BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
          
 
            ROBERT W. JOHNSON,    
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                                File No. 969091
 
            FIRESTONE TIRE & RUBBER,   
 
                                                  A P P E A L
 
                 Employer,   
 
                                                D E C I S I O N
 
            and         
 
                        
 
            CIGNA,      
 
                        
 
                 Insurance Carrier,    
 
                 Defendants.      
 
            ____________________________________________________________
 
            
 
            The record, including the transcript of the hearing before 
 
            the deputy and all exhibits admitted into the record, has 
 
            been reviewed de novo on appeal.  The decision of the deputy 
 
            filed March 22, 1993 is affirmed and is adopted as the final 
 
            agency action in this case with the following additional 
 
            analysis:
 
            
 
            The parties seek to distinguish this case from Prewitt v. 
 
            Firestone Tire and Rubber Company, Appeal Decision, August 
 
            12, 1992.  Prewitt does not contain a new holding of law.  
 
            Prewitt applied longstanding authority for the proposition 
 
            that the compensation for an injury to a shoulder is 
 
            determined by the situs of the impairment resulting from 
 
            that injury.  If the impairment extends beyond the arm to 
 
            the body, the compensation will be in the form of industrial 
 
            disability.  If the impairment from the injury is confined 
 
            to the arm, the compensation will be according to the 
 
            schedule.  The particular facts of Prewitt resulted in 
 
            compensation for the arm rather than the body as a whole 
 
            because the facts in Prewitt failed to show the impairment 
 
            extended beyond the arm.  Although apparently much 
 
            misunderstood, Prewitt did not set forth new law.
 
            Where two cases involve the same principle of law, but 
 
            differ factually and result in different conclusions because 
 
            of those differences in facts, it is not necessary to 
 
            distinguish the one case from the other.  In this case, the 
 
            same legal principle applies that controlled in Prewitt and 
 
            Lauhoff Grain Co. v. McIntosh, 395 N.W.2d 834 (Iowa 1986).  
 
            That is, the situs of the impairment controls the 
 
            compensation.  Although Lauhoff may be summarized by some as 
 
            standing for the principle that "injuries to the shoulder 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            are injuries to the body as a whole," such is an 
 
            oversimplification and misleading.  Prewitt is consistent 
 
            with Lauhoff and many other precedents of this agency in 
 
            stating that, in shoulder injuries, the situs of the 
 
            impairment controls the method of compensation.  The fact 
 
            that applying this principle to the facts of Prewitt led to 
 
            an infrequently seen result does not indicate that Prewitt 
 
            has made new law; on the contrary, Prewitt has reaffirmed 
 
            longstanding law.
 
            
 
            Under the facts of this case, the medical evidence clearly 
 
            indicates that the impairment from claimant's shoulder 
 
            injury did extend beyond the arm into the body as a whole.  
 
            Claimant is to be compensated industrially.
 
            Defendants shall pay the costs of the appeal, including the 
 
            preparation of the hearing transcript.
 
            
 
            Signed and filed this ____ day of August, 1993.
 
            
 
            
 
            
 
            
 
                                         ________________________________
 
                                                BYRON K. ORTON
 
                                          INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Robert W. Pratt
 
            Attorney at Law
 
            6959 University Avenue
 
            Des Moines, Iowa 50311
 
            
 
            Mr. Marvin E. Duckworth
 
            Attorney at Law
 
            2700 Grand Ave., Ste 111
 
            Des Moines, Iowa 50312
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                               1803; 1803.1
 
                                               Filed August 23, 1993
 
                                               Byron K. Orton
 
         
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
                     
 
         ROBERT W. JOHNSON,    
 
                     
 
              Claimant,   
 
                     
 
         vs.         
 
                                                File No. 969091
 
         FIRESTONE TIRE & RUBBER,   
 
                                                 A P P E A L
 
              Employer,   
 
                                                D E C I S I O N
 
         and         
 
                     
 
         CIGNA,      
 
                     
 
              Insurance Carrier,    
 
              Defendants.      
 
         _________________________________________________________________
 
         
 
         1803.1
 
         Left shoulder injury was compensated industrially where 
 
         claimant's doctor testified that the injury was to the shoulder 
 
         as opposed to an injury to the fingers, the hand, the wrist, or 
 
         the elbow.  The treating physician testified that the injury 
 
         involved the three muscles at the front of the shoulder.  The 
 
         treating orthopedic surgeon restricted claimant from any overhead 
 
         work and from working above the shoulder level.  This case was 
 
         distinguished from Prewitt v. Firestone Tire and Rubber Company, 
 
         (Appeal Decision, August 12, 1992).
 
         
 
         1803
 
         Claimant was awarded a 50 percent industrial disability as a 
 
         result of an injury to the left shoulder.  Claimant returned to 
 
         work at the plant where he had sustained his work injury.  
 
         However, claimant was unable to return to his former position as 
 
         a tire builder.  Three physicians restricted claimant from tire 
 
         building.  Claimant was accommodated but his new position paid 
 
         approximately $15.00 per hour as opposed to the former position 
 
         where he would have earned $25.71 per hour.  Claimant was 
 
         restricted from engaging in overhead work and from working above 
 
         shoulder level.  Certain weight restrictions were also imposed.  
 
         The restrictions were severe, although claimant's position within 
 
         the plant was secure.  Claimant had no hope of ever earning the 
 
         same rate of pay as he had earned prior to the left shoulder 
 
         injury. 
 
         
 
 
         
 
         Page   1
 
         
 
         
 
         
 
         
 
         
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         ____________________________________________________________
 
                                       :
 
         ROBERT W. JOHNSON,            :
 
                                       :
 
              Claimant,                :
 
                                       :
 
         vs.                           :
 
                                       :         File No. 969091
 
         FIRESTONE TIRE & RUBBER,      :
 
                                       :      A R B I T R A T I O N
 
              Employer,                :
 
                                       :         D E C I S I O N
 
         and                           :
 
                                       :
 
         CIGNA,                        :
 
                                       :
 
              Insurance Carrier,       :
 
              Defendants.              :
 
         ___________________________________________________________
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration upon the petition of 
 
         claimant, Robert W. Johnson, against his employer, Firestone Tire 
 
         and Rubber Company, and its insurance carrier, CIGNA Insurance 
 
         Company, defendants.  The case was heard on March 9, 1993 at the 
 
         office of the industrial commissioner in Des Moines, Iowa.  The 
 
         record consists of the testimony of claimant.  The record is also 
 
         comprised of the testimony of Mike Ables, Benefits Representative 
 
         for Local 310 of the United Rubber Workers.  Finally, the record 
 
         is comprised of claimant's exhibits 1-59 and defendants' exhibits 
 
         A-N.  
 
         
 
                                      ISSUES
 
         
 
              The sole issue for determination is the nature and extent of 
 
         any permanent partial disability benefits.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              The deputy, having heard the testimony and considered all 
 
         the evidence, finds:
 
         
 
              Claimant is 50 years old, although he appears much younger 
 
         than his stated years.  He is married and lives on a small family 
 
         farm in Osceola, Iowa.  He has a high school diploma which he had 
 
         earned in 1961 from Valley High School in West Des Moines, Iowa.
 
         
 
              Claimant commenced his employment with defendant-employer in 
 
         August of 1965.  However, because of a layoff, his adjusted 
 
         starting date is listed as November 13, 1965.  Other than during 
 
         periods for strikes and layoffs, claimant has been continuously 
 
         employed by defendant-employer.  For most of his employment, 
 
         claimant has been a tire builder.  His duties have included 
 
         servicing tire builders, supervising tire builders, instructing 
 
         new tire builders, and serving as a quality coordinator.  He has 
 

 
         
 
         Page   2
 
         
 
         
 
         
 
         
 
         
 
         been an excellent employee with an outstanding work record.
 
         
 
              Claimant has sustained several work injuries during his 
 
         tenure with defendant-employer.  In 1982 claimant sustained a 
 
         work injury to his right shoulder.  After the work injury, 
 
         claimant was able to resume his regular duties as a tire builder.  
 
         He performed all of his assigned tasks without complications.  
 
         Claimant sustained other work injuries but none of the injuries 
 
         prevented claimant from returning to his duties as a tire 
 
         builder.
 
         
 
              On March 27, 1989, claimant sustained another work-related 
 
         injury.  He was attempting to remove some rubber material from a 
 
         tray.  He was working over his head with his left arm.  He felt 
 
         his left arm jerk back and over his head.  He experienced pain in 
 
         his left shoulder area.  Claimant did not seek medical attention 
 
         on the date of the injury but he did report the injury.  However, 
 
         he sought medical attention on the following day.
 
         
 
              For a period of time claimant was treated conservatively.  
 
         In May of 1989 claimant was authorized to seek treatment from an 
 
         orthopedic specialist, Marvin H. Dubansky, M.D.  Initially, Dr. 
 
         Dubansky treated claimant in a conservative fashion.  Eventually, 
 
         Dr. Dubansky diagnosed claimant as having an impingement syndrome 
 
         of the left shoulder (Exhibit E, page 6).
 
         
 
              Dr. Dubansky performed an impingement release on September 
 
         1, 1989.  In his deposition, Dr. Dubansky described the surgical 
 
         procedure as:
 
         
 
                 Q.  What was the nature of that surgery?
 
         
 
                 A.  An impingement release.  Basically it was a Neer 
 
              acromioplasty, which one thins down the underside of 
 
              the acromion, and a resection of the coracoacromial 
 
              ligament
 
         
 
         (Ex. E, p. 6, lines 21-25)
 
         
 
         
 
              Claimant remained in a healing period subsequent to the date 
 
         of the surgery.  His employer was able to return claimant to a 
 
         light duty position where he was able to drive a fork lift truck.  
 
         Dr. Dubansky advised claimant to work so long as he was able to 
 
         keep his elbows to his side (Ex. E, p. 7).  Claimant's progress 
 
         was monitored by the treating orthopedic surgeons, Dr. Dubansky 
 
         and his associate Dr. Kenney (first name unknown), as well as by 
 
         the plant physician, James Blessman, M.D.   
 
         
 
              Gradually, the physicians modified claimant's restrictions.  
 
         Nevertheless, Dr. Dubansky refused to release claimant to tire 
 
         building.  The physician opined that claimant was not medically 
 
         capable of returning to that position because the nature of the 
 
         work involved reaching up and out with the left arm.  Dr. 
 
         Dubansky permanently restricted claimant from engaging in over
 
         head work and from working above the shoulder.  The physician 
 
         advised claimant to take as much stress off of his shoulder as 
 
         possible.
 
         
 

 
         
 
         Page   3
 
         
 
         
 
         
 
         
 
         
 
              Dr. Dubansky opined the following in his report of July 30, 
 
         1991:
 
         
 
              Pursuant to our conversation of July 25, 1991 and my 
 
              review of your chart, I feel that tirebuilding, [sic] 
 
              probably because of the nature of the job, would have 
 
              an excellent chance of causing recurrence of your symp
 
              toms.  However, I feel that jobs not requiring repeti
 
              tive lifting above your head should probably not cause 
 
              resurgence of your problem.  If you are only occasion
 
              ally required to lift above your head, I do not feel 
 
              that something of this nature, say 5 to 6 times an hour 
 
              should be a source of difficulty.  As far as weight 
 
              limitations, the only thing I know to satisfy this 
 
              would be a Functional Capacity Evaluation.
 
         
 
         (Ex. 58)
 
         
 
              Dr. Dubansky rated claimant as having a permanent functional 
 
         impairment using the AMA Guides to the Evaluation of Permanent 
 
         Impairment, Third Edition.  Dr. Dubansky opined that claimant had 
 
         a six percent impairment to the left upper extremity which 
 
         equated to a four percent impairment to the body as a whole.
 
         
 
              The plant physician, Dr. Blessman, also refused to return 
 
         claimant to work as a tire builder (Ex. 72).  Claimant continued 
 
         to argue with the plant physician regarding a return to work as a 
 
         tire builder.  Dr. Blessman authorized a functional capacity 
 
         evaluation through Thomas Bower, LPT.  The plant doctor also 
 
         authorized another opinion from another orthopedic specialist.    
 
         
 
              As a result, defendants approved an independent medical 
 
         examination from Jerome Bashara, M.D.  Dr. Bashara examined 
 
         claimant on one occasion, March 8, 1991.  In his report, Dr. 
 
         Bashara opined that:
 
         
 
              DIAGNOSIS:  1)  Impingement syndrome, left shoulder, 
 
              postoperative status related to an injury at work, 
 
              March of 1989.
 
         
 
              I would give the patient a 9% permanent partial physi
 
              cal impairment of the left upper extremity which should 
 
              be converted to a 5% permanent partial physical impair
 
              ment of his body as a whole as the surgery did involve 
 
              the patient's scapula and, therefore, went into the 
 
              body as a whole and beyond the humeral head.
 
         
 
         (Ex. 83)
 
         
 
              The functional capacity evaluation was performed by Tom 
 
         Bower, LPT on October 14, 1991.  Based upon his findings, Mr. 
 
         Bower restricted claimant as follows:
 
         
 
         
 
           POSITION         MAXIMUM LIFT    FREQUENT LIFT    REPETITIVE
 
         
 
         Floor to Waist        60 lbs.         52 lbs.         42 lbs.
 
         
 
         Chest Height          40 lbs.         35 lbs.         17 lbs.
 

 
         
 
         Page   4
 
         
 
         
 
         
 
         
 
         
 
         
 
         Overhead              40 lbs.         35 lbs.         17 lbs.
 
         
 
         Carry                 60 lbs.         52 lbs.         42 lbs.
 
         
 
         Push/Pull            190 lbs.
 
         
 
         
 
         (Ex. 105)
 
         
 
              During his hearing, claimant testified that as of May 16, 
 
         1991, he was permanently transferred from the tire builder posi
 
         tion.  His rate of pay dropped from $23.50 per hour as a tire 
 
         builder to $12.01 per hour as a jeep driver.  In March of 1992, 
 
         claimant was transferred from the jeep driver position, which he 
 
         did not enjoy, to the position of tire processor inspector.  He 
 
         was compensated at the rate of $14.86 per hour. At the time of 
 
         the hearing, claimant was earning $15.23 per hour.  Claimant tes
 
         tified that if he had remained a tire builder, he would have been 
 
         earning in excess of $25.00 per hour.  Claimant also testified 
 
         that the first year in which the reduced wages were reflected was 
 
         calendar year 1992.      
 
         
 
              During the hearing, claimant also testified to retirement 
 
         eligibility.  He testified he would be eligible for retirement 
 
         after 30 years of employment.  His earliest date for retirement 
 
         was given as 1995.  Claimant had no immediate plans to retire at 
 
         the time of the hearing.
 
         
 
              Mike Ables testified to some of the benefits which an 
 
         employee of defendant-employer could earn.  He testified that the 
 
         average hourly earnings in the tire room equated to $25.71 per 
 
         hour but there was no way for the witness to predict what 
 
         claimant would have earned if he had not been injured and thus 
 
         medically removed from the tire building position.  Mr. Ables 
 
         also testified that after 30 years, an employee could retire from 
 
         defendant-employer and still receive the full pension.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              The party who would suffer loss if an issue were not estab
 
         lished has the burden of proving that issue by a preponderance of 
 
         the evidence.  Iowa R. App. P. 14(f).
 
         
 
              The right of an employee to receive compensation for 
 
         injuries sustained is statutory. The statute conferring this 
 
         right can also fix the amount of compensation payable for differ
 
         ent specific injuries.  The employee is not entitled to compensa
 
         tion except as the statute provides.  Soukup v. Shores Co., 222 
 
         Iowa 272, 268 N.W. 598 (1936).
 
         
 
              Compensation for permanent partial disability begins at ter
 
         mination of the healing period.  Section 85.34(2).  Permanent 
 
         partial disabilities are classified as either scheduled or un
 
         scheduled.  A specific scheduled disability is evaluated by the 
 
         functional method; the industrial method is used to evaluate an 
 
         unscheduled disability. Simbro v. Delong's Sportswear, 332 N.W.2d 
 
         886 (Iowa 1983); Graves v. Eagle Iron Works, 331 N.W.2d 116 (Iowa 
 
         1983); Martin v. Skelly Oil Co., 252 Iowa 128, 106 N.W.2d 95 
 

 
         
 
         Page   5
 
         
 
         
 
         
 
         
 
         
 
         (1960).
 
         
 
              An injury to a scheduled member may, because of after 
 
         effects or compensatory change, result in permanent impairment of 
 
         the body as a whole.  Such impairment may in turn be the basis 
 
         for a rating of industrial disability.  It is the anatomical 
 
         situs of the permanent injury or impairment which determines 
 
         whether the schedules in section 85.34(2)(a) - (t) are applied.  
 
         Lauhoff Grain v. McIntosh, 395 N.W.2d 834 (Iowa 1986); 
 
         Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 1980); 
 
         Dailey v. Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 569 (1943).  
 
         Soukup, 222 Iowa 272, 268 N.W. 598 (1936).
 
         
 
              When disability is found in the shoulder, a body as a whole 
 
         situation may exist.  Alm v. Morris Barick Cattle Co., 240 Iowa 
 
         1174, 38 N.W.2d 161 (1949).  In Nazarenus v. Oscar Mayer & Co., 
 
         II Iowa Indus. Comm'r Rep. 281 (Appeal December 1982); a torn 
 
         rotator cuff was found to cause disability to the body as a 
 
         whole.
 
         
 
              Claimant alleges that he has sustained an injury to the body 
 
         as a whole and that he is entitled to industrial disability bene
 
         fits.  Defendants are of the view that claimant's shoulder injury 
 
         has caused disability only to the upper extremity and should be 
 
         compensated as a scheduled loss.  Formerly, this division compen
 
         sated shoulder injuries industrially on the basis that such 
 
         injuries involved disability to the body as a whole.  Streeter v. 
 
         Iowa Meat Processing Company, (Appeal Decision, March 31, 1989).  
 
         
 
              A more recent appeal decision emphasized that it is the 
 
         situs of disability that is determinative.  In Prewitt v. 
 
         Firestone Tire and Rubber Company, (Appeal Decision, August 12, 
 
         1992), the industrial commissioner held that where the treating 
 
         surgeon testified that claimant had full range of motion and full 
 
         strength of the shoulder following an injury and surgery, then 
 
         claimant had sustained an injury to the arm rather than to the 
 
         shoulder.   
 
         
 
              In the case at hand, claimant's injury is an injury to the 
 
         body as a whole.  Claimant's injury can be distinguished from the 
 
         injury in the Prewitt case.  In the present situation, Dr. 
 
         Dubansky testified in his deposition that:
 
         
 
                 Q.  Doctor, as a layperson, when you orthopedic 
 
              physicians, trained as you are, talk about the rotator 
 
              cuff, so I and perhaps the Commissioner may better 
 
              understand, what is the rotator cuff?
 
         
 
                 A.  It's composed basically of three muscles which 
 
              take their origin on the scapula, which is the shoulder 
 
              thing.  It passes and inserts into the head of the 
 
              humerus, into the greater and lesser--the greater and 
 
              lesser trochanters of the humerus.  And when that 
 
              muscle contracts, it shortens, and because of the 
 
              configuration of the head of the humerus and glenoid, 
 
              and because of the deltoid, the arm elevates.
 
         
 
                 Q.  Is it fair for me to conclude from that that 
 
              it's the series of muscles that help the arm fit into 
 

 
         
 
         Page   6
 
         
 
         
 
         
 
         
 
         
 
              the body at what is referred to as the shoulder area?
 
         
 
                 A.  Well, it depends on what you call body.
 
         
 
                 Q.  Okay.
 
         
 
                 A.  The medical definition would be those are the 
 
              muscles that run the shoulder.  Now, whether you call 
 
              it body or whether you call it shoulder or upper 
 
              extremity, I don't know.
 
         
 
                 Q.  Your notes, Doctor, of 5-31-89 reflect the 
 
              history of the anterior rotator cuff area.  And, again, 
 
              as a layperson, when you say the "anterior rotator cuff 
 
              area," where are you talking about, Doctor?
 
         
 
                 A.  Front of the shoulder.
 
         
 
                 Q.  Okay.
 
         
 
                 A.  That's where it inserts and that's where he was 
 
              tender.
 
         
 
                 Q.  And on June 8, '89, you say that he was tender 
 
              in the rotator cuff area, and so you did an injection 
 
              into the left rotator cuff area.  Where is the injec
 
              tion, Doctor, that you performed?
 
         
 
                 A.  In front.  It's into the ligament, actually, the 
 
              coracoacromial ligament and bursa, subacromial bursa 
 
              area.
 
         
 
                 Q.  Doctor, if we have an imaginary line between the 
 
              humerus and clavicle, what side would the injection 
 
              fall on that you made on the 8th of June?
 
         
 
                 A.  Line between the what?
 
         
 
                 Q.  Clavicle and humerus.  Are you injecting on the 
 
              side--
 
         
 
                 A.  You're injecting beneath the clavicle and toward 
 
              the midline--actually into the humerus, where the 
 
              muscle attaches.
 
         
 
                  ...
 
         
 
                 Q.  Doctor, what is the technical difference between 
 
              a rotator cuff tear and an impingement syndrome?
 
         
 
                 A.  Impingement syndrome merely means things are 
 
              tight.  Like if that door were half as wide and I tried 
 
              to walk through it, I would be impinged.  A rotator 
 
              cuff tear is where the muscle that I previously 
 
              described is actually torn.  There's a loss of continu
 
              ity between the muscle and insertion into the head of 
 
              the humerus.
 
         
 
                 Q.  Doctor, when you did the surgery on September 1, 
 

 
         
 
         Page   7
 
         
 
         
 
         
 
         
 
         
 
              '89, did you actually remove part of the person's 
 
              acromial--of the acromion?
 
         
 
                 A.  Yes.  The under surface of the acromion.  That's 
 
              the Neer acromioplasty.
 
         
 
                 Q.  When you say you resected something, what do you 
 
              do?
 
         
 
                 A.  I remove the ligament that goes from the tip of 
 
              the acromion to the tip of the coracoid.
 
         
 
                 Q.  Doctor, if you would look at your note of 62190, 
 
              just if you'd read it to yourself, and I want to ask 
 
              you a question about it, if I may.
 
         
 
                 A.  Yes.
 
         
 
                 Q.  So I can have this right, the "D" is you as 
 
              opposed to another?
 
         
 
                 A.  Yes.
 
         
 
                 Q.  Based upon this note, when do you think that Mr. 
 
              Johnson reqained the ability to, or when did he reach 
 
              maximum medical recuperation from the effects of the 
 
              injury of March 27?
 

 
         
 
         Page   8
 
         
 
         
 
         
 
         
 
         
 
         
 
                 A.  Well, at that time I just said for sometime.  
 
              I'm not sure what that means.
 
         
 
                 Q.  When you tell us there's some atrophy of the 
 
              deltoid muscle, Doctor, again as a layperson, what does 
 
              that mean?
 
         
 
                 A.  The deltoid is the muscle that you see that sort 
 
              of rounds out the shoulder, that you can actually visu
 
              alize, and it seemed a little smaller than his other 
 
              side, so that--he hadn't been using it as much.  So 
 
              atrophy means it's smaller, the muscle has gone down in 
 
              size.
 
         
 
                 Q.  Would that be related to the injury and surgery?
 
         
 
                 A.  Yes.
 
         
 
         (Ex. E, p. 13, l. 8 through p. 15, l. 7; and p. 17, l. 3 through 
 
         p. 18, l. 21)
 
         
 
              Claimant's injury extends into the front of the shoulder.  
 
         The three muscles which operate the shoulder are involved.  Addi
 
         tionally, Dr. Dubansky has opined that claimant has a functional 
 
         impairment to the shoulder rather than to the fingers, the hand, 
 
         the wrist, or the elbow.  (Ex. E, p. 20, l. 21 through p. 21, l. 
 
         7).  Claimant has sustained an injury to the body as a whole.  
 
         Claimant's injury is to be compensated industrially.
 
         
 
              Since claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich v. Tri-City Ry. Co., 219 Iowa 587, 258 
 
         N.W.2d 899 (1935) as follows: "It is therefore plain that the 
 
         legislature intended the term 'disability' to mean 'industrial 
 
         disability' or loss of earning capacity and not a mere 
 
         'functional disability' to be computed in the terms of percent
 
         ages of the total physical and mental ability of a normal man."
 
         
 
              Functional impairment is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience, 
 
         motivation, loss of earnings, severity and situs of the injury, 
 
         work restrictions, inability to engage in employment for which 
 
         the employee is fitted and the employer's offer of work or 
 
         failure to so offer.  Olson v. Goodyear Serv. Stores, 255 Iowa 
 
         1112, 125 N.W.2d 251 (1963); McSpadden v. Big Ben Coal Co., 288 
 
         N.W.2d 181 (Iowa 1980); Barton v. Nevada Poultry Co., 253 Iowa 
 
         285, 110 N.W.2d 660 (1961).
 
         
 
              Compensation for permanent partial disability shall begin at 
 
         the termination of the healing period.  Compensation shall be 
 
         paid in relation to 500 weeks as the disability bears to the body 
 
         as a whole.  Section 85.34.
 
         
 
              While it is acknowledged that claimant has sustained prior 
 
         work injuries, including an injury to his right shoulder in 1982, 
 
         his prior injuries have no effect upon any industrial disability.  
 

 
         
 
         Page   9
 
         
 
         
 
         
 
         
 
         
 
         Prior to the work injury in question, claimant was able to per
 
         form all duties which were assigned to him.  He was able to work 
 
         as a tire builder which paid wages in excess of $23.00 through 
 
         $25.00 per hour.
 
         
 
              Subsequent to the injury involving the left shoulder, 
 
         claimant has been unable to perform his duties as a tire builder.  
 
         He has made repeated efforts to find a physician who will return 
 
         claimant to his former position.  As of March of 1992, claimant's 
 
         diminution in earning capacity is reflected in his positions with 
 
         defendant-employer.  He is incapable of returning to tire build
 
         ing.  He has some employment opportunities available to him 
 
         within the plant.  However, the positions pay considerably less 
 
         than does the position of tire building.  Claimant is prohibited 
 
         from engaging in overhead work or from working above his shoul
 
         ders.  There are some lifting restrictions which are imposed upon 
 
         claimant.  The restrictions are severe.  The available positions 
 
         pay in the range of $12.00 to $15.25 per hour.  Claimant has a 
 
         very slim chance of earning in the $25.00 per hour range again.  
 
         Claimant's job is secure.  There is little likelihood of termina
 
         tion.  He has a seniority date which places him at 200 out of 
 
         1240.  He can retire, if he so chooses, after 30 years.  
 
         
 
              In light of all of the above, as well as in light of the 
 
         record in general and given this deputy's observation of 
 
         claimant, it is held that claimant has sustained an industrial 
 
         disability equivalent to 50 percent of the body as a whole or 250 
 
         weeks.  Claimant is entitled to weekly benefits at the stipulated 
 
         rate of $629.86 per week.  Per the parties' stipulation, the ben
 
         efits shall commence on December 14, 1989.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              Defendants shall pay unto claimant two hundred fifty weeks 
 
         (250) of permanent partial disability benefits at the stipulated 
 
         rate of six hundred twenty-nine and 86/l00 dollars ($629.86) per 
 
         week commencing on December 14, 1989.
 
         
 
              Defendants shall take credit for all benefits voluntarily 
 
         paid prior to hearing.
 
         
 
              All accrued benefits shall be paid in a lump sum together 
 
         with statutory interest pursuant to Iowa Code section 85.30.
 
         
 
              Costs are assessed to defendants pursuant to rule 343 IAC 
 
         4.33.
 
         
 
              Defendants shall file a claim activity report as requested 
 
         by this division and pursuant to rule 343 IAC 3.1.
 
         
 
         
 
         
 
              Signed and filed this ____ day of March, 1993.
 
         
 
         
 
         
 
         
 

 
         
 
         Page  10
 
         
 
         
 
         
 
         
 
         
 
         
 
                                       ______________________________               
 
                                       MICHELLE A. McGOVERN
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Robert W. Pratt
 
         Attorney at Law
 
         6959 University Avenue
 
         Des Moines, Iowa  50311
 
         
 
         Mr. Marvin E. Duckworth
 
         Attorney at Law
 
         Terrace Center  STE 111
 
         2700 Grand Avenue
 
         Des Moines, Iowa  50312
 
         
 
 
         
 
 
 
 
 
                           
 
                                              1803; 1803.1
 
                                              Filed March 19, 1993
 
                                              MICHELLE A. McGOVERN
 
         
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         ____________________________________________________________
 
                   
 
         ROBERT W. JOHNSON,  
 
                   
 
              Claimant, 
 
                   
 
         vs.       
 
                                            File No. 969091
 
         FIRESTONE TIRE & RUBBER, 
 
                                         A R B I T R A T I O N
 
              Employer, 
 
                                            D E C I S I O N
 
         and       
 
                   
 
         CIGNA,    
 
                   
 
              Insurance Carrier,  
 
              Defendants.    
 
         ___________________________________________________________
 
         
 
         
 
         
 
         1803.1
 
         Left shoulder injury was compensated industrially where 
 
         claimant's doctor testified that the injury was to the shoulder 
 
         as opposed to an injury to the fingers, the hand, the wrist, or 
 
         the elbow.  The treating physician testified that the injury 
 
         involved the three muscles at the front of the shoulder.  The 
 
         treating orthopedic surgeon restricted claimant from any overhead 
 
         work and from working above the shoulder level.  This case was 
 
         distinguished from Prewitt v. Firestone Tire and Rubber Company, 
 
         (Appeal Decision, August 12, 1992).
 
         
 
         
 
         1803
 
         Claimant was awarded a 50% industrial disability as a result of 
 
         an injury to the left shoulder.  Claimant returned to work at the 
 
         plant where he had sustained his work injury.  However, claimant 
 
         was unable to return to his former position as a tire builder.  
 
         Three physicians restricted claimant from tire building.  
 
         Claimant was accommodated but his new position paid approximately 
 
         $15.00 per hour as opposed to the former position where he would 
 
         have earned $25.71 per hour.  Claimant was restricted from 
 
         engaging in overhead work and from working above shoulder level.  
 
         Certain weight restrictions were also imposed.  The restrictions 
 
         were severe, although claimant's position within the plant was 
 
         secure.  Claimant had no hope of ever earning the same rate of 
 
         pay as he had earned prior to the left shoulder injury. 
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
                                        2701, 2501, 2700, 2902, 2906
 
                                        Filed April 6, 1993
 
                                        Walter R. McManus
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            DAVID L. KUSTER, SR.,    
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                              File No. 969141
 
            ROSE ACRE FARMS,    
 
                                            A L T E R N A T E   
 
                                              M E D I C A L
 
                 Employer, 
 
                                                C A R E   
 
                                             D E C I S I O N
 
            and       
 
                      
 
            HOME INSURANCE COMPANY,  
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            
 
            2701, 2501, 2700, 2902
 
            
 
                 Claimant failed to prove that he was entitled to 
 
            alternate medical care for his alleged vision, continuing 
 
            pain and depression.  Claimant specifically asked to see an 
 
            ophthalmologist, a chiropractor and a psychiatrist as a part 
 
            of his treatment for this injury.  
 
            
 
                 None of the medical practitioners whose reports are in 
 
            evidence indicated that claimant was actually in need of 
 
            this care.  Claimant produced no independent medical 
 
            evidence from any other medical practitioners that he was in 
 
            need of this care.  Nor had claimant sought or paid 
 
            privately for such care in the two years and four months 
 
            since this injury with exception of a few chiropractic 
 
            treatments.  Nor did claimant, who claimed to be financially 
 
            needy, request such care from county health programs.
 
            
 
                 Defendants established that claimant received 
 
            reasonable care.
 
            
 
            2906
 
            
 
                 Even though defendants alleged and established that 
 
            claimant did not communicate his request for this care prior 
 
            to filing his petition as required by Iowa Code section 
 
            85.27 and Rule 343 IAC 4.48(4), and also even though 
 
            defendants established that claimant had not responded to 
 
            discovery requests made in December of 1992 as required by 
 
            Rule 343 IAC 4.48(9), the deputy determined it was in the 
 
            best interest of justice and the best interest of the 
 
            parties to hear and decide the case on the merits rather 
 
            than attempt to dispose of it on procedural grounds.
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                 Where claimant had made a threat of violence to the 
 
            insurance company representative prior to hearing she was 
 
            allowed to be present and testify at the hearing by speaker 
 
            telephone at the request of defendants' counsel.
 
            
 
                 Likewise, claimant's counsel was informed that capital 
 
            police would be out of sight but on duty and in surveillance 
 
            of claimant at the time of the hearing.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            DAVID L. KUSTER, SR.,    
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                                File No. 969141
 
            ROSE ACRE FARMS,    
 
                                      A L T E R N A T E   M E D I C A L
 
                 Employer, 
 
                                        C A R E   D E C I S I O N
 
            and       
 
                      
 
            HOME INSURANCE COMPANY,  
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
                                  INTRODUCTION
 
            
 
                 This is a proceeding in arbitration filed by David L. 
 
            Kuster, Sr., (pronounced Keester) claimant, against Rose 
 
            Acre Farms, employer, and Home Insurance Company, insurance 
 
            carrier, defendants, requesting alternate medical care 
 
            pursuant to Iowa Code section 85.27 and rule 343 IAC 4.48.  
 
            A hearing was held in Des Moines, Iowa on April 5, 1993 and 
 
            the case was fully submitted at the close of the hearing.  
 
            The hearing began at 1:45 p.m. and ended at 4:45 p.m.  
 
            Claimant was represented by Martin L. Fisher.  Defendants 
 
            were represented by Dorothy L. Kelley.  The record consists 
 
            of the testimony of David L. Kuster, Sr., claimant, and 
 
            Kathy King, insurance company representative.  Each party 
 
            submitted approximately ten pages of medical exhibits.  The 
 
            hearing was recorded on audio tapes.  King was not present 
 
            in the courtroom but was present by speaker telephone during 
 
            the entire hearing and testified by speaker telephone at the 
 
            request of defendants' counsel because of a threat of 
 
            violence made against her by claimant previously during 
 
            telephone conservation with her. 
 
            
 
                                      ISSUE
 
            
 
                 The sole issue for determination is whether claimant is 
 
            entitled to alternate medical care (1) from an eye 
 
            specialist for alleged vision problems, (2) for treatment by 
 
            a chiropractor for alleged continuing pain and (3) for 
 
            psychiatric care due to alleged depression or other 
 
            emotional problems.  
 
            
 
                    
 
            
 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                              PRELIMINARY MATTERS
 
            
 
                 Defendants' counsel admitted on the record (1) that an 
 
            employer-employee relationship existed between claimant and 
 
            employer at the time of the injury, (2) that claimant 
 
            sustained an injury which arose out of and in the course of 
 
            employment with employer.
 
            
 
                 The deputy announced at the beginning of the hearing 
 
            that he been delegated the authority by the industrial 
 
            commissioner to issue the final agency action in this 
 
            matter.  Therefore, appeal of this decision, if any, would 
 
            be by judicial review pursuant to Iowa Code section 17A.19.
 
            
 
                                FINDINGS OF FACT
 
            
 
                 It is determined that claimant is not entitled to the 
 
            alternate medical care requested.
 
            
 
                 The employer is obligated to furnish reasonable medical 
 
            services and supplies to treat an injured employee but also 
 
            has the right to choose the care.  Iowa Code section 85.27 
 
            (unnumbered paragraphs one and four). 
 
            
 
                 Iowa Code section 85.27 (unnumbered paragraph four) 
 
            further provides that "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."  King testified and 
 
            defendants' counsel contended that claimant had never 
 
            requested any of this care until he filed his petition for 
 
            alternate medical care.  Thus, defendants did not have an 
 
            opportunity to discuss the alternate medical care requested 
 
            with claimant prior to the original notice and petition, 
 
            save require that his dissatisfaction be expressed in 
 
            writing.  
 
            
 
                 In addition, rule 343 IAC 4.48(9) Discovery and 
 
            evidence, provides as follows:  "All discovery must be 
 
            completed prior to the contested case hearing."  Defendants' 
 
            counsel contended in her answer to the petition for 
 
            alternate medical care dated March 29, 1993, that discovery 
 
            propounded to claimant and served on December 21, 1992 was 
 
            still outstanding.  In addition, defendants' counsel also 
 
            contended, correctly, that at the time of the rescheduling 
 
            telephone conference between counsel for both parties and 
 
            the deputy on March 29, 1993, that she again requested that 
 
            her discovery request submitted to claimant on December 21, 
 
            1992, be honored prior to this hearing.  At the hearing 
 
            defendants' counsel contended that she had never received 
 
            the requested discovery information, which allegation 
 
            claimant's counsel did not deny.
 
            
 
                 Even though these procedural requirements of the 
 
            statute and rules had not been met, it was the determination 
 
            of the deputy to hear and decide the case on the merits in 
 
            the best interest of justice and in the best interest of 
 
            both parties rather than dispose of it on these procedural 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            deficiencies.
 
            
 
                 Claimant, age 48 testified that he has been in the 
 
            automobile salvage business as a self-employed person for 
 
            approximately 30 years.  Because of a need for additional 
 
            finances he started to work for employer in August of 1990.  
 
            On November 6, 1990, claimant fell approximately 12 feet 
 
            from a walkway, landed on his feet and then flipped 
 
            backwards onto a pile of sawdust with broken wood in it.  
 
            During the fall he grabbed a 2 x 6 board with his right hand 
 
            and injured his right hand, wrist, arm and shoulder.
 
            
 
                 Claimant was treated on the injury date, November 6, 
 
            1990, by D. S. Tillotson, D.O., for complaints of pain in 
 
            his right shoulder radiating down his arm into digits one, 
 
            two and three and also some numbness with abduction of his 
 
            shoulder.  X-rays were negative for fracture of the shoulder 
 
            or wrist.  Dr. Tillotson prescribed a sling, 
 
            anti-inflammatory medications, analgesic ice packs and 
 
            physical therapy treatments.  In her medical report dated 
 
            December 5, 1990, Dr. Tillotson stated that the patient had 
 
            not followed-up with physical therapy and failed to keep his 
 
            last appointment with her.  King testified that she only 
 
            recorded one physical therapy treatment while claimant was 
 
            treating with Dr. Tillotson and that was on November 6, 
 
            1990.  
 
            
 
                 Since this was the first examination by a medical 
 
            practitioner and it occurred on the same date of the injury 
 
            it should be noted that claimant did not complain about his 
 
            neck, back, vision, headaches, lower extremities or his ears 
 
            which are all parts of his body which he currently alleges 
 
            were injured in this accident.  
 
            
 
                 Defendants' counsel called attention to the fact that 
 
            claimant declined to attend additional physical therapy 
 
            treatments and failed to keep his scheduled appointments 
 
            with Dr. Tillotson.  
 
            
 
                 Claimant next saw David Ahrens, M.D., his personal and 
 
            family physician on December 6, 1990, who recorded that 
 
            claimant had been seeing Dr. Tillotson but would like a 
 
            second opinion and he was out of Tyenol with codeine.  
 
            Claimant complained of pain in his right shoulder, neck, low 
 
            back and left ankle.  Dr. Ahrens diagnosed dislocation of 
 
            the right shoulder, neck strain, back strain, and sprain of 
 
            the left ankle.  He referred claimant to Rodney E. Johnson, 
 
            M.D., an orthopedic surgeon.  An appointment was set up with 
 
            Dr. Johnson at 8:00 a.m. on December 7, 1990.  Defendants' 
 
            counsel emphasized, and claimant admitted, that he did not 
 
            keep this appointment with Dr. Johnson at this time.  
 
            
 
                 Claimant did see Dr. Johnson on December 24, 1990 who 
 
            recorded complaints of pain to his neck, shoulder, wrist, 
 
            thumb, index and long finger.  The doctor suspected a 
 
            rotator cuff tear to the right shoulder and requested an 
 
            arthrogram with a CT scan.  He suspected a possible C6 disc 
 
            injury for which he ordered cervical MRI.
 
            
 
                 On January 14, 1991, Dr. Johnson saw claimant on 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            follow-up and reported that the cervical MRI demonstrated 
 
            degenerative changes at C4-5 as well as C5-6, but that they 
 
            did not correspond to the symptoms which the patient 
 
            complained of.  The doctor reported that claimant refused to 
 
            have the arthrogram of his shoulder with a contrast CT scan 
 
            because he refused to have dye injected into his shoulder.  
 
            Defendants' counsel emphasized that claimant refused the 
 
            diagnostic arthrogram which was ordered by the orthopedic 
 
            surgeon.  Dr. Johnson said that because of this he was 
 
            forced to perform an MRI of the shoulder which was a less 
 
            satisfactory and a less reliable test than the arthrogram.  
 
            
 
                 Dr. Johnson referred claimant to Joseph M. Doro, D.O., 
 
            a neurologist for an EMG of the right arm.
 
            
 
                 King testified that the only other physical therapy 
 
            treatment which claimant submitted to was one more treatment 
 
            during the treatment of Dr. Johnson on January 8, 1991.  
 
            Defendants' counsel pointed out that claimant was requesting 
 
            chiropractic care but refused physical therapy when it was 
 
            offered to him.
 
            
 
                 Dr. Doro saw claimant on February 18, 1991, recorded 
 
            that claimant complained of pain in his neck, shoulder, arm, 
 
            thumb, index and middle finger.  Dr. Doro also recorded that 
 
            claimant said that he was not seeing well with either one or 
 
            both of his eyes.  Dr. Doro indicated that the MRI of his 
 
            neck ordered by Dr. Johnson did not show any abnormalities.  
 
            Dr. Doro stated that the EMG was difficult to perform 
 
            because claimant was sensitive to electrical current and 
 
            that he was not able to complete all of the EMG because of 
 
            the difficultly claimant had with needles.  Dr. Doro added 
 
            however, that he did not find any obvious abnormalities to 
 
            suggest a radiculopathy or plexopathy.  
 
            
 
                 Dr. Doro did find evidence of a right carpal tunnel 
 
            syndrome.  Dr. Doro suspected that most of claimant's 
 
            difficulties were on a chronic musculoskeletal basis.  He 
 
            said that they are slowly resolving.  He suggested physical 
 
            therapy and anti-inflammatory muscle relaxants but stated 
 
            that the claimant was reluctant to do many things at this 
 
            point.  Defendants' counsel again emphasized that claimant 
 
            did not fully cooperate with the EMG test of Dr. Doro and 
 
            again declined physical therapy and anti-inflammatory muscle 
 
            relaxants when they were offered.  
 
            
 
                 With respect to his vision Dr. Doro said that an 
 
            ophthalmologist could be consulted to see if there is 
 
            anything significant but he rather preferred a CT scan of 
 
            the head because of his headaches.  The CT scan of his head 
 
            did not show any abnormalities.  Dr. Doro stated that he 
 
            would find it difficult to explain his monocular (one eye) 
 
            difficulties on the basis of a central process.  Defendants 
 
            contended that the head CT scan eliminated any physiological 
 
            basis for claimant's vision problems and that they never 
 
            received a request for an ophthalmologist until this 
 
            petition for alternate care.  
 
            
 
                 Claimant was seen again by Dr. Johnson on April 24, 
 
            1991, at which time he said the MRI of the shoulder did not 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            indicate there was a tear but he rather suspected some 
 
            tendonitis around the shoulder.  He too recorded that the 
 
            EMG was positive for right carpal tunnel.  He noted that 
 
            claimant's right shoulder impingement or rotator tendonitis, 
 
            type of complaint, had not been relieved by rest, exercise 
 
            or anti-inflammatories and he offered to inject the shoulder 
 
            with Cortisone but that claimant declined the Cortisone 
 
            injection.  Defendants' counsel stressed that claimant again 
 
            refused the medical treatment of the orthopedic surgeon of a 
 
            Cortisone injection in his shoulder and that he further 
 
            declined to have the carpal tunnel syndrome surgery, which 
 
            was recommended by Dr. Johnson on April 24, 1991.  
 
            
 
                 Claimant saw Dr. Ahrens again on June 3, 1991, for a 
 
            recheck and a refill of Tyenol No. 3.  The only complaint 
 
            mentioned was the right shoulder on this date.  The doctor 
 
            found crepitation and some tenderness.  He continued to 
 
            diagnose right shoulder strain.
 
            
 
                 The next chronological event is that claimant saw Dr. 
 
            Aherns again on October 4, 1991 and wanted Tyenol No. 3.  He 
 
            diagnosed right shoulder strain again and referred claimant 
 
            to Dr. Johnson again.  An appointment was arranged for 
 
            Wednesday October 9, 1991 at 11:00 a.m.  Claimant admitted, 
 
            and defendants' counsel again highlighted the fact, that 
 
            claimant refused to receive medical treatment from an 
 
            authorized orthopedic surgeon when it was authorized and 
 
            recommended by his personal and family physician.  
 
            
 
                 On November 18, 1991, Dr. Johnson gave a 4 percent 
 
            impairment rating of the neck which he arbitrarily 
 
            apportioned 50 percent to degenerative changes preexisting 
 
            this injury and 50 percent related to this injury.  Normally 
 
            the award of a permanent impairment rating is construed to 
 
            mean that the employee has attained maximum medical 
 
            improvement.  This was the last time claimant saw Dr. 
 
            Johnson.  
 
            
 
                 During 1992, claimant saw Allan J. Schultz, D.C., a 
 
            chiropractor in Johnston, Iowa, on July 30, 1992 and August 
 
            19, 1992.  His reports labeled these office visits as 
 
            session number two and session number three and therefore 
 
            claimant apparently had an earlier visit to Dr. Schultz.  
 
            His graphs showed a definite loss of strength in the right 
 
            side but at the same time it had improved significantly 
 
            between these two visits.
 
            
 
                 Claimant next saw Dr. Doro again on September 10, 1992.  
 
            The MRI of the brain, which was intended to rule out any 
 
            serious complications of his vision problem, was negative.  
 
            The MRI of the cervical spine showed mild degenerative 
 
            spondylosis at C-4/5, 5/6 and 6/7.  Dr. Doro concluded there 
 
            does not appear to be any surgically correctable process in 
 
            his neck and he did not see any evidence of any structural 
 
            abnormality of his brain.  
 
            
 
                 Dr. Doro indicates that claimant had attained maximum 
 
            medical improvement by two comments in his report of 
 
            September 10, 1992:  (1) "At this point, I am not sure how 
 
            much more there is to offer him." (2) "I do not think 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            further conservative treatment is going to be of benefit to 
 
            him." 
 
            
 
                 Dr. Doro ended with two conclusions (1) he was not 
 
            certain whether repairing his carpal tunnel might help, (2) 
 
            the question of a pain clinic came up and he thought that 
 
            was the only other option available at this point.
 
            
 
                 Claimant contended that Dr. Doro had recommended an 
 
            ophthalmologist in his report of February 18, 1991.  
 
            Defendants countered that instead Dr. Doro recommended the 
 
            MRI scan of the brain which was negative and ruled out any 
 
            physiological basis for his headaches or vision problems.  
 
            Defendants also contend, correctly, that Dr. Doro only 
 
            commented that an ophthalmologist could be consulted but 
 
            recommended the CT scan instead.  Dr. Doro did not refer 
 
            claimant to an ophthalmologist nor did he recommend that he 
 
            be referred to an ophthalmologist.  He merely mentioned that 
 
            "an ophthalmologist could be consulted."
 
            
 
                 Claimant also contends that Dr. Doro recommended a pain 
 
            clinic on September 10, 1992.  Defendants on the other hand 
 
            contend that Dr. Doro only stated that the question of a 
 
            pain clinic came up, which indicates that it may have been 
 
            raised by claimant rather than the doctor.  Defendants 
 
            further contend that Dr. Doro did not recommend a pain 
 
            clinic but merely stated it would be the only other option 
 
            available at this point.  Dr. Doro did not refer claimant to 
 
            a pain clinic, nor did he recommend that claimant be treated 
 
            at a pain clinic.
 
            
 
                 Claimant contended that he injured his knee cap at the 
 
            time the fall because it was jammed backwards.  Defendants 
 
            correctly contend that there is no evidence of a knee cap 
 
            injury anywhere in the medical records. 
 
            
 
                 Claimant contends that he had an earache and found 
 
            blood in his ear in approximately April of 1992 which is 
 
            approximately one and one-half years after this injury 
 
            occurred.  Defendants correctly pointed out that there is no 
 
            mention of earache or ear complaints of any kind in the 
 
            medical records which are submitted in this hearing.
 
            
 
                 Defendants' counsel also pointed out the fact that 
 
            claimant declined to have carpal tunnel surgery when it was 
 
            recommended to him.  Furthermore, the deputy has a problem 
 
            for the reason that Dr. Doro did not make a causation 
 
            statement on what caused the carpal tunnel syndrome.  Carpal 
 
            tunnel syndrome is currently a very common disease which 
 
            occurs in both employment situations outside the home and 
 
            employment situations inside the home and in private life.  
 
            Dr. Johnson did not make a causation statement on the cause 
 
            of the carpal tunnel syndrome. 
 
            
 
                 This injury occurred approximately two years and four 
 
            months ago.  During that period of time claimant has not 
 
            sought out any private treatment by a physician of his own 
 
            choice for his vision complaints, his pain complaints to his 
 
            right upper extremity and neck or any psychiatric or 
 
            psychological treatment for his depression or other 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            emotional problems (with the exception of seeing 
 
            chiropractors approximately four times).  
 
            
 
                 Claimant contended that he has had serious financial 
 
            problems but admitted that he had not sought out treatment 
 
            for his vision, pain or emotional problems through the 
 
            county health organization.  
 
            
 
                 None of the authorized doctors have recommended 
 
            chiropractic care.  Claimant refused the physical therapy 
 
            treatments that were offered by Dr. Tillotson and Dr. 
 
            Johnson after only one treatment.  Claimant brought forth no 
 
            medical evidence from either Dr. Schultz or the other 
 
            chiropractor in Ft. Dodge, Iowa that he had seen that 
 
            chiropractic care would improve or be beneficial to his 
 
            condition.
 
            
 
                 Neither did claimant present any medical evidence from 
 
            any source whatsoever that he was in need of vision care 
 
            from an ophthalmologist.  
 
            
 
                 None of the medical reports in evidence demonstrate 
 
            that claimant was suffering from depression or severe 
 
            emotional problems.  Claimant produced no medical evidence 
 
            from any medical practitioner that he was in need of 
 
            psychiatric or psychological counseling for any reason, save 
 
            due from this injury.  
 
            
 
                 The parties agreed that defendants have scheduled 
 
            claimant for a physical capacity examination on April 6, 
 
            1993, the day following this hearing on April 5, 1993, which 
 
            is evidence that claimant's evaluation has not been entirely 
 
            abandoned even though Dr. Johnson and Dr. Doro indicated 
 
            that claimant had attained maximum medical improvement and 
 
            that claimant had voluntarily quit seeing Dr. Tillotson and 
 
            Dr. Ahrens.  There was further evidence that an independent 
 
            medical examination had been discussed between the parties.
 
            
 
                 The only evidence of claimant's emotional instability 
 
            was that when talking with King she alleged that he swore at 
 
            her, indicated that he could handle firearms, and discharged 
 
            a firearm twice during the conversation.  She further 
 
            testified that she has a recorded conversation for these 
 
            events which claimant concluded by stating that if they 
 
            could not work out an independent medical examination that 
 
            she might be seeing him personally.  Claimant admitted this 
 
            did happen.  Claimant testified that it was due to 
 
            frustration, anger, financial difficulties, his lack of 
 
            employment, the weather and other factors that may have been 
 
            affecting him at the time of that conversation.
 
            
 
                 Wherefore, based upon the foregoing evidence, it is 
 
            determined as a matter of fact that claimant has not 
 
            submitted facts which show that the medical treatment that 
 
            he has received for this injury was not reasonable.  On the 
 
            contrary, it is determined, as a matter of fact, that 
 
            claimant has received reasonable medical care based upon the 
 
            evidence submitted at this hearing.
 
            
 
                                CONCLUSIONS OF LAW
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            
 
                 WHEREFORE, based upon the foregoing and following 
 
            principles of law these conclusions of law are made:
 
            
 
                 That claimant did not sustain the burden of proof by 
 
            preponderance of the evidence that the medical care that he 
 
            was provided was not reasonable medical care.  Iowa code 
 
            section 85.27 (unnumbered paragraphs one and four).
 
            
 
                 That claimant did not sustain the burden of proof by 
 
            preponderance of the evidence that he is entitled to 
 
            alternate medical care.  Iowa Code section 85.27 (unnumbered 
 
            paragraph four).
 
            
 
                 That defendants have shown that the care provided was 
 
            reasonable.
 
            
 
                                      ORDER
 
            
 
                 WHEREFORE, IT IS determined that claimant is not 
 
            entitled to an order for alternate medical care.
 
            
 
                 The costs of this hearing, are charged to claimant 
 
            pursuant to rule 343 IAC 4.33 and Iowa Code section 86.40.
 
            
 
                 That defendants are ordered to continue to file claim 
 
            activity reports as requested by this agency pursuant to 
 
            rule 343 IAC 3.1.
 
            
 
                 That the undersigned has been delegated the authority 
 
            to issue final agency action in this matter.  Appeal of this 
 
            decision, if any, would be by judicial review pursuant to 
 
            Iowa Code section 17A.19.
 
            
 
     
 
            
 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            Signed and filed this ____ day of April, 1993.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          WALTER R. McMANUS, JR.
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Martin L. Fisher
 
            Attorney at Law
 
            306 Audubon St.
 
            P.O. Box 158
 
            Adair, IA  50002
 
            
 
            Ms. Dorothy L. Kelley
 
            Attorney at Law
 
            500 Liberty Building
 
            Des Moines, IA  50309
 
            
 
 
            
 
            
 
            
 
            
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            ROBERT WALKER,                :
 
                                          :       File No. 969163
 
                 Claimant,                :
 
                                          :
 
            vs.                           :     A R B I T R A T I O N
 
                                          :
 
            GRIFFIN PIPE PRODUCTS CO.,    :       D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant                :
 
                                          :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This case came on for hearing on October 20, 1993, at 
 
            Council Bluffs, Iowa.  This is a proceeding in arbitration 
 
            wherein claimant seeks compensation for permanent partial 
 
            disability benefits as a result of an injury that occurred 
 
            on November 15, 1990.  The record in the proceeding consists 
 
            of the testimony of the claimant, Trent Risper, and Thomas 
 
            Leedy; and, joint exhibits 1 through 25.
 
            
 
                                      ISSUES
 
            
 
                 The issues for resolution are:
 
            
 
                 1.  The extent of claimant's permanent disability, if 
 
            any; and,
 
            
 
                 2.  Who is responsible for payment of the $390 bill of 
 
            Dr. Eggers.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The undersigned deputy, having heard the testimony and 
 
            considered all the evidence, finds that:
 
            
 
                 Claimant is a 49-year-old who went through the eleventh 
 
            grade and dropped out to go into the armed services.  
 
            Claimant obtained his GED in the armed services.  Claimant 
 
            reviewed his work history up to May 31, 1984, at which time 
 
            he began working for defendant employer.  Claimant's prior 
 
            work history involved painting, paper hanging, lifting of 
 
            heavy boxes, bending, stooping, twisting, and climbing.  He 
 
            also served in the armed services and went through strenuous 
 
            exercises there.  Claimant indicated he had no prior back 
 
            problems or injuries.
 
            
 
                 Claimant had a pre-employment physical with C. Edwards, 
 
            Jr., M.D., and he wasn't sure if x-rays were taken of his 
 
            back or not.  He was hired and began working at which time 
 
            he had no pain or tingling or problems with his low back.  
 
            Claimant worked for defendant employer as a laborer and in 
 
            several other positions, including the maintenance 
 

 
            
 
            Page   2
 
            
 
            
 
            department, hand gun, and trough operation.  He described 
 
            the nature of his work and what he did.  Claimant indicated 
 
            that his job required him to stand, lift 10 to 100 pounds, 
 
            bend, climb and unload.  The floor he stood on was concrete.  
 
            He said the jobs he bid on are set out in the union 
 
            contract.
 
            
 
                 Claimant said that on November 15, 1990, he was 
 
            unloading a flatbed truck and was in the process of cleaning 
 
            up the mess when he bent down and hurt his low back.  He 
 
            said he had been unloading and picking up bags or boxes of 
 
            ladle, which is a paste.  These boxes weighed about 100 
 
            pounds each.  He said no one else was around except when a 
 
            security person came by and noticed claimant was holding his 
 
            back.  Claimant said a foreman filled out an accident report 
 
            during this second shift which was from 3:00 p.m. to 11:00 
 
            p.m.  Claimant went to the nurses' station.  Ice was put on 
 
            his back and he was then driven to the hospital.  Claimant 
 
            said he went to work on November 16, 1990.  He said he told 
 
            the hospital that he hurt his back and pain was going down 
 
            into his right leg and into his foot.
 
            
 
                 Claimant said he had physical therapy and that the pain 
 
            is better some days than others.  He indicated his right leg 
 
            would go numb, he had spasms and the bottom of his foot and 
 
            toes would tingle.  Claimant related some of his treatment 
 
            and indicated he had a 25 pound lifting restriction which he 
 
            contends is still in existence.
 
            
 
                 Claimant returned to work in September 1991 as a 
 
            laborer and not to his former job as he indicated he wasn't 
 
            able to do his former job.
 
            
 
                 Claimant described the type of work he was doing when 
 
            he first returned to work, which included making up stickers 
 
            for trucks, cleaning nuts and bolts, and sitting in the 
 
            first aid room.  He contends he knows of no other employee 
 
            who was told to wear a light duty sticker on his hard hat.  
 
            He referred to joint exhibit 19.  He said this was a special 
 
            light duty sticker and this has resulted in him receiving 
 
            criticism and harassment from employees and the foreman.  He 
 
            said some of the comments are that they wished they had his 
 
            job.  He indicated he had his break schedule interrupted or 
 
            changed.  He said he filed a grievance because of the way 
 
            the company was treating him.
 
            
 
                 Claimant said that his current light duty work is not 
 
            protected under the collective bargaining agreement.  He 
 
            said he would like to go to school and then go into his own 
 
            business.  Claimant said Behrouz Rassekh, M.D., recommended 
 
            a pain clinic but the employer said it was too expensive so 
 
            claimant did not go.
 
            
 
                 Claimant acknowledged that he went to a Dr. Eggers, a 
 
            psychiatrist, on his own and was not referred to by any 
 
            doctor.  He said the reason he went to the doctor was 
 
            because he felt bad about his life and was not sure of 
 
            himself and wanted things to be straightened out.
 
            
 
                 Claimant indicated he misses or leaves work once in a 
 

 
            
 
            Page   3
 
            
 
            
 
            while because of his pain and he would call the employer if 
 
            he cannot make it and doesn't get paid for that particular 
 
            day.  He said prior to November 15, 1990, he did not miss 
 
            hardly any work.
 
            
 
                 On cross-examination, claimant acknowledged that he has 
 
            had absences since his return to work in September 1991.  He 
 
            acknowledged that he was suspended three days on one 
 
            occasion for non-work absences and had been warned before in 
 
            November 1991 of his absences.  He indicated that one was 
 
            because of his wife having open heart surgery and another 
 
            because his daughter was having a baby.
 
            
 
                 Claimant was again questioned concerning his contention 
 
            that his current job is not a bid job.  Claimant said he was 
 
            told it was not a bid job or a collective bargaining job but 
 
            the company has denied it.  He admitted that no employer has 
 
            said he isn't covered by the collective bargaining 
 
            agreement.  Claimant acknowledged that he has a right to bid 
 
            on a job and that seniority plays a part in getting a job 
 
            one would bid on.  Claimant acknowledged that he has not 
 
            told the company or personnel manager that any job they post 
 
            that they think claimant can do to call him to present his 
 
            bid.  It appears this has been done by others in the same or 
 
            similar situations.  Claimant acknowledges that he is the 
 
            one who makes the decision as to whether he wants to bid or 
 
            not.  He is concerned that his present job may terminate.  
 
            Claimant said since September 1991 he has gone to adult 
 
            education classes to increase his reading and math skills.  
 
            Claimant said he has not prepared himself further since the 
 
            September 1991 return to work because he is still employed 
 
            with defendant employer and intends to continue working for 
 
            them.
 
            
 
                 Trent Risper testified that he has worked with 
 
            defendant for seven and one-half years and is a grinder.  He 
 
            is familiar with the other jobs as a union steward.  He said 
 
            he has observed claimant and claimant gets around the plant 
 
            very slow.  He appears in pain and is in a bent over 
 
            condition.  He is familiar with claimant's light duty work.  
 
            He acknowledged claimant is now cleaning nuts and bolts and 
 
            has not seen others doing this type of job.  He was referred 
 
            to exhibit 19 which is a hard hat with the light duty 
 
            sticker thereon.  Mr. Risper said he has never seen anyone 
 
            else have a sticker on a hat.  He said claimant told him he 
 
            has been harassed by others who have indicated they wished 
 
            they could get a sticker so they could get out of working.
 
            
 
                 He acknowledged that a grievance was not filed because 
 
            this isn't provided for in the contract.  He knows of others 
 
            who are on light duty and they aren't required to wear a 
 
            sticker.  He has observed other employees harassing 
 
            claimant.  He was familiar with the foreman harassing 
 
            claimant by scheduling his breaks at a different time.  He 
 
            knows of no others whose break times were changed.
 
            
 
                 He testified that claimant is presently in a non-bid 
 
            job.  He wasn't familiar with any job that claimant could 
 
            perform with defendant employer.  He knows of claimant 
 
            leaving in the middle of the week and he agreed that one or 
 

 
            
 
            Page   4
 
            
 
            
 
            two times a week claimant doesn't come to work.  Mr. Risper 
 
            acknowledged that defendant is trying to accommodate the 
 
            employees but feels claimant is handled differently.  Mr. 
 
            Risper also acknowledged that defendant tries to accommodate 
 
            each individual as an individual and that each individual 
 
            may be treated differently depending on the particular 
 
            employee's situation.
 
            
 
                 On cross-examination, Mr. Risper acknowledged that bid 
 
            jobs include the labor pool and when one first starts, they 
 
            are in the labor pool and later they can bid on a job.  He 
 
            said he again indicated that the labor pool is a bid job.
 
            
 
                 Mr. Risper also acknowledged that claimant could take 
 
            the sticker off if he wanted to.  It is not mandatory that 
 
            the light duty sticker be placed on the hat.  It would 
 
            appear to the undersigned that this sticker can have 
 
            advantages or disadvantages but that it is to help the 
 
            employer or someone who might not be as familiar with the 
 
            defendant as someone else to make sure he is not put in work 
 
            other than light duty.  It would appear that the employer 
 
            could get criticized either way.  It appears to the 
 
            undersigned that if claimant felt the sticker did not 
 
            prevent his chance of being put somewhere other than light 
 
            duty, he could take the sticker off.
 
            
 
                 Mr. Risper acknowledged that the company won both 
 
            grievances as to the light duty sticker and as to claimant 
 
            working in the first aid room.
 
            
 
                 Thomas Leedy testified that he has been employed by 
 
            defendant since May 1990 and is the plant personnel manager.  
 
            Before this he was with defendant's company located in 
 
            another state.  He is familiar with the duties and jobs at 
 
            defendant as he is responsible for the hiring of all 
 
            employees and needs to know the nature of the jobs so that 
 
            he can evaluate them.  He has been in the court room during 
 
            this proceeding and has heard claimant testify.  He said the 
 
            company has a status of light duty program to provide work 
 
            for those who are temporarily injured and is a way to try to 
 
            accommodate the workers.  He said they won't replace another 
 
            worker.  He said all of the employees are covered by the 
 
            collective bargaining agreement.  He heard Mr. Risper 
 
            testify and it is obvious he disagrees if Mr. Risper is 
 
            trying to say that certain employees or the claimant wasn't 
 
            covered by the collective bargaining agreement.
 
            
 
                 Mr. Leedy acknowledged that light duty work wasn't a 
 
            permanent status and that there are employees with permanent 
 
            restrictions that are not on light duty.  He acknowledged 
 
            the company won the grievances previously referred to.  He 
 
            acknowledged claimant is the only one that has been this 
 
            long on light duty work as one usually gets off of that.  He 
 
            emphasized the purpose of the sticker is to show a 
 
            supervisor that claimant is on restrictions and not to 
 
            violate the restrictions.  Mr. Leedy also said that the 
 
            company has not prevented claimant from bidding on any other 
 
            job.  He said the claimant has the right to bid on a job and 
 
            the company cannot prevent this.  Likewise, he indicated 
 
            that if claimant thought he was being prevented, he could 
 

 
            
 
            Page   5
 
            
 
            
 
            file a grievance as to the company interfering with his 
 
            bidding on a job.  There were six various jobs mentioned in 
 
            which Mr. Leedy indicated he thought claimant could do or a 
 
            certain part could be adjusted so that claimant could be 
 
            accommodated so claimant could do these jobs.  They either 
 
            paid as much or more as the job he was doing at the time of 
 
            his injury or what he is getting at his current light duty 
 
            job, which is the same he was getting at the time of his 
 
            injury.  Mr. Leedy went into detail as to the specifics of 
 
            each particular job.
 
            
 
                 Mr. Leedy emphasized that whether claimant considers 
 
            himself permanent light duty or incapable, claimant's status 
 
            is no different than any other employee.  Claimant then was 
 
            put on the stand again in rebuttal and went through the 
 
            various jobs that defendant contends claimant could do or 
 
            could be so modified that claimant could do.  Claimant 
 
            contends that there were some part of each job he wasn't 
 
            able to do or they would violate his restrictions.
 
            
 
                 Joint exhibit 1(a) is an October 29, 1992 letter from 
 
            Charles Taylon, M.D., in which he opined claimant had a 
 
            three percent permanent impairment to the body as a whole 
 
            and is restricted to 25 pounds of lifting and there should 
 
            be no pushing and pulling greater than 25 pounds.
 
            
 
                 The doctor earlier, on September 14, 1992, indicated 
 
            claimant's step climbing should be restricted to five steps 
 
            in a series each time he attempts to walk up and down steps.  
 
            Sitting and standing should be on an as-needed basis.
 
            
 
                 Joint exhibit 1(f) is a July 1, 1991 letter from Dr. 
 
            Taylon indicating that claimant suffered a mechanical 
 
            musculoligamentous injury to his low back.  In another 
 
            letter dated the same date (jt. ex.(d)(2), the doctor 
 
            believed that the claimant's injury to his low back was the 
 
            result of a work-related injury in November of 1990.  At 
 
            that time, he opined a three percent permanent partial 
 
            impairment to claimant's body as a whole.  Therefore, as you 
 
            can see, the time between October 2, 1991 and September 2, 
 
            1992, there was no increase or decrease in permanent 
 
            impairment as far as Dr. Taylon was concerned.
 
            
 
                 Joint exhibit 2(a)(1) is an August 17, 1993 report of 
 
            Kurtis M. Hoppe, M.D., in which he opined claimant had seven 
 
            percent permanent impairment of his body as a whole and that 
 
            he could continue to work at light duty.  A physical 
 
            capacity evaluation completed on July 22, 1993 indicates 
 
            that the patient was able to work safely at that physical 
 
            demand level and that this test may represent the claimant's 
 
            minimal work capabilities.
 
            
 
                 Joint exhibit 2(b)(1) is a functional capacity 
 
            evaluation that was done on July 22, 1933, and was the 
 
            evaluation referred to by Dr. Hoppe.  One might note on page 
 
            2(b)(3) that they emphasize the data in the functional 
 
            capacity evaluation is only representative of claimant's 
 
            minimal work ability and his maximum ability is left to 
 
            conjecture.  It would appear to the undersigned that reading 
 
            the report as a whole that claimant is capable of doing more 
 

 
            
 
            Page   6
 
            
 
            
 
            than he is possibly doing on his light duty job but it 
 
            confirms the fact that he is able to do the light duty work 
 
            that he is currently doing.  It would appear to the 
 
            undersigned that claimant's motivation might affect his 
 
            attempt to try to do more and try to work back into 
 
            performing work similar to the work he was previously doing 
 
            or at least working with the employer in modifying and 
 
            accommodating him but upgrading the nature of his work, 
 
            particularly since he seems to think it is menial work or as 
 
            his attorney indicated gratuitous employment.
 
            
 
                 Joint exhibit 4 is reports of Behrouz Rassekh, M.D., a 
 
            neurosurgeon.  His reports covering the period April to 
 
            December 20, 1991, reflect that there are periods he cannot 
 
            determine or explain claimant's symptomatology but feels he 
 
            has pain and he has in his December 1991 report indicated 
 
            claimant should not lift over 40 pounds and should not do 
 
            any repeated bending, stooping or repeated lifting and 
 
            should avoid long periods of driving.  In August of 1991, 
 
            the doctor had a 25 pound restriction on claimant.  In 
 
            August of 1991, he indicated claimant could gradually 
 
            increase his work activity.  The doctor had no explanation 
 
            of why claimant was having the amount of pain that he was 
 
            having.  He also believed possibly claimant should go to a 
 
            pain clinic.  It appears claimant has not seen Dr. Rassekh 
 
            since his last apparent appointment of December 14, 1991.
 
            
 
                 The medical records seem to indicate that claimant has 
 
            or shows a degenerative disc between L4-5 and L5-S1 and some 
 
            bulging, but there is no evidence that claimant was having 
 
            any problems with this condition prior to November 15, 1990.  
 
            Of course, as would be expected, someone at the age of 49 
 
            would start having some degenerative diseases of his disc.  
 
            As it is well known, they don't often show up until there is 
 
            some traumatic injury.
 
            
 
                 Joint exhibit 8(a)(1) is a psychological pain 
 
            assessment report from the University of Nebraska.  Joint 
 
            exhibit 8(a)(5), under recommendations, it was the consensus 
 
            of the licensed and certified clinical psychologist that 
 
            claimant was not a good candidate for surgical intervention 
 
            but that the best course of treatment would be a 
 
            participation in the pain management program.  A report 
 
            dated November 13, 1991 was the same year that Dr. Rassekh 
 
            recommended or suggested pain management for claimant.
 
            
 
                 Joint exhibit 8(a)(6) and (7) is a physical therapy 
 
            screening evaluation dated November 13, 1991.  It was also 
 
            recommended by the pain program physical therapist that 
 
            claimant was appropriate and capable of participating in the 
 
            full pain management program and it would be in his best 
 
            interest for improvement to participate in the full program.  
 
            Claimant had testified at the hearing that a pain clinic was 
 
            recommended but the employer said it was too expensive and 
 
            that claimant didn't go because it was too expensive for 
 
            him.  Under the Iowa law, the employer has the choice and if 
 
            the employer refuses, of course, the employer can choose 
 
            that course but as is so typical in workers' compensation 
 
            cases, often the claimant cannot afford it, particularly if 
 
            it is not to be covered.  Of course, the employer takes a 
 

 
            
 
            Page   7
 
            
 
            
 
            risk as to whether that would improve claimant or not and if 
 
            it improved claimant, it would lower any industrial 
 
            disability for any permanent impairment and industrial 
 
            disability and if it isn't successful, then that could be 
 
            used by the claimant to further support claimant's position.  
 
            That is the risk that is taken by the respective parties.
 
            
 
                 Joint exhibit 9 reflects a psychological factor in this 
 
            case.  The record seems to indicate that there was no 
 
            problems of this nature prior to claimant having been 
 
            injured.  Keep in mind that the parties agree that there was 
 
            an injury.  The only real issue in this case is the extent 
 
            of claimant's permanent disability and, therefore, his 
 
            industrial disability.
 
            
 
                 Joint exhibit 10(a) is a February 10, 1992 report which 
 
            is another functional evaluation and a B-200 evaluation.  It 
 
            indicates that claimant was performing at submaximal effort, 
 
            thereby, making the finding invalid.  The report indicates 
 
            it was difficult to determine the motivation behind 
 
            claimant's poor performance on this evaluation and that it 
 
            may be due to conscience controlling of the test results or 
 
            may be due to fear of increased pain of specific testing.  
 
            The report indicates that claimant continues to be limited 
 
            more by his subjective complaints of pain than due to true 
 
            limitations in his strength and mobility (Jt. Ex. 10(a)(2)
 
            
 
                 Joint exhibit 11 is the Midlands Rehabilitation 
 
            Consultants report dated February 6, 1992.  Joint exhibit 12 
 
            is a July 9, 1992 report of Iowa Department of Education 
 
            Division of Vocational Rehabilitation Services.  Joint 
 
            exhibit 13 is a Rehabilitation Professionals report dated 
 
            July 19, 1992.
 
            
 
                 It seems like one of the things that run through these 
 
            reports is claimant's lack of transferable skills.  There is 
 
            also mention of claimant getting further education because 
 
            of his deficiency in certain areas.  As seen by claimant's 
 
            testimony, he did update his skills a little bit but he has 
 
            not pursued anything further because he is working for 
 
            defendant employer and desires to continue working for them.  
 
            One might note that the conclusions drawn by the certified 
 
            professional counselor rehabilitation consultant in joint 
 
            exhibit 13(a)(6) is that claimant suffers 40 percent 
 
            industrial disability.  Determining industrial disability is 
 
            the sole authority of the deputy industrial commissioner.   
 
            It seems in these reports that the particular writer of the 
 
            reports feels claimant is or may lose his job.  There has 
 
            been no indication in the testimony that claimant will or is 
 
            about to lose his job.  Claimant may have indicated he is 
 
            not totally satisfied with it but the decision herein is 
 
            rendered on the basis that the claimant will continue to be 
 
            employed at defendant employer's and that his income will 
 
            not be decreased because of him being on light duty or 
 
            unable to do the heavier work that defendant employer might 
 
            desire him to do if he were not injured.  The undersigned is 
 
            not going to speculate as to what the future may be for 
 
            claimant.  The rules and laws provided for review-reopening 
 

 
            
 
            Page   8
 
            
 
            
 
            are applicable under the circumstances existing at such time 
 
            in the future as claimant's job status may change.  The 
 
            undersigned is only considering facts as they exist at the 
 
            time of the hearing.  Of course, things could improve or get 
 
            worse.  The undersigned is not going to speculate.
 
            
 
                 Joint exhibit 14 is another rehabilitation report from 
 
            the Nebraska Vocational Rehabilitation Services Career 
 
            Development Center.  Again, this report seems to hinge on 
 
            claimant going to different occupations and getting 
 
            additional training and education.  There has been no 
 
            indication from claimant's testimony or the record that 
 
            claimant intends to do anything but continue on with 
 
            defendant employer.  He has indicated that he might like to 
 
            do certain other things but there is no effort on his part 
 
            to really accomplish anything else.  The undersigned 
 
            believes that claimant's efforts and increased motivation 
 
            could be directed in staying with an employer that is 
 
            attempting to accommodate him and is willing to work with 
 
            him.  The employer should be congratulated contrary to what 
 
            the claimant seems to indicate.  In considering his 
 
            testimony, the undersigned believes the employer is 
 
            attempting to work with the claimant and is not trying to 
 
            demean him or discourage him.  It would appear that claimant 
 
            could begin to help himself by telling the employer that he 
 
            would like to be notified when there are good jobs open that 
 
            the employer may initially think would fit either within 
 
            claimant's restrictions or the employer could accommodate 
 
            claimant in a particular bid job.  For some reason, claimant 
 
            has failed to do this.  It might be he is waiting until this 
 
            litigation is over.  It appears to the undersigned it is 
 
            time for the claimant to make his decision as there are 
 
            plenty of vocational rehabilitation reports in this file.
 
            
 
                 Joint exhibit 25 is an October 6, 1993 report by the 
 
            Omaha Orthopedic Clinic & Sports Medicine.  This independent 
 
            medical evaluation was made at the request of defendant.  
 
            Anil K. Agarwal, M.D., wrote an extensive report setting out 
 
            the information he reviewed in the medical reports, etc.  He 
 
            concluded in part that claimant had a preexisting lumbar 
 
            spondylosis which may have been aggravated by an injury at 
 
            work on November 15, 1990, and that claimant is working and 
 
            may continue to do so with some restrictions that he had 
 
            noted.  He further opined that claimant sustained a three 
 
            percent permanent impairment and loss of physical function 
 
            of the body as a whole.  Of course, Dr. Agarwal saw claimant 
 
            only this one time and his evaluation was done approximately 
 
            two weeks before hearing.  The undersigned feels Dr. 
 
            Agarwal's report is very biased, in particular, when he 
 
            indicates that claimant had a preexisting lumbar spondylosis 
 
            which may have been aggravated by an injury at work on 
 
            November 15, 1990.  This seems to indicate that claimant's 
 
            problem is the preexisting lumbar spondylosis which no other 
 
            medical doctor determined or concluded.  It also seems to 
 
            indicate that that is claimant's problem and it may be 
 
            aggravated by a work injury on November 15, 1990.  The 
 

 
            
 
            Page   9
 
            
 
            
 
            evidence is very clear that claimant did incur a work injury 
 
            on November 15, 1990 and the parties so stipulated.  The 
 
            only issue herein is the extent of permanent disability.
 
            
 
                 There is no issue as to healing period.
 
            
 
                 Claimant is 49 years old and is at an age in which 
 
            impairments and disabilities severely affect one's 
 
            opportunity to find work.  Claimant is making in excess of 
 
            $11 per hour which was the approximate amount he was making 
 
            at the time of his November 15, 1990 injury.  Considering 
 
            claimant's transferable skills, it would be hard for 
 
            claimant to find another job at his age with his medical 
 
            condition paying that much.  As indicated earlier, the 
 
            employer is to be congratulated for keeping claimant in 
 
            employment and, likewise, the undersigned is sure the 
 
            employer realizes its action has a substantial effect on 
 
            reducing the extent of claimant's industrial disability.  It 
 
            appears to the undersigned to be a wise decision on behalf 
 
            of the employer.  Likewise, the undersigned questions 
 
            whether claimant is taking full advantage of the potential 
 
            opportunities with defendant employer.  At least, the 
 
            undersigned believes that claimant should make an effort to 
 
            have his name on the list for possible good jobs and to test 
 
            the employer's sincerity or desire to accommodate the 
 
            claimant in particular bid jobs to see if there would be an 
 
            accommodation made.  Defendants clearly related various bid 
 
            jobs that claimant could, in fact, bid if they became open.  
 
            There is a question as to whether claimant has the seniority 
 
            to get some of those jobs.  The fact is he has done little 
 
            or nothing to get his name on the list.  Claimant should 
 
            spend more time doing that than complaining about the nature 
 
            of the work he is doing.
 
            
 
                 The undersigned finds that claimant does have a 
 
            permanent impairment and that he does have rather severe 
 
            restrictions, both as far as the lifting limitations and his 
 
            ability to climb, twist, bend, stand and sit.  Although 
 
            claimant has no loss of earnings, he does have a substantial 
 
            loss of earning capacity. It seems undisputed he can no 
 
            longer do the job he was doing before even with further 
 
            accommodations.  There is a question as to what other jobs 
 
            he may be able to do but as indicated earlier, he has not 
 
            made a real effort to test the employer's sincerity in 
 
            seeing if they could accommodate him in those jobs.  Of 
 
            course, there is no evidence that had he bid, he could have 
 
            got the jobs based on his seniority.  The fact is, he hasn't 
 
            tried.
 
            
 
                 Taking into consideration claimant's work experience 
 
            prior to the injury and after the injury; his pre-injury and 
 
            post-injury medical history and his present condition; his 
 
            education; his qualifications; his transferable skills; his 
 
            wages prior to the injury and after the injury; the location 
 
            and severity of his injury; his functional impairment; and, 
 
            the employer's accommodating claimant, keeping him at the 
 
            same wage level as he was at the time of his injury, the 
 
            undersigned finds that claimant currently has a 35 percent 
 

 
            
 
            Page  10
 
            
 
            
 
            industrial disability.
 
            
 
                 Claimant incurred a $390 bill with Dr. Eggers 
 
            voluntarily without authorization.  Claimant is responsible 
 
            to pay that bill.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, expe
 
            rience and inability to engage in employment for which he is 
 
            fitted.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 
            125 N.W.2d 251 (1963).  Barton v. Nevada Poultry, 253 Iowa 
 
            285, 110 N.W.2d 660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial disabil
 
            ity.  This is so as impairment and disability are not syn
 
            onymous.  Degree of industrial disability can in fact be 
 
            much different than the degree of impairment because in the 
 
            first instance reference is to loss of earning capacity and 
 
            in the latter to anatomical or functional abnormality or 
 
            loss.  Although loss of function is to be considered and 
 
            disability can rarely be found without it, it is not so that 
 
            a degree of industrial disability is proportionally related 
 
            to a degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  These are matters which the 
 
            finder of fact considers collectively in arriving at the 
 
            determination of the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  There are no 
 
            guidelines which give, for example, age a weighted value of 
 
            ten percent of the total value, education a value of fifteen 
 
            percent of total, motivation - five percent; work experience 
 
            - thirty percent, etc.  Neither does a rating of functional 
 
            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., 
 

 
            
 
            Page  11
 
            
 
            
 
            (Appeal Decision, March 26, l985).
 
            
 
                 It is further concluded that:
 
            
 
                 Claimant incurred a 35 percent industrial disability as 
 
            a result of a work injury on November 15, 1990.
 
            
 
                 Claimant's work injury caused claimant to incur 
 
            permanent impairment and permanent restrictions.
 
            
 
                 Claimant is responsible for payment of the $390 bill of 
 
            Dr. Eggers as it was without authorization.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendant shall pay unto claimant one hundred 
 
            seventy-five (175) weeks of permanent partial disability 
 
            benefits at the rate of two hundred eighty and 43/100 
 
            dollars ($280.43) beginning October 2, 1991.
 
            
 
                 That defendant shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against the award for 
 
            weekly benefits previously paid.  The record indicates 
 
            claimant was not previously paid permanent partial 
 
            disability benefits.
 
            
 
                 That defendant shall pay interest on benefits awarded 
 
            herein as set forth in Iowa Code section 85.30.
 
            
 
                 That defendant shall pay the costs of this action, 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 That defendant shall file an activity report upon 
 
            payment of this award as required by this agency, pursuant 
 
            to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of November, 1993.
 
            
 
            
 
            
 
                                          ______________________________
 
                                          BERNARD J. O'MALLEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies to:
 
            
 
            Mr Sheldon Gallner
 
            Attorney at Law
 
            803 third Ave
 
            P O Box 1588
 
            Council Bluffs IA 51502
 
            
 
            Mr W Curtis Hewett
 
            Attorney at Law
 
            35 Main Pl
 
            P O Box 249
 
            Council Bluffs IA 51502
 
 
 
 
            
 
 
 
 
 
 
 
                                             5-1803
 
                                             Filed November 4, 1993
 
                                             Bernard J. O'Malley
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            ROBERT WALKER,                :
 
                                          :       File No. 969163
 
                 Claimant,                :
 
                                          :
 
            vs.                           :     A R B I T R A T I O N
 
                                          :
 
            GRIFFIN PIPE PRODUCTS CO.,    :       D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant                :
 
                                          :
 
            ___________________________________________________________
 
            
 
            5-1803
 
            Claimant awarded 35% industrial disability.
 
            
 
 
            
 
    
 
            
 
            
 
            
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            LESLIE FREDERICK ZIMMERMAN,   :
 
                                          :
 
                 Claimant,                :       File No. 969167
 
                                          :
 
            vs.                           :    A R B I T R A T I O N
 
                                          :      
 
            OWEN INDUSTRIES, d/b/a        :       D E C I S I O N
 
            MISSOURI VALLEY STEEL,        :
 
                                          : 
 
                 Self-Insured,            :
 
                 Employer,                :      
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Leslie 
 
            Frederick Zimmerman, claimant, against Owen Industries, 
 
            Inc., d/b/a Missouri Valley Steel, self-insured employer, 
 
            defendant, to recover benefits under the Iowa Workers' 
 
            Compensation Act as a result of an injury sustained on 
 
            November 29, 1990.  This matter came on for hearing before 
 
            the undersigned deputy industrial commissioner on August 30, 
 
            1993, in Sioux City, Iowa.  The record was considered fully 
 
            submitted at the close of the hearing.  The claimant was 
 
            present and testified.  Also present and testifying were 
 
            Rosemary Zimmerman, claimant's wife; Robert Jacobson; 
 
            Patrick Moulton; Gary Klueer; and Larry Monell.  The 
 
            documentary evidence identified in the record consists of 
 
            joint exhibits 1 through 32 and 39 through 69.
 
            
 
                                      ISSUES
 
            
 
                 Pursuant to the hearing report and order approving same 
 
            dated August 30, 1993, the parties have presented the 
 
            following issues for resolution:
 
            
 
                 1.  Whether claimant sustained an injury on November 
 
            29, 1990;
 
            
 
                 2.  Whether claimant's alleged injury is a cause of 
 
            temporary and permanent disability;
 
            
 
                 3.  The extent of entitlement to permanent partial 
 
            disability benefits, if any; and
 
            
 
                 4.  Whether claimant is entitled to medical benefits 
 
            under Iowa Code section 85.27 for treatment of his alleged 
 
            injury.
 
            
 
                     
 
            
 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                              FINDINGS OF FACT
 
            
 
                 The undersigned has carefully considered all the 
 
            testimony given at the hearing, arguments made, evidence 
 
            contained in the exhibits herein, and makes the following 
 
            findings:
 
            
 
                 Claimant was born on August 20, 1948, and completed the 
 
            twelfth grade of school.  He earned his associate of arts 
 
            degree, a general education degree, in 1978 prior to 
 
            starting work at Missouri Valley Steel Company.  His 
 
            relevant work experience was as an over-the-road truck 
 
            driver, local delivery driver and warehouse worker 
 
            (operating 10-ton overhead crane to load and unload steel), 
 
            plate shear operator and various laborer positions.  These 
 
            jobs ranged from medium to heavy in physical exertion and 
 
            were unskilled and semi-skilled in nature.  On June 26, 
 
            1991, claimant was terminated by employer due to a 20-pound 
 
            lifting restriction.  He obtained a weekend job with Sioux 
 
            City Night Patrol doing general security work and driving a 
 
            patrol car to check customer premises.  In September 1991 he 
 
            obtained employment at Wis-Pak Plastics as an RHB machine 
 
            operator.  
 
            
 
                 Claimant alleges that he was injured on November 29, 
 
            1990, while working for employer.  At that time, he was 
 
            earning $8.05 per hour.  Claimant currently earns $7.65 per 
 
            hour at Wis-Pak Plastics.  
 
            
 
                 Claimant's medical history is replete with a variety of 
 
            industrial accidents and alleged injuries.  The record 
 
            contains 27 first reports of injury, eight of them allegedly 
 
            to his neck, shoulder and arms (exhibits 42-68).  One such 
 
            incident occurred on December 13, 1989, while claimant was 
 
            lifting a bundle of steel and felt something pop in his 
 
            lower back and experienced a little catch in his right neck 
 
            and shoulder region.  He was seen by Daniel M. Youngblade, 
 
            M.D., the company physician (ex. 18, page 2).  
 
            
 
                 Because of persistent complaints relative to the 
 
            December 13, 1989 incident, Dr. Youngblade referred claimant 
 
            to Kevin J. Liudahl, M.D., for examination on February 15, 
 
            1990.  Dr. Liudahl diagnosed acute low back pain and left 
 
            sciatica (ex. 5, p. 1).  On March 7, 1990, a myelogram and 
 
            CT scan were performed.  Because the study was inclusive, 
 
            repeat studies were performed on April 4, 1990.  These 
 
            showed slightly larger left posterolateral L3-4 extradural 
 
            defects consistent with enlarging L3-4 HNP.  On April 27, 
 
            1990, Dr. Liudahl performed a left L3-4 
 
            hemilaminectomy/diskectomy.  A follow-up evaluation on May 
 
            18, 1990, revealed continued aches and pains in the lumbar 
 
            spine, left hip and legs.  An examination showed a 
 
            questionable positive straight leg raising and marked 
 
            decreased range of motion.  Dr. Liudahl commented that 
 
            claimant's symptoms were greatly out of proportion to the 
 
            clinical findings.  He made this observation again on July 
 
            19, 1990 (ex. 5, pp. 1-5).
 
            
 
                 Dr. Liudahl sent claimant to Back Care, Inc., for 
 
            evaluation on August 2, 1990.  Claimant participated in a 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            13-week rehabilitation program.  A myelogram was performed 
 
            on September 4, 1990, and was normal.  Leonel H. Herrera, 
 
            M.D., director of Back Care, reported on September 5, 1990, 
 
            that claimant manifested significant objective improvement 
 
            without subjective improvement and he was concerned that 
 
            claimant had numerous negative subjective complaints (ex. 
 
            15, pp. 1-6).
 
            
 
                 On November 15, 1990, Dr. Liudahl gave claimant a 10 
 
            percent permanent partial impairment rating for his back 
 
            with a permanent 50-pound lifting restriction (ex. 5, p. 5).
 
            
 
                 Dr. Herrera concurred with the 50-pound lifting 
 
            restriction but no other permanent restrictions (ex. 15, p. 
 
            7).
 
            
 
                 On November 29, 1990, claimant presented to Dr. 
 
            Youngblade with tenderness in the right posterior neck 
 
            region over the trapezius muscle.  Claimant reported to Dr. 
 
            Youngblade that he had slipped while climbing up a ladder on 
 
            the side of his truck.  Cervical spine films were within 
 
            normal limits.  Dr. Youngblade diagnosed cervical strain.  
 
            On December 4, 1990, claimant again presented to Dr. 
 
            Youngblade.  His complaints were referable to pain and 
 
            discomfort in his posterior shoulder region.  His neck 
 
            appeared to be clear and free.  These same complaints were 
 
            articulated on December 12, 1990 (ex. 18, p. 3).
 
            
 
                 Dr. Youngblade referred claimant to Dr. Liudahl on 
 
            January 31, 1991, for evaluation of neck and arm problems. 
 
            Claimant presented with numbness and weakness in the right 
 
            upper extremity and severe neck pain and spasms.  An 
 
            examination of the neck revealed moderate severe tightness 
 
            and tenderness of the cervical paraspinous muscles and 
 
            moderate decreased range of motion of the cervical spine.  
 
            X-rays of the thoracic and cervical spine were unremarkable.  
 
            Dr. Liudahl diagnosed cervical muscle strain.  To rule out 
 
            cervical radiculopathy, Dr. Liudahl recommended upper 
 
            extremity EMG and nerve conduction studies and an MRI of the 
 
            cervical spine.  He referred him to Ralph Reeder, M.D., for 
 
            a second opinion (ex. 5, p. 6).  
 
            
 
                 Claimant underwent an MRI of the cervical spine on 
 
            February 5, 1991, which did not identify any foraminal 
 
            encroachment (ex. 20-2).  EMG and nerve conduction studies 
 
            performed on February 1, 1991, revealed no evidence of 
 
            mononeuropathy or peripheral neuropathy of the upper 
 
            extremities (ex. 15-9).
 
            
 
                 Dr. Reeder evaluated claimant for neck pain and 
 
            bilateral arm discomfort on March 1, 1991.  After reviewing 
 
            the claimant's medical history and noting his complaints 
 
            (pain radiating from the shoulder into the forearms 
 
            aggravated by any kind of work activity and neck pain 
 
            producing headaches in the occipital region), Dr. Reeder 
 
            performed a physical examination.  He reported that claimant 
 
            had no evidence of a radiculopathy or myelopathy.  His 
 
            cervical MRI scan showed no significant cord or nerve root 
 
            compression.  Dr. Reeder felt that claimant had mechanical 
 
            cervical pain with radiating arm pain of undetermined 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            etiology which in his opinion did not represent a peripheral 
 
            nerve root entrapment.  Since claimant was on no pain 
 
            medication, Dr. Reeder prescribed Pamelor and Motrin and a 
 
            TENS unit for his neck and bilateral arm pain for one month.  
 
            He released him from his care to either Dr. Liudahl or Dr. 
 
            Youngblade (ex. 21, pp. 1-2).
 
            
 
                 Claimant returned to Dr. Youngblade on April 2, 1991.  
 
            He noted that all objective tests have been negative and no 
 
            abnormalities found.  Claimant presented with complaints of 
 
            pain in the right upper shoulder and neck region with pain 
 
            on lateral rotation.  Claimant was advised to resume 
 
            physiotherapy three times a week (ex. 18, p. 9).  
 
            
 
                 On May 24, 1991, claimant returned to see Dr. Liudahl 
 
            still complaining of arm pain, back pain and bilateral leg 
 
            pain of recent origin.  On examination he had negative 
 
            straight leg raising bilaterally, good knee motion and 
 
            fairly good range of motion of the neck.  He was noted to be 
 
            neurologically intact in both upper and lower extremities.  
 
            Dr. Liudahl commented that there was a paucity of physical 
 
            findings, but suggested bilateral lower extremity EMG and 
 
            nerve conduction studies to rule out lumbar radiculopathy 
 
            (ex. 5, p. 6).  
 
            
 
                 Claimant returned to Dr. Reeder on May 30, 1991, saying 
 
            that he was not really improved and that the TENS unit had 
 
            not been helpful.  On physical examination he showed good 
 
            range of motion of the neck.  Dr. Reeder reiterated that 
 
            claimant has mechanical neck discomfort with pain radiating 
 
            into the shoulder blades and occasionally into the shoulder.  
 
            He felt that claimant had reached maximum medical 
 
            improvement and gave him a 4 percent permanent partial 
 
            disability rating.  He imposed a permanent weight-lifting 
 
            restriction of 20 pounds (ex. 21, pp. 5-6).
 
            
 
                 Claimant returned to Dr. Liudahl on June 7, 1991, with 
 
            complaints of right upper extremity pain and tenderness in 
 
            the cubital tunnel and numbness on the ulnar side of the 
 
            hand.  Claimant had no neck complaints at this time.  Dr. 
 
            Liudahl felt that the etiology of claimant's chronic back 
 
            and leg complaints could not be determined.  X-rays of the 
 
            thoracic and cervical spine were unremarkable.  He felt that 
 
            he had reached maximum medical benefit and recommended no 
 
            further medical treatment (ex. 5, p. 6).
 
            
 
                 Claimant was referred by his attorney to Horst Blume, 
 
            M.D., for an independent medical examination on May 18, 
 
            1992.  Claimant presented with numerous physical complaints 
 
            including headaches, lightheadedness, constant pain with a 
 
            burning sensation on the right side of the neck-shoulder 
 
            junction, numbness in the right forearm and right hand, 
 
            little finger and right ring finger, constant irritation and 
 
            numbness on the top of the left hand, and constant central 
 
            low back pain radiating into both hips.  Dr. Blume reviewed 
 
            a previous magnetic scan performed on February 5, 1991.  It 
 
            was his opinion that claimant has a cervical ruptured disc 
 
            at C3-4 and a mild ruptured disc at C5-6.  However, he felt 
 
            this condition did not presently warrant surgical 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            intervention.  He gave claimant a permanent partial 
 
            impairment rating of 9 percent to the cervical spine area 
 
            and 15 percent to the lumbar spine area.  Without 
 
            distinguishing between the cervical and lumbar spine 
 
            restrictions, Dr. Blume indicated that claimant should not 
 
            lift more than 40 pounds occasionally or perform any type of 
 
            strenuous physical activity.  He also felt that claimant was 
 
            restricted to 30 minutes of repetitive bending, sitting, 
 
            scooping, twisting, turning, crawling, kneeling, pushing, 
 
            and pulling and walking or standing for no more than 15 
 
            minutes at a time (ex. 24, pp. 1-5).
 
            
 
                 Claimant testified that when he was hired by Wis-Pak, 
 
            his employment status with the company was contingent upon 
 
            the 20-pound weight restriction being lifted.  On October 5, 
 
            1991, Dr. Liudahl increased claimant's lifting restriction 
 
            to 45 pounds (ex. 26, p. 4).
 
            
 
                 The record indicates that claimant received no medical 
 
            treatment for his back, neck, upper extremity, or lower 
 
            extremity symptoms after his last visit with Dr. Liudahl on 
 
            June 26, 1991.  On May 11, 1993, claimant returned to Dr. 
 
            Liudahl with complaints of left wrist pain.  A notation 
 
            indicates that "Previous back and neck are presently doing 
 
            quite well."  (ex. 5, p. 7).  
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 The first issue to be determined is whether claimant 
 
            sustained an injury on November 29, 1990, arising out of and 
 
            in the course of employment with employer.  Since no one 
 
            witnessed claimant's alleged injury, defendant questions 
 
            claimant's veracity in this regard.  
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that he received an injury on November 29, 
 
            1990, which arose out of and in the course of his 
 
            employment. McDowell v. Town of Clarksville, 241 N.W.2d 904, 
 
            908 (Iowa 1976); Musselman v. Central Telephone Co., 154 
 
            N.W.2d 128, 130 (Iowa 1967).  The words "arising out of" 
 
            have been interpreted to refer to the cause and origin of 
 
            the injury.  McClure v. Union County, 188 N.W.2d 283, 287 
 
            (Iowa 1971);   Crowe v. DeSoto Consolidated School District, 
 
            68 N.W.2d 63, 65 (Iowa 1955).  The words "in the course of" 
 
            refer to the time, place and circumstances of the injury.  
 
            McClure, 188 N.W.2d at 287; Crowe, 68 N.W.2d at 65.  An 
 
            injury occurs in the course of the employment when it is 
 
            within the period of employment at a place the employee may 
 
            reasonably be, and while the employee is doing work assigned 
 
            by the employer or something incidental to it.  Cedar Rapids 
 
            Community School District v. Cady, 278 N.W.2d 298, 299 (Iowa 
 
            1979), McClure, 188 N.W.2d at 287; Musselman, 154 N.W.2d at 
 
            130. 
 
            
 
                 The supreme court has defined a personal injury for the 
 
            purposes of workers' compensation cases.  Almquist v. 
 
            Shenandoah Nurseries, 254 N.W. 35, 38 (Iowa 1934).  In this 
 
            case the court found that a personal injury, is an injury to 
 
            the body, the impairment of health, or a disease, not 
 
            excluded by the Workers Compensation Act, which comes about, 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            not through the natural building up and tearing down of the 
 
            human body, but because of a traumatic or other hurt or 
 
            damage to the health or body of an employee.  The injury to 
 
            the human body must be something, whether an accident or 
 
            not, that acts extraneously to the natural processes of 
 
            nature, and thereby impairs the health, overcomes, injures, 
 
            interrupts, or destroys some function of the body, or 
 
            otherwise damages or injures a part or all of the body.  
 
            
 
                 The Almquist court further observed that while a 
 
            personal injury does not include an occupational disease 
 
            under the Workmen's Compensation Act, yet an injury to the 
 
            health may be a personal injury.  A personal injury includes 
 
            a disease resulting from an injury.  However, the result of 
 
            changes in the human body incident to the general processes 
 
            of nature do not amount to a personal injury.  This is true, 
 
            even though natural change may come about because the life 
 
            has been devoted to labor and hard work.  Results of those 
 
            natural changes do not constitute a personal injury even 
 
            though the same brings about impairment of health or the 
 
            total or partial incapacity of the functions of the human 
 
            body. 
 
            
 
                 Although the work accident was unwitnessed, claimant 
 
            reported the event to Dr. Youngblade on November 29, 1990 
 
            and to Dr. Liudahl and Dr. Reeder thereafter.  Prior to the 
 
            incident, claimant was able to perform all of the duties 
 
            required of his job with employer.  He had no neck 
 
            complaints which interfered with his ability to work as a 
 
            truck driver for employer.  Defendant presented no evidence 
 
            to the contrary.  Accordingly, claimant has met his burden 
 
            of proof that he was involved in a work-related incident 
 
            which resulted in injury to his neck and upper extremities.  
 
            
 
                 The next issue to be determined is whether claimant's 
 
            injury has caused permanent impairment.  
 
            
 
                 Since claimant has suffered an injury, the next 
 
            question to be resolved is whether the injury has caused a 
 
            permanent disability.  The claimant has the burden of 
 
            proving by a preponderance of the evidence that the injury 
 
            of November 29, 1990, is causally related to the disability 
 
            on which he now bases his claim.  Bodish v. Fischer, Inc., 
 
            133 N.W.2d 867, 868 (Iowa 1965);  Lindahl v. L. O. Boggs, 18 
 
            N.W.2d 607, 613-14 (Iowa 1945).  A possibility is 
 
            insufficient; a probability is necessary.  Burt v. John 
 
            Deere Waterloo Tractor Works, 73 N.W.2d 732, 738 (Iowa 
 
            1955).  The question of causal connection is essentially 
 
            within the domain of expert testimony.  Bradshaw v. Iowa 
 
            Methodist Hospital, 101 N.W.2d 167, 171 (Iowa 1960).  Expert 
 
            medical evidence must be considered with all other evidence 
 
            introduced bearing on the causal connection.  Burt, 73 
 
            N.W.2d at 738.  The opinion of the experts need not be 
 
            couched in definite, positive or unequivocal language.  
 
            Sondag v. Ferris Hardware, 220 N.W.2d 903, 907 (Iowa 1974).  
 
            Moreover, the expert opinion may be accepted or rejected, in 
 
            whole or in part, by the trier of fact.  Sondag, 220 N.W.2d 
 
            at 907.  Finally, the weight to be given to such an opinion 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            is for the finder of fact, and that may be affected by the 
 
            completeness of the premise given the expert and other 
 
            material circumstances.  Bodish, 133 N.W.2d at 870; 
 
            Musselman, 154 N.W.2d at 133.  The supreme court has also 
 
            observed that greater deference is ordinarily accorded 
 
            expert testimony where the opinion necessarily rests on 
 
            medical expertise.  Sondag, 220 N.W.2d at 907.
 
            
 
                 Medical opinion rendered as to causation was given by 
 
            Dr. Liudahl on June 21, 1993.  He reported to claimant's 
 
            attorney that "I believe the patient's neck injury is the 
 
            result of his accident at work as the patient indicated in 
 
            my history of my note.  I concur with Dr. Reeder that I 
 
            doubt the ulnar neuropathy was related to this accident...." 
 
            (ex. 5, p. 14).  Defendant has produced no opinion to the 
 
            contrary.  In fact, Dr. Liudahl is defendant's physician.  
 
            Accordingly, claimant has met his burden of proof that his 
 
            neck injury is the result of his accident at work.  
 
            
 
                 The extent of permanent disability resulting from the 
 
            neck injury must be determined.  Dr. Reeder and Dr. Liudahl 
 
            gave claimant a 4 percent permanent impairment rating.  Dr. 
 
            Blume gave claimant a 9 percent permanent impairment rating 
 
            to the cervical spine.  
 
            
 
                 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 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            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.
 
            
 
                 As previously noted, claimant earned $8.05 per hour at 
 
            the time of his injury with employer.  He currently earns 
 
            $7.65 per hour as a machine operator with Wis-Pak.  
 
            Claimant's actual loss of earnings is minimal.  Claimant's 
 
            earning capacity is affected by his neck and other 
 
            complaints.  However, physicians who have treated 
 
            and/examined claimant have questioned the extent of his 
 
            symptomatology.  Dr. Reeder felt that since claimant's 
 
            studies were within normal limits and there was no nerve 
 
            entrapment evident that his subjective complaints of pain 
 
            far exceeded the objective findings.  Dr. Liudahl and Dr. 
 
            Youngblade were at a loss to determine the etiology of 
 
            claimant's numerous complaints.  They appear to wax and wane 
 
            and even resolve.  A recent examination by Dr. Liudahl on 
 
            May 18, 1993, again questioned claimant's complaints in 
 
            light of the objective findings.  On May 11, 1993, Dr. 
 
            Liudahl stated that claimant's previous back and neck 
 
            complaints were doing quite well (ex. 5, pp. 7-8).
 
            
 
                 It appears that claimant exaggerates his complaints and 
 
            attempts to present as more disabled than he really is.  
 
            Pain that is not substantiated by clinical findings is not a 
 
            substitute for impairment.  Waller v. Chamberlain Mfg., II 
 
            Iowa Industrial Commissioner Report 419, 425 (1981); Godwin 
 
            v. Hicklin GM Power, II Iowa Industrial Commissioner Report 
 
            170 (1981).  Pain is not compensable under chapter 85 unless 
 
            there is an impact on earning capacity.  Benton v. Hyman 
 
            Freightways, Review-reopening January 7, 1991.   Claimant's 
 
            credibility is suspect as to the extent of disability he 
 
            proclaims to suffer.
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            
 
                 After carefully considering all of the factors of 
 
            industrial disability and employing agency expertise, it is 
 
            determined that claimant is 5 percent industrially disabled.
 
            
 
                 The next issue to be determined is claimant's 
 
            entitlement to benefits under Iowa Code section 85.27.  
 
            
 
                 The employer shall furnish reasonable surgical, 
 
            medical, dental, osteopathic, chiropractic, podiatric, 
 
            physical rehabilitation, nursing, ambulance and hospital 
 
            services and supplies for all conditions compensable under 
 
            the workers' compensation law.  The employer shall also 
 
            allow reasonable and necessary transportation expenses 
 
            incurred for those services.  The employer has the right to 
 
            choose the provider of care, except where the employer has 
 
            denied liability for the injury.  Section 85.27; Holbert v. 
 
            Townsend Engineering Co., Thirty-second Biennial Report of 
 
            the Industrial Commissioner 78 (Review-reopen 1975).  
 
            Claimant has the burden of proving that the fees charged for 
 
            such services are reasonable.  Anderson v. High Rise 
 
            Construction Specialists, Inc., file number 850096 (Appeal 
 
            Decision July 31, 1990).
 
            
 
                 Claimant is not entitled to reimbursement for medical 
 
            bills unless claimant shows they were paid from claimant's 
 
            funds.  See Caylor v. Employers Mut. Casualty Co., 337 
 
            N.W.2d 890 (Iowa Ct. App. 1983).  
 
            
 
                 When a designated physician refers a patient to another 
 
            physician, that physician acts as the defendant employer's 
 
            agent.  Permission for referral from defendant is not 
 
            necessary.  Kittrell v. Allen Memorial Hospital, 
 
            Thirty-fourth Biennial Report of the Industrial Commissioner 
 
            164 (Arb. Decn. 1979) (aff'd by indus. comm'r).
 
            
 
                 An employer's right to select the provider of medical 
 
            treatment to an injured worker should be diagnosed, 
 
            evaluated, treated or other matters of professional medical 
 
            judgment.  Assman v. Blue Star Foods, Inc., file no. 866389 
 
            (declaratory ruling, May 18, 1988).
 
            
 
                 Claimant is entitled to payment of all medical bills 
 
            and reasonable and necessary transportation expenses 
 
            incurred for treatment of his neck condition.
 
            
 
                           
 
            
 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
                                      ORDER
 
            
 
                 IT IS THEREFORE ORDERED:
 
            
 
                 That defendant pay to claimant twenty-five (25) weeks 
 
            of permanent partial disability benefits at the rate of two 
 
            hundred thirty and 46/100 dollars ($230.46) commencing May 
 
            31, 1991.
 
            
 
                 That defendant pay for all medical and mileage expenses 
 
            incurred for treatment of claimant's November 29, 1990 work 
 
            injury.
 
            
 
                 That defendant receive credit for any benefits 
 
            previously paid.
 
            
 
                 That defendant pay accrued amounts in a lump sum.
 
            
 
                 That defendant pay interest pursuant to Iowa Code 
 
            section 85.30.
 
            
 
                 That defendant pay costs pursuant to rule 343 IAC 4.33.
 
            
 
                 That defendant file claim activity reports as required 
 
            by the agency pursuant to rule 343 IAC 3.1(2).
 
            
 
                 Signed and filed this ____ day of September, 1993.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          JEAN M. INGRASSIA
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Dennis J. Mahr
 
            Attorney at Law
 
            318 Insurance Centre
 
            507 7th St
 
            Sioux City, Iowa  51101
 
            
 
            Mr. Roger L. Carter
 
            Ms. Ruth M. Carter
 
            Attorneys at Law
 
            304 Terra Centre
 
            PO Box 5332
 
            Sioux City, Iowa  51102
 
            
 
                 
 
            
 
 
            
 
      
 
            
 
            
 
            
 
                                           51100, 51108, 51803, 52500
 
                                           Filed September 13, 1993
 
                                           Jean M. Ingrassia
 
            
 
                        BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            LESLIE FREDERICK ZIMMERMAN,   
 
                      
 
                 Claimant,                      File No. 969167
 
                      
 
            vs.                              A R B I T R A T I O N
 
                            
 
            OWEN INDUSTRIES, d/b/a              D E C I S I O N
 
            MISSOURI VALLEY STEEL,   
 
                       
 
                 Self-Insured,  
 
                 Employer,       
 
                 Defendant.     
 
            ___________________________________________________________
 
            
 
            51100
 
            Claimant has shown by a perponderance of the evidence that 
 
            he sustained a work-related injury on November 29, 1990, 
 
            when he slipped while climbing up a ladder on the side of 
 
            employer's truck.
 
            
 
            51108
 
            Defendant's physician causally connected claimant's injury 
 
            to the incident on November 29, 1990, thus establishing 
 
            medical causation.  
 
            
 
            51803
 
            Claimant found entitled to 25 weeks (5%) permanent partial 
 
            disability benefits.  At the time of this injury, claimant 
 
            earned $8.05 per hour and currently earns $7.65 per hour.  
 
            Claimant's complaints appear to be exaggerated and out of 
 
            proportion to the clinical and laboratory findings in the 
 
            record.  Claimant has a long history of industrial accidents 
 
            and has reported 27 incidents with minimal objective 
 
            findings.  Claimant's credibility is suspect as to the 
 
            extent of permanency.
 
            
 
            52500
 
            Claimant entitled to medical and mileage expenses for 
 
            treatment of his November 29, 1990 work injury.
 
            
 
 
         
 
         
 
         
 
         
 
         
 
         
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
                                         :
 
         SHARON TEDFORD,                 :
 
                                         :
 
              Claimant,                  :
 
                                         :
 
         vs.                             :
 
                                         :        File No. 969373
 
         CONTEMPORARY INDUSTRIES/        :
 
         7 ELEVEN,                       :
 
                                         :          A P P E A L
 
              Employer,                  :
 
                                         :        D E C I S I O N
 
         and                             :
 
                                         :
 
         CONTINENTAL LOSS ADJUSTING      :
 
         SERVICES,                       :
 
                                         :
 
              Insurance Carrier,         :
 
              Defendants.                :
 
         _________________________________________________________________
 
         
 
              The record, including the transcript of the hearing before 
 
         the deputy and all exhibits admitted into the record, has been 
 
         reviewed de novo on appeal.  The decision of the deputy filed 
 
         April 22, 1994 is affirmed and is adopted as the final agency 
 
         action in this case.
 
         
 
              Claimant shall pay the costs of the appeal, including the 
 
         preparation of the hearing transcript.
 
         
 
              Signed and filed this ____ day of September, 1994.
 
         
 
         
 
         
 
         
 
                                       ________________________________
 
                                                BYRON K. ORTON
 
                                           INDUSTRIAL COMMISSIONER
 
         
 

 
         
 
         Page   2
 
         
 
         
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Jeffrey A. Neary
 
         Attorney at Law
 
         P.O. Box 3223
 
         Sioux City, Iowa 51102-3223
 
         
 
         Mr. G. Daniel Gildemeister
 
         Attorney at Law
 
         P.O. Box 1768
 
         Sioux City, Iowa 51102
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                       5-1803; 5-1801; 2105; 2501
 
                                       Filed September 27, 1994
 
                                       Byron K. Orton
 
                                       
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
                                         :
 
         SHARON TEDFORD,                 :
 
                                         :
 
              Claimant,                  :
 
                                         :
 
         vs.                             :
 
                                         :        File No. 969373
 
         CONTEMPORARY INDUSTRIES/        :
 
         7 ELEVEN,                       :
 
                                         :          A P P E A L
 
              Employer,                  :
 
                                         :        D E C I S I O N
 
         and                             :
 
                                         :
 
         CONTINENTAL LOSS ADJUSTING      :
 
         SERVICES,                       :
 
                                         :
 
              Insurance Carrier,         :
 
              Defendants.                :
 
         _________________________________________________________________
 
         
 
         5-1803; 5-1801
 
         
 
              Claimant failed to prove compensable permanent or temporary 
 
         disability.
 
         
 
         2105; 2501
 
         
 
              It is irrelevant that medical expenses were accrued after 
 
         insurance coverage ended, as workers' compensation insurance is 
 
         not sold on a "claims made" basis.  Section 85.27.  Provides for 
 
         lifetime medical coverage, so long as treatment is reasonable, 
 
         necessary and causally related to a compensable injury.
 
         
 
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            SHARON TEDFORD,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 969373
 
            CONTEMPORARY INDUSTRIES/      :
 
            7 ELEVEN,                         A R B I T R A T I O N
 
                                          :
 
                 Employer,                       D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            CONTINENTAL LOSS ADJUSTING    :
 
            SERVICES,                     :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
                             STATEMENT OF THE CASE
 
            
 
                 This is a contested case proceeding upon the petition 
 
            of Sharon Tedford against her former employer, Contemporary 
 
            Industries/7 Eleven, and its insurance carrier Continental 
 
            Loss Adjusting Services.  Ms. Tedford contends that on 
 
            December 20, 1989, she sustained a repetitive motion injury 
 
            to her hands, arms, shoulders, neck and head.
 
            
 
                 A hearing was scheduled and held in Sioux City, Iowa on 
 
            January 27, 1994.  The record consists of claimant's 
 
            exhibits 1-17, 19-23 and 25-28, defendants' exhibits A-F and 
 
            the testimony of claimant and Marie Meyers.
 
            
 
                                      ISSUES
 
            
 
                 The parties have stipulated to the following:
 
            
 
                    1.  An employment relationship existed at 
 
                    the time of the alleged injury;
 
            
 
                    2.  Claimant was off work from February 22, 
 
                    1992 through November 24, 1992, for which 
 
                    she claims entitlement to healing period 
 
                    benefits;
 
            
 
                    3.  At the time of injury, claimant's gross 
 
                    weekly earnings were $178.71, she was single 
 
                    and entitled to three exemptions; and, 
 
            
 
                    4.  Fees or prices charged by medical 
 
                    providers are fair and reasonable and, 
 
                    although disputed, those providers would 
 
                    testify to the reasonableness of treatment; 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                    defendants offer no contrary evidence.
 
            
 
                 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 extent of temporary total disability 
 
                    or healing period;
 
            
 
                    4.  The nature, extent and commencement date 
 
                    for permanent partial disability, if any;
 
            
 
                    5.  Entitlement to medical benefits, 
 
                    including whether treatment is causally 
 
                    connected to the work injury and to the 
 
                    medical condition upon which the claim is 
 
                    based; and,
 
            
 
                    6.  Whether permanent impairment, if any, is 
 
                    related to a subsequent cumulative trauma 
 
                    injury incurred after the date Continental 
 
                    Loss Adjusting Services' insurance coverage 
 
                    ceased (September 1, 1991).
 
            
 
                 Based on claimant's stipulated gross weekly earnings, 
 
            marital status and number of exemptions, the parties 
 
            calculated her weekly compensation rate at $124.97.  The 
 
            rate tables published by the commissioner in effect on 
 
            December 20, 1989 show that an individual so situated is 
 
            entitled to a rate of $125.55, which is hereby adopted as 
 
            the correct compensation rate.
 
            
 
                 Defendants sought to dispute whether medical expenses 
 
            were authorized.  The defense was ruled invalid at trial 
 
            because defendants have denied liability on the claim, 
 
            thereby forfeiting the right to control the course of 
 
            treatment.
 
            
 
                                FINDINGS OF FACT
 
            
 
                 The undersigned deputy industrial commissioner finds:
 
            
 
                 Sharon Tedford, born June 14, 1960, is a high school 
 
            graduate without further education.  Before accepting work 
 
            as a convenience store clerk with defendants, she was 
 
            employed in a fried chicken restaurant, part time at a local 
 
            dog race track, and for a garment manufacturer.  Claimant 
 
            was discharged from the restaurant and garment manufacturer 
 
            upon respective allegations of theft (unproven) and poor 
 
            work performance.  From 1982 or 1984 (trial and deposition 
 
            testimony vary) until 1989, claimant was out of the 
 
            competitive labor market, caring for her children.
 
            
 
                 Unfortunately, claimant was for several reasons not 
 
            found a credible witness in her own behalf.  Her trial 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            testimony was frequently inconsistent with her deposition 
 
            testimony and the medical records.  She gave inconsistent 
 
            histories to various physicians.  In a verified petition, 
 
            she alleged permanent injury resulting from an unrelated 
 
            slip and fall, although she now testifies that she knew even 
 
            then that no permanent injury had resulted.  The large 
 
            number of inconsistencies and incongruities convinces that 
 
            her testimony is not reliable.
 
            
 
                 Claimant started work with defendant on July 19, 1989, 
 
            after having been away form the competitive labor market 
 
            some 5-7 years.  Her duties as a full time convenience store 
 
            clerk included operating the cash register, stocking 
 
            shelves, sweeping the store and picking up the parking lot.  
 
            It is this work that she claims resulted in a repetitive 
 
            trauma injury some five months later on December 20.
 
            
 
                 Actually, claimant's work as a convenience store clerk 
 
            appears to be almost the antithesis of "repetitive motion" 
 
            as that term is commonly understood.  In such cases, one 
 
            ordinarily thinks of workers such as a meat cutter boning 
 
            the same cuts endlessly in a packing house, a data entry 
 
            operator at a key board, or a factory worker tightening the 
 
            same screws on the same part for hour after hour.  
 
            Claimant's work, on the other hand, involved frequent use of 
 
            the upper extremities, but not in a typically repetitive 
 
            fashion.  For example, operating the cash register would 
 
            normally include handling the products (to find the price), 
 
            punching the appropriate buttons and making change.  While 
 
            these actions require use of the hands, different muscles 
 
            are manipulated in different ways.  Similarly, sweeping the 
 
            floors, picking up the parking lot and stocking shelves are 
 
            not classic "repetitive" movements.
 
            
 
                 Dr. Tim Luse, a treating chiropractor, reported that 
 
            claimant had not had "prior injury that caused similar 
 
            symptoms to those is now experiencing."  The same report 
 
            (November 24, 1992) specifies:
 
            
 
                 After the accident, the patient exhibited the 
 
                 following complaints and symptoms: "Pain in the 
 
                 right and left hand, wrist, elbow and thumb and 
 
                 also pain in the neck and shoulder area, 
 
                 especially the right shoulder."
 
            
 
                 In her answers to interrogatories, Ms. Tedford alleges 
 
            injuries consisting of carpal tunnel syndrome, tendinitis, 
 
            fibromyalgia, headaches and pain.  Complaints "for which 
 
            claim is being made" include "headaches, pain in arms, neck, 
 
            shoulders, upper back area, sleeping problems, weakness, 
 
            pain reaches level of nausea."
 
            
 
                 Prior to the claimed work injury, claimant was actively 
 
            treating with another chiropractor, Kenneth L. Todd, D.C.  
 
            Indeed, Dr. Todd's chart notes reflect that claimant was 
 
            seen some 41 times between August 10, 1987 and the claimed 
 
            injury, including 22 prior visits in calendar year 1989.  
 
            Some of Dr. Todd's chart notations are inconsistent with a 
 
            claim that similar symptoms did not preexist the work 
 
            injury:
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            08-10-87       headaches
 
            09-08-87       upper thoracic pain, headaches
 
            09-22-87       headaches-severe
 
            10-05-87       neck and upper back pains, headaches
 
            10-22-87       headache
 
            11-04-87       headache-severe
 
            01-08-88       headaches
 
            03-09-87       "you name it, it hurts"
 
            03-17-88       pain all over
 
            04-22-88       pain in neck and back
 
            06-09-88       shoulder/neck
 
            07-27-88       neck and back
 
            11-03-88       neck, back, heads
 
            01-03-89       shoulder and upper back pain
 
            02-28-89       "you name it, it hurts"
 
            03-15-89       upper back and neck
 
            07-25-89       neck
 
            07-27-89       left shoulder pain
 
            08-03-87       shoulder pain
 
            08-19-89       right shoulder pain
 
            08-21-89       right shoulder
 
            09-25-89       general ache and pain
 
            10-09-89       general ache and pain
 
            10-23-89       neck, upper back
 
            
 
                 In deposition testimony of October 28, 1993, claimant 
 
            described her work injury thusly:
 
            
 
                    Q.  Okay.  And in that report Dr. Tim Luse 
 
                 states in essence that in December of 1989 you 
 
                 were involved in a work-related accident and that 
 
                 you were pulling pop out of a crate, 20-ounce 
 
                 bottles, and hurt your right and left wrists and 
 
                 right and left elbows.  Is that a true statement?
 
            
 
                    A.  Yes.
 
            
 
                    Q.  Can you describe your work-related accident 
 
                 in your own words for us, please.
 
            
 
                    A.  Stocking cooler.  the Coke bottles do come 
 
                 in plastic domes.  You have to take them out of 
 
                 the plastic domes and stock them singly.  That's 
 
                 when I noticed from pulling is when it started all 
 
                 happening.
 
            
 
                    Q.  Okay.  Did you notice any kind of a popping 
 
                 or pulling or painful sensation when you did that?
 
            
 
                    A.  Popping in the wrist.
 
            
 
                 . . .
 
            
 
                    Q.  Dr. Luse's report also says that after this 
 
                 accident that you had complaints of pain in your 
 
                 hands, wrists, elbows, and thumb.  Also pain in 
 
                 your neck and right shoulder.  Is that true?
 
            
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                    A.  Yes.
 
            
 
                    Q.  Okay.  Was that right after this accident 
 
                 happened then?
 
            
 
                    A.  Not right after the accident.
 
            
 
                    Q.  Describe that course of events, please.
 
            
 
                    A.  I went to see Dr. Pechacek, Dr. Wheeler.  
 
                 Dr. Wheeler turned me back to work and told me it 
 
                 would work -- the tendinitis would work its way 
 
                 out.  When I became manager, it got worse, and it 
 
                 went up into my neck and into my shoulders.
 
            
 
                    Q.  Okay.  Is it a fact, then, that as far as 
 
                 any pain that you had in your neck or your 
 
                 shoulder that that did not occur until after you 
 
                 were appointed manager?
 
            
 
                    A.  Right.
 
            
 
                    Q.  So that would have been some five or six 
 
                 months after this accident?
 
            
 
                    A.  Right.
 
            
 
                 . . .
 
            
 
                    Q.  So do I understand you to say that you had 
 
                 pain in your right thumb and your hand and your 
 
                 wrist immediately after the events of pulling the 
 
                 pop out of plastic domes on the same day that you 
 
                 were hurt?
 
            
 
                    A.  I didn't say immediately.
 
            
 
                    Q.  Tell me when.
 
            
 
                    A.  It worked up to -- From doing it constantly 
 
                 day after day, it worked up to it.  
 
            
 
                    Q.  You said you felt a popping in your wrist?
 
            
 
                    A.  Yes, I did.
 
            
 
                    Q.  Okay.  On the day that you felt the popping 
 
                 in your wrist, where were your complaints of pain?
 
            
 
                    A.  In my hand.  Right through my right hand 
 
                 into the wrist.
 
            
 
                    Q.  So your complaints the first day were your 
 
                 hand and your wrist?
 
            
 
                    A.  Right.
 
            
 
                    Q.  Then a couple months later you had pain in 
 
                 your right elbow?
 
            
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
                    A.  Yes.
 
            
 
                    Q.  And then several months after that you 
 
                 developed pain in your right shoulder and your 
 
                 neck?
 
            
 
                    A.  Yes.
 
            
 
                    Q.  Okay.  Were there any other complaints of 
 
                 pain during this period of time that you had?
 
            
 
                    A.  My left elbow?
 
            
 
                    Q.  when did that begin to hurt you?
 
            
 
                    A.  After I was favoring my right hand, I used 
 
                 my left arm more.
 
            
 
            (Claimant's Deposition, Pages 21-25)
 
            
 
                 In her trial testimony, claimant reported that shoulder 
 
            and neck symptoms developed only in October 1992, almost 
 
            three years after the claimed injury and eight months after 
 
            she quit the job.
 
            
 
                 The first practitioner claimant saw for problems 
 
            developing on December 20 was Dr. Todd, seen that very day.  
 
            Although largely illegible, Dr. Todd's chart notes appear to 
 
            refer to left hand pain, diagnosed as tendinitis.  On 
 
            January 8, 1990 (eight visits later), Dr. Todd charts 
 
            complaints of right elbow pain.  On January 17, he charts 
 
            complaints of left hand pain.  On February 9, he charts left 
 
            elbow pain.
 
            
 
                 Claimant was next seen by Daniel Rhodes, M.D., her 
 
            family physician.  On January 5, 1990, Dr. Rhodes charted 
 
            complaints of pain in the right arm which he diagnosed as 
 
            mild tendinitis of the right forearm with epicondylitis 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            (commonly known as "tennis elbow").  Claimant was treated 
 
            with ibuprofen and a tennis elbow band.
 
            
 
                 Dr. Rhodes continued treating claimant for tendinitis 
 
            and epicondylitis until March, then again starting in 
 
            September.  Curiously, he charted on February 27 that 
 
            claimant's right arm was no better, and she "says that she 
 
            knows it won't get better."
 
            
 
                 Dr. Rhodes eventually (February 24, 1992) reached a 
 
            diagnosis of epicondylitis, which should resolve in time, 
 
            and fibromyalgia.  He believed the epicondylitis was work 
 
            related, but specified that fibromyalgia was not.  In his 
 
            medical report of that date, and also in chart notes, he 
 
            notes that claimant had quit her job of her own volition on 
 
            February 22, 1992.  He went on to specify that he had not 
 
            advised her to quit work.
 
            
 
                 Dr. Rhodes also referred claimant to Dr. Pechacek, for 
 
            treatment of epicondylitis.  Claimant was seen on several 
 
            occasions between March and July 1990.  Dr. Pechacek's first 
 
            notes, on March 12, reflect that claimant was unable to 
 
            recall any specific injury and was not particularly aware of 
 
            or bothered by any painful areas while working, but more 
 
            when at rest.  He specified that claimant did not mention 
 
            any clicking, popping or snapping of the elbow, wrist or 
 
            finger joints.  Impression was of "mostly musculo-tendinous" 
 
            right arm and hand pain extending from the elbow to the 
 
            wrist while at rest.  Dr. Pechacek saw no indications for 
 
            surgery, anti-inflammatories or physical therapy, and would 
 
            recommend that claimant continue to use her arm and hand as 
 
            normally as possible.  "Would not modify her job."  A pain 
 
            medication, Darvocet, was prescribed.  After claimant 
 
            reported not reacting well to that medication, 
 
            over-the-counter Tylenol was recommended.
 
            
 
                 By June 11, Dr. Pechacek reported that claimant still 
 
            had symptoms in the right wrist and hand, but was no longer 
 
            suffering pain into the forearm and elbow.  Although he felt 
 
            this pain was probably musculo-tendinous, some findings 
 
            suggested possible carpal tunnel syndrome.  However, EMG and 
 
            nerve conduction studies were normal.
 
            
 
                 Dr. Pechacek apparently then moved from the locality, 
 
            after which claimant was seen by M. E. Wheeler, M.D.  When 
 
            Dr. Wheeler saw claimant on August 20, his impression was of 
 
            an overuse tendinitis problem in the arm of insidious onset 
 
            without precipitating cause or event, although claimant 
 
            related it to work with "repetitive motion."  Dr. Wheeler's 
 
            chart notes of September 24, 1990, reflect complaints in the 
 
            arm and wrist with "several incongruent findings today."  
 
            Dr. Wheeler noted he had little to offer claimant and 
 
            released her to activities as tolerated.
 
            
 
                 Claimant saw Dr. Rhodes on several occasions in October 
 
            1990, the last time on October 29.  She was not working at 
 
            that time, although she reported that she wanted to return.  
 
            Dr. Rhodes charted: "I added the comment if as minimal 
 
            requirements of right arm, she may try work, but if it 
 
            flares up, she should quit.  We will see her again in 10 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            days."  This comment is interpreted as referring to a 
 
            temporary time off work, not advice to quit the job.  
 
            Claimant was seen again on November 8, but the only chart 
 
            notes concern an unrelated sore throat complaint.
 
            
 
                 Claimant was seen by no physician from October 29, 1990 
 
            until visiting Chiropractor Tim Luse about one year later.
 
            
 
                 Dr. Luse concluded that claimant received an injury "as 
 
            a result of this accident," (referring to pulling pop 
 
            bottles out of a crate) and eventually diagnosed chronic 
 
            bilateral carpal tunnel syndrome and chronic "epilateral 
 
            condylitis" (this diagnosis is unfamiliar to the writer, but 
 
            may be intended to refer to lateral epicondylitis).  
 
            Impairment was apparently converted to the body as a whole, 
 
            and rated at fifteen percent.  Severe chiropractic 
 
            restrictions were recommended, including restrictions 
 
            against crawling and climbing ladders or lifting over 20 
 
            pounds.
 
            
 
                 A chiropractic report was also issued on April 26, 1993 
 
            by Pat Luse, whose license to practice chiropractic has 
 
            apparently now been suspended or revoked.  In any event, he 
 
            diagnosed chronic bilateral forearm tendinitis and 
 
            fibrositis and chronic cervical strain/sprain "consistent 
 
            with the repetitive injury described by the patient" and 
 
            rated impairment at five percent of each upper extremity.  
 
            Dr. Luse does not detail how cervical problems manifesting 
 
            themselves in October 1992 could be causally related to a 
 
            right wrist injury of December 1989.  However, he may have 
 
            been misled by the inaccurate history cited by Tim Luse, 
 
            apparently a relative.  Both chiropractors share the same 
 
            address.
 
            
 
                 In April 1991, claimant was promoted to store manager.  
 
            She continued until quitting the job on February 22, 1992.  
 
            Although claimant testified both that she did so upon the 
 
            advice of Dr. Luse, and that she furnished a letter to that 
 
            effect to her employer, neither Dr. Luse's records or 
 
            defendants' records confirm this claim.  According to Marie 
 
            Meyers, a 7 Eleven area manager, the work claimant was doing 
 
            fit within the restrictions previously recommended by Pat 
 
            Luse.
 
            
 
                 Claimant was also seen several times for fibromyalgia 
 
            in 1992 by Niles Erikson, M.D.  Dr. Erikson found multiple 
 
            fibromuscular tender points in typical fibromyalgic 
 
            distribution in both upper extremities, the upper back, the 
 
            occiput, the anterior chest, lateral elbows and lumbosacral 
 
            musculature.  Fibromyalgia is understood as referring to a 
 
            condition of generalized pain syndrome.  Dr. Erikson is not 
 
            shown to have expressed a view on causation, but it is noted 
 
            that claimant was released to continue activity as tolerated 
 
            on October 21, 1992.
 
            
 
                 Claimant was also evaluated on September 28, 1993 by J. 
 
            Michael Donohue, M.D., an orthopedic specialist.  Dr. 
 
            Donohue, who found a number of inconsistencies in claimant's 
 
            physical evaluation, reached an assessment of "bilateral 
 
            upper extremity dysfunction--subjective complaints far 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            outweigh the objective findings."  He concluded that carpal 
 
            tunnel syndrome was definitively ruled out by the normal EMG 
 
            and nerve conduction studies, disagreed with the diagnosis 
 
            of fibromyalgia and concluded that claimant had not 
 
            sustained any permanent impairment from her alleged work 
 
            injury:
 
            
 
                 It is possible that the patient initially 
 
                 sustained some soft tissue inflammation from her 
 
                 work activities: however, she has certainly been 
 
                 allowed an adequate period of time for healing and 
 
                 at this point, demonstrates findings of symptom 
 
                 magnification rather than specific organic 
 
                 pathology.
 
            
 
                 Based on the foregoing medical opinion, it is concluded 
 
            that claimant developed epicondylitis from her 
 
            non-repetitive upper extremity movements at work, but that 
 
            the condition has not caused permanent impairment.  She does 
 
            not suffer carpal tunnel syndrome and fibromyalgia, if it 
 
            exists at all, is not work related pursuant to the opinion 
 
            of Dr. Rhodes.  The chiropractic opinions of record are 
 
            based on an inadequate history and come from less qualified 
 
            practitioners.  Claimant's history of headaches has been 
 
            shown to precede the claimed work injury, or even the 
 
            beginning of claimant's employment with 7 Eleven.  Neck and 
 
            shoulder problems also predate the claimed work injury and 
 
            serious complaints did not appear until almost three years 
 
            later.  No causal nexus to the 1989 injury is shown.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 The party who would suffer loss if an issue were not 
 
            established has the burden of proving that issue by a 
 
            preponderance of the evidence.  Iowa R. App. P. 14(f).
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the 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 
 
            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 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            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).
 
            
 
                 Of Ms. Tedford's numerous complaints, only the early 
 
            tendinitis and epicondylitis problems are causally related 
 
            to her work.  Neither have been shown to cause permanent 
 
            disability or, for that matter, temporary disability 
 
            subsequent to February 22, 1992, when she voluntarily quit 
 
            employment, a decision not based on medical advice or 
 
            necessity.
 
            
 
                 Medical expenses are a different question, though.  
 
            Claimant has submitted a list of disputed billings from nine 
 
            separate providers totalling $7,658.13.  Most of these date 
 
            to 1992 and 1993, and are not causally related to the 
 
            original 1989 injury.
 
            
 
                 The employer shall furnish reasonable surgical, 
 
            medical, dental, osteopathic, chiropractic, podiatric, 
 
            physical rehabilitation, nursing, ambulance and hospital 
 
            services and supplies for all conditions compensable under 
 
            the workers' compensation law.  The employer shall also 
 
            allow reasonable and necessary transportation expenses 
 
            incurred for those services.  The employer has the right to 
 
            choose the provider of care, except where the employer has 
 
            denied liability for the injury.  Section 85.27.  Holbert v. 
 
            Townsend Engineering Co., Thirty-second Biennial Report of 
 
            the Industrial Commissioner 78 (Review-reopen 1975).
 
            
 
                 It will be recalled that the parties stipulated that 
 
            fees or prices charged by providers are fair and reasonable, 
 
            and that those providers would testify in the absence of 
 
            contrary evidence to the reasonableness of treatment, 
 
            although the issue remains disputed.  Based on this 
 
            stipulation, it is held that treatment was reasonable and 
 
            necessary and that prices charged are fair and reasonable.  
 
            Causal connection to the initial injury remains disputed.  
 
            Defendants' effort to dispute authorization of these 
 
            expenses has already been ruled invalid.  Defendants also 
 
            assert in their brief that certain expenses were accrued 
 
            after insurance coverage was no longer provided.  This, of 
 
            course, is irrelevant.  Coverage is not on a "claims made" 
 
            policy.  Rather, once liability for a compensable work 
 
            injury is established, as here, claimant is entitled under 
 
            section 85.27 to lifetime medical care so long as she can 
 
            establish that it is reasonable, necessary and causally 
 
            related to the initial injury.
 
            
 
                 Billings of the Nebraska Chiropractic & Nutrition 
 
            Clinic (Drs. Luse) include treatment for carpal tunnel 
 
            syndrome, cervical strain, headaches, and even a thoracic 
 
            sprain caused a totally unrelated slip and fall in January 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            1991.  Claimant fails to establish causal nexus between 
 
            these bills and the work injury.
 
            
 
                 The Internal Medicine bill of December 22, 1993 appears 
 
            to relate to shoulder complaints and biceps complaints.  
 
            Neither are shown causally connected.  
 
            
 
                 The Internal Medical Associates' billings through April 
 
            1993 apparently are related to the care of Dr. Erikson, 
 
            which was primarily for fibromyalgia.  Fibromyalgia has not 
 
            been shown to be caused by the claimed work injury.
 
            
 
                 The PSI Health Care, Inc., bill totalling $992.66 
 
            relates to treatment of unknown type from June 1992 through 
 
            January 1993.  The evidence fails to show the nature of this 
 
            treatment, so it cannot be determined causally related to 
 
            the work injury.
 
            
 
                 The St. Lukes Medical Center's bills of $107.70 and 
 
            $69.50 were accrued in 1992 and fail to show the nature of 
 
            treatment.  Causal nexus is not established.
 
            
 
                 The Walgreen's bills in 1992 and 1993 relate to 
 
            prescriptions ordered by Dr. Erikson, whose treatment for 
 
            fibromyalgia has not been shown causally related. 
 
            
 
                 The Sioux City Neurology Neurosurgery bill totalling 
 
            $819.00 apparently relates to EMG and other testing at the 
 
            request of Dr. Luse.  Dr. Luse's services are not shown 
 
            causally related.
 
            
 
                 The Northwest Iowa Orthopaedics & Sports Center bill of 
 
            $25.00 relates to a recheck exam in January 1992 upon the 
 
            referral of Dr. Wheeler.  Dr. Wheeler's care has been shown 
 
            causally connected to the work injury.  Defendants shall pay 
 
            this bill.
 
            
 
                                     ORDER
 
            
 
                 THEREFORE IT IS ORDERED:
 
            
 
                 Defendants shall pay the Northwest Iowa Orthopaedics & 
 
            Sports Center bill totalling twenty-five and no/100 dollars 
 
            ($25.00).
 
            
 
                 No weekly benefits are awarded.
 
            
 
                 Costs are assessed to defendants.
 
            
 
                 Signed and filed this ____ day of April, 1994.
 
            
 
            
 
            
 
            
 
                                          
 
                                        ________________________________
 
                                          DAVID RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
           
 

 
            
 
            Page  12
 
            
 
 
 
            
 
            Copies To:
 
            
 
            Mr Jeffrey A Neary
 
            Attorney at Law
 
            PO Box 3223
 
            922 Douglas Street
 
            Sioux City Iowa 51102
 
            
 
            Mr G Daniel Gildemeister
 
            Attorney at Law
 
            400 Firstar Bank Building
 
            PO Box 1768
 
            Sioux City Iowa 51102
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                        5-1803; 5-1801; 2105; 2501
 
                                        Filed April 22, 1994
 
                                        DAVID RASEY
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            SHARON TEDFORD,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 969373
 
            CONTEMPORARY INDUSTRIES/      :
 
            7 ELEVEN,                          A R B I T R A T I O N
 
                                          :
 
                 Employer,                :       D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            CONTINENTAL LOSS ADJUSTING    :
 
            SERVICES,                     :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
           
 
            
 
            5-1803; 5-1801
 
            Claimant failed to prove compensable permanent or temporary 
 
            disability.
 
            
 
            2105; 2501
 
            It is irrelevant that medical expenses were accrued after 
 
            insurance coverage ended, as workers compensation insurance 
 
            is not sold on a "claims made" basis.  Section 85.27.  
 
            Provides for lifetime medical coverage, so long as treatment 
 
            is reasonable, necessary and causally related to a 
 
            compensable injury.