BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
                     
 
         RAYMOND LANGSTRAAT,   
 
                     
 
              Claimant,   
 
                     
 
         vs.         
 
                                             File No. 957007
 
         CLOW CORPORATION,     
 
                                               A P P E A L
 
              Employer,   
 
                                             D E C I S I O N
 
         and         
 
                     
 
         GAB,        
 
                     
 
              Insurance Carrier,    
 
              Defendants.      
 
         _________________________________________________________________
 
         The record, including the transcript of the hearing before the 
 
         deputy and all exhibits admitted into the record, has been 
 
         reviewed de novo on appeal.  The Arbitration Decision filed 
 
         February 26, 1992 and the Remand Decision filed October 27, 1992 
 
         are affirmed and are adopted as the final agency action in this 
 
         case.
 
         
 
         Defendants shall pay the costs of the appeal, including the 
 
         preparation of the hearing transcript.
 
         
 
         Signed and filed this ____ day of September, 1993.
 
         
 
         
 
         
 
         
 
                                    ________________________________
 
                                           BYRON K. ORTON
 
                                      INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Harold B. Heslinga
 
         Attorney at Law
 
         118 North Market St.
 
         Oskaloosa, Iowa 52577
 
         
 
         Mr. E. J. Kelly
 
         Attorney at Law
 
         2700 Grand Ave., Ste 111
 
         Des Moines, Iowa 50312
 
         
 
 
            
 
 
 
                    
 
 
 
 
 
                                           5-1803; 3701; 4000.2
 
                                           Filed September 24, 1993
 
                                           BYRON K. ORTON
 
                           
 
                         BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            
 
            RAYMOND LANGSTRAAT,   
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                                File No. 957007
 
            CLOW CORPORATION,     
 
                                                 A P P E A L
 
                 Employer,   
 
                                              D E C I S I O N
 
            and         
 
                        
 
            GAB,        
 
                        
 
                 Insurance Carrier,    
 
                 Defendants.      
 
            ____________________________________________________________
 
           
 
            
 
            5-1803; 4000.2
 
            Claimant awarded 30 percent industrial disability and 15 
 
            weeks of penalty benefits.  Although extent of permanency 
 
            could be reasonably disputed, the existence of some loss of 
 
            earning capacity could not.
 
            
 
            3701
 
            Defendants' characterization of surveillance evidence was 
 
            shown impossible by time-stamping on the photos in evidence.  
 
            Evidence was criticized in detail.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            RAYMOND LANGSTRAAT,           :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :         File No. 957007
 
                                          :
 
            CLOW CORPORATION,             :      A R B I T R A T I O N
 
                                          :
 
                 Employer,                :         D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            GAB,                          :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 Claimant Raymond Langstraat seeks benefits under the 
 
            Iowa Workers' Compensation Act upon his petition in 
 
            arbitration against employer Clow Corporation and GAB 
 
            Business Services, Inc.  Mr. Langstraat sustained a back 
 
            injury arising out of his employment on July 17, 1990, and 
 
            alleges resultant temporary and permanent disability.
 
            
 
                 This cause came on for hearing in Ottumwa, Iowa, on 
 
            December 19, 1991.  Claimant, Denise Spurgeon, Mary 
 
            Langstraat and Victor Laughlin testified at hearing.  The 
 
            record also contains joint exhibits 1 through 5.  Several 
 
            pages of electrocardiogram tracings were accidently inverted 
 
            when they were placed in a ring binder holding exhibits.  
 
            This did not affect the result here, since any possible 
 
            relevance of those and many other pages of evidence remains 
 
            a mystery.
 
            
 
                                      issues
 
            
 
                 The parties have stipulated that claimant sustained an 
 
            injury arising out of and in the course of his employment on 
 
            July 17, 1990, to the rate of compensation ($284.96 per 
 
            week), that medical benefits are not in dispute and that 
 
            certain benefits have been voluntarily paid.
 
            
 
     
 
            
 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            Issues presented for resolution include:
 
            
 
                 1.  Whether there exists a causal relationship between 
 
            the injury and temporary and/or permanent disability;
 
            
 
                 2.  The extent of each; and,
 
            
 
                 3.  Whether claimant is entitled to penalty benefits 
 
            under Iowa Code section 86.13.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy industrial commissioner finds:
 
            
 
                 Raymond Langstraat, 47 years of age at hearing, has 
 
            lived his entire life in the state of Iowa.  He is a 1962 
 
            high school graduate with no further education.  His life 
 
            has been largely devoted to hard physical labor.  Mr. 
 
            Langstraat has worked as a farmer and farm hand, a livestock 
 
            hauler, and as a concrete and road worker.  Beginning in 
 
            February 1988, he commenced employment with Clow 
 
            Corporation, a manufacturer of heavy water valves.  Claimant 
 
            worked as a bench grinder, a job requiring the use of hand 
 
            tools weighing up to perhaps 15 pounds to grind excess 
 
            materials and castings from water valves weighing up to 500 
 
            pounds.
 
            
 
                 Prior to beginning work with Clow Corporation, claimant 
 
            had no history of chronic back complaints.  However, he 
 
            testified to having a "vertebra slip" at age 18 for which he 
 
            saw a doctor in Ottumwa 3-5 times.  No surgery was 
 
            performed, but he wore a corset while working as a farm hand 
 
            that summer.  Later, claimant became a partner in the farm 
 
            with his father and used his back constantly without 
 
            problems for many years.  Although medical records, 
 
            especially including Mahaska County Hospital, are to some 
 
            extent difficult to read, this deputy has not found any 
 
            record of lumbar complaints.  If they exist, they are well 
 
            camouflaged among many pages of irrelevant evidence.  He 
 
            underwent a preemployment physical at the behest of Clow 
 
            Corporation on February 12, 1988.  This included x-rays of 
 
            the lumbar spine, read as negative.
 
            
 
                 On July 16, 1990, claimant developed a twinge in his 
 
            back while manipulating a 275-pound water valve on his 
 
            workbench.  Lumbar pain developed progressively during the 
 
            rest of his shift to the extent that, after showering at 
 
            work, he proved unable to bend down to pick up clothes.
 
            
 
                 After claimant returned home, his wife arranged an 
 
            immediate visit with Terry Wolfswinkel, D.C.  Claimant was 
 
            seen immediately.  Chart notes reflect complaints of back 
 
            pain radiating down the right leg to the ankle and 
 
            tenderness at L5.  According to claimant, Dr. Wolfswinkel 
 
            refused to employ chiropractic manipulation because "this 
 
            isn't good."
 
            
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                 Claimant was next seen at the Mahaska County Hospital 
 
            at 2:14 a.m. on the morning of July 17.  Chart notes of 
 
            difficult legibility reflect a history of developing 
 
            discomfort while twisting at work increasing in the lower 
 
            back without relief after use of ice at home.  Complaints 
 
            were of right lower back pain radiating down the right leg 
 
            with tingling foot.  Claimant stated his leg had given out 
 
            on him that night.
 
            
 
                 On July 23, still with symptoms, claimant was seen by 
 
            another chiropractor, Thomas H. Stanzel, D.C.  Dr. Stanzel 
 
            was given a similar history as to development of symptoms.  
 
            Claimant was treated on six occasions from July 23 to July 
 
            30, but did not respond, following which he was referred for 
 
            magnetic resonance imaging, then to an orthopaedic surgeon, 
 
            William R. Boulden, M.D.
 
            
 
                 Dr. Stanzel examined claimant again on November 7, 
 
            1991.  Claimant reported that two days earlier, "his low 
 
            back pain became so severe while getting up out of a chair 
 
            that it made him pass out from 3:30 p.m. until 11:30 p.m."  
 
            Examination revealed marked nodularity and fibrosis 
 
            accompanied by pain especially at L5-S1.  Range of motion of 
 
            the lumbar spine was mildly restricted.  Findings were 
 
            similar and consistent to those of July 23, 1990, except 
 
            slightly less back pain and improved lumbar range of motion 
 
            were reported.  Diagnosis was of chronic lumbo-sacral 
 
            myofascial pain syndrome complicated by dysfunctional spinal 
 
            mechanics along with pain and numbness into the legs with 
 
            mild central disc herniation.  Dr. Stanzel assigned a ten 
 
            percent body as a whole impairment rating.  However, no 
 
            restrictions were suggested.
 
            
 
                 Magnetic resonance imaging studies were done by J. J. 
 
            Gleich, M.D., on August 1, 1990.  Impression was of mild 
 
            degenerative disc disease not unusual for claimant's age, 
 
            but a small central herniation at L3-4.  Dr. Gleich also 
 
            found spondylolysis (deterioration) with spondylolisthesis 
 
            (displacement) at L5-S1.
 
            
 
                 Claimant was first seen by Dr. Boulden on August 15, 
 
            1990.  Complaints of buttock and leg pain on the right side 
 
            were worse than lumbar complaints.  Dr. Boulden was given a 
 
            history similar to claimant's testimony.  Dr. Boulden 
 
            reviewed x-rays showing claimant to have three levels of 
 
            degenerative disc disease and spondylolysis at L5 causing a 
 
            grade I spondylolisthesis along with significant foraminal 
 
            stenosis.  Impression was of aggravation of underlying 
 
            spinal stenosis (narrowing) secondary to the 
 
            spondylolisthesis at L5-S1.  Conservative treatment was 
 
            recommended, including epidural steroid injections, although 
 
            these were refused.  Dr. Boulden did not find claimant 
 
            suitable to return to work at that time.
 
            
 
                 Chart notes of August 30 were essentially unchanged.  
 
            On September 13, Dr. Boulden wrote that standing and walking 
 
            could be expected to be a problem and claimant should stand 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            or walk no more than 30-45 minutes before alternating 
 
            position.  On September 18, Dr. Boulden suggested starting 
 
            restrictions including a 25-pound weight limit, only four 
 
            hours of work a day with alternating sitting, standing and 
 
            walking with a maximum of 30 minutes at each activity and 
 
            made an unclear reference to bending and twisting of the 
 
            back; whether claimant would progress from that point was 
 
            unknown.
 
            
 
                 On October 2, claimant was seen again.  He had just 
 
            begun working six hours per day and Dr. Boulden suggested 
 
            that when he reached eight hours, he should maintain that 
 
            level for approximately a month before progressing to the 
 
            ten-hour shift normally worked on light duty.  "I think his 
 
            duty needs to be permanent light duty.  I don't see any way 
 
            he will get back to doing heavy work in the future.  This 
 
            includes if surgery is ever considered."
 
            
 
                 Another incident occurred on or about October 20, 1990.  
 
            While sitting at home watching TV that night, claimant's 
 
            back "went out" on him when he tried to get up.  He needed 
 
            assistance to get off the couch and found it hard to walk.  
 
            The next day, he called Denise Spurgeon, safety coordinator.  
 
            According to Ms. Spurgeon, claimant made reference to having 
 
            washed windows and cleaned house that day, although claimant 
 
            in his testimony minimized the amount of work he had 
 
            actually been doing.  On October 30, he sought treatment at 
 
            the Family Medical Center where chart notes of that date 
 
            indicate he had "reinjured" his back.  The treating 
 
            physician recommended he again be off work.  Claimant did 
 
            not return to work this time until February 25, 1991.
 
            
 
                 On October 26, 1990, an unsigned note in the personnel 
 
            file indicates claimant had called to request a leave of 
 
            absence, stating that the pain was "different than before."
 
            
 
                 Dr. Boulden was next seen on November 13.  His notes 
 
            appear to show that little had changed.  On January 7, 1991, 
 
            Dr. Boulden wrote that, in his opinion, claimant had "at 
 
            best" aggravated a preexisting degenerative disc disease at 
 
            the back.  The meaning of "at best" is ambiguous.  He also 
 
            believed that claimant could "more than likely continue 
 
            light duty within the general restrictions" he had 
 
            previously outlined.
 
            
 
                 On February 20, 1991, claimant was seen by Dr. Boulden 
 
            for the last time.  He recommended that symptoms could be 
 
            kept under better control if claimant remained within his 
 
            restrictions of no bending or twisting with the back and 
 
            alternating sitting every 30-45 minutes.  Since the doctor 
 
            would "still stand by the restrictions previously sent," it 
 
            appears that the 25-pound weight restriction was to remain 
 
            in effect.
 
            
 
                 On November 18, 1991, Dr. Boulden wrote again relative 
 
            causation.  Based on a history of having a vertebra slip in 
 
            his back years ago, Dr. Boulden suggested this needed to be 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            investigated further to see if there were chronic complaints 
 
            since then.  If there was a chronic history of back 
 
            complaints, Dr. Boulden would feel that claimant had only 
 
            aggravated his back once again; if, however, there had been 
 
            a significant period of time since this problem during which 
 
            he had been able to perform his customary work, the majority 
 
            of disability would be placed on the work injury at issue.
 
            
 
                 Claimant is currently working again for Clow 
 
            Corporation, although at a light-duty job as lead locker 
 
            room attendant.  Defendant is to be commended for providing 
 
            continued employment within medical restrictions.  However, 
 
            he has suffered a reduction in wages from $9.00 per hour 
 
            with irregular but significant overtime and incentive pay to 
 
            $6.73 per hour.  He currently complains of variable daily 
 
            pain, generally less severe than at the time of the work 
 
            injury.  This back pain sometimes radiates down the leg.
 
            
 
                 Defendants have directly attacked claimant's 
 
            credibility on the basis of surveillance conducted by Victor 
 
            Laughlin, a private investigator.  Laughlin attempted 
 
            surveillance on eight or nine occasions, sometimes 
 
            unsuccessfully, between December 28, 1990, and July 31, 
 
            1991.  Testimony and photographs relative the latter date 
 
            are particularly significant.  Defendants maintain in their 
 
            brief that claimant was photographed and seen working 
 
            extensively with a rototilling machine, attempting to 
 
            vigorously pull-start the machine for at least 15 or 20 
 
            minutes before acquiring a second machine and spending 
 
            approximately the same length of time attempting to start 
 
            it, following which he was seen rototilling a garden for at 
 
            least 10-20 minutes.  This is generally consistent with this 
 
            deputy's understanding of Laughlin's testimony, except that 
 
            he understood Laughlin to testify that claimant rototilled 
 
            for only approximately five minutes.
 
            
 
                 Defendants strenuously and repeatedly insist that 
 
            Laughlin's testimony is uncontroverted.  On the contrary 
 
            though, it is directly controverted by the associated 
 
            time-stamped photographs.  To avoid reaching very unpleasant 
 
            conclusions indeed, it must be assumed that this deputy and 
 
            defense counsel both misunderstood Laughlin's testimony.
 
            
 
                 At 19:03 (hours), claimant is pictured relaxing and 
 
            drinking a beverage.  At 19:15, he is seen entering a shed.  
 
            The next photo, at 19:29, shows claimant again at the door 
 
            to the shed, apparently standing there or leaving.  
 
            Beginning at 19:30, claimant is seen in a different location 
 
            attempting to pull-start a Rototiller.  This continues until 
 
            19:31.  At 19:33, he is seen walking to another building and 
 
            apparently checking a mailbox.  The next photograph shows 
 
            him carrying a pail or fuel container towards the original 
 
            shed at 19:52.  At 19:54, he is walking across a road.  At 
 
            19:55, he appears at the front or side door of a house.  At 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            19:56, he is seen pushing a Rototiller away from that house.  
 
            At 19:57, he is seen fueling the Rototiller.  From 19:59 
 
            until 20:02, he is seen attempting to pull-start the 
 
            machine.  At 20:05, he is seen pushing the Rototiller up to 
 
            a road.  At 20:08, he is seen descending an incline next to 
 
            the road, apparently while tilling.  At 20:09, he is seen 
 
            ascending the same incline and then adjusting the machine.  
 
            At 20:10, he is seen pushing the Rototiller in multiple 
 
            photographs.  It is unclear whether he is actually tilling 
 
            at that time, although it is noted that the tines are in 
 
            focus and do not appear to be in motion.  Because the 
 
            surveillance photographs were taken with a telephoto lens, 
 
            which normally entails a relatively large F-stop (narrower 
 
            aperture), it is probable that a relatively slow shutter 
 
            speed was employed; thus, the tines would likely be blurred 
 
            if in motion.  At 20:12, claimant is pictured carrying a 
 
            beverage can and another item, but is not thereafter seen in 
 
            association with either Rototiller in photographs of 20:19 
 
            and 20:20.
 
            
 
                 Defendants would have us believe that claimant spent 40 
 
            minutes attempting to vigorously pull-start two Rototillers 
 
            and 10-20 minutes rototilling.  From the photographic 
 
            evidence, this is impossible.  Claimant is pictured 
 
            attempting to start Rototillers only from 19:30 to 19:31 and 
 
            again from 19:59 to 20:02.  There is a time gap from 19:15 
 
            to 19:29 when claimant was presumably in the shed, although 
 
            no photographs are offered.  In order to avoid the 
 
            unpleasant conclusions mentioned earlier, it will be assumed 
 
            that claimant spent some of that time attempting to start 
 
            the first Rototiller (even though all photos showing 
 
            attempts to start the machine are in a different location).  
 
            Thus, this process occupied 16 minutes at maximum.  Attempts 
 
            to start the second Rototiller are shown only from 19:59 to 
 
            20:02.  Claimant is seen actually rototilling at most from 
 
            20:08 to 20:11.
 
            
 
                 Other surveillance photographs show claimant carrying a 
 
            small child on his hip and carrying pop bottles and sacks of 
 
            groceries.  Nothing pictured appears to exceed the 25-pound 
 
            weight restriction imposed by Dr. Boulden.
 
            
 
                 This observer emphatically does not find the 
 
            surveillance evidence to be such a devastating blow to 
 
            claimant's case as defendants maintain.  Nonetheless, it can 
 
            be fairly inferred that on at least some days claimant is 
 
            able to engage in limited vigorous activity for a few 
 
            minutes at a time attempting to pull-start a Rototiller.  
 
            This is not particularly significant, given his testimony 
 
            that his pain level varies from day to day.  The medical 
 
            restrictions imposed by Dr. Boulden are significant, but do 
 
            not suggest that Mr. Langstraat is totally disabled or that 
 
            he should spend the rest of his life bedridden.
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                 Denise Spurgeon suggests that claimant's gait and 
 
            general stiffness were more severe at hearing than is the 
 
            case on a day-to-day basis at work.  This may be so, but it 
 
            is not inconsistent with claimant simply having a bad day at 
 
            hearing.  Still, it is not unreasonable to suppose that 
 
            claimant took few steps to minimize his apparent discomfort 
 
            at trial.
 
            
 
                                conclusions of law
 
            
 
                 The parties stipulate that claimant sustained an injury 
 
            arising out of and in the course of employment, but dispute 
 
            causal relationship to either temporary or permanent 
 
            disability.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of July 17, 
 
            1990, is causally related to the disability on which he now 
 
            bases his claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
            N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 296, 18 
 
            N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hosp., 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903 (Iowa 1974).  However, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Id. at 907.  Further, the weight to be given to such 
 
            an opinion is for the finder of fact, and that may be 
 
            affected by the completeness of the premise given the expert 
 
            and other surrounding circumstances.  Bodish, 257 Iowa 516, 
 
            133 N.W.2d 867.  See also Musselman v. Cent. Tel. Co., 261 
 
            Iowa 352, 154 N.W.2d 128 (1967).
 
            
 
                 While a claimant is not entitled to compensation for 
 
            the results of a preexisting injury or disease, the mere 
 
            existence at the time of a subsequent injury is not a 
 
            defense.  Rose v. John Deere Ottumwa Works, 247 Iowa 900, 
 
            908, 76 N.W.2d 756, 760-61 (1956).  If the claimant had a 
 
            preexisting condition or disability that is aggravated, 
 
            accelerated, worsened or lighted up so that it results in 
 
            disability, claimant is entitled to recover.  Nicks v. 
 
            Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, 815 
 
            (1962).
 
            
 
                 Temporary disability shall be first discussed.  
 
            Claimant seeks temporary disability benefits only for the 
 
            time he was off work following the incident at home on 
 
            October 20, 1990.  No medical opinion appears of record 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            causally relating this incident to the original work injury.  
 
            Although claimant had worked a half shift the day before, he 
 
            also was engaged in activity at home on October 20 and he 
 
            further reported that the pain was somewhat different in 
 
            location.  It is held that claimant has failed to meet his 
 
            burden of proof in establishing entitlement to additional 
 
            healing period or temporary total disability.
 
            
 
                 Medical opinion shows without contradiction that the 
 
            aggravation of claimant's underlying condition, previously 
 
            asymptomatic or at least nondisabling, is causally related 
 
            to the work incident of July 17, 1990.  According to Dr. 
 
            Boulden, resulting disability should be considered causally 
 
            related if claimant has not shown a history of chronic back 
 
            complaints.  The extensive medical history placed into 
 
            evidence shows no such chronic complaints.  Dr. Stanzel also 
 
            relates the impairment to the work injury.  No contrary 
 
            medical opinion appears of record.  Claimant has clearly met 
 
            his burden of proof in establishing a causal nexus between 
 
            the work injury and his current disability.  The incidents 
 
            of October 20, 1990, and November 5, 1991, have not been 
 
            shown causative of additional permanent impairment.  Dr. 
 
            Boulden's suggested limitations precede both incidents.
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, expe
 
            rience and inability to engage in employment for which he is 
 
            fitted.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 
            125 N.W.2d 251 (1963).  Barton v. Nevada Poultry, 253 Iowa 
 
            285, 110 N.W.2d 660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial disabil
 
            ity.  This is so as impairment and disability are not syn
 
            onymous.  Degree of industrial disability can in fact be 
 
            much different than the degree of impairment because in the 
 
            first instance reference is to loss of earning capacity and 
 
            in the latter to anatomical or functional abnormality or 
 
            loss.  Although loss of function is to be considered and 
 
            disability can rarely be found without it, it is not so that 
 
            a degree of industrial disability is proportionally related 
 
            to a degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  These are matters which the 
 
            finder of fact considers collectively in arriving at the 
 
            determination of the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  There are no 
 
            guidelines which give, for example, age a weighted value of 
 
            ten percent of the total value, education a value of fifteen 
 
            percent of total, motivation - five percent; work experience 
 
            - thirty percent, etc.  Neither does a rating of functional 
 
            impairment directly correlate to a degree of industrial 
 
            disability to the body as a whole.  In other words, there 
 
            are no formulae which can be applied and then added up to 
 
            determine the degree of industrial disability.  It therefore 
 
            becomes necessary for the deputy or commissioner to draw 
 
            upon prior experience, general and specialized knowledge to 
 
            make the finding with regard to degree of industrial dis
 
            ability.  See Christensen v. Hagen, Inc., Vol. 1 No. 3 State 
 
            of Iowa Industrial Commissioner Decisions 529 (App. March 
 
            26, 1985); Peterson v. Truck Haven Cafe, Inc., Vol. 1 No. 3 
 
            State of Iowa Industrial Commissioner Decisions 654 (App. 
 
            February 28, 1985).
 
            
 
                 Medical restrictions imposed by Dr. Boulden include a 
 
            25-pound weight restriction, restrictions against bending 
 
            and twisting with the back and require alternating sitting 
 
            and standing every 30-45 minutes.  These restrictions in all 
 
            likelihood foreclose possible employment as a farmer, 
 
            livestock hauler or concrete and road worker.  Thus, 
 
            employment with Clow Corporation is the only work claimant 
 
            has ever done which is not now barred by medical 
 
            restrictions, and even that is light-duty work tailored to 
 
            accommodate those restrictions.  It cannot be assumed that 
 
            another employer would be so accommodating.  The industrial 
 
            disability awarded in this decision would be very much 
 
            greater but for defendant's commendable efforts to keep Mr. 
 
            Langstraat working.  Nonetheless, he has suffered both a 
 
            substantial decrease in actual earnings and an even more 
 
            substantial diminution of earning capacity.  In essence, it 
 
            is loss of earning capacity that is measured in assessing 
 
            industrial disability.  Second Injury Fund v. Hodgins, 461 
 
            N.W.2d 454 (Iowa 1990).  Claimant is 47 years of age and 
 
            should be in the prime of his earning years.  Although he 
 
            has a high school education, he has no experience in white 
 
            collar professions.  His actual loss of earnings is in 
 
            excess of 25 percent, not counting substantial overtime and 
 
            incentive pay.
 
            
 
                 Considering then these matters in particular and the 
 
            record otherwise in general, it is held that claimant has 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            sustained a permanent industrial disability equivalent to 30 
 
            percent of the body as a whole, or 150 weeks.  As claimant's 
 
            recovery was complicated by the home incident on October 20, 
 
            1990, the parties' stipulation shall be accepted:  the 
 
            commencement date for permanent partial disability is 
 
            February 25, 1991.
 
            
 
                 Claimant also seeks penalty benefits under Iowa Code 
 
            section 86.13, which provides:
 
            
 
                 If a delay in commencement or termination of 
 
                 benefits occurs without reasonable or probable 
 
                 cause or excuse, the industrial commissioner shall 
 
                 award benefits in addition to those benefits 
 
                 payable under this chapter, or chapter 85, 85A, or 
 
                 85B, up to fifty percent of the amount of benefits 
 
                 that were unreasonably delayed or denied.
 
            
 
                 Defendants have paid no permanent disability benefits 
 
            on a voluntary basis.  That claimant sustained an injury 
 
            arising out of and in the course of employment is admitted.  
 
            The medical evidence establishes without contradiction that 
 
            the injury caused permanent impairment and resulted in 
 
            permanent medical restrictions.  The suggestion that the 
 
            restrictions (none) proposed by Denise Spurgeon should be 
 
            preferred over those imposed by Dr. Boulden is emphatically 
 
            rejected.  Dr. Boulden is a qualified physician; Spurgeon is 
 
            not.  The standard in assessment of penalty benefits is 
 
            whether the claim and defense are fairly debatable.  In this 
 
            case, the question of whether claimant sustained some 
 
            permanent industrial disability resulting from the admitted 
 
            work injury is not fairly debatable, although the extent is.  
 
            Nonetheless, defendants' failure to pay permanency benefits 
 
            is not as egregious as in some cases seen by this agency.  A 
 
            full 50 percent penalty shall not be imposed.  In the 
 
            discretion of the agency, a penalty of 15 weeks is assessed.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Defendants shall pay unto claimant one hundred fifty 
 
            (150) weeks of permanent partial disability benefits at the 
 
            stipulated rate of two hundred eighty-four and 96/100 
 
            dollars ($284.96) per week commencing February 25, 1991.
 
            
 
                 All accrued weekly benefits shall be paid in a lump sum 
 
            together with statutory interest pursuant to Iowa Code 
 
            section 85.30.
 
            
 
                 Defendants shall pay unto claimant fifteen (15) weeks 
 
            of penalty benefits at the stipulated rate of two hundred 
 
            eighty-four and 96/100 dollars ($284.96) per week effective 
 
            the filing date of this decision.
 
            
 
                 Costs are assessed to defendants pursuant to rule 343 
 
            IAC 4.33.
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                 Defendants shall file claim activity reports as 
 
            requested by the agency pursuant to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ______ day of ____________, 1992.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          DAVID RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Harold B. Heslinga
 
            Attorney at Law
 
            118 North Market Street
 
            Oskaloosa, Iowa  52577
 
            
 
            Mr. E. J. Kelly
 
            Attorney at Law
 
            Suite 111, Terrace Center
 
            2700 Grand Avenue
 
            Des Moines, Iowa  50312
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               5-1803; 3701; 4000.2
 
                                               Filed February 26, 1992
 
                                               DAVID RASEY
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            RAYMOND LANGSTRAAT,           :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :         File No. 957007
 
                                          :
 
            CLOW CORPORATION,             :      A R B I T R A T I O N
 
                                          :
 
                 Employer,                :         D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            GAB,                          :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
            5-1803; 4000.2
 
            Claimant awarded 30 percent industrial disability and 15 
 
            weeks of penalty benefits.  Although extent of permanency 
 
            could be reasonably disputed, the existence of some loss of 
 
            earning capacity could not.
 
            
 
            3701
 
            Defendants' characterization of surveillance evidence was 
 
            shown impossible by time-stamping on the photos in evidence.  
 
            Evidence was criticized in detail.
 
            
 
 
            
 
            
 
            
 
            
 
            
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            RAYMOND LANGSTRAAT,           :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 957007
 
            CLOW CORPORATION,             :
 
                                          :        R E M A N D
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            GAB,                          :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 Claimant Raymond Langstraat suffered a work related 
 
            back injury on July 17, 1990.  Following hearing, the 
 
            undersigned deputy issued an arbitration decision on 
 
            February 26, 1992, awarding industrial disability equivalent 
 
            to 30 percent of the body as a whole along with penalty 
 
            benefits.  Defendants appealed.  On March 20, 1992, 
 
            defendants made application for additional evidence based 
 
            upon the sworn statement of Mary Ellen Langstraat, 
 
            claimant's estranged wife.  At the arbitration hearing, Ms. 
 
            Langstraat had testified that claimant came home from work 
 
            on July 17, 1990 complaining of a back injury sustained at 
 
            work that day.  In her sworn statement (dated March 12, 
 
            1992), Ms. Langstraat claimed that Mr. Langstraat had 
 
            confessed to her that he had faked the work injury, having 
 
            actually hurt himself lifting a lawn mower at home.
 
            
 
                 On April 24, 1992, the industrial commissioner remanded 
 
            the case to receive additional evidence limited to the 
 
            matters raised in defendants' application.
 
            
 
                 The cause first came on for remand hearing before the 
 
            undersigned on September 16, 1992.  Remand exhibits 1, 2 and 
 
            4-8 were received.  Remand exhibit 3, the statement of Mary 
 
            Langstraat, was offered but objected to by claimant, since 
 
            Ms. Langstraat failed to appear at hearing.  Ruling was 
 
            reserved.  Because other evidence submitted made it appear 
 
            possible that Mary Langstraat had been subjected to threat 
 
            or coercion, the case was continued to October 12, 1992.
 
            
 
                 On the morning of October 12, the undersigned entered 
 
            into a telephone conference hearing with claimant's attorney 
 
            and Jane Van Werden, appearing for defendants.  Counsel 
 
            advised that Mary Langstraat's deposition had been taken on 
 
            October 8, that there was no objection to the admissibility 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            of the deposition and that neither party desired to submit 
 
            additional evidence.  Later that day, the deposition was 
 
            filed marked as defendants' exhibit 8.  The undersigned has 
 
            re-marked the exhibit as remand exhibit 9.  It is hereby 
 
            received, along with remand exhibit 3.  The case was deemed 
 
            submitted on October 12, 1992.
 
            
 
                                      ISSUE
 
            
 
                 The issue presented is whether the new evidence 
 
            requires a reconsideration of the original arbitration 
 
            decision.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The undersigned deputy industrial commissioner finds:
 
            
 
                 About Mary Langstraat:  She lies.  She does so when she 
 
            is under oath and when she is not.  She does so when 
 
            motivated by vindictiveness and vengefulness, even when 
 
            against her own pecuniary interest.  She has no credibility 
 
            whatsoever.
 
            
 
                 The arbitration hearing was held on December 19, 1991.  
 
            A decision in claimant's favor was filed on February 26, 
 
            1992.  On February 24, Mary Langstraat initiated a telephone 
 
            call to George L. Lind, a licensed attorney who testified by 
 
            deposition on June 4, 1992.  Mr. Lind was then representing 
 
            Raymond Langstraat in pending divorce proceedings, but had 
 
            represented the family, including Mary, with respect to a 
 
            number of legal matters over a period of years.  Mr. Lind 
 
            testified:
 
            
 
                    A.  Mary advised me that Ray, her husband, had 
 
                 lied regarding his workman's compensation case and 
 
                 that he was hurt moving a lawn mower in the car 
 
                 and that he had told her this one month ago, which 
 
                 would have been late this January that he would 
 
                 told her.
 
            
 
                    Q.  Of '92?
 
            
 
                    A.  Of '92.
 
            
 
                    And that she then told me she had found Ray 
 
                 drunk and with a woman the evening before, which 
 
                 would have been February 23 of '92, and that this 
 
                 caused her to feel it necessary to -- I've got 
 
                 here to cleanse her soul, period.
 
            
 
            (Lind Deposition, Pages 5-6).
 
            
 
                 Mr. Lind also described Mary Langstraat's frame of mind 
 
            at the time of that conversation:  "Very, very mad.  Very, 
 
            very emotionally upset."
 
            
 
                 George Lind also described Mary Langstraat, based upon 
 
            his personal experience, as vindictive, vicious, even 
 
            "sick."  More significantly, he is familiar with her 
 
            reputation for veracity in the community:
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
                    A.  I don't mean to be harsh on anybody.  
 
                 Suffice it to say, E. J., if you mention the name 
 
                 Mary Langstraat in our courthouse with anybody who 
 
                 is familiar with what goes on, any lawyer, any 
 
                 judge, any prosecutor, it's -- it's -- the name is 
 
                 going to be responded to with a chuckle and laugh 
 
                 and an inquiry of what the heck is she in to now?  
 
                 If you were to say I'm going to use her as a 
 
                 witness in my case, they truly will have a belly 
 
                 laugh over it.  She has no credibility whatever in 
 
                 the community with anybody that I deal with, okay?  
 
                 I don't mean to be overly harsh.  I'm tying (sic) 
 
                 to paint the picture as it is.
 
            
 
            (Lind Depo., page 12).
 
            
 
                 In her October 8 deposition, Mary Langstraat recanted 
 
            her March 12 statement, claiming it had all been a lie.  She 
 
            was a hostile and evasive witness and admitted to destroying 
 
            evidence prior to the deposition.  After refusing several 
 
            times to disclose details of what had motivated her to lie, 
 
            she eventually testified as follows:
 
            
 
                    Q.  Did you tell Mr. Heslinga that you were mad 
 
                 at Ray because you had gone to Ray's house and 
 
                 found him with another woman?
 
            
 
                    A.  It wasn't because of the other woman.
 
            
 
                    Q.  What was it because of then?  Will you 
 
                 please repeat the question?
 
            
 
                    (Thereupon, the prior answer and question on 
 
                 Page 18, Lines 4-6, were read back by the Court 
 
                 Reporter.)
 
            
 
                    Q.  Was it because a woman named Dixie told you 
 
                 that Ray was not going to set up a $3,000 trust 
 
                 fund for your son?
 
            
 
                    A.  Yeah.
 
            
 
                    Q.  Tell me about this?  Are you refusing to 
 
                 answer?
 
            
 
                    A.  Yes, I am.  I'm starting to get my point 
 
                 out.
 
            
 
                    Q.  So if Ray recovers in the Worker's 
 
                 Compensation hearing, then your son stands to 
 
                 gain; correct?
 
            
 
                    A.  I don't know ---
 
            
 
                    Q.  I have no further----
 
            
 
                    A.  --'til I talk to a lawyer.
 
            
 
            (Mary Langstraat Depo., page 18).
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
                 Earlier, she had testified that Ray "had gotten a 
 
            girlfriend and was drinking around the baby and everything 
 
            so I -- out of revenge, I lied on him."  (Id. p. 5).
 
            
 
                 We know from Mr. Lind's testimony that some extraneous 
 
            force moved Mary Langstraat to accuse her husband of 
 
            workers' compensation fraud.  She told Lind that having 
 
            "found Ray drunk and with a woman the evening before," was 
 
            her motivation for coming forward to "cleanse her soul."  
 
            Obviously, there can be no claim that she had been motivated 
 
            by a sense of justice or good citizenship, since she also 
 
            told Lind that Raymond Langstraat had supposedly "confessed" 
 
            the month before.  In her first sworn statement, Mary 
 
            Langstraat testified that Raymond Langstraat admitted this 
 
            fraud on February 11.  Even this is thirteen days before she 
 
            called Lind.  She also testified that she could be specific 
 
            as to the date, as she had written it down.  The 
 
            significance of this point will be considered again.
 
            
 
                 Mary Langstraat's grudging admission that her actions 
 
            were inspired by "Dixie" telling her that claimant was not 
 
            going to set up a $3,000.00 trust fund for their son rings 
 
            true: perhaps the sole particle of her testimony about which 
 
            this might be said.  In context, that question with those 
 
            very specific facts came out of the blue.  The immediate 
 
            answer constitutes an admission, one that she could not help 
 
            but realize reflected adversely on her character.  
 
            Therefore, the most likely explanation of Mary Langstraat's 
 
            accusations is that they were motivated by disappointed 
 
            greed.
 
            
 
                 However, this fact alone is dispositive of nothing.  
 
            Given Mary Langstraat's character as disclosed by the 
 
            evidence, it is equally consistent that she (1)  knowingly 
 
            participated in her husband's fraud right from the very 
 
            beginning, or (2)  that the claim is legitimate and she 
 
            acted wholly out of spite.
 
            
 
                 Now it will be recalled that Mary Langstraat was very, 
 
            very emotionally upset when she called Mr. Lind.  There is 
 
            no question but that she was bent on doing harm (not 
 
            "cleansing her soul").  If she had in fact recorded her 
 
            husband's supposed confession on a calendar on February 11, 
 
            it is inconceivable that she would not have shared this 
 
            information with Lind.  Instead, she told him that the 
 
            conversation had occurred one month before.  Obviously, she 
 
            later manufactured evidence in the form of a calendar 
 
            notation, evidence which she has now destroyed: 
 
            
 
                    Q.  Where are those notes today?
 
            
 
                    A.  They're burned.
 
            
 
                    Q.  You burned those notes?
 
            
 
                    A.  I had a right to, they were mine.
 
            
 
                    Q.  Tell me what the notes said?
 
            
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                    A.  I don't remember anymore.
 
            
 
                    Q.  You have absolutely no recollection of what 
 
                 your notes said on March 12, 1992, that you had 
 
                 taken from your calendar?
 
            
 
                    A.  No.  That's the reason why I make notes so 
 
                 I don't have to try and remember.
 
            
 
                    Q.  Why did you burn your notes?
 
            
 
                    A.  Because I wanted to.  I was cleaning house 
 
                 and moving.
 
            
 
                    Q.  That's the only reason you burned your 
 
                 notes?
 
            
 
                    A.  Yeah.  I burn a lot of garbage.
 
            
 
            (Mary Langstraat Deposition, Page 10).
 
            
 
                 It is concluded that Ray Langstraat did not confess 
 
            fraud as his wife originally claimed.
 
            
 
                 The testimony of Mary Langstraat is entitled to no 
 
            weight whatsoever.  Defendants also challenged Raymond 
 
            Langstraat's credibility on the basis of his criminal 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            record.  Claimant has been convicted of drunken driving, 
 
            driving under suspension and assault, but these crimes do 
 
            not indicate dishonesty or untruthfulness.  Defendants' 
 
            brief invites this deputy to conclude that claimant is a 
 
            thief and liar as "substantiated" by evidence that he 
 
            currently has charges pending against him for theft in the 
 
            fifth degree.  Ignoring the presumption of innocence that 
 
            attaches in criminal cases, they assert that these charges 
 
            directly relate to claimant's character for truthfulness and 
 
            honesty.  This invitation is emphatically rejected.  A 
 
            conviction of theft is proper impeachment evidence; an 
 
            unproven charge is not.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 This case is before this deputy to consider additional 
 
            evidence.  It is not really defendants' burden to prove 
 
            anything, but the evidence presented should be considered 
 
            together with the evidence at the arbitration hearing.  It 
 
            is now clear that the evidence given by Mary Langstraat at 
 
            that hearing is totally unreliable.  But, the decision does 
 
            not rest on that part of the evidence.  After all, she makes 
 
            no claim to have actually seen the injury, whether it was at 
 
            home or at work.  Her testimony that her husband came home 
 
            complaining of a work injury supports claimant's version of 
 
            events but was not critical to the result, only 
 
            corroborative.  Yet-unproven criminal charges do not reflect 
 
            adversely on claimant's credibility.
 
            
 
                 In particular, the evidence does not show that claimant 
 
            made any confession of workers' compensation fraud to his 
 
            wife, whether in late January or early February 1992.
 
            
 
                 No reason to further re-examine the arbitration 
 
            decision of February 26 appears of record.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 The result of the arbitration decision filed February 
 
            26, 1992 shall not be modified.  This remand decision and 
 
            the arbitration decision filed February 26, 1992, shall 
 
            constitute final agency action on all issues in this case 
 
            unless further appeal is taken pursuant to rule 343 IAC 4.27 
 
            and 4.28.
 
            
 
                 Costs are assessed to the defendants.
 
            
 
                 Signed and filed this ____ day of October, 1992.
 
            
 
            
 
            
 
            
 
                                          
 
                                        ________________________________
 
                                          DAVID R. RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
            Mr Harold B Heslinga
 
            Attorney at Law
 
            118 North Market Street
 
            Oskaloosa Iowa 52577
 
            
 
            Mr E J Kelly
 
            Ms Jane Van Werden
 
            Attorneys at Law
 
            Terrace Center Ste 111
 
            2700 Grand Avenue
 
            Des Moines Iowa 50312
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            3700; 2904; 2901
 
                                            Filed October 27, 1992
 
                                            DAVID R. RASEY
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            RAYMOND LANGSTRAAT, 
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                              File No. 957007
 
            CLOW CORPORATION,   
 
                                               R E M A N D
 
                 Employer, 
 
                                             D E C I S I O N
 
            and       
 
                      
 
            GAB,      
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            
 
            3700; 2906; 2901
 
            Industrial Commissioner remanded for additional evidence 
 
            after defendants filed the sworn statement of claimant's 
 
            estranged wife to the effect that claimant had admitted that 
 
            his claim was fraudulent.
 
            Wife failed to appear at remand hearing, but some evidence 
 
            offered showed a possibility of threat or other coercion.  
 
            Hearing was continued.
 
            The case was then submitted upon the wife's deposition 
 
            without other testimony.  In the deposition, wife recanted 
 
            her earlier sworn statement.  Other evidence showed she is a 
 
            notorious liar.
 
            None of wife's testimony was given weight, except her 
 
            concession that her accusations were motivated by revenge.  
 
            This did not change the result of the arbitration award, 
 
            since wife's testimony then was only corroborative.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            JAMES CLARK,                  :
 
                                          : File Nos. 957200 & 1013327
 
                 Claimant,                :
 
                                          :     A L T E R N A T E
 
            vs.                           :
 
                                          :      M E D I C A L 
 
            BRIGGS CORPORATION,           :
 
                                          :         C A R E  
 
                 Employer,                :
 
                                          :     D E C I S I O N
 
            and                           :
 
                                          :
 
            KEMPER INSURANCE,             :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 Claimant, James Clark, filed a petition for alternate 
 
            medical care under Iowa Code section 85.27 (rule 343 IAC 
 
            4.48) on January 28, 1993.  On February 2, 1993, defendants 
 
            filed a motion to dismiss claimant's petition.  Defendants' 
 
            motion to dismiss claimant's petition for alternate care was 
 
            denied by another deputy industrial commissioner and 
 
            claimant's request for an in-person hearing was granted.  
 
            
 
                 This matter came on for hearing before the undersigned 
 
            deputy industrial commissioner on February 11, 1993, in Des 
 
            Moines, Iowa.  Claimant appeared in person and was 
 
            represented by his attorney, Mr. Philip F. Miller.  Ms. 
 
            Deborah Dubik appeared on behalf of employer and insurance 
 
            carrier.  The documentary evidence identified in the record 
 
            consists of claimant's exhibits 1 through 7 and defendants' 
 
            exhibit pages 1 through 10.  
 
            
 
                              stipulation and issue
 
            
 
                 The parties agree that claimant sustained a back injury 
 
            arising out of and in the course of employment with employer 
 
            on March 7, 1990.  However, defendants deny a causal 
 
            connection between claimant's neck problems and his work 
 
            injury.  
 
            
 
                 The issue to be determined is whether defendants have 
 
            reasonably refused to authorize neck surgery and aftercare 
 
            with Alexander Lifson, M.D.  
 
            
 
                     
 
            
 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            findings of fact
 
            
 
                 The undersigned has carefully considered all the 
 
            testimony given at the hearing, arguments made, evidence 
 
            contained in the exhibits, and makes the following findings:
 
            
 
                 Before any benefits can be ordered, including medical 
 
            benefits, compensability of the claim must be established, 
 
            either by admission of liability or by adjudication.  The 
 
            summary provisions of Iowa Code section 85.27, as more 
 
            particularly described in rule 343 IAC 4.48, are not 
 
            designed to adjudicate disputed compensability of a claim.  
 
            Therefore, because defendants have disputed compensability 
 
            of claimant's neck claim, the undersigned cannot order 
 
            defendants to provide surgical intervention.  However, 
 
            defendants are barred from asserting a "lack of 
 
            authorization" defense to any medical expenses incurred by 
 
            claimant, if they are otherwise compensable.  Defendants 
 
            cannot deny liability and simultaneously direct the course 
 
            of treatment.  Barnhart v. MAQ, Inc., I Iowa Industrial 
 
            Commissioner Report 16 (Appeal Decision 1981).
 
            
 
                 The parties stipulate that claimant sustained a back 
 
            injury arising out of and in the course of employment with 
 
            employer on March 7, 1990.  Initially, claimant was treated 
 
            conservatively.  Subsequently, he was diagnosed by Alexander 
 
            Lifson, M.D., with internal disc disruption of L4-5, L5-S1 
 
            and instability of L4-5, L5-S1.  He was admitted to Abbott 
 
            Northwestern Hospital in Minnesota on May 29, 1991, where he 
 
            underwent anterior/posterior lumbar fusion at L4-5, L5-S1.  
 
            An internal fixation devise was implanted.  He was 
 
            discharged on June 6, 1991, and advised to have x-rays taken 
 
            locally post-operatively and mailed to Dr. Lifson for 
 
            evaluation (defendants' exhibit pages 3 & 4).  
 
            
 
                 Defendants referred claimant to Daniel J. McGuire, 
 
            M.D., a Des Moines, Iowa, orthopedic surgeon, for aftercare.  
 
            Office notes dated August 23, 1991, state:
 
            
 
                    ...James is doing well from his back 
 
                 standpoint.  He is glad he had the operation and 
 
                 he is making progress.  He is active, he is 
 
                 exercising.
 
            
 
                    His radiographs look excellent.  Really no 
 
                 motion on the flexion/extension views.  His 
 
                 posterior spinal fusion looks good, his hardware 
 
                 looks good.  The allograft bone anteriorly is in 
 
                 good position although I don't see much evidence 
 
                 of union.  
 
            
 
            (defendants' exhibit page 1)
 
            
 
                 For some reason the relationship between claimant and 
 
            Dr. McGuire deteriorated.  Claimant claims that Dr. McGuire 
 
            told him there was nothing more he could do for him.  
 
            Insurance carrier has not authorized follow-up care with Dr. 
 
            Lifson.  On June 24, 1991, Dr. Lifson reported to Mr. Randy 
 
            G. Hilbrant from Kemper Insurance company as follows, "Since 
 
            we used an internal fixation devise, I would like Mr. Clark 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            to see me every six months for two years following the 
 
            procedure.  In between these visits, he may see a physician 
 
            in his local area."  (claimant's ex. p. 5).
 
            
 
                 The record contains a letter dated June 15, 1992, from 
 
            Kate Nordquist, Clinical Studies Monitor, at Advanced Spine 
 
            Fixation Systems Incorporated.  She reported that, "Prior to 
 
            your surgery -- at the time you signed the patient consent 
 
            form -- you were notified that the device to be implanted on 
 
            your spine was an investigative device and that you would be 
 
            required to have a follow-up examination at six month 
 
            intervals for two years."  (def. ex. p. 5).
 
            
 
                 Ms. Nordquist further states that "If you are being 
 
            followed by another physician, please show him or her this 
 
            letter and request that information regarding your status as 
 
            a post spine surgery patient be sent to this office as soon 
 
            as possible."  (def. ex. p. 5).
 
            
 
                 At the hearing, claimant testified that he gave Ms. 
 
            Nordquist's letter to his attorney who then wrote to Dr. 
 
            Lifson.  On October 22, 1992, Dr. Lifson corresponded with 
 
            claimant's attorney and stated:
 
            
 
                    As you probably know, we went through enormous 
 
                 hurdles before we received authorization to 
 
                 proceed with surgery.  It was mutually understood 
 
                 when we asked Mr. Clark and his insurance carrier 
 
                 that he would have to be followed in our clinic 
 
                 for two years at six-month intervals, as is 
 
                 indicated in the letter from Advance Spinal 
 
                 Fixation, Inc.  These evaluations are extremely 
 
                 important not only for completion of the study but 
 
                 also for evaluation of Mr. Clark's condition.
 
            
 
            (claimant's exhibit page 6).
 
            
 
                                conclusions of Law
 
            
 
                 The employer shall furnish reasonable surgical, 
 
            medical, dental, osteopathic, chiropractic, podiatric, 
 
            physical rehabilitation, nursing, ambulance and hospital 
 
            services and supplies for all conditions compensable under 
 
            the workers' compensation law.  The employer shall also 
 
            allow reasonable and necessary transportation expenses 
 
            incurred for those services.  The employer has the right to 
 
            choose the provider of care, except where the employer has 
 
            denied liability for the injury.  Section 85.27; Holbert v. 
 
            Townsend Engineering Co., Thirty-second Biennial Report of 
 
            the Industrial Commissioner 78 (Review-reopen 1975).  
 
            Claimant has the burden of proving that the fees charged for 
 
            such services are reasonable.  Anderson v. High Rise 
 
            Construction Specialists, Inc., file number 850096 (Appeal 
 
            Decision July 31, 1990).
 
            
 
                 Claimant is not entitled to reimbursement for medical 
 
            bills unless claimant shows they were paid from claimant's 
 
            funds.  See Caylor v. Employers Mut. Casualty Co., 337 
 
            N.W.2d 890 (Iowa Ct. App. 1983).  
 
            
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                 When a designated physician refers a patient to another 
 
            physician, that physician acts as the defendant employer's 
 
            agent.  Permission for referral from defendant is not 
 
            necessary.  Kittrell v. Allen Memorial Hospital, 
 
            Thirty-fourth Biennial Report of the Industrial Commissioner 
 
            164 (Arb. Decn. 1979) (aff'd by indus. comm'r).
 
            
 
                 An employer's right to select the provider of medical 
 
            treatment to an injured worker should be diagnosed, 
 
            evaluated, treated or other matters of professional medical 
 
            judgement.  Assman v. Blue Star Foods, Inc., file no. 866389 
 
            (declaratory Ruling, May 18, 1988).
 
            
 
                 Claimant's treating surgeon, Dr. Alexander Lifson, has 
 
            recommended that he be evaluated at the Institute for Low 
 
            Back Care in Minneapolis, Minnesota, for two years at 
 
            six-month intervals.  The recommendation is a matter of 
 
            professional medical judgment in which defendants cannot 
 
            appropriately interfere.  Although defendants provided 
 
            claimant with aftercare by Dr. McGuire, such care, for 
 
            whatever reason, has proved ineffective.  The tone of Dr. 
 
            McGuire's office note dated July 16, 1991, appears to 
 
            reflect an underlying reluctance to assume the follow-up 
 
            care of another physician's surgical patient.  He states, 
 
            "He has had his surgery somewhere else, I am nice enough to 
 
            assume his care here in town so he doesn't have to commute 
 
            back and forth to Minneapolis."  (def. ex. p. 1).
 
            
 
                 It appears that claimant's aftercare is better served 
 
            with Dr. Lifson and his medical judgment followed in this 
 
            instance.  Therefore, it is concluded that claimant has 
 
            established the right to care under section 85.27 with Dr. 
 
            Lifson at the low back institute in Minneapolis, Minnesota, 
 
            and defendants shall provide such care, including x-rays and 
 
            in-person evaluation, if determined to be necessary by Dr. 
 
            Lifson.  
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 That defendants provide claimant with x-rays and any 
 
            post-surgical care deemed necessary by Dr. Lifson.  
 
            Defendants shall also provide claimant with payment for any 
 
            transportation costs associated with attendance at the low 
 
            back institute.
 
            
 
                 Defendants shall pay costs of this proceeding.
 
            
 
                 The undersigned has been delegated the authority to 
 
            issue final agency action in this matter.  Appeal of this 
 
            decision, if any, would be by judicial review pursuant to 
 
            Iowa Code section 17A.19.
 
            
 
                 Signed and filed this ____ day of February, 1993.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                                          JEAN M. INGRASSIA
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Philip F. Miller
 
            Attorney at Law
 
            309 Court Ave, STE 200
 
            Des Moines, Iowa  50309
 
            
 
            Ms. Deborah Dubik
 
            Attorney at Law
 
            600 Union Arcade Bldg
 
            111 E 3rd St. 
 
            Davenport, Iowa  52801
 
            
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
                      2701
 
                      Filed February 16, 1993
 
                      Jean M. Ingrassia
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            JAMES CLARK,   :
 
                      : File Nos. 957200  1013327
 
                 Claimant, :
 
                      :    A L T E R N A T E
 
            vs.       :
 
                      :     M E D I C A L 
 
            BRIGGS CORPORATION, :
 
                      :       C A R E  
 
                 Employer, :
 
                      :    D E C I S I O N
 
            and       :
 
                      :
 
            KEMPER INSURANCE,   :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            2701
 
            Found that medical provider's recommendation that claimant 
 
            receive follow-up care with treating surgeon was a matter of 
 
            professional medical judgment with which employer could not 
 
            appropriately interfere.
 
            Defendants ordered to provide recommended x-rays and 
 
            follow-up evaluation by treating surgeon if necessary.