BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            JOHN PRESSON,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 966955
 
            ENNIS BUSINESS FORMS,         :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            CNA INSURANCE COMPANIES,      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by John 
 
            Presson against his employer, Ennis Business Forms, and its 
 
            insurance carrier, CNA Insurance Companies, as defendants.  
 
            
 
                 The record in this case consists of testimony from the 
 
            claimant, Ernest Hilbert (maintenance foreman for defendant 
 
            Ennis), and Fred Halsey (tag and label plant manager for the 
 
            defendant Ennis); plaintiff's exhibits 1-7; and, defendants' 
 
            exhibits A-G.  The matter came on for hearing before the 
 
            undersigned deputy industrial commissioner on November 30, 
 
            1993 at Davenport, Iowa.
 
            
 
                 It should be noted that claimant was hearing impaired, 
 
            and testified via Sharon Winfield, an interpreter from Deaf 
 
            Services Commission of Iowa.
 
            
 
                                      ISSUES
 
            
 
                 The parties submitted the following issues for 
 
            resolution:
 
            
 
                 1.  Whether claimant's work injury of November 2, 1990 
 
            caused a permanent disability; 
 
            
 
                 2.  Whether claimant is entitled to permanent partial 
 
            disability benefits; and, 
 
            
 
                 3.  Whether claimant is entitled to payment of certain 
 
            medical expenses.   
 
            
 
                 The parties were able to agree that claimant sustained 
 
            an injury on November 2, 1990, and that in the event of an 
 
            award of permanent partial disability benefits, payments 
 
            should commence February 22, 1991.  Additionally, the 
 
            parties stipulated that at the time of the injury, 
 
            claimant's gross weekly earning totalled $483.00, he was 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            married and entitled to five exemptions, and his workers' 
 
            compensation rate was $313.39 per week.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The undersigned deputy, having reviewed all of the 
 
            evidence received, finds the following facts:
 
            
 
                 Claimant, John Presson, was born on November 26, 1954 
 
            and was 39 years of age at the time of the hearing.  He 
 
            lives in Clinton, Iowa.  After graduating from high school, 
 
            he received two and one-half years of training in the 
 
            printing business at Iowa Western Community College in 
 
            Council Bluffs, Iowa.  Claimant has been hearing impaired 
 
            since birth, and he is unable to read lips.  
 
            
 
                 Since 1977, claimant has been employed as a pressman 
 
            with defendant Ennis Business Forms.  His job duties at the 
 
            time of the injury and currently, include filling various 
 
            printing machines with ink, placing stock or paper into the 
 
            machine, adjusting the machines and setting up the machines 
 
            to accomplish various printing jobs.  Once the machine is 
 
            running properly, claimant sits and puts tags into boxes and 
 
            places the boxes on racks.  Claimant's job also involves 
 
            working with heavy rollers which weigh between 200 and 300 
 
            pounds that he must lift and adjust.   
 
            
 
                 On November 2, 1990, claimant was working with the 
 
            heavy rollers and felt pain in his low back.  He reported 
 
            his condition to the manager and visited X.R. Colah, M.D., 
 
            on November 5, 1990.  The history suggests claimant had back 
 
            problems "off and on since 1978" but his symptoms had been 
 
            worse since November 2, 1990.  An examination revealed 
 
            restriction of low back movements, but straight leg raising 
 
            tests were within normal limits.  Results of x-rays were 
 
            normal, and Dr. Colah recommended physical therapy sessions 
 
            consisting of heat, low back massage and ultrasound.  Motrin 
 
            and other medications were prescribed.  (Defendants' Exhibit 
 
            A).  Notes from Clinton Physical Therapy Services, P.C., are 
 
            found in claimant's exhibit 1, and confirm that claimant 
 
            underwent treatments from November 5, 1990 through February 
 
            15, 1991 for a total of 33 treatments.  While most of the 
 
            therapy notes are illegible, claimant was discharged from 
 
            physical therapy with improvements in range of motions tests 
 
            and decrease in pain in the lumbar spine. (Claimant's 
 
            exhibit 1)
 
            
 
                 Dr. Colah's follow-up treatment consisted of 
 
            prescriptions for pain medications and use of a TENS unit.  
 
            In November, claimant continued to complain of pain in his 
 
            left buttock which radiated down the back of his left thigh.  
 
            Dr. Colah declined nonsteroidal medications because claimant 
 
            had been "scheduled for hernia December 10."  This is the 
 
            only reference to a hernia contained in Dr. Colah's records.  
 
            Claimant's condition improved in January of 1991, but he 
 
            reported that after sitting for long periods of time, his 
 
            left flank continued to hurt.  Subsequent visits to Dr. 
 
            Colah found claimant's condition improving, and he was 
 
            released to return to work on February 22, 1991.  Dr. Colah 
 
            assessed claimant to have sustained a five percent 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            "disability" due to the condition of his low back.  Claimant 
 
            continued to complain of a stiff back throughout 1991.  
 
            (Def. Ex. A)
 
            
 
                 As noted above, claimant underwent hernia repair 
 
            surgery in December of 1990.  Initial treatment of the 
 
            hernia was on November 23, 1990, when claimant sought 
 
            treatment from M.A. Cooper, M.D.  An examination revealed 
 
            that claimant complained of discomfort in the right groin 
 
            area, and presented with a small bulge in the internal ring.  
 
            Dr. Cooper performed the surgery.  (Cl. Exs. 3 and 4)  
 
            Medical bills associated with the surgery, as well as 
 
            payments made by claimant's health insurance are found in 
 
            claimant's exhibits 5 and 6.  Dr. Cooper submitted the 
 
            following information regarding the cause of the hernia on 
 
            July 21, 1991:
 
            
 
                 Mr Presson's history is complex in that his 
 
                 initial complaint is back pain however the groin 
 
                 discomfort began at the same time and he 
 
                 identifies no previous symptoms referable to the 
 
                 groin.  One would therefore conclude that the 
 
                 hernia occurred at the time of the work-related 
 
                 lifting maneuver.  However, another possibility 
 
                 exists.  The patient could well have had a small 
 
                 asymptomatic hernia that was neither caused by or 
 
                 related to his work-related lifting and his 
 
                 symptom onset was secondary to the back problem.
 
            
 
                 In February of 1992 claimant underwent an independent 
 
            medical evaluation which was performed by W.J. Robb, M.D.  
 
            After performing an examination which elicited pain in the 
 
            left leg during straight leg raising tests, and a review of 
 
            recent (January, 1992) x-rays of the lumbar spine, as well 
 
            as MRI results of the lumbar spine, Dr. Robb determined that 
 
            claimant had sustained an annular bulge at the L5-S1 disc, 
 
            with secondary irritation of the first sacral root.  He 
 
            recommended swimming and daily leg exercises, and assigned a 
 
            five percent permanent impairment of the body as a whole due 
 
            to the annular bulge and abnormality of the disc at the 
 
            L5-S1 level.  He concurred that claimant should not lift 
 
            more than 10 pounds.  His report does not refer to the 
 
            hernia.  (Def. Ex. B)
 
            
 
                 Also included in the evidence is an undated letter from 
 
            the defendant employer to claimant regarding paperwork 
 
            claimant had submitted.  In relevant part, the letter states 
 
            the following information:
 
            
 
                    I am returning the enclosed forms, because you 
 
                 have written on the claim form (that this claim 
 
                 was caused at work.)
 
            
 
                    If this is the case, then you will have to get 
 
                 a written statement from your doctor, proving it 
 
                 did happen at work.  Ennis' workmen's [sic] 
 
                 compensation will not pay unless this is done.  
 
                 Then they will probably want to talk with you 
 
                 beings [sic] there were two claims.
 
            
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                 Claimant's handwritten, signed response states, "I 
 
            thought my hernia was due to lifting but I was wrong & I 
 
            filled out paper wrong.  It should have said no.  It wasn't 
 
            work related."  (Def. Ex. C)  At the hearing, claimant 
 
            attempted to explain these statements and suggested that he 
 
            was confused by the paperwork and did not understand all of 
 
            the insurance information.  
 
            
 
                 Currently, claimant is performing the same job that he 
 
            was performing at the time of the injury.  The defendant 
 
            employer has provided a device claimant can use to help him 
 
            lift items weighing in excess of 10 pounds, or claimant can 
 
            call upon other co-employees to help him lift heavier items.    
 
            Claimant has received regular salary increases and cost of 
 
            living raises, and has reached the top rate of pay for any 
 
            pressman in the plant.  The employer is completely satisfied 
 
            with his work, and anticipates continued employment, stating 
 
            that claimant was one of the best pressmen in the plant.  
 
            Since the injury and his subsequent return to work, claimant 
 
            has not missed any work due to his back problems.  He boasts 
 
            regular attendance.  (Def. Ex. F)  Claimant is allowed to 
 
            sit or stand as necessary in performing his work.
 
            
 
                         ANALYSIS AND CONCLUSIONS OF LAW
 
            
 
                 The first issue to address is whether claimant has 
 
            sustained a permanent disability due to the November 2, 1990 
 
            work injury. 
 
            
 
                 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).
 
            
 
                 Two physicians have opined that claimant sustained a 
 
            five percent impairment due to the back condition.  
 
            Currently, claimant works under lifting restrictions of no 
 
            lifting of greater than 10 pounds, restrictions he did not 
 
            have prior to the injury.  Claimant's current complaints of 
 
            pain are consistent with the type of injury he sustained, 
 
            and there is no evidence in the record that he had back 
 
            problems which required medical attention prior to the 
 
            November 2, 1990 injury.  As a result, it is found that he 
 
            has sustained a permanent disability, and he is entitled to 
 
            permanent partial disability benefits. 
 
            
 
                 As claimant has sustained an injury to the body as a 
 
            whole, an analysis of his industrial disability is 
 
            warranted. 
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, expe
 
            rience and inability to engage in employment for which he is 
 
            fitted.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 
            125 N.W.2d 251 (1963).  Barton v. Nevada Poultry, 253 Iowa 
 
            285, 110 N.W.2d 660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial disabil
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            ity.  This is so as impairment and disability are not syn
 
            onymous.  Degree of industrial disability can in fact be 
 
            much different than the degree of impairment because in the 
 
            first instance reference is to loss of earning capacity and 
 
            in the latter to anatomical or functional abnormality or 
 
            loss.  Although loss of function is to be considered and 
 
            disability can rarely be found without it, it is not so that 
 
            a degree of industrial disability is proportionally related 
 
            to a degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  These are matters which the 
 
            finder of fact considers collectively in arriving at the 
 
            determination of the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  There are no 
 
            guidelines which give, for example, age a weighted value of 
 
            ten percent of the total value, education a value of fifteen 
 
            percent of total, motivation - five percent; work experience 
 
            - thirty percent, etc.  Neither does a rating of functional 
 
            impairment directly correlate to a degree of industrial 
 
            disability to the body as a whole.  In other words, there 
 
            are no formulae which can be applied and then added up to 
 
            determine the degree of industrial disability.  It therefore 
 
            becomes necessary for the deputy or commissioner to draw 
 
            upon prior experience, general and specialized knowledge to 
 
            make the finding with regard to degree of industrial dis
 
            ability.  See Peterson v. Truck Haven Cafe, Inc., (Appeal 
 
            Decision, February 28, 1985); Christensen v. Hagen, Inc., 
 
            (Appeal Decision, March 26, l985).
 
            
 
                 Claimant's only work history is with the defendant 
 
            employer.  After the injury, he has been able to return to 
 
            his regular duties, earning the same or more in wages.  The 
 
            employer has accommodated his lifting restrictions, and 
 
            posit that claimant is able to stand or sit as he chooses 
 
            throughout much of the work day.  While some of claimant's 
 
            job duties involve lifting, his primary function is to 
 
            supervise various press machines and insure that they are 
 
            working properly. 
 
            
 
                 Claimant sustained a bulging disc with associated nerve 
 
            irritation, for which he underwent conservative treatment 
 
            for approximately four and one-half months.  No surgical 
 
            intervention was ever contemplated.  
 
            
 
                 Claimant stated that he continues to feel pain in the 
 
            low back, left buttock and left leg area.  Due to the nature 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            of his injury, these symptoms will likely persist with 
 
            varying degrees of severity, and claimant has been assigned 
 
            a five percent impairment rating, presumably in response to 
 
            his current complaints and the objective findings documented 
 
            in the medical records.  
 
            
 
                 Claimant's employment seems very secure.  The employer 
 
            praised claimant's work both prior to and after the injury.  
 
            In response to claimant's dedicated work, he has climbed up 
 
            the ranks of the plant, and is at the top of his 
 
            classification with respect to wages and work assignments as 
 
            claimant has been assigned to one of the easier presses to 
 
            operate in the plant.
 
            
 
                 After considering all of the factors, it is determined 
 
            that claimant has sustained a five percent industrial 
 
            disability. 
 
            
 
                 Finally, the last issue to address is whether claimant 
 
            is entitled to payment of medical benefits incurred due to 
 
            the surgery performed to repair his hernia. 
 
            
 
                 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.  Iowa Code section 85.27.  
 
            Holbert v. Townsend Engineering Co., Thirty-second Biennial 
 
            Report of the Industrial Commissioner 78 (Review-reopen 
 
            1975).
 
            
 
                 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 did not complain of pain in the groin area to 
 
            Dr. Colah (the authorized treating physician), nor to Dr. 
 
            Robb, who performed the independent medical evaluation.  He 
 
            sought his own treatment from Dr. Cooper, whose opinion is 
 
            unclear, and does not establish that claimant's hernia arose 
 
            out of and in the course of his employment.  In fact, Dr. 
 
            Cooper suggests that the hernia did not happen while 
 
            claimant was working.  Likewise, claimant specifically 
 
            stated that his hernia did not occur while he was at work.  
 
            Even if this writer had been convinced by claimant's 
 
            testimony at the hearing that he was confused about the 
 
            insurance coverages, there is no evidence in the record 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            which suggests that claimant felt pain in his groin when he 
 
            hurt his back.  Claimant did not tell Dr. Colah of any groin 
 
            pain, and sought treatment from a different physician for 
 
            his hernia problems.
 
            
 
                 Because claimant failed to prove by a preponderance of 
 
            the evidence that the hernia is compensable, he is 
 
            responsible for payment of the medical bills incurred due to 
 
            surgery to repair the hernia. 
 
            
 
                                      ORDER
 
            
 
                 That defendants shall pay claimant permanent partial 
 
            disability benefits for twenty-five (25) weeks beginning 
 
            February 22, 1991 at the rate of three hundred thirteen and 
 
            39/100 dollars ($313.39) per week;
 
            
 
                 That defendants shall pay accrued weekly benefits in a 
 
            lump sum, and shall receive credit for benefits previously 
 
            paid;
 
            
 
                 That defendants shall pay interest on benefits awarded 
 
            herein as set forth in Iowa Code section 85.30; 
 
            
 
                 That defendants shall pay the costs of this action, 
 
            pursuant to rule 343 IAC 4.33;
 
            
 
                 That defendants shall file a claims activity report 
 
            upon payment of this award as required by this agency, 
 
            pursuant to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of December, 1993.
 
            
 
            
 
            
 
                                          
 
                                       ________________________________
 
                                          PATRICIA J. LANTZ
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr John J Wolfe
 
            Attorney at Law
 
            402 6th Ave S
 
            Clinton IA 52732
 
            
 
            Mr Elliott McDonald Jr
 
            Attorney at Law
 
            P O Box 2746
 
            Davenport IA 52809
 
            
 
 
 
 
 
 
 
 
 
 
 
 
 
 
            BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
_________________________________________________________________
 
            
 
DEAN STULL,      
 
            
 
     Claimant,   
 
            
 
vs.         
 
                                 File Nos. 967045/1020423
 
MORTON BUILDING, INC.,     
 
                                      A P P E A L
 
     Employer,   
 
                                   D E C I S I O N
 
and         
 
            
 
INSURANCE COMPANY OF NORTH      
 
AMERICA (INA),   
 
            
 
     Insurance Carrier,    
 
     Defendants.      
 
_________________________________________________________________
 
 
 
The record, including the transcript of the hearing before the deputy 
 
and all exhibits admitted into the record, has been reviewed de novo on 
 
appeal.
 
 
 
                             ISSUES
 
 
 
     Defendants state the following issues on appeal:
 
 
 
I.   The deputy erred in finding claimant's back condition was causally 
 
connected to work performed for defendant Morton Buildings.
 
 
 
II.  Even if claimant's back condition was causally connected to his 
 
employment, there is insufficient evidence to support a 10% industrial 
 
disability for the alleged back injury.
 
 
 
                           FINDINGS OF FACT
 
 
 
The findings of fact contained in the proposed agency decision filed 
 
September 19, 1994 are adopted as set forth below.  Segments designated 
 
by asterisks (*****) indicate portions of the language from the 
 
proposed agency decision that have been intentionally deleted and do 
 
not form a part of this final agency decision.
 
 
 
Dean Stull began work for the employer, Morton Buildings, Inc., in 
 
1976.  Claimant has always worked for the company as a laborer with 
 
respect to the construction of pole buildings.  On November 12, 1990, 
 
claimant sustained an injury to the peroneum when a board broke beneath 
 
his feet allowing him to fall onto another supporting piece of wood.  
 
Claimant suffered a urethral tear which was subsequently repaired by 
 
surgery.  Claimant was off work beginning November 16, 1990 through 
 
November 26, 1990, as a result of the injury and surgery.  Claimant 
 
suffered from pain and discomfort for approximately six months after 
 
that injury but eventually made a full recovery.  No permanent partial 
 
impairment was assessed by any of the examining physicians with respect 
 
to the torn urethra.
 
 
 
The employer accepted compensability of this aspect of the claim and 
 

 
 
 
 
 
 
 
 
 
paid temporary total disability benefits in the amount of $352.72, and 
 
all related medical expenses.
 
 
 
Claimant was an hourly wage earner at the time of injury on November 
 
12, 1990.  The employer calculated the gross earnings based on a 
 
straight hourly wage which amounted to $389.69 per week.  Claimant was 
 
also entitled to receive a bonus based upon the speed at which a job 
 
was finished and the quality of workmanship.  These bonuses were paid 
 
on a regular basis and were made based upon a set formula.  Bonuses 
 
were paid each and every month should the individual be entitled.  All 
 
employees were treated equally when bonuses were granted.  It is found 
 
that the bonus was more in line with an incentive to produce a higher 
 
quality work product and a faster turnaround time when erecting 
 
buildings.  The bonus must be distinguished from a Christmas bonus 
 
which is given as a gift at the whim of the employer.  In this 
 
situation, claimant had control over the bonus he received by working 
 
harder and performing better quality work.  Therefore, it is found that 
 
claimant's weekly rate should be calculated based on gross earnings of 
 
$543.36 per week for the injury date of November 12, 1990.
 
 
 
With respect to the injury date of June 22, 1992, the employer contends 
 
that the weekly rate should be calculated based upon gross earnings of 
 
$396 per week, which is the straight hourly rate.  Applying the same 
 
analysis to the June 22, 1992 rate calculation, it is found that 
 
claimant's weekly benefit amount should be based upon a gross weekly 
 
earnings of $452.05, which includes the bonus paid for quality and 
 
speedy workmanship.
 
 
 
Claimant went off work on June 22, 1992, due to significant pain in the 
 
low back and spine.  Claimant first sought treatment from a 
 
chiropractor with little relief.  Claimant later received acupuncture 
 
treatments with little or no relief.  The problem was eventually 
 
diagnosed as an L5_S1 degenerative disc which probably preexisted both 
 
the June 22, 1992 injury date and the November 12, 1990 injury date.  
 
(Claimant's Exhibit 1)  Claimant was off receiving treatment for the 
 
low back condition beginning June 22, 1992 through September 20, 1992.  
 
James W. Turner, M.D., released claimant to return to work effective 
 
September 21, 1992. (Joint Exhibit 24)  Therefore, temporary benefits 
 
should end on September 20, 1992.
 
 
 
Claimant attributed his back problems for which he was under treatment 
 
during this period in question to the November 12, 1990 straddle 
 
injury.  However, the medical records do not document a history of back 
 
pain as a result of that November 1990 injury.  To the contrary, 
 
claimant repeatedly gave a medical history indicating that back pain 
 
occurred approximately one year prior to June 22, 1992.  Claimant 
 
indicated to the medical professionals that the back pain was a 
 
progressive problem which had escalated over the year prior.  
 
Claimant's work for the employer was of a heavy manual labor type which 
 
on a daily basis required much lifting and strenuous use of the back.  
 
This type of work can cause aggravations of degenerative discs. (Cl Ex. 
 
2)  Therefore, the question becomes whether the claimant's back pain is 
 
causally connected to either the November 1990 injury or the June 22, 
 
1992 cumulative trauma injury, or neither.
 
 
 
     *****
 
 
 
Under the cumulative trauma doctrine, the first date of disability is 
 
used as the date of injury.  In this situation, claimant went off work 
 
on June 22, 1992 and chose that date as the date of injury.  It is 
 
found that the type of work claimant had performed for Morton 
 
Buildings, Inc., is of the type that could aggravate a preexisting 
 
degenerative disc.  It is found that claimant's back problems for which 
 
he sought treatment on June 22, 1992 are causally connected to the work 
 
performed for this employer.  Bradley Kristiansen, D.C., opined that 
 
the pain started at the fall but was aggravated by other lifting, 
 

 
 
 
 
 
 
 
 
 
bending and twisting at work.  (Cl. Ex. 2)  It is apparent that Dr. 
 
Kristiansen was impressed by the type of work claimant was performing 
 
which involves daily bending, twisting and lifting.
 
 
 
James W. Turner, M.D., a board certified orthopedic surgeon, was 
 
somewhat unequivocal with respect to his opinions on causal connection. 
 
 *****  Dr. Turner believed that he could not issue an opinion on 
 
causal connection without having x_ray films or records from 1990.  
 
*****  However, Dr. Turner did state that if there were preexisting 
 
degenerative changes, then there would be an aggravation from the work 
 
history with Morton Buildings. (Jt. Ex. 8, p. 11)
 
 
 
Jerome G. Bashara, M.D., a board certified orthopedic surgeon, believed 
 
that the L5_S1 degenerative disc was a preexisting condition that was 
 
aggravated by the straddle injury and work with the employer.
 
 
 
Having considered all the evidence in the record, it is found that 
 
claimant suffered an injury arising out of and in the course of 
 
employment on June 22, 1992, best described as a cumulative trauma 
 
injury which aggravated a preexisting degenerative disc at the L5_S1 
 
level.  This finding is based primarily upon claimant's work history 
 
with the employer which required daily repetitive stooping, bending, 
 
twisting and lifting at work.  While the November 1990 injury may have 
 
been a factor in bringing about the symptomatic L5_S1 degenerative 
 
disc, it was only one small incident over a long period of time which 
 
caused the symptoms to appear in a previously asymptomatic spine.
 
 
 
The next issue is whether the June 22, 1992 injury is a cause of 
 
permanent disability.  Dr. Bashara opined that claimant incurred five 
 
percent permanent partial impairment to the low back as a result of the 
 
L5_S1 degenerative disc.  Having previously found that the disc was 
 
aggravated by work for the employer, it follows that claimant did incur 
 
permanent disability as a result of the June 22, 1992 injury.
 
 
 
It is found that claimant's time lost from work beginning June 22, 1992 
 
through September 20, 1992, is causally connected to the low back 
 
injury of June 22, 1992.  Claimant was off work receiving extensive 
 
treatment from numerous medical professionals including physical 
 
therapists, medical doctors and chiropractic doctors in an effort to 
 
relieve the symptoms.  The time off work was appropriate and necessary 
 
under the circumstances and is compensable.
 
 
 
It is found that the commencement date for permanent partial disability 
 
is September 21, 1992, the day after the temporary disability ended.
 
 
 
Claimant sought medical treatment from a variety of specialists for 
 
this low back problem subsequent to June 22, 1992.  Claimant did not 
 
request authorization from the employer to seek such treatment.  The 
 
employer denied liability from the outset on the June 22, 1992 injury 
 
date.
 
 
 
It is found that the medical treatment and expenses are causally 
 
connected to the work injury in that all treatment was for the spine 
 
complaints which were caused by the repetitive trauma injury of June 
 
22, 1992.
 
 
 
Since the injury claimant incurred on June 22, 1992 was to the low 
 
back, it follows that claimant's loss of earning capacity should be 
 
rated industrially.  Issues to be considered when determining 
 
industrial disability include claimant's age, education, work 
 
experience, motivation, and the employer's efforts to re-employ.  It is 
 
found that claimant was age 42 at the time of injury with a tenth grade 
 
education.  Claimant's work history consists primarily of construction 
 
work and some experience as a factory assembler.  Claimant is currently 
 
employed with the employer performing the same work that he did prior 
 
to the injury in question.  The employer made a good faith effort to 
 

 
 
 
 
 
 
 
 
 
re-employ.  Claimant is motivated to remain in the work force, and 
 
quite willing to work with back pain.
 
 
 
Claimant has worked with restrictions which are best described as a 
 
general directive to refrain from excessive repetitive bending, 
 
stooping or twisting of the low back.  Claimant suffers discomfort 
 
while performing his work but is currently able to perform all aspects 
 
of the work assigned to him with respect to building construction.
 
 
 
                           CONCLUSIONS OF LAW
 
 
 
The conclusions of law contained in the proposed agency decision filed 
 
September 19, 1994 are adopted as final agency action.
 
 
 
WHEREFORE, the decision of the deputy is affirmed.
 
 
 
                               ORDER
 
 
 
THEREFORE, it is ordered:
 
 
 
That defendants Morton Buildings, Inc., and Insurance Company of North 
 
America, in file number 967045, are to pay claimant additional 
 
temporary total disability benefits based upon the recalculated benefit 
 
amount of three hundred twenty_two and 38/100 dollars ($322.38).
 
 
 
That in file number 1020423, defendants pay claimant healing period 
 
benefits at the rate of two hundred seventy_seven and 94/100 dollars 
 
($277.94) per week for the period of June 22, 1992 through September 
 
20, 1992.
 
 
 
That defendants pay claimant fifty (50) weeks of permanent partial 
 
disability benefits at the rate of two hundred seventy_seven and 94/100 
 
dollars ($277.94) per week commencing September 21, 1992, in file 
 
number 1020423.
 
 
 
That defendants shall pay for claimant's reasonable and necessary 
 
medical and transportation expenses incurred as a result of the June 
 
22, 1992 work-related injury in file number 1020423, as outlined in the 
 
exhibits.
 
 
 
That defendants shall receive credit for benefits previously paid.
 
 
 
That all accrued benefits are to be paid in a lump sum.
 
 
 
That interest will accrue pursuant to Iowa Code section 85.30.
 
 
 
That defendants shall pay the costs of this matter including the 
 
transcription of the hearing.  
 
 
 
That defendants file claim activity reports as requested by this agency 
 
pursuant to rule 343 IAC 3.1.
 
 
 
Signed and filed this ____ day of January, 1995.       
 
                                     _______________________________
 
                                      BYRON K. ORTON           
 
                                      INDUSTRIAL COMMISSIONER
 
 
 
Copies To:
 
 
 
Mr. John Broz
 
Attorney at Law
 
P.O. Box 5245
 
Cedar Rapids, Iowa 52406
 
 
 
Mr. John M. Bickel
 
Attorney at Law
 
P.O. Box 2107
 
Cedar Rapids, Iowa 52406
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                  5-1100; 5-1801; 5-1802;
 
                                  5-1803; 5-2500
 
                                  Filed January 30, 1995
 
                                  Byron K. Orton
 
 
 
              BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
_________________________________________________________________
 
DEAN STULL,      
 
            
 
     Claimant,   
 
     
 
vs.         
 
                                  File Nos. 967045/1020423
 
MORTON BUILDING, INC.,     
 
                                        A P P E A L
 
     Employer,   
 
                                      D E C I S I O N
 
and         
 
            
 
INSURANCE COMPANY OF NORTH      
 
AMERICA (INA),   
 
            
 
     Insurance Carrier,    
 
     Defendants.      
 
_________________________________________________________________
 
 
 
5-1100; 5-1801; 5-1802; 5-1803; 5-2500
 
Claimant sustained two injuries, the first being a straddling injury in 
 
November 1990, which caused a tear in the urethra.  No permanent 
 
disability was allowed as no medical professional issued an opinion of 
 
permanent impairment.
 
 
 
The second injury was incurred in June of 1992, and was a repetitive 
 
motion aggravation of an L5-S1 degenerative disc.  Claimant, at age 40, 
 
with a five percent impairment rating and no significant work 
 
restrictions, was given ten percent industrial disability after the 
 
employer allowed reemployment in good faith and claimant was able to 
 
return to his old work without significant problems.
 
 
 
Employer's authorization defense to medical benefits was found 
 
inappropriate as the employer had denied liability.
 
 
 
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ------------------------------------------------------------
 
            DEAN STULL,                   :
 
                                          :
 
                 Claimant,                :      File No. 1020423
 
                                          :                967045
 
            vs.                           :
 
                                          :
 
            MORTON BUILDING, INC.,        :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            INA,                          :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ------------------------------------------------------------
 
                           STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by the 
 
            claimant, Dean Stull, as a result of alleged injuries to his 
 
            low back and body as a whole occurring on November 12, 1990, 
 
            in file number 967045, and on June 22, 1992, in file number 
 
            1020423.  The employer denied liability with respect to the 
 
            June 22, 1992 injury and numerous issues are presented for 
 
            determination.  The employer admitted liability with respect 
 
            to the November 12, 1990 injury with multiple issues 
 
            presented for determination.  The parties stipulated that 
 
            INA is the insurance carrier for the claims in question.
 
            
 
                 This case was heard and fully submitted at Cedar 
 
            Rapids, Iowa, on August 30, 1994.  The record in the 
 
            proceeding consists of joint exhibits 1 through 8, 
 
            defendants' exhibits A, B and C, and claimant's exhibits 1 
 
            through 5; and, testimony from Dean Stull, Michael Tompkins, 
 
            and Morris Greenfield.
 
            
 
                                      ISSUES
 
            
 
                 The issues presented for determination in file numbers 
 
            967045 and 1020423 are as follows:
 
            
 
                 1.  Whether the alleged injuries are causally connected 
 
            to permanent partial disability and the extent thereof;
 
            
 
                 2.  Whether the alleged injuries are causally connected 
 
            to a period of temporary disability and the extent thereof;
 
            
 
                 3.  The commencement date for permanent partial 
 
            disability;
 
            
 
                 4.  Whether bonus income should be considered when 
 
            calculating gross weekly earnings for claimant; and,
 

 
            
 
            Page   2
 
            
 
            
 
            
 
                 5.  Whether claimant is entitled to section 85.27 
 
            medical benefits, the causal connection and authorization of 
 
            such expenses.
 
            
 
                 An additional issue is presented for determination in 
 
            file number 1020423:
 
            
 
                 1.  Whether claimant incurred an injury which arose out 
 
            of and in the course of employment with the employer, Morton 
 
            Buildings, Inc., on June 22, 1992.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 Having heard the testimony of the witnesses and having 
 
            considered all of the evidence in the record, the deputy 
 
            industrial commissioner finds:
 
            
 
                 Dean Stull began work for the employer, Morton 
 
            Buildings, Inc., in 1976.  Claimant has always worked for 
 
            the company as a laborer with respect to the construction of 
 
            pole buildings.  On June 22, 1992, claimant sustained an 
 
            injury to the peroneum when a board broke beneath his feet 
 
            allowing him to fall onto another supporting piece of wood.  
 
            Claimant suffered a urethral tear which was subsequently 
 
            repaired by surgery.  Claimant was off work beginning 
 
            November 16, 1990 through November 26, 1990, as a result of 
 
            the injury and surgery.  Claimant suffered from pain and 
 
            discomfort for approximately six months after that injury 
 
            but eventually made a full recovery.  No permanent partial 
 
            impairment was assessed by any of the examining physicians 
 
            with respect to the torn urethra.
 
            
 
                 The employer accepted compensability of this aspect of 
 
            the claim and paid temporary total disability benefits in 
 
            the amount of $352.72, and all related medical expenses.
 
            
 
                 Claimant was an hourly wage earner at the time of 
 
            injury on November 12, 1990.  The employer calculated the 
 
            gross earnings based on a straight hourly wage which 
 
            amounted to $389.69 per week.  Claimant was also entitled to 
 
            receive a bonus based upon the speed at which a job was 
 
            finished and the quality of workmanship.  These bonuses were 
 
            paid on a regular basis and were made based upon a set 
 
            formula.  Bonuses were paid each and every month should the 
 
            individual be entitled.  All employees were treated equally 
 
            when bonuses were granted.  It is found that the bonus was 
 
            more in line with an incentive to produce a higher quality 
 
            work product and a faster turnaround time when erecting 
 
            buildings.  The bonus must be distinguished from a Christmas 
 
            bonus which is given as a gift at the whim of the employer.  
 
            In this situation, claimant had control over the bonus he 
 
            received by working harder and performing better quality 
 
            work.  Therefore, it is found that claimant's weekly rate 
 
            should be calculated based on gross earnings of $543.36 per 
 
            week for the injury date of November 12, 1990.
 
            
 
                 With respect to the injury date of June 22, 1992, the 
 
            employer contends that the weekly rate should be calculated 
 
            based upon gross earnings of $396 per week, which is the 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            straight hourly rate.  Applying the same analysis to the 
 
            June 22, 1992 rate calculation, it is found that claimant's 
 
            weekly benefit amount should be based upon a gross weekly 
 
            earnings of $452.05, which includes the bonus paid for 
 
            quality and speedy workmanship.
 
            
 
                 Claimant went off work on June 22, 1992, due to 
 
            significant pain in the low back and spine.  Claimant first 
 
            sought treatment from a chiropractor with little relief.  
 
            Claimant later received acupuncture treatments with little 
 
            or no relief.  The problem was eventually diagnosed as an 
 
            L5-S1 degenerative disc which probably preexisted both the 
 
            June 22, 1992 injury date and the November 12, 1990 injury 
 
            date.  (Claimant's Exhibit 1)  Claimant was off receiving 
 
            treatment for the low back condition beginning June 22, 1992 
 
            through September 20, 1992.  James W. Turner, M.D., released 
 
            claimant to return to work effective September 21, 1992. 
 
            (Joint Exhibit 24)  Therefore, temporary benefits should end 
 
            on September 20, 1992.
 
            
 
                 Claimant attributed his back problems for which he was 
 
            under treatment during this period in question to the 
 
            November 12, 1990 straddle injury.  However, the medical 
 
            records do not document a history of back pain as a result 
 
            of that November 1990 injury.  To the contrary, claimant 
 
            repeatedly gave a medical history indicating that back pain 
 
            occurred approximately one year prior to June 22, 1992.  
 
            Claimant indicated to the medical professionals that the 
 
            back pain was a progressive problem which had escalated over 
 
            the year prior.  Claimant's work for the employer was of a 
 
            heavy manual labor type which on a daily basis required much 
 
            lifting and strenuous use of the back.  This type of work 
 
            can cause aggravations of degenerative discs. (Cl Ex. 2)  
 
            Therefore, the question becomes whether the claimant's back 
 
            pain is causally connected to either the November 1990 
 
            injury or the June 22, 1992 cumulative trauma injury, or 
 
            neither.
 
            
 
                 It is found that claimant has failed to establish by a 
 
            preponderance of the evidence that the low back symptoms for 
 
            which treatment resulted on June 22, 1992 were causally 
 
            connected to the November 12, 1990 straddle injury.  
 
            Claimant has failed to establish a temporal relationship or 
 
            medical history indicating that there was back pain at the 
 
            time of the initial fall.  Furthermore, the injury was not a 
 
            sudden onset but was a gradual and slow building process 
 
            over a period of time which indicates that the straddle 
 
            injury was but one of many microtraumas that could have 
 
            caused the degenerative disc to become symptomatic.
 
            
 
                 Under the cumulative trauma doctrine, the first date of 
 
            disability is used as the date of injury.  In this 
 
            situation, claimant went off work on June 22, 1992 and chose 
 
            that date as the date of injury.  It is found that the type 
 
            of work claimant had performed for Morton Buildings, Inc., 
 
            is of the type that could aggravate a preexisting 
 
            degenerative disc.  It is found that claimant's back 
 
            problems for which he sought treatment on June 22, 1992 are 
 
            causally connected to the work performed for this employer.  
 
            Bradley Kristiansen, D.C., opined that the pain started at 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            the fall but was aggravated by other lifting, bending and 
 
            twisting at work.  (Cl. Ex. 2)  It is apparent that Dr. 
 
            Kristiansen was impressed by the type of work claimant was 
 
            performing which involves daily bending, twisting and 
 
            lifting.
 
            
 
                 James W. Turner, M.D., a board certified orthopedic 
 
            surgeon, was somewhat unequivocal with respect to his 
 
            opinions on causal connection.  It is obvious from the 
 
            deposition testimony that Dr. Turner was not familiar with 
 
            the legal standards used in determining compensability of a 
 
            claim.  (Jt. Ex. 8, pp. 9 & 14)  Dr. Turner believed that he 
 
            could not issue an opinion on causal connection without 
 
            having x-ray films or records from 1990.  He believed it 
 
            would be speculation to make such a statement without have 
 
            to have x-rays.  This stance by a medical professional is 
 
            not practical when serious affairs need to be resolved as 
 
            few, if any, people would have x-rays taken on a regular 
 
            basis so as to protect their rights under workers' 
 
            compensation law.  However, Dr. Turner did state that if 
 
            there were preexisting degenerative changes, then there 
 
            would be an aggravation from the work history with Morton 
 
            Buildings. (Jt. Ex. 8, p. 11)
 
            
 
                 Jerome G. Bashara, M.D., a board certified orthopedic 
 
            surgeon, believed that the L5-S1 degenerative disc was a 
 
            preexisting condition that was aggravated by the straddle 
 
            injury and work with the employer.
 
            
 
                 Having considered all the evidence in the record, it is 
 
            found that claimant suffered an injury arising out of and in 
 
            the course of employment on June 22, 1992, best described as 
 
            a cumulative trauma injury which aggravated a preexisting 
 
            degenerative disc at the L5-S1 level.  This finding is based 
 
            primarily upon claimant's work history with the employer 
 
            which required daily repetitive stooping, bending, twisting 
 
            and lifting at work.  While the November 1990 injury may 
 
            have been a factor in bringing about the symptomatic L5-S1 
 
            degenerative disc, it was only one small incident over a 
 
            long period of time which caused the symptoms to appear in a 
 
            previously asymptomatic spine.
 
            
 
                 The next issue is whether the June 22, 1992 injury is a 
 
            cause of permanent disability.  Dr. Bashara opined that 
 
            claimant incurred 5 percent permanent partial impairment to 
 
            the low back as a result of the L5-S1 degenerative disc.  
 
            Having previously found that the disc was aggravated by work 
 
            for the employer, it follows that claimant did incur 
 
            permanent disability as a result of the June 22, 1992 
 
            injury.
 
            
 
                 It is found that claimant's time lost from work 
 
            beginning June 22, 1992 through September 20, 1992, is 
 
            causally connected to the low back injury of June 22, 1992.  
 
            Claimant was off work receiving extensive treatment from 
 
            numerous medical professionals including physical 
 
            therapists, medical doctors and chiropractic doctors in an 
 
            effort to relieve the symptoms.  The time off work was 
 
            appropriate and necessary under the circumstances and is 
 
            compensable.
 

 
            
 
            Page   5
 
            
 
            
 
            
 
                 It is found that the commencement date for permanent 
 
            partial disability is September 21, 1992, the day after the 
 
            temporary disability ended.
 
            
 
                 Claimant sought medical treatment from a variety of 
 
            specialists for this low back problem subsequent to June 22, 
 
            1992.  Claimant did not request authorization from the 
 
            employer to seek such treatment.  The employer denied 
 
            liability from the outset on the June 22, 1992 injury date.
 
            
 
                 It is found that the medical treatment and expenses are 
 
            causally connected to the work injury in that all treatment 
 
            was for the spine complaints which were caused by the 
 
            repetitive trauma injury of June 22, 1992.
 
            
 
                 Since the injury claimant incurred on June 22, 1992 was 
 
            to the low back, it follows that claimant's loss of earning 
 
            capacity should be rated industrially.  Issues to be 
 
            considered when determining industrial disability include 
 
            claimant's age, education, work experience, motivation, and 
 
            the employer's efforts to re-employ.  It is found that 
 
            claimant was age 42 at the time of injury with a tenth grade 
 
            education.  Claimant's work history consists primarily of 
 
            construction work and some experience as a factory 
 
            assembler.  Claimant is currently employed with the employer 
 
            performing the same work that he did prior to the injury in 
 
            question.  The employer made a good faith effort to 
 
            re-employ.  Claimant is motivated to remain in the work 
 
            force, and quite willing to work with back pain.
 
            
 
                 Claimant has worked with restrictions which are best 
 
            described as a general directive to refrain from excessive 
 
            repetitive bending, stooping or twisting of the low back.  
 
            Claimant suffers discomfort while performing his work but is 
 
            currently able to perform all aspects of the work assigned 
 
            to him with respect to building construction.
 
            
 
                         REASONING AND CONCLUSIONS OF LAW
 
            
 
                 The first issue is whether claimant incurred is whether 
 
            claimant incurred permanent partial disability in file 
 
            number 967045 as a result of the November 12, 1990 injury.
 
            
 
                 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).
 
            
 
                 It is held that claimant has failed to establish that 
 
            he suffered permanent partial disability as a result of the 
 
            urethral tear on November 12, 1990.  Therefore, claimant is 
 
            not entitled to permanent partial disability as a result of 
 
            that injury.
 

 
            
 
            Page   6
 
            
 
            
 
            
 
                 The second issue is the extent of entitlement to 
 
            temporary total disability as a result of the November 12, 
 
            1990 work injury in file number 967045.
 
            
 
                 Claimant failed to establish that the loss time on and 
 
            after  June 22, 1992, was causally connected to the November 
 
            1990 injury.  However, the employer did stipulate that lost 
 
            time was incurred as a result of the November 1990 injury.  
 
            This loss time was paid at an incorrect weekly benefit rate.  
 
            Having found that claimant was entitled to a gross weekly 
 
            earnings of $543.36, it follows that his weekly benefit 
 
            amount is $322.38 based upon being single and entitled to 
 
            two exemptions at the time of injury.  The employer shall 
 
            recalculate the entitlement to temporary total disability 
 
            for the stipulated time off work.
 
            
 
                 Iowa Code section 85.36(6) must be interpreted to allow 
 
            the regularly paid bonus as a part of the gross weekly wage 
 
            because it was paid as an incentive for claimant to work 
 
            harder and produce a higher quality product in a more timely 
 
            and efficient manner as opposed to being a bonus which was 
 
            given at the whim of the employer.
 
            
 
                 The gross weekly earnings for claimant in file number 
 
            1020423 is held to be $452.05 for the injury date of June 
 
            22, 1992 based upon the analysis previously set forth under 
 
            Iowa Code section 85.36(6).  Claimant's weekly benefit rate 
 
            is $277.94 based upon a status of single and entitlement to 
 
            two exemptions on June 22, 1992.
 
            
 
                 No issues concerning 85.27 benefits remain as all 
 
            payments were made in file number 967045 with respect to the 
 
            November 1, 1990 straddle injury which caused a tear in the 
 
            urethra.  The only medical expenses which remain unpaid 
 
            occurred on or after June 22, 1992.
 
            
 
                 The next issue is whether claimant incurred an injury 
 
            arising out of and in the course of employment on June 22, 
 
            1992, in file number 1020423.
 
            
 
                 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 
 
            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 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 
 
            (Iowa 1974).
 
            
 
                 When the disability develops gradually over a period of 
 
            time, the "cumulative injury rule" applies.  For time 
 
            limitation purposes, the compensable injury is held to occur 
 
            when because of pain or physical disability, the claimant 
 
            can no longer work.  McKeever Custom Cabinets v. Smith, 379 
 
            N.W.2d 368 (Iowa 1985).
 
            
 
                 It is held that claimant incurred an injury on June 22, 
 
            1992, commonly known as a cumulative trauma injury to the 
 
            L5-S1 area of the spine.  This was an aggravation of a 
 
            preexisting degenerative disc caused by repetitive bending, 
 
            stooping and lifting at work for Morton Buildings, Inc.
 
            
 
                 The next issue is the causal connection and entitlement 
 
            to temporary total disability benefits.
 
            
 
                 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).
 
            
 
                 Iowa Code section 85.34(1) provides that healing period 
 
            benefits are payable to an injured worker who has suffered 
 
            permanent partial disability until (1) the worker has 
 
            returned to work; (2) the worker is medically capable of 
 
            returning to substantially similar employment; or (3) the 
 
            worker has achieved maximum medical recovery.  The healing 
 
            period can be considered the period during which there is a 
 
            reasonable expectation of improvement of the disabling 
 
            condition.  See Armstrong Tire & Rubber Co. v. Kubli, 312 
 
            N.W.2d 60 (Iowa Ct. App. 1981).  Healing period benefits can 
 
            be interrupted or intermittent.  Teel v. McCord, 394 N.W.2d 
 
            405 (Iowa 1986).
 
            
 
                 It is held that claimant is entitled to healing period 
 
            benefits beginning June 22, 1992 through September 20, 1992, 
 
            as a result of the June 22, 1992 injury.  Claimant 
 
            established the causal connection of the loss time to 
 
            treatment for the low back condition based upon the medical 
 
            evidence and the history of performing work which required 
 
            extensive bending and stooping.  The medical records clearly 
 
            reveal that claimant was receiving treatment for a 
 
            degenerative disc at the L5-S1 level which became 
 
            symptomatic after working for the employer.
 
            
 
                 The next issue concerns claimant's entitlement to 
 
            section 85.27 benefits, their causal connection and 
 
            authorization.
 
            
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
                 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.  Iowa Code section 85.27.  
 
            Holbert v. Townsend Engineering Co., Thirty-second Biennial 
 
            Report of the Industrial Commissioner 78 (Review-reopen 
 
            1975).
 
            
 
                 It is held that the employer cannot allege 
 
            authorization as a defense as liability was denied in file 
 
            number 1020423 with respect to the injury date of June 22, 
 
            1992.  Therefore, claimant had the right to choose any 
 
            medical provider he desired and the authorization defense 
 
            thereby fails.
 
            
 
                 It is held that claimant has established the causal 
 
            connection of the listed expenses to the June 22, 1992 
 
            cumulative trauma injury, as previously found in the 
 
            statement of facts.  Therefore, all medical expenses for 
 
            which claimant seeks reimbursement are compensable in file 
 
            number 1020423.
 
            
 
                 The final issue with respect to the June 22, 1992 
 
            injury in file number 1020423 is the extent of entitlement 
 
            to permanent partial disability under section 85.34(2)(u).
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, expe
 
            rience and inability to engage in employment for which the 
 
            employee is fitted.  Olson v. Goodyear Serv. Stores, 255 
 
            Iowa 1112, 125 N.W.2d 251 (1963); Barton v. Nevada Poultry, 
 
            253 Iowa 285, 110 N.W.2d 660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial 
 
            disability.  Impairment and disability are not synonymous.  
 
            The degree of industrial disability can be much different 
 
            than the degree of impairment because industrial disability 
 
            references to loss of earning capacity and impairment 
 
            references to anatomical or functional abnormality or loss.  
 
            Although loss of function is to be considered and disability 
 
            can rarely be found without it, it is not so that a degree 
 
            of industrial disability is proportionally related to a 
 
            degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of the 
 
            healing period; the work experience of the employee prior to 
 
            the injury and after the injury and the potential for 
 
            rehabilitation; the employee's qualifications 
 
            intellectually, emotionally and physically; earnings prior 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            and subsequent to the injury; age; education; motivation; 
 
            functional impairment as a result of the injury; and 
 
            inability because of the injury to engage in employment for 
 
            which the employee is fitted.  Loss of earnings caused by a 
 
            job transfer for reasons related to the injury is also 
 
            relevant.  Likewise, an employer's refusal to give any sort 
 
            of work to an impaired employee may justify an award of 
 
            disability.  McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 
 
            (Iowa 1980).  These are matters which the finder of fact 
 
            considers collectively in arriving at the determination of 
 
            the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  Neither does a 
 
            rating of functional impairment directly correlate to a 
 
            degree of industrial disability to the body as a whole.  In 
 
            other words, there are no formulae which can be applied and 
 
            then added up to determine the degree of industrial 
 
            disability.  It therefore becomes necessary for the deputy 
 
            or commissioner to draw upon prior experience as well as 
 
            general and specialized knowledge to make the finding with 
 
            regard to degree of industrial disability.  See Christensen 
 
            v. Hagen, Inc., Vol. 1 No. 3 State of Iowa Industrial 
 
            Commissioner Decisions 529 (App. March 26, 1985); Peterson 
 
            v. Truck Haven Cafe, Inc., Vol. 1 No. 3 State of Iowa 
 
            Industrial Commissioner Decisions 654 (App. February 28, 
 
            1985).
 
            
 
                 Compensation for permanent partial disability shall 
 
            begin at the termination of the healing period.  
 
            Compensation shall be paid in relation to 500 weeks as the 
 
            disability bears to the body as a whole.  Section 85.34.
 
            
 
                 Having found that claimant incurred permanent 
 
            disability as a result of the L5-S1 degenerative disc, it 
 
            follows that the claim must be evaluated industrially.  It 
 
            is held that claimant incurred a 10 percent industrial 
 
            disability to the body as a whole as a result of the June 
 
            22, 1992 aggravation of a preexisting degenerative disc.  
 
            The employer's good faith re-employment along with the lack 
 
            of significant work restrictions and ability to perform his 
 
            work in an appropriate fashion tends to keep the industrial 
 
            disability low.  However, claimant has clearly lost access 
 
            to an identifiable segment of the labor market.  Claimant, 
 
            in his early 40's, is in the peek of his career as a 
 
            construction laborer.  Claimant's age, education and 
 
            experience indicate that industrial disability has been 
 
            incurred as a result of the low back injury.
 
            
 
                 Having previously established a termination of healing 
 
            period on September 20, 1992, it follows that the 
 
            commencement date for permanent partial disability is 
 
            September 21, 1992.
 
            
 
                                       ORDER
 
            
 
                 IT IS THEREFORE ORDERED that defendants Morton 
 
            Buildings, Inc., and INA Insurance Company, in file number 
 
            967045, are to pay claimant additional temporary total 
 
            disability benefits based upon the recalculated benefit 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            amount of three hundred twenty-two and 38/100 dollars 
 
            ($322.38).
 
            
 
                 IT IS FURTHER ORDERED in file number 1020423 that 
 
            defendants pay claimant healing period benefits at the rate 
 
            of two hundred seventy-seven and 94/100 dollars ($277.94) 
 
            per week for the period of June 22, 1992 through September 
 
            20, 1992.
 
            
 
                 IT IS FURTHER ORDERED that defendants pay claimant 
 
            fifty (50) weeks of permanent partial disability benefits at 
 
            the rate of two hundred seventy-seven and 94/100 dollars 
 
            ($277.94) per week commencing September 21, 1992, in file 
 
            number 1020423.
 
            
 
                 IT IS FURTHER ORDERED that defendants shall pay for 
 
            claimant's reasonable and necessary medical and 
 
            transportation expenses incurred as a result of the June 22, 
 
            1992 work-related injury in file number 1020423, as outlined 
 
            in the exhibits.
 
            
 
                 IT IS FURTHER ORDERED that defendants shall receive 
 
            credit for benefits previously paid.
 
            
 
                 IT IS FURTHER ORDERED that all accrued benefits are to 
 
            be paid in a lump sum.
 
            
 
                 IT IS FURTHER ORDERED that interest will accrue 
 
            pursuant to Iowa Code section 85.30.
 
            
 
                 IT IS FURTHER ORDERED that 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.
 
            
 
                 IT IS FURTHER ORDERED that in file number 967045, 
 
            claimant's gross weekly earnings are five hundred forty-
 
            three and 36/100 dollars ($543.36) with a weekly benefit 
 
            amount of three hundred twenty-two and 38/100 dollars 
 
            ($322.38).
 
            
 
                 IT IS FURTHER ORDERED that in file number 1020423 that 
 
            claimant's gross weekly earnings are four hunded fifty-two 
 
            and 05/100 dollars ($452.05) with a weekly benefit rate of 
 
            two hundred seventy-seven and 94/100 dollars ($277.94).
 
            
 
                 Signed and filed this ____ day of September, 1994.
 
            
 
            
 
                                          
 
                                            ________________________________
 
                                          MARLON D. MORMANN
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            
 
            
 

 
            
 
            Page  11
 
            
 
            Copies To:
 
           
 
            Mr John Broz
 
            Attorney at Law
 
            P O Box 5245
 
            Cedar Rapids IA 52406
 
            
 
            Mr John M Bickel
 
            Attorney at Law
 
            115 3rd St SE
 
            P O Box 2107
 
            Cedar Rapids IA 52406-2107
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                         5-1100; 5-1801; 5-1802
 
                                         5-1803; 5-2500
 
                                         Filed September 19, 1994
 
                                         Marlon D. Mormann
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ------------------------------------------------------------
 
            DEAN STULL,    
 
                      
 
                 Claimant,                    File No. 1020423
 
                                                        967045
 
            vs.       
 
                      
 
            MORTON BUILDING, INC.,   
 
                                            A R B I T R A T I O N
 
                 Employer, 
 
                                              D E C I S I O N
 
            and       
 
                      
 
            INA,      
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ------------------------------------------------------------
 
            5-1100; 5-1801; 5-1802; 5-1803; 5-2500
 
            
 
            Claimant sustained two injuries, the first being a 
 
            straddling injury in November 1990, which caused a tear in 
 
            the urethra.  No permanent disability was allowed as no 
 
            medical professional issued an opinion of permanent 
 
            impairment.
 
            The second injury was incurred in June of 1992, and was a 
 
            repetitive motion aggravation of an L5-S1 degenerative disc.  
 
            Claimant, at age 40, with a 5% impairment rating and no 
 
            significant work restrictions, was given 10% industrial 
 
            disability after the employer allowed re-employment in good 
 
            faith and claimant was able to return to his old work 
 
            without significant problems.
 
            Employer's authorization defense to medical benefits was 
 
            found inappropriate as the employer had denied liability.
 
            
 
            
 
 
         
 
 
 
 
 
                                            2500; 2600
 
                                            Filed September 24, 1993
 
                                            MICHELLE A. McGOVERN
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         ____________________________________________________________
 
                                       :
 
         TERRY MILLER,                 :
 
                                       :         File No. 967285
 
              Claimant,                :
 
                                       :         D E C I S I O N
 
         vs.                           :
 
                                       :               O N 
 
         A-1 READY MIX, INC.,          :
 
                                       :        A L T E R N A T E
 
              Employer,                :
 
                                       :          M E D I C A L
 
         and                           :
 
                                       :             C A R E
 
         AETNA,                        :
 
                                       :
 
              Insurance Carrier,       :
 
              Defendants.              :
 
         ___________________________________________________________
 
         
 
         2500, 2600
 
         Claimant filed an application for alternate medical care on 
 
         August 31, 1993.  The hearing assignment administrator set the 
 
         matter for an in-person hearing on September 16, 1993.  claimant 
 
         was represented by his attorney.  Defendants were represented by 
 
         a senior claims representative for defendant-insurance company.
 
         Claimant had sustained a work related injury to his right knee on 
 
         November 20, 1990.  He sought immediate medical attention.  Dr. 
 
         Green, an authorized treating physician performed on February 8, 
 
         1991.  Claimant still encountered some right knee pain.  
 
         Defendants sent claimant to Dr. Kirkland.  He treated claimant in 
 
         a conservative fashion.  Eventually Dr. Kirkland told claimant 
 
         there was nothing else the physician could do for him.  
 
         Defendants then sent claimant to Dr. McGuire who opined that 
 
         another surgery might help claimant.  Claimant testified that the 
 
         senior claims representative who was assigned to the case 
 
         indicated that the surgery might result in only a 30% improvement 
 
         and that she would not authorize the second surgical procedure.  
 
         Then the representative sent claimant to Dr. McGuire's partner, 
 
         Dr. Sullivan.  He treated claimant conservatively.  He did not 
 
         recommend a second surgical procedure.  Eventually, he too told 
 
         claimant there was nothing else to do.  Claimant on his own, 
 
         sought medical assistance from his family physician, Dr. Check.  
 
         He recommended surgery.  The surgery was not performed.  Then 
 
         claimant, upon the advice of his attorney, sought the opinion of 
 
         Dr. Bashara.  He in turn opined that claimant would be a 
 
         candidate for a right knee arthroscopy, both diagnostic and 
 
         operative.
 
         
 
         HELD:  Claimant was able to prove by a preponderance of the 
 
         evidence that he was entitle to alternate medical care as 
 
         provided by section 85.27.  the alternate medical care awarded 
 
         was treatment with Dr. Bashara.
 
         
 
 
         
 
   
 
               
 
                  
 
         
 
             
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         ____________________________________________________________
 
                                       :
 
         TERRY MILLER,                 :
 
                                       :         File No. 967285
 
              Claimant,                :
 
                                       :         D E C I S I O N
 
         vs.                           :
 
                                       :               O N 
 
         A-1 READY MIX, INC.,          :
 
                                       :        A L T E R N A T E
 
              Employer,                :
 
                                       :          M E D I C A L
 
         and                           :
 
                                       :             C A R E
 
         AETNA,                        :
 
                                       :
 
              Insurance Carrier,       :
 
              Defendants.              :
 
         ___________________________________________________________
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Claimant filed an original notice and petition concerning an 
 
         application for alternate medical care pursuant to section 85.27 
 
         of the Iowa Code and rule 343 IAC 4.48.  The petition was filed 
 
         on August 31, 1993.  In his petition, as amended, claimant 
 
         requested alternate medical care including diagnostic and 
 
         arthroscopic surgery for his right knee from Jerome G. Bashara, 
 
         M.D., or from the Clinic at the University of Iowa.
 
         
 
              On September 2, 1993, Byron J. Orton, Industrial 
 
         Commissioner, filed an order of delegation of authority.  In his 
 
         order, Commissioner Orton provided that:
 
            Pursuant to Iowa Code section 86.3 the deputy industrial 
 
         commissioner presiding at the contested case in this application 
 
         for alternate medical care is hereby delegated the authority to 
 
         issue the final agency decision on the application.  There will 
 
         be no right of intra-agency appeal on this decision.  See 
 
         Continental Telephone Co. v. Colton, 348 N.W.2d 623 (Iowa 1984) 
 
         and LeaseAmerica Corp. v. Iowa Dept. of Revenue, 333 N.W.2d 847 
 
         (Iowa 1983).
 
         
 
               ...
 
            The presiding deupty [sic] industrial commissioner's decision 
 
         in this matter shall be the final agency decision.  See Iowa Code 
 
         section 17A.15(1).
 
         
 
              Also on September 2, 1993, the hearing administrator 
 
         assigned the matter for an in-person hearing set for September 
 
         16, 1993 at 8:30 a.m.  The notices were mailed by employees of 
 
         the Division of Industrial Services on September 2, 1993.
 
         
 
              The hearing was held.  The proceeding was recorded by an 
 

 
         
 
         Page   2
 
         
 
         
 
               
 
               
 
         
 
         audio cassette player.  At the hearing, claimant was represented 
 
         by Arthur C. Hedberg, Jr.  Defendants were represented by Joanne 
 
         Bell, Senior Claim Representative for Aetna Casualty & Surety 
 
         Company. 
 
         
 
              During the course of the hearing, claimant testified.  In 
 
         addition, claimant submitted exhibits 1-11 and defendants 
 
         submitted exhibits 1-6.  It is noted for the record that 
 
         claimant's exhibit 11 was only admitted after defendants asked a 
 
         question during cross-examination.  The response elicited can be 
 
         answered by the best evidence.  It is also noted that during the 
 
         proceeding, claimant requested the deputy industrial commissioner 
 
         to take administrative notice of two items.  The deputy did 
 
         comply with claimant's request.
 
         
 
                                      ISSUE
 
         
 
              The sole issue presented for resolution is whether claimant 
 
         is entitled to alternate medical care as provided by section 
 
         85.27 of the Iowa Code.
 
         
 
                     FINDINGS OF FACT AND CONCLUSIONS OF LAW
 
         
 
              The deputy, having heard the testimony and considered all 
 
         the evidence, makes the following findings of fact and 
 
         conclusions of law:
 
         
 
              Claimant sustained a work-related injury to his right lower 
 
         extremity which involved his right knee.  The work injury 
 
         occurred on November 12, 1990.  Almost immediately following the 
 
         work injury, claimant sought medical attention at the emergency 
 
         room of Iowa Lutheran Hospital.  Several days later, claimant was 
 
         examined by his family physician, Kaye E. Check.  The claimant 
 
         was referred to Dr. Green, M.D., (first name unknown) an 
 
         orthopedic specialist.  After conservative care which included 
 
         physical therapy, Dr. Green performed a diagnostic right knee 
 
         arthroscopy and a partial medial meniscectomy.  Physical therapy 
 
         was prescribed for claimant's post-op treatment.  Claimant did 
 
         not progress.  His condition remained the same.  He experienced 
 
         swelling, discomfort, muscle spasms and weakness in the right 
 
         lower extremity.
 
         
 
              Because of his very poor progress, defendants authorized 
 
         claimant to see Mark B. Kirkland, D.O.  Dr. Kirkland ordered 
 
         x-rays.  Claimant was again treated conservatively.  Dr. Kirkland 
 
         treated claimant through March 2, 1992.  As of September 23, 
 
         1991, claimant had been released to return to work without 
 
         restrictions.  While claimant attempted a return to work, he did 
 
         not progress to his own satisfaction.  He testified that he still 
 
         encountered the same problems as he had experienced previously.  
 
         He testified that had Dr. Kirkland admitted to claimant there was 
 
         nothing more the orthopedic surgeon could do for claimant.
 
         
 
              Because claimant was not satisfied with the treatment he had 
 
         received from Dr. Kirkland, defendants authorized claimant to see 
 
         Daniel McGuire, M.D.  In his office note of July 6, 1992, Dr. 
 
         McGuire opined the following relative to claimant's condition:
 

 
         
 
         Page   3
 
         
 
         
 
               
 
               
 
         
 
         
 
                 Terry and his wife return.  He is quite miserable 
 
              now with anterior knee pain.  There is a significant 
 
              amount of crepitus underneath his kneecap.  He still 
 
              has some atrophy of his quadriceps.
 
         
 
                 I told him there is really not much we could do.  I 
 
              offered to take another look inside of his knee and 
 
              evaluate the undersurface of his patella, maybe clean 
 
              up the fraying that may have occurred, but typically, 
 
              this is not going to solve all of his knee pain, and he 
 
              is going to have to do much of his rehab to help with 
 
              this knee pain.  We have reached kind of an impasse 
 
              here.  This has been a long time.  Nobody has really 
 
              ever found much wrong.
 
         
 
                 I told him I would discuss the case with the 
 
              insurance company.  I told him to go home and think 
 
              about it and contact us within the next few days.
 
         
 
              Claimant testified that he was told by Ms. Bell that the 
 
         insurance company had been informed by Dr. McGuire there was only 
 
         a 30 percent chance for improvement and that the carrier would 
 
         not authorize the surgery unless there could be a 40 percent 
 
         chance for improvement.
 
         
 
              Defendants decided to seek another opinion relative to 
 
         claimant's condition.  As a result, claimant was authorized to 
 
         seek a second opinion from Dr. McGuire's partner, Patrick 
 
         Sullivan, M.D.  Dr. Sullivan treated claimant for a period of 
 
         time.  In August of 1992, Dr. Sullivan wrote the following 
 
         relative to claimant's right knee condition:
 
         
 
                 Returns with nerve conductions EMG's right lower 
 
              extremity.  They were within normal limits and there is 
 
              no evidence of a radicular root syndrome on his right 
 
              leg.  The patient's exam is not much changed since I 
 
              last saw him.  I have re-explained to the patient that 
 
              I believe there is (sic) only 2 remaining explanations 
 
              for his continued right knee weakness.  One is 
 
              inadequate rehabilitation which I explained to the 
 
              patient also includes his attitude and approach to the 
 
              rehabilitation.  The second possibility is continued or 
 
              new internal derangement of the right knee. 
 
         
 
              PLAN:  I have placed him in 2 weeks intensive therapy.  
 
              I have authorized him to get a Cibex before in the end 
 
              of treatment.  If we see progress we will continue 
 
              along this route.  We will release him from work for 
 
              this two week period of time.  At the end of two weeks 
 
              if I see no significant change I told the patient I 
 
              believe I would have to release him back to work 
 
              without restrictions.  I am hesitant about recommending 
 
              a diagnostic arthroscopy to the patient for a couple 
 
              reasons.  #1 the patient seems to be trying to transfer 
 
              all of responsibility for his knee somewhere else.  I 
 
              don't think he has a healthy approach of accepting the 
 

 
         
 
         Page   4
 
         
 
              
 
         
 
               
 
         
 
              problem as his and working on it.  The physical 
 
              examination is very soft and I don't get significant 
 
              reasons to re-operate on the patient.  Finally, the 
 
              patient has had one knee arthroscopy and a MRI since 
 
              that time reveals no suggestions of continued or new 
 
              internal derangements.
 
         Claimant was released to return to work without restrictions.  
 
         Claimant returned to Dr. Sullivan in December of 1992.  Claimant 
 
         requested additional physical therapy.  The office note for 
 
         December 2, 1992 reflects Dr. Sullivan's response:
 
         
 
                 Since I saw him in August has returned to work.  He 
 
              states without new injury the right knee has become 
 
              achy again.  It is his opinion that he should go back 
 
              to Pam Duffy for another couple of weeks and then 
 
              return to work again.  He can't tell me how the 
 
              symptoms are any different than they were before.  He 
 
              describes some achiness soreness in the right knee with 
 
              long activities.  
 
         
 
                 Exam:  He walks without a limp.  He has full ROM of 
 
              the knee.  Minimal effusion.  His quads are still 
 
              atrophic compared to the opposite side.  The rest of 
 
              the exam is unchanged.
 
         
 
                 IMPRESSION;  Right quad atrophy with residual knee 
 
              discomfort.
 
         
 
                 Plan:  I have told the patient that I think his 
 
              problem is the same as before.  I think he should 
 
              simply perform the exercises as instructed previously.  
 
              However I don't think he should take time off work to 
 
              do this.  I think he should take time off work to do 
 
              this.  I think he should simply do it in his free time.  
 
              The patient was very dissatisfied with my opinion and I 
 
              suggested to him that as much as I wish I could help 
 
              him all of our attempts to this point have been less 
 
              than successful in his eyes.  With no change in his 
 
              condition, I don't foresee being able to do much more 
 
              for the patient.
 
         
 
              Claimant returned to work in December of 1992.  Since that 
 
         time, claimant has been unable to work 40 hours per week.  
 
         Claimant testified that he returned to his family physician, Dr. 
 
         Check.  Claimant admitted he did not seek authorization for Dr. 
 
         Check's treatment.  Claimant also admitted that he paid for those 
 
         medical bills relative to Dr. Check from his own pocket.
 
         
 
              Dr. Check issued the following on June 8, 1993:
 
         
 
                 Mr. Miller continues to have right leg pain and 
 
              weakness from a deranged knee joint.  I feel that he 
 
              should be examined by an orthopedic specialist and have 
 
              corrective surgery.
 
         
 
              Claimant also testified that he treated with Dr. Bashara 
 
         pursuant to the direction of claimant's lawyer, Arthur Hedberg.   
 

 
         
 
         Page   5
 
         
 
                
 
                
 
         
 
         
 
         Dr. Bashara recommended in his report of August 6, 1993, that:
 
         
 
                 I saw Mr. Miller today in the office.  He is having 
 
              increasing symptoms in the right leg.
 
         
 
                 I have recommended that he undergo a diagnostic and 
 
              operative arthroscopy of his right knee, thru the Mercy 
 
              Ambulatory Surgery Center.  The approximate time of 
 
              recovery would be 6 weeks.  That could be altered based 
 
              on what is found at the time of surgery.
 
         
 
                 The above problems are felt to be directly related 
 
              to his work injury.
 
         
 
              
 
         
 
              As mentioned previously, claimant is applying for diagnostic 
 
         and arthroscopic surgery on his right knee.  Defendants have 
 
         denied the request. 
 
         
 
              Section 85.27 of the Iowa Code provides in relevant portion 
 
         that:
 
         
 
                 For purposes of this section, the employer is 
 
              obliged to furnish reasonable services and supplies to 
 
              treat an injured employee, and has the right to choose 
 
              the care.  The treatment must be offered promptly and 
 
              be reasonably suited to treat the injury without undue 
 
              inconvenience to the employee.  If the employee has 
 
              reason to be dissatisfied with the care offered, the 
 
              employee should communicate the basis of such 
 
              dissatisfaction to the employer, in writing if 
 
              requested, following which the employer and the 
 
              employee may agree to alternate care reasonably suited 
 
              to treat the injury.  If the employer and employee 
 
              cannot agree on such alternate care, the commissioner 
 
              may, upon application and reasonable proofs of the 
 
              necessity therefor, allow and order other care....
 
         
 
              This statute has been amended as House File 2250 by the 74th 
 
         General Assembly, effective July 1, 1992.  The amendment requires 
 
         the Industrial Commissioner to provide a method to expeditiously 
 
         resolve disputes under this section.
 
         
 
              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-Reopening 1975).
 
         
 
              In a recent appeal decision dealing with an application for 
 
         alternate medical care, the industrial commissioner has affirmed 
 
         the presiding deputy industrial commissioner's denial of 
 
         alternate medical care.  See Barry Long v. Robert's Dairy 
 
         Company, file number 982297 (Appeal Decision, February 5, 1993).  
 
         An application for alternate medical care is not automatically 
 
         sustained because a claimant is dissatisfied with the care he has 
 

 
         
 
         Page   6
 
         
 
         
 
              
 
               
 
         
 
         been receiving.  In Long, supra, the deputy has determined that 
 
         mere dissatisfaction with the medical care is not ample grounds 
 
         for granting an application for alternate medical care.  Rather, 
 
         the claimant must show that the care was not offered promptly; 
 
         was not reasonably suited to treat the injury; or that the care 
 
         was unduly inconvenient for the claimant.
 
         
 
              Claimant is dissatisfied with the medical care he has been 
 
         receiving.  There is good cause for his dissatisfaction.  He has 
 
         experienced right knee difficulties for nearly three years.  
 
         Claimant has been treated by four different authorized treating 
 
         orthopedic surgeons.  Dr. McGuire has indicated additional 
 
         arthroscopic surgery may prove beneficial.   Claimant has 
 
         testified that a representative from the insurance company does 
 
         not believe that a 30 percent chance for success or improvement 
 
         warrant an additional surgery.   Defendants refused to authorize 
 
         the second surgery.  Instead, defendants have sent claimant to 
 
         Dr. McGuire's partner.  He does not suggest additional surgery.  
 
         Claimant had requested additional physical therapy.  He was told 
 
         to perform home exercises.
 
         
 
              Because of continued problems, claimant has treated with his 
 
         family physician, Dr. Check.  She too has recommended corrective 
 
         surgery.  Claimant, then at the suggestion of his attorney, has 
 
         sought an opinion from Dr. Bashara who is also of the opinion 
 
         that diagnostic and operative arthroscopy of the right knee is 
 
         warranted.  This deputy agrees.  Three physicians have opined 
 
         that surgery is or may be beneficial to claimant.  Claimant has 
 
         been shuffled from one physician to another.  The responses from 
 
         the authorized treating orthopedic surgeons have been less than 
 
         satisfactory.  They have indicated there is nothing more to do in 
 
         the way of treatment.  Dr. Bashara, however, opines there is an 
 
         appropriate mode of treatment.  He recommends additional surgery.  
 
         His opinion is reasonable, given the continued problems which 
 
         claimant has experienced.  Claimant has met his burden of proof.  
 
         He is entitled to alternate medical care with Jerome Bashara, 
 
         M.D.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              Claimant's application for alternate medical care is 
 
         granted.  Pursuant to section 85.27 of the Iowa Code, defendants 
 
         shall provide to claimant reasonable and necessary medical care 
 
         which includes treatment by Jerome Bashara, M.D. 
 
         
 
              Costs, if any, are assessed to defendants pursuant to rule 
 
         343 IAC 4.33.
 
         
 
         
 
         
 
              Signed and filed this ____ day of September, 1993.
 
         
 
         
 
         
 
         
 

 
         
 
         Page   7
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                       ______________________________               
 
                                       MICHELLE A. McGOVERN
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Arthur Hedberg
 
         Attorney at Law
 
         840 Fifth Avenue
 
         Des Moines, Iowa 50309-1398
 
         
 
         A-1 Ready Mix, Inc.
 
         400 Delaware
 
         Des Moines, Iowa 50317
 
         REGULAR & CERTIFIED MAIL
 
         
 
         Joanne Bell
 
         Senior Claims Representative
 
         Aetna Casualty and Surety Co.
 
         500 East Court Avenue
 
         Des Moines, Iowa 50309
 
         REGULAR & CERTIFIED MAIL
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          1100; 1108; 1802; 1803
 
                                          2500; 2700
 
                                          Filed December 6, 1991
 
                                          Bernard J. O'Malley
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            BILL BURKMIRE,                :
 
                                          :
 
                 Claimant,                :     File Nos. 886779
 
                                          :               967334
 
            vs.                           :               974055
 
                                          :
 
            NATIONAL BY-PRODUCTS, INC.,   :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL,               :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            2500; 2700; 1802
 
            Defendants ordered to pay for a right knee surgery and any 
 
            healing period connected therewith as to a May 28, 1988 work 
 
            injury.
 
            
 
            1100; 1108; 1803
 
            Found claimant's August 23, 1990 injury arose out of and in 
 
            the course of claimant's employment and this work injury 
 
            caused claimant to have a left knee surgery and a 11% 
 
            permanent impairment to his left lower extremity, entitling 
 
            claimant to 24.2 weeks of permanent partial disability.
 
            
 
            1100
 
            Found claimant's September 17, 1990 alleged injury did not 
 
            arise out of and in the course of claimant's employment.
 
            
 
 
            
 
            
 
            
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            DANIEL J. DROPINSKI,     
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                              File No. 967351
 
            OWEN INDUSTRIES, INC., d/b/a  
 
            PAXTON VIERLING STEEL CO.,    
 
                                           A R B I T R A T I O N
 
                 Employer, 
 
                 Self-Insured                  D E C I S I O N
 
                 Defendant.     
 
            ___________________________________________________________ 
 
                               STATEMENT OF THE CASE
 
            
 
                 This is a contested case proceeding under Iowa Code 
 
            Chapter 17A upon a petition in arbitration filed by claimant 
 
            Daniel J. Dropinski against his self-insured former 
 
            employer, Owen Industries, Inc., d/b/a Paxton Vierling Steel 
 
            Company.  Mr. Dropinski asserts that he sustained a 
 
            work-related back injury on November 12, 1990, and now seeks 
 
            benefits under the Iowa Workers' Compensation Act.  
 
            
 
                 This case was heard and fully submitted in Council 
 
            Bluffs, Iowa on June 2, 1994.  The record consists of joint 
 
            exhibits 1 through 44, defendant's exhibit A, and the 
 
            testimony of claimant, Bradley Johnson, Robert Howerton, 
 
            David Parker, Scott Massengale and Randy Driver.  Exhibit 
 
            42, a metal pry bar (approximately 16 inches long and 
 
            weighing approximately one pound) was remanded to the 
 
            custody of attorney Roger Carter until such time as this 
 
            litigation has become final.  A photograph of a similar pry 
 
            bar is shown in exhibit 7 to claimant's deposition, joint 
 
            exhibit 43.  
 
            
 
                                      ISSUES
 
            
 
                 The parties have stipulated to the following:
 
            
 
                 1.  An employment relationship existed between claimant 
 
            and defendant at the time of the alleged injury;
 
            
 
                 2.  Entitlement to temporary total disability or 
 
            healing period benefits is no longer in dispute;
 
            
 
                 3.  The commencement date for permanent partial 
 
            disability benefits, if any, is January 8, 1992;
 
            
 
                 4.  The correct rate of weekly compensation is $235.14;
 
            
 
                 5.  Although both the cost and reasonableness of 
 
            medical expenses are disputed, applicable providers would, 
 
            in the absence of contrary evidence, testify to the 
 
            reasonableness of fees and treatment;
 
            
 
                 6.  Disputed medical expenses are causally connected to 
 
            the medical condition upon which the claim of injury is 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            based;
 
            
 
                 7.  Defendant paid 97.571 weeks of compensation at the 
 
            stipulated rate, 40 weeks of which should be credited 
 
            against any award of permanent disability.
 
            
 
                 Issues presented for resolution include:
 
            
 
                 1.  Whether claimant sustained injury arising out of 
 
            and in the course of employment;
 
            
 
                 2.  Whether the injury caused either temporary or 
 
            permanent disability;
 
            
 
                 3.  The nature and extent of permanent disability, if 
 
            any;
 
            
 
                 4.  Entitlement to medical benefits, including whether 
 
            disputed expenses are causally connected to the work injury.
 
            
 
                 Defendant also attempted to assert an authorization 
 
            defense to disputed medical expenses.  The authorization 
 
            defense was ruled invalid because defendant has at all times 
 
            denied liability on the claim, thereby forfeiting the right 
 
            to control the course of medical treatment, Barnhart v. MAQ, 
 
            Inc., I Iowa Industrial Commissioner Report 16 (1981).
 
            
 
                                FINDINGS OF FACT
 
            
 
                 Daniel Dropinski, 28 years of age at hearing, is a high 
 
            school graduate who has taken remedial courses in 
 
            mathematics since the 1990 work injury, and is now enrolled 
 
            in an electronics curriculum at Metro Community College.  
 
            Mr. Dropinski expects to earn an associate of applied 
 
            sciences degree, and intends to continue his education in 
 
            pursuit of a bachelors degree.
 
            
 
                 None of claimant's post-injury education has been 
 
            financed by defendant.  
 
            
 
                 Mr. Dropinski's work experience includes work as a 
 
            painter, pipe fitter, forklift driver, wallpaper hanger, 
 
            carpet layer, grocery sacker, maintenance worker, concrete 
 
            laborer and heavy equipment operator (this last, when 
 
            claimant worked for his father for just room and board plus 
 
            expenses). 
 
            
 
                 At the time of injury, claimant had an impressive 
 
            assortment of skills likely to be salable on the competitive 
 
            labor market.  These include welding, woodworking, 
 
            automobile and small engine mechanics, electronics, linoleum 
 
            and carpet laying, staining and wallpapering, forklift 
 
            driver and pipe fitter.  
 
            
 
                 The work injury occurred on November 12, 1990 when 
 
            claimant was ordered to free up a frozen paint pump with a 
 
            pry bar.  The crew had failed to clean the device on the day 
 
            before and the piston had become stuck in the upstroke 
 
            position.  Mr. Dropinski exerted himself as hard as possible 
 
            in attempting to free up the device, but was suddenly driven 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            to his knees by intense pain in the back and legs.  He 
 
            crawled to a nearby bench and was unable to stand.  The 
 
            foreman, Paul Roden, eventually called the safety director 
 
            who authorized taking claimant to a local hospital.  For the 
 
            next few weeks, claimant underwent physical therapy along 
 
            with part-time work under medical restrictions.  However, 
 
            the restrictions were not well observed by defendant.  
 
            
 
                 It was originally felt that claimant merely suffered a 
 
            strain.  As of January 18, 1991, two months later, treating 
 
            surgeon Daniel L. McKinney, M.D., concluded that claimant 
 
            suffered only from a lumbar strain and a degenerative disc.  
 
            However, a lumbar myelogram on April 18, 1991 showed a large 
 
            central and right sided disc herniation at L5 S1.  Claimant 
 
            was treated conservatively until eventually undergoing a 
 
            laminectomy and diskectomy at the hands of Dr. McKinney on 
 
            August 28, 1991.
 
            
 
                 At some point between January 18 and March 6, claimant 
 
            began developing urinary incontinence, for which he was 
 
            eventually referred to a urologist, Euclid J. de Souza, M.D.  
 
            Dr. de Souza, who testified by deposition on April 28, 1994, 
 
            first saw claimant in April 1991 for complaints of 
 
            incontinence, infrequency of urination and difficulty 
 
            emptying the bladder.  Dr. de Souza testified that a 
 
            cystometrogram and electromyogram of the bladder and a 
 
            Rigiscan confirmed a neurogenic bladder defect and decreased 
 
            erections associated with a neurogenic injury.  Dr. de Souza 
 
            indicated that claimant suffers hypotonic detrusor, meaning 
 
            the muscles used to empty the bladder were not functioning 
 
            correctly.  Dr. de Souza further testified that he would 
 
            "suspect" that the work injury had a prominent part in 
 
            claimant's voiding dysfunction since he had no problem prior 
 
            to the injury.  Dr. McKinney also shares this view, which is 
 
            not contradicted by any other medical practitioner.  
 
            
 
                 According to Dr. de Souza, claimant's bladder defect 
 
            now results in retention of approximately 5 to 15 ccs of 
 
            urine, which will subsequently leak on occasion.  Asked 
 
            whether he would place any restrictions on claimant's 
 
            physical activity due to the bladder and sexual dysfunction, 
 
            Dr. de Souza indicated that he would not with respect to 
 
            impotency, but would recommend that claimant remain close to 
 
            a rest room due to his urinary problems, and that heavy 
 
            lifting or pushing or pulling activities would tend to cause 
 
            urinary incontinence.  
 
            
 
                 Dr. McKinney eventually rated impairment at 10 percent 
 
            body as a whole due to the disc herniation and 15 percent of 
 
            the body as a whole due to bladder dysfunction; he thinks 
 
            the combined value of both impairment ratings equals 25 
 
            percent, "and I believe that they are directly attributable 
 
            to his injury of November 12, 1990."  These opinions are 
 
            expressed in a letter dated March 1, 1992.
 
            
 
                 In the same letter, Dr. McKinney recommended a 
 
            permanent restriction against lifting weights greater than 
 
            40 pounds and against frequent bending.  
 
            
 
                 Claimant has also been seen for evaluation by Anil 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            Agarwal, M.D.  Dr. Agarwal, a board certified orthopedic 
 
            surgeon, testified by deposition on September 16, 1992.  
 
            When Dr. Agarwal first saw claimant on July 13, 1991, he 
 
            concluded that surgery was medically indicated, largely due 
 
            to the bladder incontinence problem.  He considered it 
 
            "obvious" that when a herniated disc causes bladder 
 
            incontinence, surgery is urgent; nonetheless, he would 
 
            "leave this to Dr. de Souza to make a comment upon it."  Dr. 
 
            de Souza's testimony indicates a belief that prompt surgery 
 
            would have been indicated, but he cannot state to a degree 
 
            of medical certainty that a delay in surgery affected the 
 
            permanent disability resulting from bladder incontinence.  
 
            Dr. McKinney similarly cannot say with reasonable medical 
 
            certainty that earlier treatment of the herniated disc might 
 
            have helped the bladder problem, and, on June 6, 1991, did 
 
            not believe that further investigation was warranted, since 
 
            claimant had made some improvement with medication 
 
            prescribed by Dr. de Souza and with physical therapy.  
 
            
 
                 Dr. Agarwal saw claimant again in January 1992.  Asked 
 
            about permanent medical restrictions, he felt claimant could 
 
            lift up to perhaps 50 pounds and do reasonable bending and 
 
            stooping, but not too much.  He assigned an impairment 
 
            rating of 8 percent for the back surgery and 15 percent for 
 
            bladder incontinence, combining these to a 22 percent 
 
            impairment of the body as a whole.
 
            
 
                 Defendant strenuously argues that claimant lacks 
 
            credibility, pointing to the lack of other witnesses at the 
 
            time of the work injury.  In particular, defendant points to 
 
            the existence of a diary claimant began preparing some seven 
 
            weeks prior to the injury, and a number of factual errors 
 
            and misspellings contained in the diary.  Defendant believes 
 
            that claimant either commenced the diary in preparation for 
 
            a staged injury, or prepared it afterwards simply for 
 
            purposes of this litigation.  Defendant also believes 
 
            claimant was a manipulative worker who avoided the hardest 
 
            assignments, and notes that he twice inquired of another 
 
            employee about that individual's workers' compensation 
 
            claim.
 
            
 
                 Defendant's arguments are rejected.  Claimant was a 
 
            credible witness, and his version of events is accepted.  
 
            
 
                 A review of claimant's diary convinces this observer 
 
            that it was neither begun in preparation for a staged 
 
            injury, nor prepared after the fact for litigation.  The 
 
            diary was begun on September 24, 1990, and, in the early 
 
            stages, deals primarily with an apparent concern that Mr. 
 
            Dropinski had with respect to possible toxic exposure to 
 
            paint.  If claimant had intended to stage an injury 
 
            (assuming that he herniated his disc at least seven weeks 
 
            before November 12), one wonders why he would have worked in 
 
            pain for seven weeks before staging the injury, and, if it 
 
            was faked, why he did not do so in front of numerous 
 
            witnesses.  If the diary was prepared long after the injury 
 
            and only for this litigation, one questions why claimant 
 
            went back in time only seven weeks, rather than the six 
 
            months he was employed by defendant before the injury.  If 
 
            the diary was prepared later, one must salute claimant's 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            cleverness in concentrating so heavily on toxic exposure 
 
            issues for the first seven weeks, rather than commenting 
 
            upon how heavy or strenuous the painting work was.  Also, 
 
            although the diary contains a few errors (it was not always 
 
            kept on a day-to-day basis), those errors are insignificant, 
 
            and many other details contained in the diary are apparently 
 
            accurate, or defendant could be counted on to point out the 
 
            contrary.  The mere fact that claimant can spell some words 
 
            correctly and cannot spell other words is not so indicative 
 
            of deceit as defendant suggests.  This observer knows of no 
 
            established correlation between spelling ability and 
 
            character.  
 
            
 
                 There are other reasons to believe claimant's version 
 
            of events.  There is not one shred of evidence in this 
 
            record showing that he suffered symptoms prior to the work 
 
            injury, or that he ever sought medical treatment for back or 
 
            bladder problems.  If claimant suffered such problems before 
 
            taking employment with defendant, it is hard to believe that 
 
            he would have worked a strenuous job in pain for some six 
 
            months before springing a fake injury.  In his deposition 
 
            taken September 16, 1992, claimant testified that at the 
 
            exact instant of the accident, foreman Paul Roden was right 
 
            behind him.  It will be recalled that claimant further 
 
            testified that he was driven to his knees and forced to 
 
            crawl to a bench and was then unable to stand.  Why was 
 
            Roden never called as a witness, if his recollection was 
 
            otherwise?  If a party has the power to produce more 
 
            explicit and direct evidence than it actually produces, it 
 
            may fairly be presumed that the other evidence would lay 
 
            open deficiencies in that party's case.  Crosser v. Iowa 
 
            Dep't of Public Safety, 240 N.W.2d 682 (Iowa 1976).  
 
            
 
                 Also of note is the fact that claimant's bladder 
 
            results in an occasional leakage of 5 to 15 cubic 
 
            centimeters of urine.  No evidence whatsoever indicates that 
 
            this problem preexisted the date of injury.  Fifteen cubic 
 
            centimeters equals 15 ml.  Official notice is hereby taken 
 
            under Iowa Code 17A.14(4) of the fact that one tablespoon 
 
            equals 14.786 ml.  It is hereby determined that fairness to 
 
            the parties does not require an opportunity to contest that 
 
            fact.  The writer believes that brief experimentation with 
 
            tablespoons of water and various combinations of fabric will 
 
            convince any fair minded observer that one tablespoon of 
 
            liquid will typically create a large and obvious wet spot.  
 
            Even now, claimant does not wear adult "diapers" for his 
 
            urinary incontinence.  It is reasonable to suppose that had 
 
            claimant suffered episodes of leakage prior to the date of 
 
            injury, it would likely have been obvious to his co-workers.  
 
            If anyone with knowledge of this claim had recalled seeing 
 
            evidence of such leakage prior to November 19, 1990, it 
 
            would have been immediately obvious that the problem 
 
            preexisted the injury.  Defendant has produced no proof of 
 
            such incidents of leakage, even though claimant worked for 
 
            six months prior to the injury, and commenced his diary 
 
            seven weeks before the injury.  If we accept the hypothesis 
 
            that the diary was commenced in preparation for a faked 
 
            injury, we again must wonder why claimant would have waited 
 
            seven weeks knowing the risk of detection was great.  
 
            Further, it is noted that claimant did not mention urinary 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            incontinence when he first saw Dr. McKinney; if he were 
 
            actually suffering from the condition at that time, there 
 
            would have been no reason whatsoever to conceal the fact.  
 
            
 
                 The fact that symptoms of neurogenic bladder and sexual 
 
            dysfunction came on in such close proximity to the injury is 
 
            a strong indication that the injury actually occurred as 
 
            claimant has testified.  It is so found.
 
            
 
                                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).
 
            
 
                 Claimant also 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).
 
            
 
                 As has been seen, claimant has established that he 
 
            sustained a traumatic back injury on November 12, 1990.  He 
 
            has met his burden of proof on this issue.  The primary 
 
            treating physicians, Drs. McKinney and de Souza, causally 
 
            connect his current disability to that incident.  Claimant 
 
            also meets his burden of proof on that issue.
 
            
 
                 Entitlement to healing period benefits are not at 
 
            issue.  Defendant disputes whether the injury should be 
 
            compensated by the industrial method, apparently claiming a 
 
            scheduled member injury, but one is completely at a loss to 
 
            understand the basis of this contention.  Back injuries and 
 
            neurogenic bladder and sexual dysfunction injuries are not 
 
            listed in the schedule set forth in Iowa Code section 85.34.  
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            There should be no question whatsoever that any permanent 
 
            disability must be compensated by the industrial method.  
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, expe
 
            rience and inability to engage in employment for which the 
 
            employee is fitted.  Olson v. Goodyear Serv. Stores, 255 
 
            Iowa 1112, 125 N.W.2d 251 (1963); Barton v. Nevada Poultry, 
 
            253 Iowa 285, 110 N.W.2d 660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial 
 
            disability.  Impairment and disability are not synonymous.  
 
            The degree of industrial disability can be much different 
 
            than the degree of impairment because industrial disability 
 
            references to loss of earning capacity and impairment 
 
            references to anatomical or functional abnormality or loss.  
 
            Although loss of function is to be considered and disability 
 
            can rarely be found without it, it is not so that a degree 
 
            of industrial disability is proportionally related to a 
 
            degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of the 
 
            healing period; the work experience of the employee prior to 
 
            the injury and after the injury and the potential for 
 
            rehabilitation; the employee's qualifications 
 
            intellectually, emotionally and physically; earnings prior 
 
            and subsequent to the injury; age; education; motivation; 
 
            functional impairment as a result of the injury; and 
 
            inability because of the injury to engage in employment for 
 
            which the employee is fitted.  Loss of earnings caused by a 
 
            job transfer for reasons related to the injury is also 
 
            relevant.  Likewise, an employer's refusal to give any sort 
 
            of work to an impaired employee may justify an award of 
 
            disability.  McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 
 
            (Iowa 1980).  These are matters which the finder of fact 
 
            considers collectively in arriving at the determination of 
 
            the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  Neither does a 
 
            rating of functional impairment directly correlate to a 
 
            degree of industrial disability to the body as a whole.  In 
 
            other words, there are no formulae which can be applied and 
 
            then added up to determine the degree of industrial 
 
            disability.  It therefore becomes necessary for the deputy 
 
            or commissioner to draw upon prior experience as well as 
 
            general and specialized knowledge to make the finding with 
 
            regard to degree of industrial disability.  See Christensen 
 
            v. Hagen, Inc., Vol. 1 No. 3 State of Iowa Industrial 
 
            Commissioner Decisions 529 (App. March 26, 1985); Peterson 
 
            v. Truck Haven Cafe, Inc., Vol. 1 No. 3 State of Iowa 
 
            Industrial Commissioner Decisions 654 (App. February 28, 
 
            1985).
 
            
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
                 Compensation for permanent partial disability shall 
 
            begin at the termination of the healing period.  
 
            Compensation shall be paid in relation to 500 weeks as the 
 
            disability bears to the body as a whole.  Section 85.34.
 
            
 
                 Although claimant has developed an impressive list of 
 
            salable job skills, it is clear that the restrictions 
 
            suggested by Drs. McKinney, de Souza and Agarwal will leave 
 
            him unfit for the great majority of the work in which he has 
 
            previous experience.  Painting, concrete work, construction 
 
            labor, wallpaper hanging, floor installation and grocery 
 
            stock work will clearly be greatly limited or foreclosed by 
 
            a 40-pound lifting restriction and recommendations against 
 
            bending and stooping.  
 
            
 
                 Although claimant's motivation to return to work 
 
            shortly after the injury was low, it is noted that he has 
 
            since gone on in a highly motivated way to further his 
 
            education, even taking remedial math courses in preparation 
 
            for more formal instruction in electronics.  Defendant 
 
            argues that claimant has no industrial disability because 
 
            potential employment in the field of electronics may be as 
 
            or more remunerative than his previous work.  However, while 
 
            claimant's potential for retraining is an appropriate factor 
 
            in determining industrial disability, defendant is in no 
 
            position to take credit for claimant's post-injury 
 
            self-improvement, where it failed absolutely to contribute 
 
            to the expense.
 
            
 
                 Defendant also argues that claimant's failure to 
 
            undergo surgery promptly following the injury increased his 
 
            final disability, for which defendant claims it should not 
 
            be held liable.  While an unreasonable refusal to undergo 
 
            appropriate medical care, thereby resulting in increased 
 
            disability, may, in a suitable case, result in a reduced 
 
            award, this is not a suitable case.  It is perfectly 
 
            reasonable to attempt conservative therapy prior to 
 
            undergoing major back surgery.  Indeed, claimant made this 
 
            decision with the acquiescence of both treating physicians.  
 
            Only Dr. Agarwal is apparently of the view that claimant 
 
            should have undergone immediate surgery, and claimant did 
 
            undergo surgery within a month of his evaluation by that 
 
            physician.  Defendant's contention is without merit.  
 
            
 
                 Another factor in determining industrial disability is 
 
            the failure of defendant to provide continued employment.  
 
            
 
                 Considering then these factors in particular and the 
 
            record otherwise in general, it is held that claimant has 
 
            sustained an industrial disability equivalent to 35 percent 
 
            of the body as a whole, or 175 weeks.  Pursuant to the 
 
            parties' stipulation, permanent disability benefits will 
 
            commence January 8, 1992.
 
            
 
                 Defendant further disputes the disputed medical 
 
            expenses set forth in exhibit A, an attachment to the 
 
            hearing report.  Causal connection to the work injury, the 
 
            primary disputed issue, is established by the opinions of 
 
            Drs. McKinney and de Souza.  Defendant has stipulated that 
 
            the expenses are causally connected to the medical condition 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            upon which the claim of injury is based; therefore, the 
 
            expenses are compensable.  
 
            
 
                                      ORDER
 
            
 
                 THEREFORE IT IS ORDERED:
 
            
 
                 Defendant shall pay one hundred seventy-five (175) 
 
            weeks of permanent partial disability benefits at the rate 
 
            of two hundred thirty-five and 14/100 dollars ($235.14) 
 
            commencing January 8, 1992.  
 
            
 
                 Defendant shall have credit against this award for 
 
            forty (40) weeks of permanent partial disability benefits 
 
            paid prior to hearing.
 
            
 
                 All accrued weekly benefits shall be paid in a lump sum 
 
            together with statutory interest.
 
            
 
                 Defendant shall pay the disputed medical expenses 
 
            totalling two thousand two hundred thirty and 20/100 dollars 
 
            ($2,230.20.)
 
            
 
                 Costs are assessed to defendant.
 
            
 
     
 
            
 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            Signed and filed this ____ day of October, 1994.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          DAVID R. RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. William F. McGinn
 
            Attorney at Law
 
            Third Floor Executive Ste
 
            Firstar Bank Bldg.
 
            Council Bluffs, IA  51501
 
            
 
            Mr. Roger L. Carter
 
            Ms. Ruth Carter
 
            Attorneys at Law
 
            P.O. Box 5332
 
            Sioux City, IA  51102
 
            
 
            
 
 
            
 
            
 
            
 
            
 
                                              2906, 1803
 
                                              Filed October 21, 1994
 
                                              David R. Rasey
 
            
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            DANIEL J. DROPINSKI,     
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                              File No. 967351
 
            OWEN INDUSTRIES, INC., d/b/a  
 
            PAXTON VIERLING STEEL CO.,    
 
                                           A R B I T R A T I O N
 
                 Employer, 
 
                 Self-Insured                 D E C I S I O N
 
                 Defendant.     
 
            ___________________________________________________________ 
 
            2906
 
            
 
                 Defense counsel was appointed custodian of an exhibit - 
 
            a metal pry bar - until this litigation is final.
 
            
 
            1803
 
            
 
                 Claimant's slightly delayed decision to undergo surgery 
 
            in favor of conservative treatment - with the acquiescence 
 
            of both treating physicians - was not unreasonable and did 
 
            not call for reduction of industrial disability, even though 
 
            the delay may have reduced recovery from a neurogenic 
 
            bladder.