination.  The medical 
 
administrator at the Brooking Clinic where Dr. 
 
Ramsay practiced was willing to provide a 
 
referral to another physician, if necessary.  
 
(Cl. Ex. A, p. 113)  
 
         
 
On September 18, 1991, Amiel N. Redfish, a 
 
physicians assistant, wrote that claimant had 
 
subjective complaints of pain in the hands, but 
 
seemed to have good hand functions.  (Cl. Ex. A, 
 
p. 107)  He declined to provide treatment.  (Cl. 
 
Ex. A, p. 107)
 
         
 
Claimant then visited, R. M. Bommersbach, 
 
D.C., an unauthorized chiropractor on October 
 
10, 1991.  Based on his first partial 
 
examination, Dr. Bommersbach reported that 
 
claimant complained of pain in her left shoulder 
 
and wrist as well as her right wrist which he 
 
thought might possibly be caused from repetitive 
 
         
 

 
         
 
 
 
 
 
 
 
work at defendant employer.  Based on a partial 
 
examination he determined the claimant to be 
 
totally disabled because of wrist and shoulder 
 
disabilities (Cl. Ex. A, p. 109, 110)  On 
 
October 10, 1991, he diagnosed claimant with 
 
cervical subluxation, thoracic outlet syndrome 
 
and tenosynovitis based on a partial examination 
 
and absolutely no objective test findings.  (Cl. 
 
Ex. A, p. 112)  On January 21, 1992, Dr. 
 
Bommersbach wrote, "I'm sure there is some type 
 
of work that this lady can do."  He also stated 
 
that he was getting mixed signals from the 
 
claimant concerning her case.  (Cl. Ex. A, p. 
 
123)  
 
         
 
In December of 1991 Dr. Ramsay referred and 
 
transferred claimant's records to Peter K. 
 
Rodman, M.D.  (Cl. Ex. A, p. 114)  Dr. Rodman 
 
took claimant off work in December 1991.  (Cl. 
 
Ex. A, p. 122)  By March 17, 1992, Dr. Rodman, 
 
had determined that her examination was normal 
 
and claimant should phase back into work.  All 
 
of the medical workups to that point had been 
 
essentially normal.  He also felt that questions 
 
as far time off work in the past would be best 
 
handled by Dr. Ramsay and on March 17, 1992, he 
 
felt the patient could work.  (Cl. Ex. A, p. 
 
124)  Dr. Rodman refused to offer an opinion as 
 
to whether claimant's alleged disability was 
 
related to her work for defendant employer.  
 
         
 
On April 13, 1992, Dr. Bommersbach wrote 
 
that claimant could have a 25 to 30 percent 
 
disability of the whole man, which sounded fair 
 
to him, but he did not give her a disability 
 
         
 

 
         
 
 
 
 
 
 
 
 
 
evaluation so by his own admission this is an 
 
arbitrary figure.  Claimant was told by Dr. 
 
Bommersbach that his opinion was speculative and 
 
arbitrary.  (Cl. Ex. A, p. 128)  When asked to 
 
rate claimant's impairment, Dr. Bommersbach 
 
wrote to claimant and asked her:
 
         
 
Before we examine you we need to have you 
 
write a long narrative concerning the history 
 
and treatment you have received including the 
 
names and addresses and approximate dates of 
 
other types of treatment rendered to you.  This 
 
history should include date of injury (or when 
 
you first began having problems), doctor's names 
 
and addresses that you have seen  and what they 
 
have done as far as treatment or examinations.  
 
         
 
I need to know the types of symptoms you 
 
initially started having, what types of symptoms 
 
you continue to have and the severity of these 
 
symptoms.  I also need to know how this injury 
 
has affected your life, things you used to do 
 
that you can no longer do and a note on how you 
 
are trying to cope with this disorder such as 
 
limiting what you do.  I would also like a 
 
percentage or a number amount that you feel that 
 
you are disabled.  Does this affect your life 
 
10%, 20%, 50%?  I need to know whatever you feel 
 
you are disabled because of this disability.  
 
(emphasis added)    (Def. Ex. 26)
 
         
 
Dr. Bommersbach did not review claimant's 
 
medical records before he invited her to write 
 
her own disability rating.  There is no evidence 
 
         
 

 
         
 
 
 
 
 
 
 
 
 
that Dr. Bommersbach used the criteria set out 
 
in the AMA Guides To The Evaluation of Permanent 
 
Impairment as adopted by 343 IAC 2.4 of the 
 
rules.  Dr. Bommersbach's opinion regarding the 
 
extent of the claimant's permanent impairment 
 
are pure speculation and will be disregarded.  
 
         
 
Dr. Bommersbach never did submit a written 
 
evaluation, he just told claimant, according to 
 
her, as she relayed to the insurance company, 
 
that she had a 15 percent whole man disability.  
 
(Trans. p. 148)
 
         
 
On June 7, 1992, claimant filed for 
 
unemployment insurance admitting that she had 
 
been released to return to work. (Cl. Ex. 62)
 
         
 
On June 9, 1992, claimant was examined by 
 
Ronald O. Wyatt, M.D., an orthopedic surgeon.  
 
She had a very positive Phalen's test on both 
 
the right and left hand and a positive Tinel's 
 
test as well.  (Cl. Ex. A, p. 138)  Previous 
 
Tinel's tests a year earlier were negative.  Dr. 
 
Wyatt referred her for EMG testing.  Dr. Wyatt 
 
gave claimant an off work slip on June 9, 1992.  
 
(Cl. Ex. A, p. 139)  Only two days prior to this 
 
claimant had filed for unemployment indicating 
 
she was ready, willing and able to work.  
 
         
 
EMG testing done on June 26, 1992 was normal 
 
for the median nerve and showed some 
 
rennervation for the left ulnar nerve.  The 
 
tester indicated that some of the results could 
 
be from "decreased volitional effort."  (Cl. Ex. 
 
A, p. 140, 142)  Dr. Wyatt offered the opinion 
 
on June 18, 1992 that claimant could return to 
 
work and on June 30, 1992 authored a return to 
 
         
 

 
         
 
 
 
 
 
 
 
work slip indicating he suggested no repetitive 
 
work with her wrists.  (Cl. Ex. A, p. 141)  
 
         
 
Claimant was released from his care. 
 
On a referral from her attorney claimant was 
 
seen by M. E. Rhoades, M.D., for an examination 
 
on August 24, 1992.  Claimant complained of 
 
numbness in both arms and in her left shoulder.  
 
(Cl. Ex. A, p. 173)  X-rays of the left shoulder 
 
in both internal and external rotation were 
 
within normal limits.  (Def. Ex. 31a)  Dr. 
 
Rhoades thought that claimant had subacromial 
 
bursitis and rotator cuff degeneration which 
 
were not related to her complaints of hand and 
 
arm pain and numbness.  (Ex. A, p. 174)  
 
         
 
Claimant was referred to James W. Wiggs, M.D., a 
 
neurologist, for evaluation.  (Cl. Ex. A, p. 
 
174)  Yet another set of nerve conduction 
 
studies were normal, revealing only a "very 
 
modest" slowing which the doctor attributed to 
 
the length of claimant's hands.  (Cl. Ex. A, p. 
 
148)  In Dr. Wiggs' physical and neurological 
 
examination he noted that claimant had Tinel's 
 
signs at the wrong location and that the 
 
claimant was "not trying - stuttering give away" 
 
and that claimant had no difficulty with zippers 
 
and snaps.  (Cl. Ex. A, p. 149)  Dr. Wiggs 
 
determined that the neurological examination had 
 
been "contaminated by apparently functional 
 
generalization of deficit and exaggeration."  
 
(Cl. Ex. A, p. 147)
 
         
 
Dr. Rhoades wrote to claimant's attorney and 
 
told him that claimant was not a candidate for 
 
any further surgery, nor did she have any 
 
         
 

 
         
 
 
 
 
 
 
 
objective evidence of median or ulnar nerve 
 
compression at the wrist or elbow.  Based on her 
 
history he recommended she avoid repetitive 
 
motion activities.  (Cl. Ex. A, p. 155)
 
         
 
On March 10, 1993, claimant again visited 
 
Dr. Rhoades who determined she had full range of 
 
motion in her shoulders.  Complaints of numbness 
 
in her hand did not follow any particular 
 
dermatonal distribution.  Previous nerve 
 
conduction studies by Dr. Wiggs on September 4, 
 
1992 did not show any evidence of nerve 
 
compression at the hands or wrist.  (Cl. Ex. A, 
 
p. 166)
 
         
 
Claimant was evaluated by Dr. Rhoades again 
 
on October 16, 1993.  She had a popping and 
 
catching sensation in her left shoulder, but had 
 
full range of motion.  (Cl. Ex. A, p. 175- 176)  
 
 
 
An MRI of the left shoulder revealed a small 
 
partial tear at the anterior aspect of the 
 
supraspinatus tendon of the left shoulder and 
 
mild compression of the supraspinatus muscle at 
 
the acromiclavicular joint.  He felt the finding 
 
represented degenerative changes and was not a 
 
surgical problem.  (Cl. Ex. A, p. 179)  Dr. 
 
Rhoades wrote that he was unable to relate her 
 
current symptoms to her employment at John 
 
Morrell, Inc.  He felt that there was no 
 
evidence of permanent impairment.  He did 
 
suggest that she not be employed in repetitive 
 
motion activity. (Cl. Ex. A, p. 178, 179)
 
Yet another set of nerve conduction studies 
 
performed on the claimant on December 13, 1993 
 
were normal.  There was no evidence of 
 
         
 

 
         
 
 
 
 
 
 
 
peripheral neuropathy or localized peripheral 
 
nerve entrapment in either of the claimant's 
 
arms.  (Ex. A, p. 33)
 
         
 
Claimant was evaluated by L.T. Donovan, 
 
D.O., on March 16, 1994.  Dr. Donovan had a 
 
complete set of the claimant's medical records 
 
through October 30, 1993.  (Def. Ex. 34)  Dr. 
 
Donovan spent over five hours reviewing her 
 
medical records and dictating the extensive and 
 
comprehensive history set out in defendants' 
 
exhibit 34.  His examination of claimant took 
 
one hour and fifteen minutes.  (Def. Ex. 34, p. 
 
14)  Claimant demonstrated for Dr. Donovan her 
 
ability to work at shoulder level without any 
 
complaints of pain.  (Def. Ex. 34, p. 2)  
 
         
 
Although he determined claimant had a left 
 
shoulder impingement syndrome, it was not 
 
related to her employment for defendant 
 
employer.  Based on the AMA Guides to the 
 
Evaluation of Permanent Impairment, Fourth 
 
Edition, Chapter 3, he determined that claimant 
 
had no permanent impairment.  (Def. Ex. 34, p. 
 
13)  
 
         
 
Absolutely no restrictions have been placed 
 
on claimant's activities that relate to any 
 
complaint of shoulder or body as a whole 
 
problems.  Claimant, in her brief, admits that 
 
her shoulder injury occurred on March 27, 1990, 
 
not on June 6, 1990, which is the subject of 
 
this petition.  "A separate date of injury shall 
 
be alleged and a separate original notice and 
 
petition shall be filed on account of each 
 
injury, gradual injury . . . alleged by an 
 
         
 

 
         
 
 
 
 
 
 
 
 
 
employee."  Rule 343 IAC 4.6  The date of injury 
 
alleged in this petition and stipulated to by 
 
defendant is June 6, 1990.  
 
         
 
Claimant seeks payment of medical bills set 
 
out in claimant's exhibit B.  Most of the 
 
medical bills for which she seeks payment are 
 
for treatment from unauthorized providers.  A 
 
number of the bills make it unclear what 
 
treatment was provided to claimant.  
 
         
 
             ANALYSIS AND CONCLUSIONS OF LAW
 
         
 
The first issue to be determined is whether 
 
claimant's injury has resulted in any permanent 
 
disability, and if so, whether that disability 
 
is causally connected to her work injury of June 
 
6, 1990.
 
         
 
The party who would suffer loss if an issue 
 
were not established has the burden of proving 
 
that issue by a preponderance of the evidence.  
 
Iowa R. App. P. 14(f).
 
         
 
The claimant has the burden of proving by a 
 
preponderance of the evidence that the injury is 
 
a proximate cause of the disability on which the 
 
claim is based.  A cause is proximate if it is a 
 
substantial factor in bringing about the result; 
 
it need not be the only cause.  A preponderance 
 
of the evidence exists when the causal 
 
connection is probable rather than merely 
 
possible.  Blacksmith v. All-American, Inc., 290 
 
N.W.2d 348 (Iowa 1980); Holmes v. Bruce Motor 
 
Freight, Inc., 215 N.W.2d 296 (Iowa 1974).
 
         
 
The question of causal connection is 
 
essentially within the domain of expert 
 
testimony.  The expert medical evidence must be 
 
         
 

 
         
 
 
 
 
 
 
 
considered with all other evidence introduced 
 
bearing on the causal connection between the 
 
injury and the disability.  The weight to be 
 
given to any expert opinion is determined by the 
 
finder of fact and may be affected by the 
 
accuracy of the facts relied upon by the expert 
 
as well as other surrounding circumstances.  The 
 
expert opinion may be accepted or rejected, in 
 
whole or in part.  Sondag v. Ferris Hardware, 
 
220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar 
 
Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish 
 
v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 
 
(1965).
 
         
 
Claimant does not argue in her brief that 
 
any doctor has determined that she has any 
 
permanent impairment as a result of her work 
 
injury of June 6, 1990.  Instead, she argues 
 
that she is entitled to temporary total and or 
 
temporary partial disability benefits until she 
 
is able to return to work for defendant 
 
employer.  In essence, claimant is arguing that 
 
she is permanently and totally disabled.  The 
 
evidence presented does not come close to 
 
establishing that claimant is permanently and 
 
totally disabled.  
 
         
 
Claimant has failed to prove by a 
 
preponderance of the evidence that she has 
 
sustained any permanent impairment.  The only 
 
medical provider that could arguably be said to 
 
have attributed permanent impairment to claimant 
 
is Dr. Bommersbach.  As set out in the findings 
 
of fact his opinions are singularly 
 
unpersuasive.  He invited claimant to provide 
 
         
 

 
         
 
 
 
 
 
 
 
 
 
her own impairment rating based on what she 
 
thought she should have.  His opinion, where set 
 
out, is in his own words, speculative.  He did 
 
not have an accurate history, nor had he 
 
reviewed all of the medical records.  Claimant 
 
points out that workers compensation laws should 
 
be liberally construed.  While it is true that 
 
the law should be liberally construed, facts are 
 
not.  Claimant has no objective findings to 
 
indicate she has any permanent impairment.  
 
         
 
Numerous nerve conduction studies and EMG's are 
 
normal.  Claimant's work restrictions are based 
 
solely on her subjective complaints of pain to 
 
medical providers.  Because they are unsupported 
 
by objective medical evidence of permanent 
 
impairment, claimant's work restrictions cannot 
 
be used to establish permanent impairment.
 
         
 
Dr. Donovan's evaluation is the most 
 
persuasive.  He performed extensive document 
 
review of claimant's medical records.  He spent 
 
over an hour with the claimant during the 
 
examination and his report reveals a particular 
 
attention to detail.  Dr. Donovan's 
 
determination that claimant has no permanent 
 
impairment is accepted.
 
         
 
As Dr. Donovan pointed out there is no 
 
objective evidence of any impairment of the 
 
claimant's left shoulder or body as a whole.  
 
         
 
Claimant's examination with Dr. Donovan is 
 
particularly revealing in that claimant had no 
 
trouble working at shoulder level in front of 
 
him.  Based on the totality of the medical 
 
evidence, particularly on Dr. Donovan's report, 
 
         
 

 
         
 
 
 
 
 
 
 
claimant has failed to prove her injury resulted 
 
in any permanent impairment, thus the question 
 
of causal connection is moot as is the question 
 
of entitlement to permanent partial disability 
 
benefits.
 
         
 
The next issue to be determined is 
 
claimant's entitlement to temporary total 
 
disability benefits.  
 
         
 
Iowa Code section 85.33 provides:
 
         
 
[The] employer shall pay to an employee for 
 
injury producing temporary total disability 
 
weekly compensation benefits . . . until the 
 
employee has returned to work or is medically 
 
capable of returning to employment substantially 
 
similar to the employment in which the employee 
 
was engaged at the time of injury, whichever 
 
occurs first.
 
         
 
2.  "Temporary partial disability" or 
 
"temporarily, partially disabled" means the 
 
condition of an employee for whom it is 
 
medically indicted that the employee is not 
 
capable of returning to employment substantially 
 
similar to the employment in which the employee 
 
was engaged at the time of injury, but is able 
 
to perform other work consistent with the 
 
employee's disability.
 
         
 
Temporary total disability does not 
 
necessarily contemplate that all residuals from 
 
an injury be completely healed and returned to 
 
normal.  It is only when the evidence shows that 
 
because of the effects of the injury gainful 
 
employment cannot be pursued.  McDonald v. 
 
Wilson Foods Corp., Thirty-fourth Biennial Rep., 
 
         
 

 
         
 
 
 
 
 
 
 
 
 
Iowa Industrial Comm'r 197, 199 (App. 1979).
 
         
 
Claimant was paid temporary total disability 
 
benefits for the period June 7, 1990 through 
 
November 1, 1991.  Claimant's condition has not 
 
changed since she last saw Dr. Pechacek on 
 
October 11, 1990 when he released her to return 
 
to work so long as she did not engage in 
 
repetitive or continuous activities.  Defendants 
 
argue that claimant's temporary total disability 
 
benefits should cease on that date.  It is clear 
 
that claimant's condition has not changed since 
 
that time.  It is also clear that claimant never 
 
intended to return to work for defendant after 
 
she and her family moved 148 miles away in 
 
November of 1990.   Claimant's work 
 
restrictions, based as they are on her 
 
subjective complaints alone, do not amount to 
 
disability.  Although claimant may never be able 
 
to return to defendant employer, that is due in 
 
large measure to her own choice. The evidence 
 
does not establish that she is unsuited for any 
 
employment.  
 
 
 
Claimant has been released to work, 
 
albeit with restrictions, since October 11, 
 
1990.  She has made virtually no effort to find 
 
other work, even after she and her family moved 
 
148 miles away.  Claimant's actions speak much 
 
more loudly than her words, it is clear that 
 
claimant doesn't want to return to work.
 
         
 
By her own admission no doctor since she saw 
 
Dr. Pechacek has helped 
 
         
 
         
 
         
 
ial Report of the Industrial Commissioner 78 
 
(Review-reopen 1975).
 
         
 
Claimant also seeks to recover medical 
 
expenses incurred in her treatment.  Those 
 
expenses are set forth on the medical expense 
 
exhibit which is unnumbered.  Those expenses 
 
total $2,522.37.  As indicated by the parties at 
 
the commencement of the hearing a general award 
 
of medical expenses is all that is required and 
 
the parties would themselves conduct the actual 
 
computations.  It is therefore determined that 
 
the defendants in this case are responsible for 
 
payment of claimant's medical expenses as set 
 
for in the medical exhibit.  
 
         
 
With regard to the weekly compensation and 
 
medical expenses defendants are entitled to 
 
credit under section 85.38(2) for all amounts 
 
paid by group plans and for all wages paid in 
 
accordance with rule 343 IAC 8.4.  
 
         
 
Claimant also seeks to recover costs in the 
 
amount of $1,417.88.  When evaluating the 
 
statement it is determined that the costs which 
 
claimant is entitled to recover are as follows:
 
         
 
Dr. Richard Neiman evaluation        $150.00
 
         
 
 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
Division of Industrial       
 
Services filing fee                      65.00
 
         
 
Krista Secman, C.S.R, deposition        111.80
 
         
 
Krista Irish, C.S.R., deposition        235.20
 
         
 
Iowa Medical Clinic,
 
Dr. Brooks witness fee                  150.00
 
         
 
                     TOTAL             $712.00
 
         
 
              ORDER
 
         
 
IT IS THEREFORE ORDERED that defendants pay 
 
         
 
Sherry Pumphrey weekly compensation for 
 
permanent total disability at the stipulated 
 
rate of two hundred forty-six and 82/100 dollars 
 
($246.82) per week payable commencing May 4, 
 
1992.  The amount thereof is that past due and 
 
owing shall be paid to claimant in a lump sum 
 
together with interest pursuant to section 85.30 
 
after defendants are given credit pursuant to 
 
section 85.38(2) and rule 343 IAC 8.4.  
 
         
 
It is further ordered that defendants pay 
 
claimant's medical expenses as set forth in the 
 
medical expense exhibit pursuant to section 
 
85.27.  Defendants are entitled to credit under 
 
section 85.38(2).  
 
         
 
It is further ordered that the costs of this 
 
action are assessed against defendants in the 
 
amount of seven hundred twelve dollars ($712).
 
         
 
Defendants shall file claim activity reports as 
 
requested by this agency pursuant to rule 343 
 
IAC 3.1.
 
         
 
Signed and filed this __________ day of May, 1995.
 
         
 
              
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                          
 
         
 
                            ______________________________
 
                            MICHAEL G. TRIER
 
                            DEPUTY INDUSTRIAL COMMISSIONER    
 
         
 
Copies to:
 
         
 
Mr. Thomas Wertz
 
Attorney at Law
 
4089 21st Ave SW STE 114
 
Cedar Rapids, Iowa  52404
 
         
 
Mr. Harry Dahl, Jr.
 
Attorney at Law
 
974 - 73rd St, STE 16
 
Des Moines, Iowa  50312
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                    5-1402.40; 5-1801; 5-2500;
 
                                    Filed May 10, 1995
 
                                    Teresa K. Hillary
 
         
 
                 BEFORE THE IOWA INDUSTRIAL COMMISSIONER          
 
 
 
JERI L. DAHL,   
 
         
 
     Claimant, 
 
         
 
vs.                                           File No. 954639
 
         
 
JOHN MORRELL & CO.,                        A R B I T R A T I O N
 
         
 
     Employer,                                D E C I S I O N
 
         
 
and        
 
         
 
HOME INSURANCE COMPANY,   
 
         
 
     Insurance Carrier,  
 
     Defendants.   
 
 -------------------------------------------------------------------       
 
                                                           
 
5-1402.40; 5-1801; 5-2500
 
Claimant failed to prove by a preponderance of the evidence 
 
that her injury resulted in permanent disability.  Claimant 
 
awarded only temporary total disability benefits.
 
         
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            5-2909
 
                                            Filed December 28, 1993
 
                                            PATRICIA J. LANTZ
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            JAMES W. CARSON,    
 
                      
 
                 Claimant,                       File Nos. 954876
 
                                                           1033988
 
            vs.       
 
                                                 D E C I S I O N
 
            PHYSICAL DISTRIBUTION/   
 
            MIDWEST DRIVERS,                           O N
 
                      
 
                 Employer,                       E X P E D I T E D
 
                      
 
            and                                    H E A R I N G
 
                      
 
            THE TRAVELERS INSURANCE  
 
            COMPANY,  
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            
 
            5-2909
 
            Defendant ordered to reimburse claimant $750.00 for costs of 
 
            an indepemdent medical examination.  Fee found to be 
 
            reasonable.
 
            
 
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            JAMES W. CARSON,    
 
                      
 
                 Claimant,                       File Nos. 954876
 
                                                           1033988
 
            vs.       
 
                                                  D E C I S I O N
 
            PHYSICAL DISTRIBUTION/   
 
            MIDWEST DRIVERS,                            O N
 
                      
 
                 Employer,                        E X P E D I T E D
 
                      
 
            and                                     H E A R I N G
 
                      
 
            THE TRAVELERS INSURANCE  
 
            COMPANY,  
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
                             STATEMENT OF THE CASE
 
            
 
            An expedited hearing was held on December 21, 1993.  The 
 
            record consists of testimony from the claimant; claimant's 
 
            exhibits 1 and 2; and, defendants' exhibits A-H.
 
            
 
                               FINDINGS OF FACTS
 
            
 
            On March 30, 1993, claimant filed two petitions in 
 
            arbitration.  One petition alleges an injury date of July 6, 
 
            1990, with the injury affecting the back, neck and 
 
            shoulders.  The second petition alleges an injury date of 
 
            October 2, 1992, with the injury affecting the back, neck 
 
            and shoulders.  Defendants deny liability on the alleged 
 
            injury of July 6, 1990, but admit liability for the second 
 
            injury of October 2, 1992. 
 
            On October 15, 1993, claimant filed an original notice and 
 
            petition for an independent medical examination (IME) to be 
 
            conducted by Martin Rosenfeld, D.O., and underwent said 
 
            examination on November 15, 1993.  The examination cost 
 
            $750.00.  Claimant paid Dr. Rosenfeld, and seeks 
 
            reimbursement. 
 
            While defendants deny that claimant sustained an injury on 
 
            July 6, 1990, which arose out of and in the course of his 
 
            employment, they admit that he sustained a work-related 
 
            injury on October 2, 1992.  
 
            Defendants' are willing to pay for an IME, but advance that 
 
            Dr. Rosenfeld's fee is unreasonable.  Defendants submit IME 
 
            fees from several local physicians and a claims adjuster's 
 
            opinion pertaining to fees charged in Des Moines.  The fees 
 
            ranged from $150.00 to $500.00.
 
            Claimant relies on a recent appeal decision to support his 
 
            argument that $750.00 is a reasonable fee for the services 
 

 
            
 
            Page   2
 
            
 
            
 
            performed by Dr. Rosenfeld.  Wright vs. Firestone, et al, 
 
            File number 1023144, (App. Decn. April 29, 1993).  In 
 
            Wright, the commissioner affirmed a deputy's prior 
 
            decision which held that Dr. Rosenfeld's fee of $600.00 for 
 
            an independent medical evaluation for an upper extremity was 
 
            reasonable.  In Wright, the defendants had submitted another 
 
            physician's opinion that a reasonable charge would total 
 
            $350.00 to $400.00.  
 
            
 
                        ANALYSIS AND CONCLUSIONS OF LAW
 
            
 
            Iowa Code section 85.39 provides in pertinent part:
 
               If an evaluation of permanent disability has been made by 
 
            a physician retained by the employer and the employee 
 
            believes this evaluation to be too low, the employee shall, 
 
            upon application to the commissioner and upon delivery of a 
 
            copy of the application to the employer and its insurance 
 
            carrier, be reimbursed by the employer the reasonable fee 
 
            for a subsequent examination by a physician of the 
 
            employee's own choice, and reasonably necessary 
 
            transportation expenses incurred for the examination.  The 
 
            physician chosen by the employee has the right to confer 
 
            with and obtain from the employer-retained physician 
 
            sufficient history of the injury to make a proper 
 
            examination.
 
            
 
                 Section 85.39 permits an employee to be reimbursed for 
 
            subsequent examination by a physician of the employee's 
 
            choice where an employer-retained physician has previously 
 
            evaluated "permanent disability" and the employee believes 
 
            that the initial evaluation is too low.  The section also 
 
            permits reimbursement for reasonably necessary 
 
            transportation expenses incurred and for any wage loss 
 
            occasioned by the employee's attending the subsequent 
 
            examination.
 
            
 
                 Defendants are responsible only for reasonable fees 
 
            associated with claimant's independent medical examination.  
 
            Claimant has the burden of proving the reasonableness of the 
 
            expenses incurred for the examination.  See Schintgen v. 
 
            Economy Fire & Casualty Co., File No. 855298 (App. April 26, 
 
            1991).  Defendants' liability for claimant's injury must be 
 
            established before defendants are obligated to reimburse 
 
            claimant for independent medical examination.  McSpadden v. 
 
            Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980).
 
            
 
            It is not necessary for claimant to obtain prior approval of 
 
            defendants or that claimant file an application with the 
 
            industrial commissioner's office prior to seeing a medical 
 
            examiner.  Vaughn v. Iowa Power, Inc., File No. 925283 
 
            (Arbitration Decision, August 5, 1992).  Nor is it necessary 
 
            for claimant to apply for reimbursement for an independent 
 
            medical examination by a physician who is retained by 
 
            claimant prior to the examination or prior to the hearing.  
 
            Pirozek v. Swift Independent Packing and Second Injury 
 
            Fund of Iowa, File Nos. 753643, 753642, 724893 (Appeal 
 
            Decision 1987).
 
            Rule 343 IAC 4.44(10)"d" provides:  "The amount charged for 
 
            services, supplies and devices provided as part of a course 
 

 
            
 
            Page   3
 
            
 
            
 
            of treatment selected by a treating physician or 
 
            practitioner is an expression of the provider's opinion that 
 
            the amount charged is reasonable and raises an inference 
 
            that the charge made is reasonable."
 
            
 
            Payment of medical fees can constitute evidence of their 
 
            reasonableness and, in the absence of contrary evidence, is 
 
            sufficient to carry claimant's burden of proving that a 
 
            medical fee is reasonable.  Schneider v. Prairie 
 
            Contractors, Inc., Appeal Decision, April 20, 1992 
 
            (#869747).
 
            
 
            Because claimant has paid the bill and because of the 
 
            inference of reasonableness in rule 343 IAC 4.44(10)"d", 
 
            supra, claimant has made a prima facie showing that the 
 
            fee for Dr. Rosenfeld's independent medical examination.  
 
            The defendants have not submitted sufficient evidence to 
 
            overcome claimant's prima facie showing.  Although several 
 
            providers indicated what they would charge, no one indicated 
 
            that Dr. Rosenfeld's fee was unreasonable.
 
            As a result, it is found that Dr. Rosenfeld's fee for an 
 
            independent medical examination is reasonable. 
 
            
 
                                        ORDER
 
            
 
            THEREFORE, it is ordered:
 
            That claimant's petition for the independent medical 
 
            examination is granted and defendants shall reimburse 
 
            claimant seven hundred fifty dollars ($750) for the 
 
            reasonable expenses of Dr. Rosenfeld. 
 
            That defendants shall pay the costs of this proceeding. 
 
            Signed and filed this ____ day of December, 1993
 
            
 
            
 
            
 
            
 
                                  ________________________________
 
                                  PATRICIA J. LANTZ
 
                                  DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr Robert W Pratt
 
            Attorney at Law
 
            6959 University Avenue
 
            Des Moines Iowa 50311-1540
 
            
 
            Mr John E Swanson
 
            Attorney at Law
 
            8th Flr Fleming Building
 
            218 Sixth Avenue
 
            Des Moines Iowa 50309
 
            
 
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ------------------------------------------------------------
 
            BARRY L. WILLIS,              :
 
                                          :      File Nos.   
 
                                                           955043
 
                 Claimant,                :                968111
 
                                          :               1025734
 
            vs.                           :               1025735
 
                                          :
 
            WOODWARD STATE HOSPITAL       :
 
            SCHOOL,                              A R B I T R A T I O N
 
                                          :
 
                 Employer,                :        D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            STARTE OF IOWA,               :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ------------------------------------------------------------
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by 
 
            claimant, Barry Willis, against his former employer, 
 
            Woodward State Hospital School, and its insurance carrier, 
 
            the State of Iowa.  Claimant has filed four petitions, and 
 
            alleges injury dates of July 10, 1990, November 15, 1990, 
 
            July 29, 1992 and September 8, 1992.  All petitions allege 
 
            injuries to his back and legs, and all petitions were filed 
 
            on the same date, October 23, 1992.  
 
            
 
                 All cases were heard before the undersigned deputy 
 
            industrial commissioner on February 18, 1994 at Des Moines, 
 
            Iowa.
 
            
 
                 The record consists of testimony from the claimant, 
 
            Jerry Gunderson (maintenance repair worker for the State of 
 
            Iowa), Sandra Streeter (workers' compensation coordinator 
 
            for the Woodward State Hospital-School), Charles Schneider 
 
            (plant operations manager and claimant's former supervisor); 
 
            joint exhibits A-J; and, claimant's exhibits 1-24.  
 
            
 
                                PRELIMINARY MATTERS
 
            
 
                 A review of the files in this case reveals that first 
 
            reports of injury have not been submitted for file number 
 
            1025735 and 1025734.  The defendants are ordered to file the 
 
            first reports as soon as possible. 
 
            
 
                                      ISSUES
 
            
 
                 For file number 955043 and file number 968111, the 
 
            parties have submitted the following issue to be resolved:
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                 1.  Whether claimant is entitled to permanent partial 
 
            disability benefits due to injuries he sustained on July 3, 
 
            1990 and November 15, 1990. 
 
            
 
                 For file number 1025734 and file number 1025735, the 
 
            parties submit the following issues for resolution:
 
            
 
                 1.  Whether claimant sustained injuries on July 29, 
 
            1992 and September 8, 1992 which arose out of and in the 
 
            course of his employment;
 
            
 
                 2.  Whether claimant is entitled to temporary total, 
 
            healing period or permanent partial disability benefits;
 
            
 
                 3.  Whether claimant is entitled to medical benefits 
 
            pursuant to Iowa Code section 85.27; 
 
            
 
                 4.  Whether defendants are entitled to credits pursuant 
 
            to Iowa Code section 85.38(2) for payment of disability 
 
            income totalling $15,359.72.  According to claimant's 
 
            attorney's handwritten note on the hearing report, claimant 
 
            contends "if given worker (sic) compensation, when applied 
 
            would have also received $50.00 per month LTD.  Therefore, 
 
            LTD credit be reduced $50.00 for each month received."  
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The undersigned deputy, having reviewed all of the 
 
            evidence received, finds the following facts:
 
            
 
                 Direct examination of the claimant was very disjointed, 
 
            and failed to expose some relevant and basic information.  
 
            As a result, the recitation of the facts of this case have 
 
            been glued together to the best of the undersigned's 
 
            ability.  Additionally, the evidence is duplicative (even 
 
            triplicated in many instances), poorly organized (actually 
 
            unorganized) and some of the documents are poorly 
 
            photocopied and/or illegible.  
 
            
 
                   The direct examination did not solicit claimant's age 
 
            or marital status (however, in an effort to at least 
 
            ascertain claimant's age, the undersigned reviewed a first 
 
            report of injury, filed July 19, 1990, which states that 
 
            claimant was 32 years of age; therefore, claimant is 
 
            currently probably 35 or 36 years of age).  Claimant is a 
 
            high school graduate (year unknown) and served in the United 
 
            States Air Force for four years.  While in the Air Force, he 
 
            received training in waste water and water treatment.  
 
            
 
                 Claimant began working as a water disposal plant 
 
            operator for the State of Iowa in February of 1985.  It is 
 
            unknown whether claimant had ever held gainful employment 
 
            prior to his employment with the state.  It is also unknown 
 
            whether claimant has tried to secure other employment since 
 
            September 8, 1992, the last day he worked for the state. 
 
            
 
                 In the past, claimant has had on-the-job injuries which 
 
            resulted in back problems.  Most of the incidents were 
 
            memorialized in a daily log book kept by claimant.  
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            (Claimant's Exhibit 3)
 
            
 
                 In June of 1990, claimant was at home building a fence, 
 
            felt muscle spasms in his back, and sought medical 
 
            treatment.  On July 3, 1990, he was at work lifting 
 
            chemicals, walked up some stairs, and stated that his back 
 
            "went out."  He reported the injury to his supervisor and 
 
            went home.  He was sent to Camilla Frederick, M.D.  While 
 
            Dr. Frederick's notes are scattered throughout the 
 
            claimant's evidence, a report, dated October 18, 1993, 
 
            indicates that Dr. Frederick treated claimant from July 12, 
 
            1990 through January of 1991 for a lumbar disk syndrome.  
 
            She made the following diagnosis and comments regarding 
 
            claimant's condition:
 
            
 
                 [D]isk herniation at L2 L3 level resulting in a 
 
                 moderate compression of the thecal sac at L2 L3.  
 
                 Disk bulges at L4 L5 and L5 S1, slightly more 
 
                 prominent to the left of the mid line.  
 
                 Significance of which was questionable.  He 
 
                 actually had multiple episodes where he got into 
 
                 trouble with his low back, both work related and 
 
                 non work related including 7-3-90 when he was at 
 
                 work walking up a flight of spiral stair case and 
 
                 had increasing low back pain, then again in 11-90 
 
                 when he was just at work, lifted 80 lb bag when he 
 
                 start having muscle spasm.  He also had at least 
 
                 one non work related aggravation to the low back 
 
                 when he was at home and went to look over his 
 
                 engine to see if there were any problems, which 
 
                 caused him to have muscle spasms in the low back, 
 
                 that was 12-27-90.  He was treated conservatively 
 
                 by Dr. Carlson because of a loss of reflex, but he 
 
                 continued to be treated successfully just with 
 
                 conservative management and was returned back to 
 
                 work at his full duty for which he had to lift at 
 
                 least 60 lbs on 1-24-91.  At that time I would 
 
                 have expected him to have been recovered from that 
 
                 problem, although because of his continued 
 
                 episodes, did not place him at MMI because I had 
 
                 no way to predict what would happen in the future 
 
                 with the low back.  It hadn't been stable enough 
 
                 in the 7-90 and 1-91 to make a prediction about 
 
                 MMI.
 
            
 
                    At the final time of my treatment, the 
 
                 diagnosis was unchanged from that previously 
 
                 dictated.  The healing period had not been 
 
                 completed.  I certainly think the injuries of 7-3 
 
                 and 11-15-90 aggravated and contributed to his 
 
                 back condition.  To my knowledge, he had not had a 
 
                 previous MRI, so I do not know if he had any 
 
                 preexisting conditions.  He did report on his 
 
                 initial visit that he had hurt himself at home 
 
                 working on fence, but then it got aggravated on 
 
                 7-3-90 while he was working.
 
            
 
                    I would certainly not say that the injuries of 
 
                 7-3-90 and 11-15-90 were the sole cause of low 
 
                 back problems for Mr. Willis, but that they did 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                 contribute to his symptomatology.  I would state 
 
                 that the initial injury was at home and occurred 
 
                 one month prior to his treatment for the work 
 
                 related aggravation.  At the time of my last 
 
                 visit, he really had full range of motion and 
 
                 according to the AMA Guidelines 3rd Edition 
 
                 revised, I would give him a rating of 7% of the 
 
                 body as a whole at the time I left him.  Again, 
 
                 remembering that I did not feel he was at MMI, I 
 
                 cannot predict if he is at MMI now.
 
            
 
            (Cl Ex. 11A)
 
            
 
                 Claimant contends that Dr. Frederick's initial release 
 
            to return to work included a lifting restriction of not more 
 
            than 25 pounds, but due to the state's requirements that he 
 
            be able to lift 50 pounds, claimant returned to Dr. 
 
            Frederick and requested a 60 pound lifting restriction.  
 
            This is confirmed in the medical documentation. (Cl. Exs. 10 
 
            and 11)
 
            
 
                 On November 15, 1990, claimant was performing his 
 
            normal job duties of lifting bags filled with chemicals.  He 
 
            felt spasms in his back, and had to go home.  He was off of 
 
            work for several weeks, and returned to Dr. Frederick for 
 
            treatment.  She eventually referred him to Thomas Carlstrom, 
 
            M.D., who advised claimant to continue bed rest, and undergo 
 
            physical therapy.  Dr. Carlstrom reviewed the MRI scan and 
 
            diagnosed a herniated disc at the L2-3 level, and a 
 
            congenitally small spinal canal, as well as other small disc 
 
            defects at other levels  (Cl. Ex. 5)  In December of 1990, 
 
            Dr. Frederick wrote to the state and advised them of 
 
            claimant's condition.  While the undersigned believes her 
 
            letter to be a bit confusing, apparently Dr. Frederick was 
 
            of the opinion that claimant could return to work with a 50 
 
            pound lifting restriction.  However, she did not believe he 
 
            had reached maximum medical improvement.  (Cl. Ex. 11)
 
            
 
                 Claimant returned to work, but was place on probation 
 
            due to his lifting restrictions.  He was given a five-gallon 
 
            bucket and a knife which allowed him to cut open the 
 
            chemical bags, fill the bucket and transport the bucket to 
 
            the treatment facility.  Apparently, this is how claimant 
 
            performed the job for almost two years, until his next 
 
            alleged injury date, July of 1992.  On July 29, 1992, 
 
            claimant was again lifting chemicals, and felt pain and 
 
            stiffness in his back.  He went home, but did not 
 
            immediately tell his supervisors that he had hurt himself, 
 
            because he was concerned about job security.  He was off of 
 
            work until August 21, 1992, and visited his family 
 
            physician, who referred him to William Boulden, M.D.   Dr. 
 
            Boulden ordered another MRI, which showed degenerative disc 
 
            disease from L2-3 through L5-S1, as well as a herniation at 
 
            L2-3, L3-4 and a protrusion at L4-5.  (Cl. Ex. 14)  Dr. 
 
            Boulden recommended surgery and physical therapy.  Claimant 
 
            attended physical therapy sessions on seven occasions from 
 
            September through November of 1992.  He was released with 
 
            instructions to continue his exercise program aggressively.  
 
            In January of 1993, Dr. Boulden restricted claimant's 
 
            activities to no standing and walking more than 30 to 45 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            minutes, ability to change position, and no bending, 
 
            twisting or lifting.  (Cl. Exs. 8, 14 and 19). 
 
            
 
                 Claimant sought treatment from William Durbin from July 
 
            through August of 1990 and August of 1992.  The notes in 
 
            1990 indicate a work injury; the 1992 notes do not.  (Cl. 
 
            Exs. 6 and 21)
 
            
 
                 Claimant also sought treatment from John Groelushen, 
 
            D.C., during August of 1992 and at various times in 1990.  
 
            Again, Dr. Groelushen's notes indicate claimant was 
 
            suffering from back pain and spasms, but there is no opinion 
 
            that the problems were work-related.  (Cl. Exs. 1 and 4)
 
            
 
                 Apparently, in December of 1992, claimant underwent an 
 
            evaluation performed by a doctor (signature is illegible) 
 
            for the purpose of accessing social security disability 
 
            benefits.  While the report indicates claimant has a 20 
 
            lifting limitation, and can only climb, balance, stoop, 
 
            kneel, crouch or crawl on an occasional basis, there is 
 
            nothing in the report to suggest that his condition is 
 
            work-related.  (Cl. Ex.. 16)
 
            
 
                 In March of 1993, claimant underwent an evaluation at 
 
            the Health and Rehabilitation Center.  According to the 
 
            history provided by claimant, his back problems started in 
 
            August of 1990 while he was at work.  While the results of 
 
            the test are barely readable, apparently claimant was within 
 
            the normal range of motion on most of the tests undertaken.  
 
            (Cl. Ex.. 17)
 
            
 
                 In July of 1993, claimant underwent a functional 
 
            capacities evaluation, administered by Michael LaVelle, a 
 
            physical therapist with the West Des Moines Sports Medicine 
 
            and Physical Therapy Center.  Again, while the report 
 
            confirms claimant's back condition and limitations, there is 
 
            no indication that either stems from work-related injuries.  
 
            (Cl. Exs. 9 and 13)
 
            
 
                 In August of 1993, claimant received an evaluation from 
 
            the Iowa State Vocational Rehabilitation Services.   The 
 
            report indicates claimant was too disabled to continue with 
 
            an evaluation, and it was recommended he be awarded social 
 
            security disability.  Some of the accompanying documents 
 
            within this exhibit are illegible and/or poorly photocopied.  
 
            (Cl. Ex. 14)
 
            
 
                 In November of 1993, claimant received yet another 
 
            evaluation, this one at the University of Iowa Spine 
 
            Diagnostic and Treatment Center.   Apparently, claimant was 
 
            unwilling to undertake any treatment offered at the 
 
            University.  (Cl. Ex.. 20)
 
            
 
                 Claimant has had several incidents while at home which 
 
            aggravated his back condition, including leaning over to 
 
            look under the hood of a car, and building a fence. 
 
            
 
                 Jerry Gunderson, a maintenance repair worker and 
 
            co-worker of claimant's, testified that he wrote a statement 
 
            in October of 1992.  The statement, which is not notarized, 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            states the following information:
 
            
 
                    Barry told me he was leaving at (I think) noon.  
 
                 He said that his back was hurting.  He said that 
 
                 he had hurted [sic] it unloading chlorine bottles 
 
                 about 3 weeks before.  He also said he [was] 
 
                 working on his truck on the weekend and his hip 
 
                 pop [sic].  Sept. 8 not working that day.
 
            
 
            (Cl. Ex. 23).
 
            
 
                 Sandra Street testified on behalf of the defendants.  
 
            She stated that claimant did not report any injuries which 
 
            occurred in 1992.  She did state that in August of 1992, 
 
            claimant missed time from work because his back "went out" 
 
            while working at home.  
 
            
 
                 Charles Schneider also testified on behalf of the 
 
            defendants.  He was claimant's direct supervisor, and was 
 
            aware of claimant's ongoing back problems.  He was aware of 
 
            the 1990 injuries and the resulting work restrictions, but 
 
            offered that claimant did not report the 1992 injuries, and 
 
            that claimant did not fill out any accident reports.  
 
            Claimant confirmed that he did not fill out any accident 
 
            reports, but explained that he believed there would be 
 
            retaliation if he did, based on the treatment he received 
 
            from the employer due to the 1990 injuries.  Whether this is 
 
            true is irrelevant; claimant was aware of the procedures 
 
            used to report work injuries.
 
            
 
                          ANALYSIS AND CONCLUSIONS OF LAW
 
            
 
                 With respect to file number 955043 and file number 
 
            968111, the sole issue to be addressed is whether claimant 
 
            sustained a permanent injury which would allow him to 
 
            recover permanent partial disability benefits.  
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury is a proximate 
 
            cause of the disability on which the claim is based.  A 
 
            cause is proximate if it is a substantial factor in bringing 
 
            about the result; it need not be the only cause.  A 
 
            preponderance of the evidence exists when the causal 
 
            connection is probable rather than merely possible.  
 
            Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 
 
            1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 
 
            (Iowa 1974).
 
            
 
                 The question of causal connection is essentially within 
 
            the domain of expert testimony.  The expert medical evidence 
 
            must be considered with all other evidence introduced 
 
            bearing on the causal connection between the injury and the 
 
            disability.  The weight to be given to any expert opinion is 
 
            determined by the finder of fact and may be affected by the 
 
            accuracy of the facts relied upon by the expert as well as 
 
            other surrounding circumstances.  The expert opinion may be 
 
            accepted or rejected, in whole or in part.  Sondag v. Ferris 
 
            Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar 
 
            Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, 
 
            Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
                 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).
 
            
 
                 This has been an extremely difficult case to analyze.  
 
            Given the facts and the extent of the medical treatment 
 
            involved, better organization and presentation of the case 
 
            was warranted.  In fact, it was demanded.  Weeding through 
 
            the evidence presented, and trying to determine when and 
 
            where claimant was treated, and trying desperately to find 
 
            opinions that were necessary to prove claimant's case, was 
 
            not unlike trying to unscramble an omelet.  
 
            
 
                 Dr. Frederick was the only physician involved in the 
 
            case during claimant's treatment for the injuries in 1990.  
 
            Her report, dated October 18, 1993, indicates that his work 
 
            activities aggravated and contributed to his back condition.  
 
            In her report, she also related that claimant initially 
 
            injured himself at home while working on a fence.  She was 
 
            unable to state that the injuries in 1990 were the sole 
 
            cause of claimant's low back problems.  In fact, she stated 
 
            that the initial injury occurred at home.  During her final 
 
            examination, claimant had full range of motion, but she 
 
            assessed his condition as 7 percent impairment to the body 
 
            as a whole.  
 
            
 
                 Dr. Frederick's opinion is devoid of any apportionment 
 
            which would assess the percentage of impairment to the 
 
            initial injury at home, and the aggravations in July and 
 
            November of 1990.  Her own report indicates claimant initial 
 
            problems began after he hurt himself at home.  After the 
 
            aggravations on the job, claimant was able to return to his 
 
            regular job duties, although a lifting restriction was 
 
            imposed after the 1990 injury.  Likewise, the employer 
 
            accommodated claimant's restrictions by providing an 
 
            alternative way to complete his assigned tasks.  
 
            
 
                 In reviewing the evidence as a whole, it is determined 
 
            that claimant has shown, by a preponderance of the evidence, 
 
            that he sustained a permanent injury.  As he has sustained 
 
            injuries to the body as a whole, an evaluation of his 
 
            industrial disability is warranted, but will be deferred 
 
            until the other issues in the case are resolved. 
 
            
 
                 With respect to file number 1025735 and file number 
 
            1025734, the first issue to address is whether claimant 
 
            sustained injuries on July 29, 1992 and September 8, 1992 
 
            which arose out of and in the course of his employment. 
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the alleged injury 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            actually occurred and that it arose out of and in the course 
 
            of employment.  McDowell v. Town of Clarksville, 241 N.W.2d 
 
            904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 
 
            154 N.W.2d 128 (1967).  The words "arising out of" refer to 
 
            the cause or source of the injury.  The words "in the course 
 
            of" refer to the time, place and circumstances of the 
 
            injury.  Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986); 
 
            McClure v. Union County, 188 N.W.2d 283 (Iowa 1971).
 
            
 
                 After reviewing the record, it is determined that 
 
            claimant did not prove by a preponderance that he sustained 
 
            work-related injuries in 1992.  In addition to the medical 
 
            records, which make no mention of any specific incidents, 
 
            Mr. Gunderson's statement is enlightening.  He stated that 
 
            claimant left work because his back was hurting, not that he 
 
            had hurt it.  In fact, although the statement refers to an 
 
            incident with chlorine bottles, the incident supposedly 
 
            happened three weeks prior to July 29, 1992.  This is 
 
            inconsistent with claimant's testimony, and his pleadings.  
 
            Likewise, Mr. Gunderson stated that claimant hurt his back 
 
            while working on a truck.  
 
            
 
                 As a result, claimant takes nothing for file number 
 
            1025735 and file number 1025735. 
 
            
 
                 Claimant's industrial disability due to the 1990 
 
            injuries will now be discussed. 
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, expe
 
            rience and inability to engage in employment for which he is 
 
            fitted.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 
            125 N.W.2d 251 (1963).  Barton v. Nevada Poultry, 253 Iowa 
 
            285, 110 N.W.2d 660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial disabil
 
            ity.  This is so as impairment and disability are not syn
 
            onymous.  Degree of industrial disability can in fact be 
 
            much different than the degree of impairment because in the 
 
            first instance reference is to loss of earning capacity and 
 
            in the latter to anatomical or functional abnormality or 
 
            loss.  Although loss of function is to be considered and 
 
            disability can rarely be found without it, it is not so that 
 
            a degree of industrial disability is proportionally related 
 
            to a degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            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 is currently in his mid-30s and in the prime 
 
            years of his earning potential.  
 
            
 
                 Claimant has some serious back problems, although his 
 
            determination to conquer them and gain some type of 
 
            employment is very questionable.  This is addressed 
 
            particularly in the reports from the University of Iowa.  
 
            Likewise, claimant has continually stated that the only job 
 
            he wants is his job as a waste water treatment plant 
 
            operator.  This may be unrealistic, particularly in light of 
 
            the demands of the job.  While the undersigned realizes this 
 
            is a difficult concept to accept, claimant may have to 
 
            explore other career opportunities. 
 
            
 
                 Claimant appeared to be of at least average 
 
            intelligence. Retraining seems like a good option, and it is 
 
            unfortunate that no vocational rehabilitation was 
 
            successfully undertaken. 
 
            
 
                 Claimant was able to return to his job after the 
 
            injuries.  The employer accommodated his restrictions.  Dr. 
 
            Frederick indicated that he had sustained a 7 percent 
 
            impairment, although her report intimates that some of the 
 
            impairment was due to an injury claimant sustained while he 
 
            was working at home. 
 
            
 
                 After considering all of the factors enumerated above, 
 
            it is determined that claimant has sustained a 20 percent 
 
            industrial disability. 
 
            
 
                 Finally, the parties stipulated that claimant's award 
 
            should commence on January 24, 1991 for the 1990 injuries.  
 
            However, claimant's workers' compensation rate is different 
 
            for the two injury dates in 1990.  Given absolutely no 
 
            guidance from either party as to what rate should prevail, 
 
            the undersigned finds that after the initial injury, the MRI 
 
            reports indicated claimant had a herniated disc.  It was 
 
            also after the initial injury that claimant returned to work 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            with lifting restrictions.   The November 1990 injury 
 
            appears to be only a minor aggravations which did not worsen 
 
            claimant's condition.  As a result, the lower rate of 
 
            $266.34 shall prevail.
 
            
 
                 Iowa Code section 85.38 states, in relevant part:
 
            
 
                    2.  Credit for benefits paid under group 
 
                 plants.  In the event the disabled employee shall 
 
                 receive any benefits, including medical, surgical 
 
                 or hospital benefits, under any group plan 
 
                 covering nonoccupational disabilities contributed 
 
                 to wholly or partially by the employer, which 
 
                 benefits should not have been paid or payable if 
 
                 any rights of recovery existed under this chapter, 
 
                 chapter 85A or chapter 85B, then such amounts so 
 
                 paid to said employee from any such group plan 
 
                 shall be credited to or against any compensation 
 
                 payments, including medical, surgical or hospital, 
 
                 made or to be made under this chapter, chapter 85A 
 
                 or chapter 85B.  Such amounts so credited shall be 
 
                 deducted from the payments made under these 
 
                 chapters.  Any nonoccupational plan shall be 
 
                 reimbursed in the amount so deducted.  This 
 
                 section shall not apply to payments made under any 
 
                 group plan which would have been payable even 
 
                 though there was an injury under this chapter or 
 
                 an occupational disease under chapter 85A or an 
 
                 occupational hearing loss under chapter 85B.  Any 
 
                 employer receiving such credit shall keep such 
 
                 employee safe and harmless from any and all claims 
 
                 or liabilities that may be made against them by 
 
                 reason of having received such payments only to 
 
                 the extent of such credit.
 
            
 
                 Likewise, the undersigned was provided with no 
 
            documentation supporting claimant's argument that any credit 
 
            against his long-term disability payments should be reduced 
 
            by $50.
 
            
 
                 Additionally, the undersigned was unable to determine 
 
            if the disability payments were made pursuant to policies 
 
            described in the aforementioned code section.
 
            
 
                 It appears that credit under Iowa Code section 85.38 is 
 
            warranted.
 
            
 
                                       ORDER
 
            
 
                 THEREFORE, it is ordered for file number 955043 and 
 
            file number 968111:
 
            
 
                 That defendants shall pay claimant one hundred (100) 
 
            weeks of permanent partial disability benefits commencing 
 
            January 24, 1991 at the rate of two hundred sixty-six and 
 
            34/100 dollars ($266.34) per week. 
 
            
 
                 That accrued benefits shall be paid in a lump sum, and 
 
            credit shall be given against the award for permanent 
 
            partial disability benefits previously paid.
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            
 
                 That defendants shall pay interest on the award 
 
            pursuant to Iowa Code section 85.20. 
 
            
 
                 That defendants shall pay the costs of this action. 
 
            
 
                 That there shall be a credit against the award pursuant 
 
            to Iowa Code section 85.38(2).
 
            
 
                 That defendants shall file a claim activity report as 
 
            required by the agency.
 
            
 
                 FURTHERMORE, it is ordered:
 
            
 
                 TThat claimant take nothing for file number 1025735 and 
 
            file number 1025734. 
 
            
 
                 That each party shall pay the costs of pursuing of 
 
            defending these files. 
 
            
 
                 Signed and filed this ____ day of March, 1994.
 
            
 
            
 
            
 
            
 
                                               
 
                                         ______________________________
 
                                         PATRICIA J. LANTZ
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr Michael E Hansen
 
            Attorney at Law
 
            2706 Grand Ave
 
            Des Moines IA 50312
 
            
 
            Mr Ronald G Cable
 
            Attorney at Law
 
            414 E Grand Ave
 
            Des Moines IA 50309
 
            
 
            Ms. Joanne Moeller
 
            Assistant Attorney General
 
            Tort Claims Division
 
            Hoover State Office Bldg
 
            Des Moines IA 50319
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               5-1803
 
                                               Filed March 28, 1994
 
                                               Patricia J. Lantz
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ------------------------------------------------------------
 
            BARRY L. WILLIS,              :
 
                                                 File Nos.   
 
                                                           955043
 
                 Claimant,                :                968111
 
                                          :               1025734
 
            vs.                           :               1025735
 
                                          :
 
            WOODWARD STATE HOSPITAL       :
 
            SCHOOL,                             A R B I T R A T I O N
 
                                          :
 
                 Employer,                :       D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            STARTE OF IOWA,               :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ------------------------------------------------------------
 
            
 
            
 
            5-1803
 
            Claimant awarded 10% industrial disability.
 
            
 
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ------------------------------------------------------------
 
            BARRY L. WILLIS,              :
 
                                          :            File Nos.   
 
                                                           955043
 
                 Claimant,                :                968111
 
                                          :               1025734
 
            vs.                           :               1025735
 
                                          :
 
            WOODWARD STATE HOSPITAL       :
 
            SCHOOL,                       :            C O R R E C T E D
 
                                          :
 
                 Employer,                :                O R D E R
 
                                          :
 
            and                           :
 
                                          :
 
            STARTE OF IOWA,               :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ------------------------------------------------------------
 
            
 
            Upon reconsideration, urged by claimant, the order 
 
            concerning file numbers 955043 and 968111 is corrected as 
 
            follows:
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, it is ordered for file number 955043 and 
 
            file number 968111:
 
            
 
                 That defendants shall pay claimant one hundred (100) 
 
            weeks of permanent partial disability benefits commencing 
 
            January 24, 1991 at the rate of two hundred sixty-six and 
 
            34/100 dollars ($266.34) per week. 
 
            
 
                 That accrued benefits shall be paid in a lump sum, and 
 
            credit shall be given against the award for permanent 
 
            partial disability benefits previously paid.
 
            
 
                 That defendants shall pay interest on the award 
 
            pursuant to Iowa Code section 85.20. 
 
            
 
                 That defendants shall pay the costs of this action. 
 
            
 
                 That defendants shall file a claim activity report as 
 
            required by the agency.
 
            
 
                 FURTHERMORE, it is ordered:
 
            
 
                 That claimant take nothing for file number 1025735 and 
 
            file number 1025734. 
 
            
 
                 That each party shall pay the costs of pursuing of 
 
            defending these files. 
 
            That portion of the decision which discusses credits under 
 
            Iowa Code section 85.38(2) is stricken.
 
            In all other respects, the decision remains the same.
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            Signed and filed this ____ day of April, 1994.
 
            
 
            
 
            
 
            
 
                                        ________________________________
 
                                        PATRICIA J. LANTZ
 
                                        DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr Michael E Hansen
 
            Attorney at Law
 
            2706 Grand Ave
 
            Des Moines IA 50312
 
            
 
            Mr Ronald G Cable
 
            Attorney at Law
 
            414 E Grand Ave
 
            Des Moines IA 50309
 
            
 
            Ms. Joanne Moeller
 
            Assistant Attorney General
 
            Tort Claims Division
 
            Hoover State Office Bldg
 
            Des Moines IA 50319
 
            
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            JAMES L MCKERNAN,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 955069
 
            MORNINGSIDE COLLEGE,          :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL,               :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by James L. 
 
            McKernan against his former employer Morningside College 
 
            based upon an injury that occurred on March 29, 1990.  The 
 
            employer admits that McKernan injured his leg on that date, 
 
            but denies liability for any other injury, in particular, 
 
            the respiratory ailment which McKernan asserts as having 
 
            resulted from anesthesia used when performing surgery upon 
 
            his leg.  The duration of the hearing period is disputed.  
 
            The nature and extent of permanent disability is disputed.  
 
            Defendants seek credit under section 85.38(2) for group 
 
            disability income benefits which have been paid in the 
 
            amount of $9,061.86.  Defendants also seek credit under 
 
            section 85.38(2) for the medical expenses paid by the 
 
            workers' compensation carrier in the amount of $7,722.11 
 
            (see paragraph nine of the prehearing report).  The rate of 
 
            compensation was stipulated at hearing to be $216.62 per 
 
            week.  That rate is correct under the evidence which is in 
 
            the record.  Defendants have paid 49 3/7 weeks of 
 
            compensation at the correct rate prior to hearing.  
 
            
 
                 The case was heard at Sioux City, Iowa, on September 
 
            23, 1992.  The record consists of testimony from James 
 
            McKernan and Alice Joann McKernan.  The record also contains 
 
            joint exhibits 1 through 37, claimant's exhibits 1, 3, 5, 6, 
 
            8, and 14; and defendants' exhibits 1 and 2.
 
            
 
                                 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:
 
            
 
                 James L. McKernan is a 56-year-old married man who 
 
            injured his left knee on March 29, 1990, while working in a 
 
            ditch for his employer, Morningside College.  He continued 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            to work through the end of the work day but on March 30, 
 
            1990, sought medical care.  He was referred to Orthopedic 
 
            Surgeon Duane K. Nelson, M.D.  A trial of conservative care 
 
            was attempted unsuccessfully (exhibit 12, page 1). 
 
            Eventually, on April 23, 1990, Dr. Nelson performed 
 
            arthroscopic surgery in which he removed a torn portion of 
 
            the claimant's lateral meniscus (ex. 12, p. 3).
 
            
 
                 Approximately three days following the surgery claimant 
 
            began developing respiratory complaints and consulted his 
 
            family physician Steven F. Gordon, M.D. (ex. 6).  Pulmonary 
 
            function studies were normal except for one portion of the 
 
            test.  Claimant was provided with a Ventolin inhaler.  Notes 
 
            of May 10, 1990, indicated that the Ventolin worked well but 
 
            that claimant still had wheezing.
 
            
 
                 Claimant was referred to a pulmonary specialist, Craig 
 
            W. Bainbridge, M.D.  Pulmonary function studies were 
 
            considered to be normal overall, but the claimant's FEF 
 
            capacity was slightly decreased (exs. 18 & 22).  A 
 
            ventilation profusion lung scan was entirely negative and 
 
            showed no change from a scan which had been conducted on 
 
            October 20, 1989 (exs. 19 & 20).  It should be noted that 
 
            the record contains pulmonary function studies in exhibit 22 
 
            at page 3 which appear to be dated September 4, 1986.  Those 
 
            are actually the studies from April 27, 1990.  The results 
 
            are identical to those shown in exhibit 6 for the studies 
 
            conducted on April 27, 1990.  It should be noted that with 
 
            use of a bronchodilator the FEF capacity improved to nearly 
 
            normal (ex. 22, p. 2).  Dr. Bainbridge was unable to develop 
 
            a clear diagnosis but he suspected that the claimant had 
 
            some asthma.  Claimant's reported symptoms did not improve 
 
            with Prednisone or bronchodilators.  On September 27, 1990, 
 
            Dr. Bainbridge released the claimant from his care (ex. 24).  
 
            Dr. Bainbridge has subsequently reported that claimant is 
 
            totally and permanently disabled due to very severe 
 
            obstructive airways disease (ex. 25).  Dr. Bainbridge does 
 
            not at any point attribute the disease to any particular 
 
            causative factor.  
 
            
 
                 Claimant was evaluated by Vito A. Angelillio, M.D., on 
 
            August 22, 1990.  Pulmonary function studies showed no 
 
            obstructive dysfunction.  Other studies were within normal 
 
            limits.  An attempted treadmill test was unreliable because 
 
            claimant hyperventilated before starting the test and 
 
            continued to hyperventilate until the test was discontinued.  
 
            A methacholine challenge test was attempted but the results 
 
            were deemed unreliable due to claimant giving inconsistent 
 
            efforts.  The test appeared to be positive for showing an 
 
            asthmatic component but the doctor's report indicates that 
 
            the positive result could be due to claimant voluntarily 
 
            closing his glottis.  The fact that the test results did not 
 
            improve after application of a bronchodilator is an 
 
            indicator that asthma might not be a component.  Dr. 
 
            Angelillio concluded that the claimant's condition included 
 
            a considerable functional component because no form of 
 
            recognized medical treatment had been successful, his breath 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            sounds were clear, he had never been observed to be wheezing 
 
            by any physician.  A psychological examination was 
 
            recommended.  It is noted that defendants, who had arranged 
 
            the examination, have not complied with the recommendation 
 
            for a psychological examination (ex. 28).  
 
            
 
                 Claimant was also evaluated by Pulmonologist Louis W. 
 
            Burgher, M.D.  Dr. Burgher reported that test results were 
 
            unreliable due to claimant giving suboptimal effort, but 
 
            that they were sufficient to conclude that claimant's degree 
 
            of obstruction was not severe.  He stated that claimant had 
 
            a mild obstruction with restrictions which were due to 
 
            claimant's obesity.  Chest x-rays showed some pleural 
 
            scarring in the left base but were considered to be normal.  
 
            Dr. Burgher felt that claimant had mild asthma.  He also 
 
            expressed the opinion that the surgical procedure to which 
 
            claimant attributes his respiratory condition is not related 
 
            to the onset of the asthma (exs. 30-32).
 
            
 
                 James Saulsburg, M.D., examined the records of 
 
            claimant's surgery and other associated hospital records and 
 
            reported that they show no sign of lung irritation or 
 
            damage.  He expressed the opinion that anesthesia did not 
 
            cause or aggravate any lung problem in James McKernan (ex. 
 
            29).  The hospital records concerning claimant's surgical 
 
            procedure do not show any abnormality or complication other 
 
            than that claimant reacted with anxiety to epideral 
 
            anesthetic being used and that general endotracheal 
 
            anesthetic was then induced (exs. 12, 15 & 16).  
 
            
 
                 Claimant's medical history is remarkable for a 
 
            diagnosis of multiple pulmonary emboli in 1975 (ex. 1, pp. 
 
            1-3).  It is remarkable for a history of chest pain in 1989 
 
            (exs. 7-10).  
 
            
 
                 Defendants' exhibit 2 shows that in 1986 claimant was 
 
            seen at the Mayo Clinic.  He was diagnosed with migraine 
 
            equivalent with a strong functional overlay, exogenous 
 
            obesity, hyperlipidemia and questionable depression.  An 
 
            MMPI was conducted.  It was interpreted as showing claimant 
 
            to have a propensity for, "...Fixed notions as to organic 
 
            basis for complaints.  These complaints, which probably fit 
 
            no organic pattern, are likely to be presented in a 
 
            histrionic manner.  Lacks insight and is unlikely to accept 
 
            a psychological explanation of symptoms....Much functional 
 
            pain, fatigue and weakness likely....." (def ex. 2, p. 26). 
 
            Claimant's expressed complaints as related at hearing by 
 
            himself and his wife are very consistent with the 
 
            interpretation of the MMPI test which was conducted in 1986.  
 
            
 
                 James McKernan claims to be severely disabled by a 
 
            pulmonary condition.  None of the pulmonologists have 
 
            objectively identified what that condition that might be.  
 
            The opinion from Dr. Bainbridge which finds claimant totally 
 
            disabled due to severe obstructive airways disease is 
 
            rejected as it is not corroborated by any other physician.  
 
            While he may very well have mild asthma, such would not 
 
            necessarily have any serious impact upon his employability.  
 
            Mild asthma might very well have preexisted his recent knee 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            injury.  His job was one which appears to have, for the most 
 
            part, permitted him to work at his own pace.  It does not 
 
            appear to have involved extended periods of very strenuous 
 
            exertion.  The record does not contain evidence from a 
 
            single medical practitioner which attributes any particular 
 
            respiratory ailment to the anesthesia which was provided as 
 
            part of claimant's knee surgery.  There is simply no 
 
            evidence whatsoever in the record of this case which find 
 
            this claimant to have any significant actual respiratory 
 
            disease, condition or impairment.  There is absolutely no 
 
            evidence which attributes any respiratory problem to his 
 
            employment or the surgery which repaired his knee injury.  
 
            Claimant's subjective complaints of respiratory problems 
 
            have not been corroborated by the medical practitioners.  In 
 
            fact, all the objective tests have produced normal or near 
 
            normal results.  It is therefore found that it is extremely 
 
            unlikely that claimant has any respiratory impairment, other 
 
            than perhaps mild asthma.  It is further unlikely that any 
 
            respiratory impairment which he might have is in any way, 
 
            either directly or as an aggravation, a result of his knee 
 
            injury, the surgical procedure or the anesthesia used during 
 
            the surgery.
 
            
 
                 Claimant's knee surgery was performed on April 23, 
 
            1990.  Dr. Nelson's notes of May 1, 1990, indicate that his 
 
            preoperative pain was resolved, but that there was still 
 
            quite a bit of swelling.  At that time he demonstrated 100 
 
            degrees of flexion of his knee.  On May 15 the notes 
 
            indicate that there was still some pain with twisting 
 
            maneuvers but that he was still improving.  He demonstrated 
 
            130 degrees of flexion of the knee.  Notes dated June 12, 
 
            1990, indicate that he was gradually getting better.  He was 
 
            continued on physical therapy and was still off work.  
 
            Exhibit 23 shows that on June 21 he demonstrated 125 degrees 
 
            of flexion to the physical therapist and that on June 28 
 
            full range of flexion was observed.  When Dr. Nelson saw 
 
            claimant on July 26, 1990, he demonstrated 130 degrees of 
 
            flexion and full extension.  When seen on September 27, 
 
            1990, however, claimant only demonstrated 90 degrees of 
 
            flexion.  There is no explanation in the record of this case 
 
            for why claimant's flexion would have decreased so 
 
            significantly (ex. 11).  It was on September 27, 1990, that 
 
            Dr. Nelson reported that claimant had not improved and that 
 
            he expected no further improvement.  He stated that the 
 
            condition was permanent and could possibly develop 
 
            progressive osteoarthritis in the future.  He rated 
 
            claimant's permanent impairment at 10 percent of the leg for 
 
            loss of meniscus function and 21 percent for loss of 
 
            flexion.  Using the third edition of the AMA Guides, the 
 
            combined impairment amounted to 29 percent (ex. 11, p. 3).  
 
            In a report dated May 14, 1991, Dr. Nelson noted that 
 
            posttraumatic arthritic changes had developed (ex. 11, p. 
 
            4).  
 
            
 
                 Claimant's knee was evaluated by Orthopedic Surgeon 
 
            Michael J. Morrison, M.D., on December 20, 1990.  He found 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            that claimant had some quad muscle weakness and atrophy but 
 
            a full range of motion of the knee.  He felt that claimant 
 
            would not need any work restrictions.  Dr. Morrison rated 
 
            claimant as having a 5 percent impairment of his knee due to 
 
            the partial meniscectomy.  
 
            
 
                 Dr. Nelson based his impairment rating on the AMA 
 
            Guides.  It is not known what Dr. Morrison relied upon.  
 
            The AMA Guides do not provide an impairment rating for a 
 
            "knee."  The Guides do rate impairment in terms of the lower 
 
            extremity, the terminology used by Dr. Nelson.  Reference to 
 
            those AMA Guides shows that impairment for a partial 
 
            meniscectomy can range from zero to 10 percent of the 
 
            extremity (table 40).  Using 90 degrees of motion does 
 
            provide a 21 percent impairment based upon lost motion, but 
 
            130 degrees of flexion provides only a 7 percent impairment 
 
            rating for lost motion.  While claimant's symptoms regarding 
 
            his leg are almost certainly effected by a functional 
 
            overlay, it is found that the correct measurement of flexion 
 
            is 130 degrees.  It appears at several places in the record.  
 
            The fact of arthritis as noted by Dr. Nelson warrants a 
 
            finding of some impairment.  When the fact of the partial 
 
            meniscectomy, the development of arthritis and the loss of 
 
            some motion are all considered, it is determined that 
 
            claimant has a 15 percent permanent partial impairment of 
 
            his left leg as a result of the March 29, 1990 injury.  This 
 
            finding is based somewhat upon the AMA Guides, but it is not 
 
            based strictly upon them.  It considers both impairment 
 
            ratings in the record as well as the Guides themselves.
 
            
 
                 The record does not show any expenses of medical 
 
            treatment for the claimant's left leg to be unpaid.  
 
            
 
                 The record shows that UNUM Life Insurance Company of 
 
            America has paid claimant $9,061.86 in long-term disability 
 
            benefits (ex. 33).  The record does not contain a copy of 
 
            the policy itself.  The record submitted does not show that 
 
            the plan covers only nonoccupational disabilities or that 
 
            the benefits would not be payable if rights of recovery 
 
            existed under the workers' compensation laws.  
 
            
 
                 McKernan was uncooperative during the discovery process 
 
            of this case.  He failed to execute patient's waivers.  He 
 
            failed to make complete disclosure in his answers to 
 
            interrogatories.  
 
            
 
                                conclusions of law
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the alleged injury 
 
            actually occurred and that it arose out of and in the course 
 
            of employment.  McDowell v. Town of Clarksville, 241 N.W.2d 
 
            904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 
 
            154 N.W.2d 128 (1967).  The words "arising out of" refer to 
 
            the cause or source of the injury.  The words "in the course 
 
            of" refer to the time, place and circumstances of the 
 
            injury.  Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986); 
 
            McClure v. Union County, 188 N.W.2d 283 (Iowa 1971).
 
            
 
                 The claimant has the burden of proving by a 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            preponderance of the evidence that the injury is a proximate 
 
            cause of the disability on which the claim is based.  A 
 
            cause is proximate if it is a substantial factor in bringing 
 
            about the result; it need not be the only cause.  A 
 
            preponderance of the evidence exists when the causal 
 
            connection is probable rather than merely possible.  
 
            Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 
 
            1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 
 
            (Iowa 1974).
 
            
 
                 The question of causal connection is essentially within 
 
            the domain of expert testimony.  The expert medical evidence 
 
            must be considered with all other evidence introduced 
 
            bearing on the causal connection between the injury and the 
 
            disability.  The weight to be given to any expert opinion is 
 
            determined by the finder of fact and may be affected by the 
 
            accuracy of the facts relied upon by the expert as well as 
 
            other surrounding circumstances.  The expert opinion may be 
 
            accepted or rejected, in whole or in part.  Sondag v. Ferris 
 
            Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar 
 
            Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, 
 
            Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
 
            
 
                 It is recognized that injuries which result from 
 
            medical treatment are proximately caused by the original 
 
            injury itself.  Humphreus v. State, 334 N.W.2d 757 (Iowa 
 
            1983); Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 
 
            101 N.W.2d 167 (1960); Cross v Hermanson Bros., 235 Iowa 
 
            739, 741, 16 N.W.2d 616, 617 (1944).  
 
            
 
                 It is admitted by defendants that the claimant injured 
 
            his knee and that he has some disability affecting his left 
 
            leg.  Their admission is well supported by evidence in the 
 
            record.
 
            
 
                 If a claimant contends he has industrial disability he 
 
            has the burden of proving his injury results in an ailment 
 
            extending beyond the scheduled loss.  Kellogg v. Shute and 
 
            Lewis Coal Co., 256 Iowa 1257, 130 N.W.2d 667 (1964).
 
            
 
                 Defendants deny any relationship between the knee 
 
            injury and any lung condition which afflicts the claimant.  
 
            Their denial is well supported by the evidence.  The record 
 
            in this case fails to show any significant lung condition.  
 
            The mild asthma condition does not appear to be disabling.  
 
            The record further fails to contain any substantiation for 
 
            the claimant's claim that whatever lung condition he might 
 
            have was caused or aggravated in any manner by the knee 
 
            injury, either directly or indirectly.  It is therefore 
 
            concluded that the only injury in this case is the injury to 
 
            the claimant's left knee and that the only resulting 
 
            permanent disability is a 15 percent permanent partial 
 
            disability of the left leg.  
 
            
 
                 Claimant's healing period entitlement under section 
 
            85.34(1) commences on March 30, 1990, the first day he 
 
            missed work on account of the knee injury.  It terminates on 
 
            September 27, 1990, the date at which Dr. Nelson concluded 
 
            that no further improvement would be forthcoming.  
 
            
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
                 While hindsight shows that improvement had in fact 
 
            ceased prior to September 27, 1990, the legal test concludes 
 
            the healing period at the time the physician determines that 
 
            further improvement is not expected.  The entitlement to 
 
            healing period is therefore 26 weeks of benefits.  
 
            
 
                 Under section 85.34(2)(o) claimant is entitled to 
 
            recover 15 percent of 220 weeks of permanent partial 
 
            disability for his left leg.  This computes to 33 weeks.  
 
            Claimant's total entitlement to weekly benefits is therefore 
 
            59 weeks.  As indicated in the prehearing report he was paid 
 
            49 3/7 weeks.  The balance of 9 4/7 weeks is unpaid and is 
 
            subject to interest.  
 
            
 
                 Weekly compensation benefits are due and payable weekly 
 
            commencing on the eleventh day after the injury under Iowa 
 
            Code section 85.30.  Compensation for permanent partial 
 
            disability is due and payable commencing at the end of the 
 
            healing period under Iowa Code section 85.34(2).  If any 
 
            type of weekly compensation is not paid at the time it comes 
 
            due, it accrues interest pursuant to Iowa Code section 
 
            85.30.  Teel v. McCord, 394 N.W.2d 405 (Iowa 1986); Farmers 
 
            Elevator Co., Kingsley v. Manning, 286 N.W.2d 174 (Iowa 
 
            1979).
 
            
 
                 The record indicates that defendants have paid all 
 
            expenses of the knee injury and a considerable amount in 
 
            medical expenses attributable to the lung condition.  They 
 
            clearly were not liable for those amounts.  Credit is 
 
            allowed when one form of weekly compensation benefits are 
 
            over paid and the over payment is applied to satisfy any 
 
            under payment of any other type of weekly compensation 
 
            benefits.  Over payment of medical expenses under section 
 
            85.27 cannot be credited, however, to other medical expenses 
 
            or to unpaid weekly benefits.  Mysch v. Robert Shirley, 
 
            d/b/a Shirley Agriculture Service, Thirty-fourth Biennial 
 
            Report of the Industrial Commissioner 234 (1979); Anderson 
 
            v. Woodward State Hospital-School, 2-1 State of Iowa 
 
            Industrial Commissioner Decisions (App. Dec. 1985); 
 
            Comingore v. Shenandoah Artifical Ice, Power, Heat and 
 
            Light Co., 208 Iowa 430, 226 N.W. 124 (Iowa 1929).  Whether 
 
            the medical expenses for the knee were paid by the group 
 
            carrier or the compensation is moot as to the claimant as he 
 
            is not entitled to a refund.  Caylor v. Employers Mutual 
 
            Co., 337 N.W.2d 890, 894 (Iowa App. 1983).
 
            
 
                 The only possible source of a credit in this case would 
 
            appear to be the group disability income payments made by 
 
            UNUM Life Insurance Company.  It is noted that there is no 
 
            credit for the amount by which any plan which continues 
 
            wages exceeds the amount of the weekly workers' compensation 
 
            benefit.  Rule 343 IAC 8.4; Beeler v Union Electric Co., III 
 
            Iowa Industrial Commissioner Report 22 (App. Dec. 1983).  
 
            Code section 85.38(1) states:  The compensation herein 
 
            provided shall be the measure of liability which the 
 
            employer has assumed for injuries or death that may occur to 
 
            employees in the employer's employment subject to the 
 
            provisions of this chapter, and it shall not be in anywise 
 
            reduced by contribution from employees or donations from any 
 
            source. (emphasis added).  Section 85.38(2) states, "In the 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            event that disabled employee shall receive any 
 
            benefits...under any group plan covering nonoccupational 
 
            disabilities contributed to wholly or partially by the 
 
            employer, which benefits should not have been paid or 
 
            payable if any rights of recovery existed under this 
 
            chapter..., then such amounts so paid to said employee from 
 
            any such group plan shall be credited to or against any 
 
            compensation payments,...."  It is thus clear that there are 
 
            three elements to entitlement to a credit under section 
 
            85.38(2), namely: (1) the benefits must be received under a 
 
            group plan, (2) contributions to the cost of that plan must 
 
            have been made by the employer, and (3) the benefits would 
 
            not be payable if a right of recovery existed under the 
 
            workers' compensation law.  Hebensperger v. Motorola 
 
            Communications and Electronics, Inc., II Iowa Industrial 
 
            Commissioner Report, 187, 189 (App. Dec. 1981).
 
            
 
                 The party who would suffer loss if an issue were not 
 
            established has the burden of proving that issue by a 
 
            preponderance of the evidence.  Iowa R. of App. P. 14(f).
 
            
 
                 The burden of proof rests upon the employer in order to 
 
            show that it is entitled to a claimed credit.  The "credit" 
 
            defense to the claim is similar to the recognized defenses 
 
            of accord and satisfaction or payment.  Both of those 
 
            defenses place the burden of proof on the defendant.  
 
            Electra Ad Sign, Inc. v. Cedar Rapids Truck Center, 316 
 
            N.W.2d 876 (Iowa 1982); Glenn v. Keedy, 80 N.W.2d 59, 248 
 
            Iowa 216 (1957).  
 
            
 
                 In this case, the employer has failed to prove the 
 
            extent, if any, to which benefits under the disability 
 
            income plan would not have been payable if it had been known 
 
            that the claimant's disability resulted from an injury which 
 
            was compensable under chapter 85 of the Code.  The 
 
            entitlement to a credit was identified as a disputed issue 
 
            in paragraph nine of the prehearing report, the document in 
 
            which the parties identify the issues in the case.  The 
 
            issue was fully litigated.  It is extremely difficult, if 
 
            not impossible, to establish the third element of credit 
 
            entitlement without introducing the insurance policy which 
 
            controls the disability income plan.  Exhibit 35 seems to 
 
            indicate that the employer contributed to the cost of the 
 
            disability plan, but the record is devoid of any competent 
 
            showing that the plan applies only to nonoccupational 
 
            disabilities.  The claim for credit must, therefore, be 
 
            denied.
 
            
 
                 Defendants seeks imposition of sanctions based upon the 
 
            claimant's lack of cooperation and failure to comply with 
 
            the rules governing discovery procedures.  In the end, 
 
            defendants prevailed and obtained the records from the Mayo 
 
            Clinic.  It is particularly noted that even without the 
 
            claimant's responses to interrogatories being complete, 
 
            defendants had other reasons for knowing that the Mayo 
 
            Clinic had records concerning the claimant.  Had they made a 
 
            prompt, timely effort to obtain those records, there would 
 
            not have been the crisis which arose shortly prior to 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            hearing when the Mayo Clinic refused to accept the form of 
 
            waiver which claimant had signed.  In any event, imposition 
 
            of discovery sanctions is discretionary.  Sanctions may be 
 
            denied even though grounds for imposition exist.  Miller v. 
 
            Boner, 37 N.W.2d 523 (Iowa 1983).  This is one of those 
 
            cases in which sanctions will be denied even though grounds 
 
            for imposition exist.  There is no showing that the final 
 
            outcome of this case has been prejudiced in any manner by 
 
            the claimant's conduct.  Even if the records from the Mayo 
 
            Clinic had not been received and introduced into evidence, 
 
            the outcome of the case would be no different than it is.  
 
            The claimed lung impairment is not corroborated by objective 
 
            medical evidence and there is no evidence whatsoever of any 
 
            connection between the knee injury and any lung condition.  
 
            
 
                                      order
 
            
 
                 IT IS THEREFORE ORDERED that defendants pay James L. 
 
            McKernan twenty-six (26) weeks of compensation for healing 
 
            period at the stipulated rate of two hundred sixteen and 
 
            62/100 dollars ($216.62) per week payable commencing March 
 
            30, 1990.
 
            
 
                 It is further ordered that defendants pay James L. 
 
            McKernan thirty-three (33) weeks of compensation for 
 
            permanent partial disability, representing a fifteen (15) 
 
            percent permanent partial disability of his left leg, 
 
            payable at the stipulated rate of two hundred sixteen and 
 
            62/100 dollars ($216.62) per week commencing September 28, 
 
            1990.
 
            
 
                 It is further ordered that defendants receive credit 
 
            for the forty-nine and three-sevenths (49 3/7) weeks of 
 
            weekly compensation benefits previously paid.  The remaining 
 
            unpaid amount is past due and owing and shall be paid to 
 
            claimant in a lump sum together with interest pursuant to 
 
            section 85.30 computed from the date each unpaid weekly 
 
            payment came due until the date of actual payment.
 
            
 
                 It is further ordered that claimant's claim for any 
 
            additional medical benefits is denied.
 
            
 
                 It is further ordered that defendants' request for a 
 
            credit under section 85.38(2) is denied.
 
            
 
                 It is further ordered that defendants' request for 
 
            sanctions based upon claimant's failure to comply with the 
 
            rules governing discovery is denied.
 
            
 
                 It is further ordered that the costs of this action are 
 
            assessed against defendants pursuant to rule 343 IAC 4.33.
 
            
 
                 It is further ordered that defendants file claim 
 
            activity reports as requested by this agency pursuant to 
 
            rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of February, 1993.
 
            
 
            
 
            
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. I. John Rossi
 
            Attorney at Law
 
            697 18th St
 
            Des Moines, Iowa  50314
 
            
 
            Mr. M. James Daley
 
            Attorney at Law
 
            1109 Badgerow Bldg
 
            PO Box 1828
 
            Sioux City, Iowa  51102
 
            
 
            
 
                 
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
                                          51108.50 51402.40 51402.30 
 
                                          51803.1 1403.30 1701 1803 
 
                                          1402.40 2906
 
                      Filed February 22, 1993
 
                      Michael G. Trier
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            JAMES L MCKERNAN,   :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :      File No. 955069
 
            MORNINGSIDE COLLEGE,     :
 
                      :  A R B I T R A T I O N
 
                 Employer, :
 
                      :      D E C I S I O N
 
            and       :
 
                      :
 
            LIBERTY MUTUAL,     :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            51108.50 51402.40 51402.30 51803.1
 
            Claimant failed to prove that he had a disabling lung 
 
            condition or that it resulted from his compensable knee 
 
            injury or anesthesia used when the surgery for the knee was 
 
            performed.  
 
            
 
            1403.30 1701
 
            Credit under section 85.38(2) held to be an affirmative 
 
            defense with the burden of proof being placed on employer.  
 
            Where disability income policy was not placed into evidence 
 
            it was held that defendants had failed to prove that the 
 
            plan covered only nonoccupational disabilities and that 
 
            benefits would not have been payable if a right of recovery 
 
            existed under the workers' compensation laws.  
 
            
 
            1803 1402.40
 
            AMA Guides relied upon to fix extent of ppd.
 
            
 
            2906 
 
            Claimant had failed to make complete responses to discovery 
 
            requests.  Sanctions were nevertheless denied where employer 
 
            prevailed on the merits of the case and the information 
 
            which the claimant sought to conceal was nevertheless 
 
            eventually discovered and had no bearing on the ultimate 
 
            outcome of the case in any event.