BEFORE THE IOWA INDUSTRIAL COMMISSIONER 
 
_________________________________________________________________
 
            
 
DONNA HUGHES,    
 
            
 
     Claimant,   
 
            
 
vs.                                File Nos. 1023168/970641
 
                                             1023169
 
MONTEZUMA SENIOR HOME/     
 
HEALTH CARE OF IOWA, INC.       
 
                                         A P P E A L
 
     Employer,   
 
                                       D E C I S I O N
 
and         
 
            
 
EMPLOYERS MUTUAL COMPANIES,     
 
            
 
     Insurance Carrier,    
 
     Defendants.      
 
_________________________________________________________________
 
 
 
The record, including the transcript of the hearing before the deputy 
 
and all exhibits admitted into the record, has been reviewed de novo on 
 
appeal.
 
 
 
                               ISSUES
 
 
 
Defendants state the following issues on appeal:
 
 
 
1.  Whether, and to what extent, Claimant's alleged disabilities are 
 
causally related to the alleged injuries of November 7, 1990 and 
 
November 10, 1990.
 
 
 
2.  Whether any permanent partial disability which is causally related 
 
to the alleged injuries of November 7 and November 10, 1990 is a 
 
disability to a scheduled member or to the body as a whole.
 
 
 
3.  Whether these Appellants are liable to Claimant for healing period 
 
benefits for  85.27 medical expenses after January 16, 1991.
 
     
 
Claimant states the following issues on cross-appeal:
 
 
 
1.  Whether the Arbitration Decision correctly held that Claimant's 
 
disabilities are causally related to the work-related injuries of 
 
November 7, 1990 and November 10, 1990.
 
 
 
2.  Whether the Arbitration Decision correctly held that the injuries 
 
were to the body as a whole, and, therefore, that Claimant sustained a 
 
40% industrial disability.
 
 
 
3.  Whether the Arbitration Decision correctly held that Appellants are 
 
responsible for healing period benefits or 85.27 medical expenses for 
 
all times in controversy.
 
 
 
4.  Whether unpaid medical expenses set forth in Exhibit 8 should be 
 
paid by Appellants.
 
 
 
5.  Whether the Cross-Appellant is entitled to the full reimbursement 
 
for the costs associated with an independent medical evaluation 
 
governed by  85.39.
 
 
 
                           FINDINGS OF FACT
 
 
 
The findings of fact contained in the proposed agency decision filed 
 
October 28, 1994 are adopted as final agency action.
 

 
 
 
 
 
 
 
 
 
 
 
 
 
                        CONCLUSIONS OF LAW
 
 
 
The conclusions of law contained in the proposed agency decision filed 
 
October 28, 1994 are adopted as final agency action.
 
 
 
WHEREFORE, the decision of the deputy is affirmed.
 
 
 
                             ORDER
 
 
 
THEREFORE, it is ordered:
 
 
 
That claimant take nothing for file number 1023169.
 
 
 
That defendants shall pay claimant healing period benefits from 
 
November 11, 1990 through December 27, 1990, and from April 17, 1991 
 
through March 31, 1992.
 
 
 
That defendants shall pay claimant two hundred (200) weeks of permanent 
 
partial disability benefits at the rate of one hundred thirty and 
 
18/100 dollars ($130.18) per week from December 28, 1990 through April 
 
16, 1991, and commencing again on April 1, 1992.
 
 
 
That defendants shall pay accrued benefits in a lump sum, and shall 
 
receive credit for benefits previously paid.
 
 
 
That defendants shall pay interest on the award, as governed by Iowa 
 
Code section 85.30.
 
 
 
That defendants shall pay claimant's medical expenses.  Defendants 
 
shall pay the future medical expenses of claimant necessitated by his 
 
work injury.
 
 
 
That defendants shall pay the costs of this action.
 
 
 
That defendants shall file a claims activity report as required by the 
 
agency.
 
 
 
Signed and filed this ____ day of June, 1995.         
 
                                   _______________________________
 
                                   BYRON K. ORTON           
 
                                   INDUSTRIAL COMMISSIONER
 
                                   
 
Copies To:
 
 
 
Mr. Michael W. Mahaffey
 
Attorney at Law
 
107 S 4th St.
 
Montezuma, IA 50171
 
 
 
Mr. Dave Jenkins
 
Attorney at Law
 
801 Grand Ave., Ste 3700
 
Des Moines, IA 50309
 
 
 
Mr. William D. Scherle
 
Attorney at Law
 
8th Flr Fleming Bldg
 
218 Sixth Ave.
 
Des Moines, IA 50309
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                       5-1803
 
                                       Filed June 29, 1995
 
                                       Byron K. Orton
 
 
 
          BEFORE THE IOWA INDUSTRIAL COMMISSIONER 
 
_________________________________________________________________
 
            
 
DONNA HUGHES,    
 
            
 
     Claimant,   
 
            
 
vs.                                File Nos. 1023168/970641
 
                                             1023169
 
MONTEZUMA SENIOR HOME/     
 
HEALTH CARE OF IOWA, INC.       
 
                                          A P P E A L
 
     Employer,   
 
                                        D E C I S I O N
 
and         
 
            
 
EMPLOYERS MUTUAL COMPANIES,     
 
            
 
     Insurance Carrier,    
 
     Defendants.      
 
_________________________________________________________________
 
5-1803
 
Claimant awarded 40 percent industrial disability.
 
 
 
 
 
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ------------------------------------------------------------
 
            DONNA HUGHES,                 :
 
                                          :        File Nos. 1023168
 
                 Claimant,                :              1023169
 
                                          :               970641
 
            vs.                           :
 
                                          :
 
            MONTEZUMA SENIOR              :
 
            HOME/HEALTH CARE OF IOWA,     :
 
            INC.,                              
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            EMPLOYERS MUTUAL COMPANIES,   :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ------------------------------------------------------------
 
                           STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by 
 
            claimant, Donna Hughes, against Montezuma Senior Home, the 
 
            employer, and Employers Mutual Insurance Companies, the 
 
            insurance carrier, both as defendants.
 
            
 
                 Claimant has filed three petitions in arbitration and 
 
            seeks workers' compensation benefits.  The record in the 
 
            case consists of testimony of the claimant; claimant's 
 
            exhibits 2 through 8; and, defendants' exhibits A through L.  
 
            Due to failure to timely serve a report, claimant's exhibit 
 
            1 was excluded from the evidence, and an offer of proof was 
 
            made by claimant's attorney.
 
            
 
                                      ISSUES
 
            
 
                 With respect to file numbers 970641 and 1023168, the 
 
            parties submit the following issues for resolution:
 
            
 
                 1.  Whether claimant is entitled to healing period or 
 
            temporary total disability benefits, or permanent partial 
 
            disability benefits;
 
            
 
                 2.  Whether claimant is entitled to certain medical 
 
            expenses as provided for under Iowa Code section 85.27;
 
            
 
                 3.  Whether claimant is entitled to full reimbursement 
 
            for the costs associated with an independent medical 
 
            evaluation, which is governed by Iowa Code section 85.39; 
 
            and,
 
            
 
                 4.  Taxation of costs.
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                 With respect to file number 1023169, the parties submit 
 
            the following issues for resolution:
 
            
 
                 1.  Whether claimant sustained an injury on April 15, 
 
            1991, which arose out of and in the course of her 
 
            employment;
 
            
 
                 2.  Whether claimant is entitled to temporary total 
 
            disability or healing period benefits, or permanent partial 
 
            disability benefits;
 
            
 
                 3.  Whether claimant is entitled to medical benefits, 
 
            as provided for under Iowa Code section 85.27; and,
 
            
 
                 4.  Taxation of costs.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The undersigned deputy, having reviewed all of the 
 
            evidence received, finds the following facts:
 
            
 
                 At the time of the hearing, claimant was 54 years of 
 
            age.  She is married and has one dependent child living in 
 
            the home.
 
            
 
                 Claimant did not graduate from high school, but 
 
            completed the eighth grade.  She has not obtained her 
 
            general equivalency diploma, but since 1962 has been a 
 
            certified nurse's aid (CNA).  At the time of the hearing, 
 
            claimant was not longer certified in this profession.
 
            
 
                 Claimant's career as a CNA began in 1958, when she 
 
            began working at the Tower Park Nursing Home in Oskaloosa, 
 
            Iowa.  During the next 12 years, while raising a family, she 
 
            worked periodically for the home and in 1970 transferred to 
 
            Mahaska Manor Nursing Home.  In 1990, claimant secured 
 
            employment with defendant employer, Montezuma Senior Home.
 
            
 
                 As a nurse's aid, claimant was responsible for overall 
 
            care of residents.  Specifically, her duties included waking 
 
            patients and preparing them for breakfast; bathing, grooming 
 
            and dressing residents; administering some physical therapy; 
 
            preparing and helping residents into wheelchairs and Geri 
 
            chairs; assisting patients to the bathroom; changing and 
 
            making beds; and, emptying urinal bags and changing 
 
            colostomy bags.
 
            
 
                 On November 7, 1990, claimant was assisting a resident 
 
            by the name of Lee Morrow.  Apparently, Mr. Morrow had a 
 
            history of errant behavior.  On November 7, 1990, claimant 
 
            was assisting Mr. Morrow to breakfast.  In order to 
 
            accomplish this, she and another assistant were on either 
 
            side of Mr. Morrow helping him walk down the hall.  Mr. 
 
            Morrow grabbed the thumb and first three fingers of 
 
            claimant's right hand, bending them back towards her arm.  
 
            She stated that she felt pain in the hand, arm and neck, and 
 
            experienced swelling in the right hand.  She finished her 
 
            shift, and visited J. Paulson, M.D., for treatment.  While 
 
            the undersigned must point out that Mr. Paulson's notes are 
 
            very unclear as to the specific dates of treatment, suffice 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            it to say that Dr. Paulson instituted conservative 
 
            treatment, including a wrist splint and physical therapy.  
 
            Early on, he noted that her right shoulder was "markedly 
 
            inflamed." (Defendants' Exhibit A, pages 2 through 3; 
 
            Exhibit B, page 1)
 
            
 
                 For this particular incident, claimant was never taken 
 
            off of work.  However, on November 10, 1990, she had another 
 
            episode with Lee Morrow.  Once again, she was helping walk 
 
            him to the dining area when he grabbed her right hand and 
 
            bent it back towards her arm.  She was unable to break it 
 
            free from Mr. Morrow, and it took several coworkers to 
 
            extricate the two.  Claimant testified that in order to 
 
            relieve the pressure Mr. Morrow was placing on her hand and 
 
            arm, she fell to her knees and tried to twist out of his 
 
            grasp.  Once Mr. Morrow released claimant, she felt an 
 
            increased amount of pain in her right shoulder, arm and 
 
            wrist.  Claimant was still under a doctor's care for the 
 
            initial incident, and she returned to Dr. Paulson on 
 
            November 19.  She was taken off of work and he recommended 
 
            daily therapy at the Grinnell Hospital.  (Claimant's Exhibit 
 
            4)
 
            
 
                 Apparently, claimant attempted to return to work on 
 
            several occasions, but was finally released to return to 
 
            full duty work in January of 1991.  (Def. Ex. A, p. 2)  
 
            (Again, the undersigned notes that it is difficult, if not 
 
            impossible, to  locate and/or read the dates contained in 
 
            Dr. Paulson's notes.)
 
            
 
                 Claimant returned to work in a neck collar, but 
 
            attempted to perform all of the duties of a nurse's 
 
            assistant.
 
            
 
                 Claimant continued to undergo physical therapy, and was 
 
            eventually referred to the University of Iowa for further 
 
            treatment due to the lack of success gained in the physical 
 
            therapy sessions. (Def. Ex. A, pp. 2-3; Def. Ex. B, pp. 2-3)
 
            
 
                 Claimant underwent x-rays of the cervical spine at the 
 
            University of Iowa.  The results showed "C6-7 disc space 
 
            disease." (Cl. Ex. 3)
 
            
 
                 Claimant returned to Dr. Paulson who indicated that she 
 
            continued to complain of pain and immobility of the right 
 
            shoulder.  He noted muscle weakness in the shoulder, as well 
 
            as neck stiffness and pain.  He indicated that her work at 
 
            the nursing home aggravated her condition.  He believed that 
 
            lifting and moving patients were beyond the type of physical 
 
            activities which claimant could perform.  He did not believe 
 
            she could be retrained for any type of job, and believed 
 
            that her current disability was related to her employment. 
 
            (Cl. Ex. 6, pp. 1-2)
 
            
 
                 In July of 1991, claimant returned to Dr. Paulson after 
 
            working for two hours.  He indicated that her right shoulder 
 
            had become "hyperreflexic."  He noted swelling in her neck 
 
            and believe that there was some type of problem in her neck 
 
            and/or shoulder.  He did not believe claimant was 
 
            malingering, and recommended an MRI.  He also prescribed 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            Vicodin for pain and instructed claimant to continue the use 
 
            of her TENS unit as well as ice and massage. (Cl. Ex. 6, pp. 
 
            3-4)
 
            
 
                 Eventually, claimant came under the care of Daniel J. 
 
            McGuire, M.D.  His notes indicate that there were no obvious 
 
            neurological deficits in her right upper extremity.  She had 
 
            good range of motion in the cervical spine, but complained 
 
            of persistent pain in both the neck and right upper 
 
            extremity.  He recommended she undergo and EMG and MRI of 
 
            the neck.  The results of the MRI showed a herniated disc on 
 
            the right side at the C6-7 level.  The EMG showed evidence 
 
            of a right carpal tunnel syndrome.  Apparently, he gave 
 
            claimant the option of whether she wanted to undergo 
 
            surgery, and stated that the "MRI says surgery would help 
 
            her, but her EMGs say surgery wouldn't help her." (Def. Ex. 
 
            D, p. 1)
 
            
 
                 Claimant elected to undergo surgery, and an anterior 
 
            cervical diskectomy on the right C6-7 level was performed on 
 
            September 17, 1991. (Cl. Ex. 5)
 
            
 
                 Six weeks later, claimant was to start physical 
 
            therapy.  She continued follow-up treatment with Dr. McGuire 
 
            and continued to complain of pain in the neck and shoulder 
 
            areas.  While Dr. McGuire noted that the bone graft used was 
 
            in a good position, as shown on the x-rays of the cervical 
 
            spine, he did not see much evidence of healing. (Def. Ex. D, 
 
            pp. 4-5)
 
            
 
                 In March of 1992, claimant underwent a functional 
 
            capacity evaluation administered by Thomas Bower, a licensed 
 
            physical therapist.  He concluded that claimant was able to 
 
            lift 20 pounds from floor to chest, carry 17 pounds, and 
 
            push and pull a maximum of 15 pounds.  All of these 
 
            activities were performed with pain levels ranging from 
 
            seven to eight on a one to ten point scale.  Claimant was 
 
            incapable of completing any of the assigned activities for 
 
            the full time allotment.  Mr. Bower offered that claimant 
 
            was symptom magnifying and that her pain levels were 
 
            disproportionate to the overall lifting assessments 
 
            performed.  He indicated that claimant was in a very 
 
            deconditioned state, and recommended an aggressive work 
 
            hardening program.  The results of the evaluation indicated 
 
            that claimant fit only into the light work classification. 
 
            (Def. Ex. E)
 
            
 
                 Claimant returned to Dr. McGuire on March 25, 1992.  He 
 
            indicated that claimant "could probably lift in the 30-50-70 
 
            pound range on an occasional to frequent basis."  He 
 
            recommended she work at home on a conditioning program.  He 
 
            felt claimant had reached maximum medical improvement, and 
 
            had a permanent partial disability of 10 percent impairment 
 
            of the right upper extremity.  He recommended she refrain 
 
            from operating heavy equipment and working around equipment 
 
            which vibrated heavily.  He did not assign any impairment 
 
            rating to her back, and indicated that her low back did not 
 
            start bothering her until she started her rehabilitation for 
 
            the neck and right upper extremity.  (Def. Ex. D, pp. 6-8)  
 
            It should be noted that Dr. McGuire clarified his 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            recommendations in a letter dated November 2, 1992.  He 
 
            stated that claimant had sustained a 10 percent impairment 
 
            to the body as a whole, was able to lift 30 pounds 
 
            frequently, 50 pounds on a regular basis and 70 pounds on an 
 
            occasional to rare basis.  He believed that she could return 
 
            to work as a certified nurse's aid with a few restricted 
 
            activities.  He anticipated she would suffer aches and 
 
            pains, but that she had had aches and pains for 
 
            approximately two years.  He thought that it might be better 
 
            to get out of the CNA field and into some other type of 
 
            employment. (Def. Ex. D, pp. 9-10)
 
            
 
                 Next, claimant underwent an independent medical 
 
            evaluation from John S. Koch, M.D., with the Iowa Medical 
 
            Clinic in Cedar Rapids, Iowa.  His report, dated October 5, 
 
            1993, indicates that on examination she had equal grip 
 
            strength on the right and left with full range of motion of 
 
            the wrists, forearms and fingers.  Dr. Koch examined another 
 
            number of areas and ordered cervical, thoracic and lumbar 
 
            spine x-rays.  He concluded that claimant's "difficulties 
 
            are related to poor physical condition, melancholia, 
 
            generalized wear and tear arthritis and medical/surgical 
 
            failure." (Def. Ex. F, p. 6)  Furthermore, he noted right 
 
            upper extremity grip difficulty and discomfiture, and 
 
            assigned a 6 percent impairment to the whole person.  He 
 
            assigned a 12 percent impairment to her neck, and proceeded 
 
            to rate both the thoracic and lumbar spine.  He believed 
 
            that of all the impairment ratings, 6 percent impairment was 
 
            related to work injury difficulties.  He recommended 
 
            physical training, work hardening and aerobic exercising, 
 
            and believed claimant could return to work as a certified 
 
            nurse's aid.  He also recommended attendance at a pain 
 
            clinic. (Def. Ex. F)  One of the issues in the case involves 
 
            the charges submitted by Dr. Koch for his IME, which totaled
 
            
 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            $1,847.  The following information is an itemization of the 
 
            charges for the IME:
 
            
 
                 Evaluation                         $250.00
 
                    Prep Time
 
                 Evaluation                          540.00
 
                    Exam & History           
 
                 X-ray exam of lower spine            87.00
 
                 X-ray exam of thorax spine           69.00
 
                 X-ray exam of neck spine            151.00
 
                 Review case history                 750.00
 
            
 
            (Cl. Ex. 7, p. 12)
 
            
 
                 Numerous correspondence between the parties regarding 
 
            the costs of the IME has been generated.  (Cl. Ex. 7; Def. 
 
            Ex. L)
 
            
 
                          ANALYSIS AND CONCLUSIONS OF LAW
 
            
 
                 With respect to agency file number 1023169, the first 
 
            issue to address is whether claimant sustained an injury on 
 
            April 15, 1991, which arose out of and in the course of her 
 
            employment.
 
            
 
                 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).
 
            
 
                 Claimant's case presents some interesting issues.  She 
 
            was involved in two identifiable work accidents on November 
 
            7, 1990 and November 10, 1990.  Both produced injury for 
 
            which claimant was treated.  Unfortunately, the evidence 
 
            indicates her initial treatment was casual, at best.  While 
 
            physical therapy was initiated, much of the program was left 
 
            to claimant to continue and/or pursue on her own.  Claimant 
 
            is a 55-year-old woman who, although has been active in 
 
            household and garden activities, has never been involved in 
 
            any regimen of physical exercise.  Even the most disciplined 
 
            people can find it difficult to stay self-motivated and 
 
            pursue a self-directed program of physical exercise.  At the 
 
            hearing, claimant did not appear to be an assertive person, 
 
            but displayed a passive personality.  This observation is 
 
            confirmed by entries in the evidence.
 
            
 
                 After the two incidents in November, claimant returned 
 
            to work, performing her full-time duties, until April 15, 
 
            1991.  There is no specific work incident that occurred on 
 
            this date but claimant, due to continued pain and discomfort 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            in her neck, right shoulder and right upper extremity, 
 
            became unable to perform her regular duties.
 
            
 
                 Claimant worked for only three months after her release 
 
            to return to work.  Her testimony, as well as other evidence 
 
            in the case, indicates that her symptoms and complaints 
 
            never subsided or worsened; they remained constant.
 
            
 
                 Claimant was still undergoing treatment as of March 
 
            1991.  Although she had been given a release to full-duty 
 
            work, her attempt to perform her regular job duties resulted 
 
            in an aggravation of her condition, but not a substantial 
 
            aggravation.
 
            
 
                 Additionally, no formal testing was done prior to 
 
            August of 1991, and given the nature of her complaints and 
 
            subsequent treatment, it is likely that she herniated the 
 
            disc either on November 7 or November 10, 1990.
 
            
 
                 As a result, it is found that claimant did not sustain 
 
            an injury on April 15, 1991, which arose out of and in the 
 
            course of her employment.  As a result, she takes nothing 
 
            for this cause of action.
 
            
 
                 With respect to agency file numbers 970641 and 1023168, 
 
            the first issue to be addressed is whether claimant 
 
            sustained a permanent disability due to the injuries she 
 
            sustained on November 7 and November 10, 1990.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury is a proximate 
 
            cause of the disability on which the claim is based.  A 
 
            cause is proximate if it is a substantial factor in bringing 
 
            about the result; it need not be the only cause.  A 
 
            preponderance of the evidence exists when the causal 
 
            connection is probable rather than merely possible.  
 
            Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 
 
            1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 
 
            (Iowa 1974).
 
            
 
                 The question of causal connection is essentially within 
 
            the domain of expert testimony.  The expert medical evidence 
 
            must be considered with all other evidence introduced 
 
            bearing on the causal connection between the injury and the 
 
            disability.  The weight to be given to any expert opinion is 
 
            determined by the finder of fact and may be affected by the 
 
            accuracy of the facts relied upon by the expert as well as 
 
            other surrounding circumstances.  The expert opinion may be 
 
            accepted or rejected, in whole or in part.  Sondag v. Ferris 
 
            Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar 
 
            Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, 
 
            Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
 
            
 
                 Dr. McGuire, who eventually became claimant's 
 
            authorized treating physician, is of the opinion that 
 
            claimant had a 10 percent impairment to the body as a whole.  
 
            This rating took into account her neck surgery, and the 
 
            lingering symptoms in her neck, right shoulder and right 
 
            upper extremity.  Dr. Koch, who performed the IME, was also 
 
            of the opinion that claimant had sustained permanent 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            impairment due to the work injuries in November of 1990.  He 
 
            assigned an impairment rating of 6 percent to the body as a 
 
            whole.
 
            
 
                 No evidence was presented which would indicate that 
 
            claimant has sustained no permanent disability due to the 
 
            injuries.  As a result, the undersigned concludes that 
 
            claimant has sustained a permanent disability due to her 
 
            work injuries in November of 1990.
 
            
 
                 The next issue to be addressed is whether claimant is 
 
            entitled to healing period benefits from November 15, 1990 
 
            through December 27, 1990, and from April 17, 1991 through 
 
            March 31, 1992.
 
            
 
                 Iowa Code section 85.34 provides, in pertinent part:
 
            
 
                    Compensation for permanent disabilities and 
 
                 during a healing period for permanent partial 
 
                 disabilities shall be payable to an employee as 
 
                 provided in this section....
 
            
 
                    1.  Healing period.  If an employee has 
 
                 suffered a personal injury causing permanent 
 
                 partial disability for which compensation is 
 
                 payable as provided in subsection 2 of this 
 
                 section, the employer shall pay to the employee 
 
                 compensation for a healing period, as provided in 
 
                 section 85.37, beginning on the date of injury, 
 
                 and until the employee has returned to work or it 
 
                 is medically indicated that significant 
 
                 improvement from the injury is not anticipated or 
 
                 until the employee is medically capable of 
 
                 returning to employment substantially similar to 
 
                 the employment in which the employee was engaged 
 
                 at the time of injury, whichever occurs first.
 
            
 
                 Due to the injuries, claimant was off work during the 
 
            time specified above.  As a result, she is entitled to 
 
            healing period benefits.
 
            
 
                 The next issue to determine is whether claimant's 
 
            disability is to a scheduled member or to the body as a 
 
            whole.
 
            
 
                 Nothing in the record indicates that claimant's 
 
            impairment is limited to her right upper extremity.  Surgery 
 
            was performed to her neck to repair a herniated disc.  As a 
 
            result, it is determined that claimant's disability is to 
 
            the body as a whole, and an analysis of her industrial 
 
            disability is warranted.
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, expe
 
            rience and inability to engage in employment for which he is 
 
            fitted.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 
            125 N.W.2d 251 (1963).  Barton v. Nevada Poultry, 253 Iowa 
 
            285, 110 N.W.2d 660 (1961).
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            
 
                 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., 
 
            (Appeal Decision, March 26, l985).
 
            
 
                 Claimant was born on October 19, 1939.  At the time of 
 
            the hearing, she was 54 years of age.
 
            
 
                 Claimant completed the eighth grade in formal 
 
            education, and since 1962 has maintained a certificate as a 
 
            nurse's aid.
 
            
 
                 For the past 28 years, claimant has worked as a nurse's 
 
            aid.  This type of work is very demanding, both physically 
 
            and emotionally.  Unfortunately, wages do not always 
 
            accurately reflect the value of work performed.  Such is the 
 
            case for nurse's aids.
 
            
 
                 Claimant was required to perform an array of duties, 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            including feeding, bathing and grooming residents; lifting 
 
            and positioning residents in beds and wheelchairs; kitchen 
 
            detail; and, overall maintenance and care for residents in 
 
            the home.
 
            
 
                 As a result of her work injuries, claimant underwent 
 
            surgery to repair a herniated disc in her cervical spine.  
 
            Recovery from the surgery has been slow.
 
            
 
                 Before the injuries, claimant had no work restrictions; 
 
            currently, her restrictions include no lifting of greater 
 
            than 30 pounds on a repetitive basis; no lifting of greater 
 
            than 50 pounds on an occasional basis; and a one-time lift 
 
            of 70 pounds.
 
            
 
                 Given claimant's age and educational background, it 
 
            would be difficult to place her in a vocational 
 
            rehabilitation program for retraining of any type.  Claimant 
 
            has not returned to work at the Montezuma Senior Home.
 
            
 
                 The final issue to address is whether the costs 
 
            associated with claimant's independent medical examination 
 
            are reasonable.
 
            
 
                 Iowa Code section 85.39 permits an employee to be 
 
            reimbursed for subsequent examination by a physician of the 
 
            employee's choice where an employer-retained physician has 
 
            previously evaluated "permanent disability" and the employee 
 
            believes that the initial evaluation is too low.  The 
 
            section also permits reimbursement for reasonably necessary 
 
            transportation expenses incurred and for any wage loss 
 
            occasioned by the employee's attending the subsequent 
 
            examination.
 
            
 
                 Defendants are responsible only for reasonable fees 
 
            associated with claimant's independent medical examination.  
 
            Claimant has the burden of proving the reasonableness of the 
 
            expenses incurred for the examination.  See Schintgen v. 
 
            Economy Fire & Casualty Co., File No. 855298 (Appeal 
 
            Decision, April 26, 1991).  Defendants' liability for 
 
            claimant's injury must be established before defendants are 
 
            obligated to reimburse claimant for independent medical 
 
            examination.  McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 
 
            (Iowa 1980).
 
            
 
                 It is not necessary for claimant to obtain prior 
 
            approval of defendants or that claimant file an application 
 
            with the industrial commissioner's office prior to seeing a 
 
            medical examiner.  Vaughn v. Iowa Power, Inc., File No. 
 
            925283 (Arbitration Decision, August 5, 1992).  Nor is it 
 
            necessary for claimant to apply for reimbursement for an 
 
            independent medical examination by a physician who is 
 
            retained by claimant prior to the examination or prior to 
 
            the hearing.  Pirozek v. Swift Independent Packing and 
 
            Second Injury Fund of Iowa, File Nos. 753643, 753642, 724893 
 
            (Appeal Decision 1987).
 
            
 
                 Rule 343 IAC 4.44(10)"d" provides:  "The amount charged 
 
            for services, supplies and devices provided as part of a 
 
            course of treatment selected by a treating physician or 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            practitioner is an expression of the provider's opinion that 
 
            the amount charged is reasonable and raises an inference 
 
            that the charge made is reasonable."
 
            
 
                 Payment of medical fees can constitute evidence of 
 
            their reasonableness and, in the absence of contrary 
 
            evidence, is sufficient to carry claimant's burden of 
 
            proving that a medical fee is reasonable.  Schneider v. 
 
            Prairie Contractors, Inc., File No. 869747 (Appeal Decision 
 
            April 1992).
 
            
 
                 In the case at bar, defendants have paid a portion of 
 
            Dr. Koch's fee.  Claimant has not paid any amount.  No 
 
            evidence was provided to show that the fee was reasonable.  
 
            Since claimant maintains the burden of proof with respect to 
 
            the reasonableness of the charges, she has failed to supply 
 
            any evidence which would support a finding that the charges 
 
            were reasonable.  The undersigned has never seen a bill of 
 
            such a substantial sum for performing an independent medical 
 
            examination submitted by a health care provider.
 
            
 
                 As a result, claimant is not entitled to payment of Dr. 
 
            Koch's bill, other than the amount already paid by 
 
            defendants.
 
            
 
                 After considering all of the factors that have been 
 
            enumerated, the undersigned finds that claimant has 
 
            sustained a 40 percent industrial disability.
 
            
 
                                       ORDER
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 That claimant take nothing for file number 1023169.
 
            
 
     
 
            
 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            IT IS FURTHER ORDERED:
 
            
 
                 That defendants shall pay claimant healing period 
 
            benefits from November 11, 1990 through December 27, 1990, 
 
            and from April 17, 1991 through March 31, 1992.
 
            
 
                 That defendants shall pay claimant two hundred (200) 
 
            weeks of permanent partial disability benefits at the rate 
 
            of one hundred thirty and 18/100 dollars ($130.18) per week 
 
            from December 28, 1990 through April 16, 1991, and 
 
            commencing again on April 1, 1992.
 
            
 
                 That defendants shall pay accrued benefits in a lump 
 
            sum, and shall receive credit for benefits previously paid.
 
            
 
                 That defendants shall pay interest on the award, as 
 
            governed by Iowa Code section 85.30.
 
            
 
                 That defendants shall pay the costs of this action.
 
            
 
                 That defendants shall file a claims activity report as 
 
            required by the agency.
 
            
 
                 Signed and filed this ____ day of October, 1994.
 
            
 
            
 
                                          
 
                                      ________________________________
 
                                          PATRICIA J. LANTZ
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr Michael W Mahaffey
 
            Attorney at Law
 
            107 S 4th St
 
            Montezuma IA 50171
 
            
 
            Mr Dave Jenkins
 
            Attorney at Law
 
            801 Grand Ave  Ste 3700
 
            Des Moines IA 50309
 
            
 
            Mr William D Scherle
 
            Attorney at Law
 
            8th Flr Fleming Bldg
 
            218 Sixth Ave
 
            Des Moines IA 50309
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                         5-1803
 
                                         Filed October 28, 1994
 
                                         Patricia J. Lantz
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ------------------------------------------------------------
 
            DONNA HUGHES,                 :
 
                                          :        File Nos. 1023168
 
                 Claimant,                :                  1023169
 
                                          :                   970641
 
            vs.                           :
 
                                          :
 
            MONTEZUMA SENIOR              :
 
            HOME/HEALTH CARE OF IOWA,     :
 
            INC.,                              
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            EMPLOYERS MUTUAL COMPANIES,   :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ------------------------------------------------------------
 
            5-1803
 
            
 
            Claimant awarded 40% industrial disability .
 
            
 
 
            
 
            
 
            
 
            
 
            
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            RICHARD J. EISBNBACHER,       :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 970781
 
            UNITED PARCEL SERVICE,        :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL,               :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Richard 
 
            J. Eisenbacher against United Parcel Service, his former 
 
            employer, and Liberty Mutual Insurance Company, its 
 
            insurance carrier for workers' compensation claims.  
 
            Eisenbacher seeks compensation for occupational hearing 
 
            loss.
 
            
 
                 The case was heard at Des Moines, Iowa on August 27, 
 
            1992.  The case was consolidated for purposes of hearing 
 
            with file number 979203.  At the commencement of the 
 
            hearing, the parties agreed that the occupational hearing 
 
            loss claim, namely, this case, could be determined by 
 
            defendants' exhibit 6 and that no other or additional 
 
            evidence would be necessary with regard to that claim.  The 
 
            parties elected to simply submit a stipulated record rather 
 
            than prepare settlement documents.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 Defendants' exhibit 6 is a report issued by Des Moines 
 
            Otolaryngologist Robert R. Updegraff, M.D.  It is noted that 
 
            the correct date of injury for this claim should be the date 
 
            of termination of employment on April 30, 1990, but the 
 
            actual last day of work was April 23, 1990.  Therefore, 
 
            under the provisions of Iowa Code section 85B.8(3), the date 
 
            of injury is April 30, 1990.  The variance between April 30, 
 
            1990 which was originally alleged in the petition and the 
 
            amended date of January 20, 1990, the date shown in the 
 
            first report of injury, does not change the result of the 
 
            case.
 
            
 
                 It is found that Richard J. Eisenbacher was exposed to 
 
            noise in the course of his employment with United Parcel 
 
            Service which produced a loss of hearing ability.  The 
 
            audiogram conducted on June 12, 1992 under the direction of 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            Dr. Updegraff showed a 43.13 percent loss of hearing in the 
 
            left ear, a 31.88 percent loss of hearing for the right ear, 
 
            and when combined under the statutory formula, those hearing 
 
            losses provide a 33.76 binaural hearing loss.
 
            
 
                 According to Dr. Updegraff, whose testimony is 
 
            uncontroverted, a large portion of Eisenbacher's hearing 
 
            loss is not attributable to noise.  It is found that Dr. 
 
            Updegraff is correct when he apportions 25 percent of the 
 
            hearing loss to noise at the employment and 75 percent to 
 
            other causes (Defendants' Exhibit 6, pp. 21-23).
 
            
 
                 In accordance with the assessment made by Dr. 
 
            Updegraff, it is found that Eisenbacher has an 8.44 percent 
 
            binaural hearing loss which was proximately caused by noise 
 
            to which he was exposed in his employment with United Parcel 
 
            Service.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 The date of occurrence of injury when dealing with an 
 
            occupational hearing loss claim is one of the three dates 
 
            referred to in Iowa Code section 85B.8.  In this case, the 
 
            date of injury is the date of termination of the 
 
            employer/employee relationship.  According to the record 
 
            that date is April 30, 1990.
 
            
 
                 The injury must both arise out of and be in the course 
 
            of the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 
 
            Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 
 
            of the Iowa Report.  See also Sister Mary Benedict v. St. 
 
            Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (l963) and Hansen 
 
            v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958).
 
            
 
                 The words "out of" refer to the cause or source of the 
 
            injury.  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 
 
            68 N.W.2d 63 (1955). 
 
            
 
                 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).
 
            
 
                 In this case, the evidence from Dr. Updegraff has been 
 
            found to be correct and establishes that Eisenbacher has an 
 
            8.44 percent binaural hearing loss as a result of his 
 
            employment with United Parcel Service.  Under the provisions 
 
            of Iowa Code section 85B.6, 8.44 percent of 175 weeks is 
 
            14.77 weeks.  The rate of compensation for the occupational 
 
            hearing loss claim is stipulated in the prehearing report to 
 
            be $455.48 per week.  That amount is not found at any point 
 
            in the July 1, 1989 benefit schedule for a single individual 
 
            with one exemption.  The record does not provide the 
 
            claimant's actual earnings.  Therefore, the rate of 
 

 
            
 
            Page   3
 
            
 
            
 
            compensation in this case is administratively determined to 
 
            be $455.62 per week, the figure found in the benefit booklet 
 
            for a single individual with only himself as an exemption 
 
            which comes closest to the rate stipulated in the prehearing 
 
            report.  Multiplying 14.77 weeks by $455.62 per weeks 
 
            provides a permanent partial disability entitlement of 
 
            $6,729.51.
 
            
 
                 Since the entitlement in this case is less than six 
 
            months, section 85B.8 makes the entire amount of permanent 
 
            partial disability due and payable six months following his 
 
            termination of employment, namely, October 30, 1990.  Since 
 
            the compensation was not paid when due, Eisenbacher is also 
 
            entitled to recover interest at the rate of 10 percent per 
 
            annum on the sum of $6,729.51 computed from October 30, 1990 
 
            until the date of actual payment, in accordance with Iowa 
 
            Code section 85.30.
 
            
 
                 In cases dealing with injury, permanent partial 
 
            disability compensation is payable commencing immediately 
 
            upon the end of the healing period but in an occupational 
 
            hearing case there is no healing period.  The employer is 
 
            not held liable for payment of benefits or interest prior to 
 
            the time that the claim can be filed by the employee, 
 
            namely, six months after the date of the injury. At that six 
 
            months, however, an employer who has notice of the claim is 
 
            then charged with making a valid assessment of the case and, 
 
            if liable, for making timely prompt payment of the permanent 
 
            partial disability entitlement.  If payment is delayed, 
 
            interest is due.
 
            
 
                                      ORDER
 
            
 
                 IT IS THEREFORE ORDERED that United Parcel Service 
 
            immediately pay Richard J. Eisenbacher fourteen point 
 
            seventy seven (14.77) weeks of compensation at the rate of 
 
            four hundred fifty-five and 62/100 dollars ($455.62) per 
 
            week by presenting an eight point forty-four (8.44) percent 
 
            binaural occupational hearing loss.
 
            
 
                 IT IS FURTHER ORDERED that defendants pay Richard J. 
 
            Eisenbacher interest at the rate of ten percent (10%) per 
 
            annum pursuant to Iowa Code section 85.30 computed from 
 
            October 30, 1990 and running to the date of actual payment.
 
            
 
                 IT IS FURTHER ORDERED that the costs of this proceeding 
 
            are assessed against defendants.
 
            
 
                 IT IS FURTHER ORDERED that defendants file claim 
 
            activity reports as requested by this agency pursuant to 
 
            rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of September, 1992.
 
            
 
            
 
                                          
 
                                          ________________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr Harry H Smith
 
            Attorney at Law
 
            632-640 Badgerow Bldg
 
            P O Box 1194
 
            Sioux City IA 51102
 
            
 
            Mr Joseph S Cortese II
 
            Attorney at Law
 
            500 Liberty Bldg
 
            Des Moines IA 50309
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            2208; 3800
 
                                            Filed September 4, 1992
 
                                            Michael G. Trier
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            RICHARD J. EISBNBACHER,       :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 970781
 
            UNITED PARCEL SERVICE,        :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL,               :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            2208; 3800
 
            It was held that benefits for permanent partial disability 
 
            compensation in an occupational hearing loss case become due 
 
            and payable six months after the date of occurrence of the 
 
            injury, the time at which the claim can be made under the 
 
            provisions of Iowa Code section 85B.8.  It was further held 
 
            that if not paid at that time, the benefits draw interest 
 
            pursuant to Iowa Code section 85.30.  Apportionment made by 
 
            otolaryngologist relied upon to award claimant an 8.44 
 
            percent binaural hearing loss.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            DAN A. RESON,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 970784
 
            NIEMAN'S LTD.,                :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            THE TRAVELERS COMPANIES,      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This case came on for hearing in Mason City, Iowa, on 
 
            June 16, 1992.  This is a proceeding in arbitration wherein 
 
            claimant seeks compensation for permanent partial disability 
 
            benefits as a result of an alleged injury occurring on July 
 
            31, 1990.  The record in the proceedings consist of the 
 
            testimony of the claimant; claimant's wife, Netta Reson; 
 
            Larry D. Frisch; Duane Ranson; claimant's exhibits 1 through 
 
            16 and 18; and, defendants' exhibits A and B.
 
            
 
                                      ISSUES
 
            
 
                 The issues for resolution are:
 
            
 
                 1.  Whether claimant's July 31, 1990 injury arose out 
 
            of and in the course of his employment;
 
            
 
                 2.  The nature and extent of claimant's permanent 
 
            disability and entitlement to disability benefits;
 
            
 
                 3.  An 85.27 medical benefits issue with causal 
 
            connection being the only issue; and,
 
            
 
                 4.  Whether claimant is entitled to penalty benefits 
 
            under 86.13(4).
 
            
 
                     
 
            
 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                                FINDINGS OF FACT
 
            
 
                 The undersigned deputy, having heard the testimony and 
 
            considered all the evidence, finds that:
 
            
 
                 Claimant is a 40 year old who completed the eighth 
 
            grade and has attempted but not attained a GED.  Claimant 
 
            related his work history which is basically involving time 
 
            in the military, working in a bakery, working in a warehouse 
 
            loading and unloading, hauling furniture, city street and 
 
            garbage department, union construction laborer which 
 
            included using a jackhammer, working as a self-employed 
 
            truck operator operating in 48 states, a motel manager, 
 
            self-employed auto sales, and towing service.  Several of 
 
            these jobs involved heavy duty work.
 
            
 
                 Claimant began working for defendant employer on July 
 
            1, 1990.  His duties involved over-the-road driving and it 
 
            necessitated the ability to load, pick up loads, tie down 
 
            loads along with the driving.  Claimant indicated defendant 
 
            employer distributes trailer axles and wheels.
 
            
 
                 During this time, claimant also had a business in which 
 
            he sold used cars and began this business around 1987 or 
 
            1988.  Claimant had stopped operating another business, his 
 
            towing business, three or four months prior to obtaining the 
 
            job with defendant employer because he needed a job in which 
 
            he could earn some money.  His towing service used an 
 
            obsolete truck which was not able to efficiently tow cars, 
 
            particularly front wheel drive cars which needed more modern 
 
            electronic devices to prevent damage to the cars he was 
 
            towing.
 
            
 
                 Claimant described how his accident happened on July 
 
            31, 1990.  Claimant indicated he was in Birmingham, Alabama, 
 
            and was loading tires when some fell off the truck.  He 
 
            jumped off the truck by stepping on the axle and slipped 
 
            hitting his right arm and shoulder on the truck.
 
            
 
                 Claimant indicated he had no prior medical problems 
 
            with his right shoulder but did relate he previously had 
 
            carpal tunnel which never affected his shoulder.
 
            
 
                 Claimant notified his employer and was told to return 
 
            to Mason City but to make certain stops on the way.
 
            
 
                 Claimant's last truck assignment with defendant 
 
            employer was September 2, 1990 (Claimant's Exhibit 18, page 
 
            2).  On September 10, 1990, claimant notified defendant 
 
            employer that he was quitting his employment with them and 
 
            that they were to drop his insurance (Defendants' Exhibit 
 
            B).  Claimant contends the state of Iowa caused him to 
 
            resign his job because he was in the process of getting 
 
            custody of his daughter and that his job as over-the-road 
 
            truck driver allowed him to be home only two days a week and 
 
            it was necessary to be with his daughter more than that.  
 
            Although there is nothing in writing or in defendants' 
 
            exhibit B, claimant contends that his physical condition 
 
            also played a part in his quitting his employment with 
 
            defendant employer because it was hard for him to tie down 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            the loads.
 
            
 
                 Claimant had seen Lori L. Lindstrom, M.D., on August 3, 
 
            1990, regarding his right shoulder injury.  Dr. Lindstrom at 
 
            that time indicated claimant was not to lift more than 25 
 
            pounds and not to tie down loads for the next week and that 
 
            she would recheck the shoulder within one week (Cl. Ex. 1).
 
            
 
                 Claimant related that around November 9, 1990, 
 
            approximately three months after seeing Dr. Lindstrom, he 
 
            called defendant employer regarding his shoulder problems 
 
            and they sent him to C. R. Caughlan, M.D., who advised 
 
            claimant to quit working in November of 1990 (Cl. Ex. 2).  
 
            Claimant indicated that he had continued to sell cars in his 
 
            business during September through November.  Claimant 
 
            indicated he wasn't getting paid any workers' compensation 
 
            from his employer even though Dr. Caughlan took him off 
 
            work.
 
            
 
                 Claimant said he was not doing any towing after he 
 
            began working with defendant employer until November.  
 
            Claimant indicated he purchased a new tow truck on November 
 
            16, 1990 (Cl. Ex. 14, pp. 17, 18).  Claimant described the 
 
            difference between the old tow truck he had previously used 
 
            in his towing business and the new one he purchased.  
 
            Claimant indicated that with the new tow truck he can 
 
            operate it with one hand and arm since it has many hydraulic 
 
            or electronic gears or items whereas with the old tow truck 
 
            he would not be able to operate it with one arm or hand.
 
            
 
                 Claimant emphasized that he never incurred any injury 
 
            or aggravation of any injury as a result of his towing 
 
            business, particularly since purchasing a new tow truck in 
 
            November of 1990.  Claimant indicated that the employer 
 
            denied any benefits and felt that he aggravated his 
 
            condition while working as a tow truck operator.  He 
 
            received a letter on or around December 21, 1990 (Claimant's 
 
            Exhibit 18, page 25).
 
            
 
                 Claimant had surgery on his shoulder on February 12, 
 
            1991, and a friend who was unemployed operated his tow 
 
            business during the two or three months that claimant 
 
            indicated he was recovering from surgery.
 
            
 
                 Claimant showed the scar on his right shoulder which is 
 
            approximately four inches in length.  Claimant indicated 
 
            that his surgery did not help that much but he is reluctant 
 
            to have additional surgery which would involve cutting off 
 
            some bone.
 
            
 
                 Claimant testified as to certain medical problems, 
 
            treatment, etc., which will be discussed later in more 
 
            detail as the medical evidence is reviewed.  Claimant's 
 
            medical restrictions are referred to in claimant's exhibit 
 
            11.  Claimant indicated that he could not do his work with 
 
            defendant employer that he had done at the time of his 
 
            injury because of the problems he would have in tying down 
 
            the loads, loading and unloading.
 
            
 
                 Claimant testified as to the other jobs he has had in 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            the past he could not now do because of his condition.  He 
 
            indicated he has no transferable skills.  As to being a 
 
            motel manager, he indicated that his ex-wife owned the motel 
 
            and the divorce ended that job.  He indicated that with 
 
            training he could possibly learn to do that type of work.  
 
            Claimant indicated he tried to find work and went to Job 
 
            Service for an interview but disqualified himself from this 
 
            job because of the light to heavy work required.
 
            
 
                 Claimant indicated he is still doing the towing and 
 
            auto sales to obtain his current income.  Claimant indicated 
 
            that in 1991, he earned $10,000 to $11,000, and that if he 
 
            were working for defendant employer he would be earning 
 
            $30,000 plus.
 
            
 
                 Claimant indicated that his injury has affected his 
 
            day-to-day activities.  He used to bowl in a bowling league 
 
            but has not done that since his injury.  He is unable to 
 
            play catch with his son, he cannot move furniture around, 
 
            and he can no longer do light mechanical work.
 
            
 
                 Claimant indicated that he would like to be an 
 
            independent truck driver but cannot do the lifting and 
 
            loading.  He is still undecided as to a second surgery.  
 
            There has been no vocational rehabilitation efforts provided 
 
            for him and he has no future educational plans.  He 
 
            indicated that he is not college material and does not want 
 
            to go to college but further claims that a diploma isn't 
 
            honored anyway.
 
            
 
                 Claimant disagreed that he had any increased range of 
 
            motion after his surgery.  He indicated he had no decrease 
 
            in pain even if a doctor said he did.
 
            
 
                 Claimant said he has made no other application for work 
 
            since quitting defendant employer except that he did contact 
 
            UPS.
 
            
 
                 Claimant acknowledged that he had a 5 percent permanent 
 
            disability rating of each hand due to carpal tunnel surgery 
 
            and that in February of 1992, he had a pulled muscle in his 
 
            neck due to a car injury.  He indicated none of these 
 
            injuries had a connection with his shoulder or affected it 
 
            in any way.
 
            
 
                 Claimant's wife, Netta Reson, testified that she has 
 
            been married to claimant two years and has known him for a 
 
            total of three years.  She indicated that claimant had no 
 
            right shoulder problems or injuries prior to July 31, 1990, 
 
            and she would have observed that if he had.  She indicated 
 
            that she and her husband were active in a bowling league but 
 
            he cannot bowl now.  She indicated claimant could do 
 
            anything she asked him to do, such as mowing the lawn or 
 
            lifting, but is unable to do so now.  She indicated claimant 
 
            called her on the date of the injury and she made a doctor's 
 
            appointment for him as soon as she could.  She indicated she 
 
            made an August 3, 1990 appointment, which is the day 
 
            claimant returned from Alabama.  She said claimant was in a 
 
            lot of pain as a result of this injury and that he had a 
 
            hard time resting or raising his arm.  She indicated that 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            claimant did not get better after the surgery.  She was 
 
            asked as to claimant having a second surgery and she 
 
            indicated that after claimant had his first surgery which 
 
            took four or five hours, claimant told her he would never go 
 
            through that again.  She indicated that claimant's 
 
            automobile accident in February 1992 had no effect on the 
 
            shoulder and that he had had no other injuries.  She 
 
            indicated that he could not play basketball with his 
 
            stepson.  She indicated that claimant could not raise his 
 
            arm up as much after surgery as he could before.
 
            
 
                 She said claimant can operate his new tow truck with 
 
            one arm and that she has gone with him at times when towing 
 
            and has observed him.
 
            
 
                 Larry Frisch has known claimant seventeen or eighteen 
 
            years and they visit each other at their homes.  He has 
 
            known claimant prior to July 31, 1990, and indicated that 
 
            claimant had no right shoulder problems and no restrictions.  
 
            He said that he knew claimant bought the new tow truck in 
 
            1990 and has gone with him several times when claimant was 
 
            towing.  He indicated the truck was hydraulic and said he 
 
            knows how the truck is operated.  He said he helped claimant 
 
            in his towing business when claimant had surgery and did all 
 
            the work in February and March while claimant was 
 
            recovering.
 
            
 
                 Mr. Frisch said he has observed claimant and indicated 
 
            he has limited motion which isn't as bad as before the 
 
            surgery.  He indicated claimant cannot put his arm over his 
 
            head.  He also said claimant is now an observer and not a 
 
            participant in playing volleyball.
 
            
 
                 Duane Ranson, who is employed with defendant employer 
 
            as a sales person and driver supervisor, indicated he 
 
            interviews drivers before hiring them and fills out the 
 
            forms.  He indicated he does not dispatch the drivers but 
 
            does have contact with the drivers after hiring.
 
            
 
                 He referred to defendants' exhibit B as the record of 
 
            the checks claimant received in July and August.  He 
 
            indicated a driver for defendant employer makes from $30,000 
 
            to $36,000 a year.
 
            
 
                 He said claimant told him he quit because he had a 
 
            chance to get his daughter back and the judge said he must 
 
            quit his truck driving job as he could not be out of state 
 
            as much as he would be if he was driving a truck.  Mr. 
 
            Ranson said the claimant never indicated that his truck 
 
            driving was limited by his shoulder injury.  Mr. Ranson said 
 
            he was familiar with what truck drivers must do which 
 
            includes tying down loads, shifting the gears of an 18-wheel 
 
            truck several times and lifting over 25 pounds.  Mr. Ranson 
 
            acknowledged that if claimant has the same restrictions that 
 
            he had in 1990, he could only work on a limited basis.  He 
 
            was referred to page 2 of claimant's exhibit 1 which is an 
 
            August 3, 1990 note.  Mr. Ranson indicated this was the 
 
            first time he saw that.  He indicated that even though 
 
            claimant apparently had those restrictions, claimant still 
 
            asked to work for defendant employer.  He acknowledged 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            claimant's income would have been $30,000 to $36,000 while 
 
            working for defendant employer.
 
            
 
                 Claimant's exhibit 1 indicates on an April 3, 1990 
 
            visit to Dr. Lindstrom that claimant had tenderness over the 
 
            entire shoulder and that it was painful and the diagnosis 
 
            was shoulder sprain.  He was given a 25 pound restriction 
 
            and was not to tie down loads for the next week.  Dr. 
 
            Caughlan indicated on November 9, 1990, that claimant had 
 
            possibly a rotator cuff tear and that he was going to make 
 
            an appointment for claimant with a a Dr. Laaveg.  He 
 
            indicated it appeared to be a workers' compensation type 
 
            injury (Cl. Ex. 2 and 3).
 
            
 
                 Raymond L. Emerson, M.D., of the same Mason City 
 
            clinic, on January 28, 1991, indicated that a recent 
 
            arthrogram showed dye going through the rotator cuff area 
 
            signifying rotator cuff tear.  At that time, he indicated 
 
            claimant lacked approximately 25 percent of being full 
 
            especially on forward elevation and abduction.  Claimant had 
 
            arthroscopy of the right shoulder for a rotator cuff repair 
 
            on February 12, 1991 (Cl. Ex. 3, p. 3).
 
            
 
                 As of a September 25, 1991 visit which is seven months 
 
            after claimant's rotator cuff repair of the right shoulder, 
 
            the doctor indicated that he did not think claimant had 
 
            reached maximum medical improvement.
 
            
 
                 On October 25, 1991, eight months post-operative, he 
 
            indicated claimant has not had much improvement in range of 
 
            motion and that he will still have some discomfort about the 
 
            shoulder if he is too active.  At this time, he indicated 
 
            that claimant had an impairment of approximately 16 percent 
 
            of the upper extremity (Cl. Ex. 3, pp. 5, 6).
 
            
 
                 On April 12, 1992, Dr. Emerson indicated that claimant 
 
            had a possible impingement syndrome and that he started to 
 
            have more pain without recurrent injury.  He recommended an 
 
            arthrogram.  On April 16, 1992, Dr. Emerson reviewed the 
 
            arthrogram and it indicated that claimant's rotator cuff was 
 
            not healed.  He discussed options with the claimant as to 
 
            additional surgery.  As of that time, claimant had not 
 
            decided what he would do (Cl. Ex. 3, pp. 6, 7).
 
            
 
                 Claimant's exhibit 5 and 7, dated February 8, 1991, is 
 
            a letter from Dr. Emerson in which he indicated claimant's 
 
            rotator cuff occurred at the time of his injury in July 
 
            1990.  Claimant's exhibit 6 is a more detailed record of 
 
            claimant's February 12, 1992 rotator cuff surgery.
 
            
 
                 Claimant's exhibit 8 is Dr. Emerson's 16 percent 
 
            impairment rating of claimant's right upper extremity.  
 
            Claimant's exhibit 10 is a letter from Dr. Emerson, dated 
 
            April 10, 1992, after he reviewed claimant's arthrogram, in 
 
            which he indicated claimant's rotator cuff tear is probably 
 
            not healed.  He also indicated that whether another repair 
 
            of the rotator cuff would be successful or not is difficult 
 
            to estimate.  He had left it with the claimant to let him 
 
            know as to whether he wants to schedule another operation.
 
            
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
                 Claimant's exhibit 11, dated May 22, 1992, is Dr. 
 
            Emerson's report indicating that his impairment he gave 
 
            claimant in October 1991 is related to his July 1990 injury 
 
            and that the restrictions of the claimant has to be governed 
 
            by the amount of claimant's pain.  He indicated overhead 
 
            lifting activities or heavy lifting out of the side of his 
 
            body by bringing the arm out to the side of his body would 
 
            be uncomfortable for the claimant.
 
            
 
                 Claimant's exhibit 12 is a summary of the medical bills 
 
            amounting to $7,789.52.
 
            
 
                 Defendants contend that claimant did not incur his 
 
            injury and resulting impairment or disability as a result of 
 
            a July 31, 1990 injury, but instead hurt it while towing 
 
            vehicles in his towing business.  It is obvious from the 
 
            evidence and arguments at the end of this hearing that 
 
            defendants are entirely speculating as to claimant's injury 
 
            in his towing business.  There is nothing in the record that 
 
            would indicate claimant in fact injured himself in the 
 
            towing business.  If the undersigned allows speculation, 
 
            then one could speculate that any type of injury one 
 
            incurred had to have happened somewhere outside of work 
 
            without having any evidence or proof of the same.  The mere 
 
            fact that claimant was trying to earn a living, particularly 
 
            since he was getting no benefits from the defendants, 
 
            defendants contend he must have injured himself.  The 
 
            undersigned wonders what position defendants would take if 
 
            in fact claimant sat home and did nothing to improve himself 
 
            and lack of motivation.  That obviously would have been used 
 
            against him.
 
            
 
                 The record indicates that claimant is a very motivated 
 
            individual and has attempted to earn income in various ways 
 
            and has attempted to run two businesses on his own even 
 
            though they didn't appear to be very profitable.  
 
            Defendants' allegation that there is no causal connection 
 
            follows along the same lines.  The medical evidence is clear 
 
            that claimant's injury and resulting impairment and current 
 
            medical condition is causally connected to his July 31, 1990 
 
            injury.  The undersigned finds no reason to further dwell as 
 
            to these two issues.  The undersigned therefore finds that 
 
            claimant incurred an injury that arose out of and in the 
 
            course of his employment on July 31, 1990, and that this 
 
            injury caused claimant to incur a 16 percent impairment to 
 
            his right upper extremity.  The undersigned further finds 
 
            that claimant's injury to his shoulder and rotator cuff is 
 
            to his body as a whole.
 
            
 
                 Claimant contends his healing period began July 31, 
 
            1990 through October 25, 1991.  Defendants contend there is 
 
            no healing period.
 
            
 
                 Defendants' exhibit B is a September 10, 1990 note from 
 
            the claimant indicating that he was quitting his employment 
 
            with defendant employer.  Claimant testified that he was 
 
            quitting because he was getting custody of his daughter 
 
            which he also told the defendant employer.  Claimant 
 
            testified that there were additional reasons, namely, his 
 
            injury, but these were not conveyed to the defendant 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            employer.  The undersigned finds that claimant was working 
 
            until September 10, 1990, and apparently at that time he was 
 
            able to do the work even though there may be some question 
 
            as to how long claimant would have been able to.  The fact 
 
            is claimant quit at that time.  The undersigned finds that 
 
            claimant should not be entitled to healing period because of 
 
            that reason.  Approximately two months later, November 16, 
 
            1990, claimant did buy a new tow truck and because of its 
 
            technology and nature of the equipment, unlike his old tow 
 
            truck, he was able to then continue his towing business that 
 
            he had given up a few months prior to beginning work for 
 
            defendant employer around July 1, 1990.
 
            
 
                 Claimant was required to have surgery on February 12, 
 
            1991, which the undersigned finds that the medical evidence 
 
            is clear that it was the result of and caused by claimant's 
 
            July 31, 1991 work injury.  Claimant had to withdraw for a 
 
            time from his towing.  The undersigned finds claimant is 
 
            entitled to healing period beginning on that date.  Dr. 
 
            Emerson indicated that claimant reached apparent maximum 
 
            healing on October 25, 1991, and at that time gave claimant 
 
            a 16 percent impairment to his upper extremity.  The 
 
            undersigned finds that claimant is entitled to healing 
 
            period for the period beginning February 12, 1991 through 
 
            October 25, 1991, amounting to 36.571 weeks at the rate of 
 
            $407.01 per week.
 
            
 
                 The undersigned further finds that even though the 
 
            doctor referred to the right upper extremity, it is 
 
            obviously a body as a whole injury.  It is not uncommon for 
 
            the doctors to refer to anything on the right side of a body 
 
            that involves the shoulder, arm or the hand as an upper 
 
            extremity.
 
            
 
                 As to the 85.27 issue, it only dealt with causal 
 
            connection and since that has been found the defendants are 
 
            responsible for claimant's medical bills which to date are 
 
            reflected by claimant's exhibit 12 and which amount to 
 
            $7,789.52.
 
            
 
                 As to the extent of claimant's permanent disability, 
 
            the undersigned finds that claimant is at an age where he 
 
            should be able to be in the height or beginning the height 
 
            of his earning capacity.  The record shows claimant is 
 
            motivated.  Claimant's work history indicates that he has 
 
            been able to and has done considerable work in various 
 
            fields which would involve light to heavy duty work.  The 
 
            use of one's arms and shoulders are and have been important 
 
            in all the types of work that claimant has done other than 
 
            possibly his short stint of a motel manager concerning a 
 
            motel that his ex-wife owned.  Claimant has only an eighth 
 
            grade education and does not have a GED.  Claimant's injury 
 
            has foreclosed him from doing any of his jobs he had prior 
 
            to July 31, 1990, except he can continue his meager low 
 
            profit auto sales and his towing business now that he has a 
 
            truck that he is able to operate with one upper extremity.  
 
            Defendants' witness, Duane Ranson, made it clear that under 
 
            claimant's current restrictions and status he would not be 
 
            able to do the work for defendant employer that he was doing 
 
            on July 31, 1990.  They have not offered him any work that 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            he is able to do.  Defendants have completely denied any 
 
            liability and have paid no benefits.  There is no evidence 
 
            that claimant had any injuries that affected his employment 
 
            on July 31, 1990, or subsequent thereto except for his work 
 
            injury incurred while working for defendant employer on July 
 
            31, 1990.  The undersigned will not speculate as defendants 
 
            are concerning what might have added to, aggravated or 
 
            caused claimant's current condition.
 
            
 
                 Claimant indicated he is able to earn $10,000 to 
 
            $11,000 in his current towing business.  The evidence is 
 
            undisputed that claimant would have been able to make 
 
            $30,000 to $36,000 per year, at least, working for defendant 
 
            employer.  It appears that working in this over-the-road 
 
            trucking industry, those figures are reasonable and in some 
 
            respects conservative.  The undersigned finds that claimant 
 
            currently has at least a 60 percent loss of income.  It 
 
            would appear considering claimant's injury, his best 
 
            opportunity for earning a living is continuing on in his 
 
            towing business as a self-employed operator.
 
            
 
                 Taking into consideration claimant's medical history 
 
            prior to and after his July 31, 1990 injury; his pre and 
 
            post-work experience; his intelligence; income prior to and 
 
            after his injury; his inability to engage in employment for 
 
            which he is fitted as a result of an injury; the location, 
 
            severity of his injury; the healing period, his age; 
 
            motivation; education; and functional impairment, the 
 
            undersigned finds that claimant has a substantial loss of 
 
            earning capacity.  The undersigned finds claimant has a 50 
 
            percent industrial disability.
 
            
 
                 The final issue is whether penalty benefits should be 
 
            awarded to claimant under the provisions of 86.13(4).  It 
 
            appears that the biggest reason defendants are denying 
 
            benefits is they are speculating that claimant must have 
 
            incurred an injury while operating his towing business.  
 
            There is absolutely no evidence that claimant incurred such 
 
            an injury.  As indicated earlier, if defendants could come 
 
            in and speculate that there must have been some other cause 
 
            of claimant's injury without being specific, then you would 
 
            have chaos in the workers' compensation system.  One could 
 
            conjecture that one was injured getting out of bed, eating, 
 
            driving a car, coughing, sneezing, or through motivation 
 
            trying to find work and, in fact, finding work.  In all 
 
            instances one could allege that there must have been some 
 
            injury by the mere fact that a person was doing some 
 
            activity.  The undersigned believes that such contentions 
 
            are absolutely ridiculous and such outrageous speculation or 
 
            conjecture should not be considered.  The undersigned finds 
 
            that there was no reasonableness or probable cause or excuse 
 
            for claimant delaying the payment of some benefits.  The 
 
            only evidence that claimant has to support his action is its 
 
            December 21, 1990 letter (page 25 of claimant's exhibit 18) 
 
            in which they were informing the claimant that they were 
 
            denying benefits because they felt he aggravated his 
 
            condition by working as a tow truck operator.  The 
 
            undersigned finds that claimant is entitled to a total of 25 
 
            weeks penalty benefits as to the delay in payment involving 
 
            claimant's healing period and permanent partial disability 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            benefits.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that he received an injury on July 31, 1990, 
 
            which arose out of and in the course of his employment. 
 
            McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 
 
            1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 
 
            N.W.2d 128 (1967). 
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of  is 
 
            causally related to the disability on which  now bases  
 
            claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 
 
            867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 
 
            607 (1945).  A possibility is insufficient; a probability is 
 
            necessary.  Burt v. John Deere Waterloo Tractor Works, 247 
 
            Iowa 691, 73 N.W.2d 732 (1955).  The question of causal 
 
            connection is essentially within the domain of expert 
 
            testimony.  Bradshaw v. Iowa Methodist Hospital, 251 Iowa 
 
            375, 101 N.W.2d 167 (1960). 
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903 (Iowa 1974).  However, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Id. at 907.  Further, the weight to be given to such 
 
            an opinion is for the finder of fact, and that may be 
 
            affected by the completeness of the premise given the expert 
 
            and other surrounding circumstances.  Bodish, 257 Iowa 516, 
 
            133 N.W.2d 867.  See also Musselman, 261 Iowa 352, 154 
 
            N.W.2d 128.
 
            
 
                 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 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  These are matters which the 
 
            finder of fact considers collectively in arriving at the 
 
            determination of the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  There are no 
 
            guidelines which give, for example, age a weighted value of 
 
            ten percent of the total value, education a value of fifteen 
 
            percent of total, motivation - five percent; work experience 
 
            - thirty percent, etc.  Neither does a rating of functional 
 
            impairment directly correlate to a degree of industrial 
 
            disability to the body as a whole.  In other words, there 
 
            are no formulae which can be applied and then added up to 
 
            determine the degree of industrial disability.  It therefore 
 
            becomes necessary for the deputy or commissioner to draw 
 
            upon prior experience, general and specialized knowledge to 
 
            make the finding with regard to degree of industrial dis
 
            ability.  See Peterson v. Truck Haven Cafe, Inc., (Appeal 
 
            Decision, February 28, 1985); Christensen v. Hagen, Inc., 
 
            (Appeal Decision, March 26, l985).
 
            
 
                 The mere fact that the rating pertains to a scheduled 
 
            member does not mean the disability is restricted to a 
 
            schedule.  Pullen v. Brown & Lambrecht Earthmoving, 
 
            Incorporated, II Iowa Industrial Commissioner Reports 308 
 
            (Appeal Decision 1982).
 
            
 
                 Iowa Code section 85.34(1) provides that if an employee 
 
            has suffered a personal injury causing permanent partial 
 
            disability, the employer shall pay compensation for a 
 
            healing period from the day of the injury until (1) the 
 
            employee returns to work; or (2) it is medically indicated 
 
            that significant improvement from the injury is not 
 
            anticipated; or (3) until the employee is medically capable 
 
            of returning to substantially similar employment.
 
            
 
                 Iowa Code section 85.34(2) provides that compensation 
 
            for permanent partial disability shall begin at the 
 
            termination of the healing period.  Iowa Code section 
 
            85.34(2)(u) provides that compensation for a nonscheduled or 
 
            body as a whole injury shall be paid in relation to 500 
 
            weeks and the disability bears to the body as a whole.
 
            
 
                 Iowa Code section 85.27 provides, in part:
 
            
 
                    For purposes of this section, the employer is 
 
                 obliged to furnish reasonable services and 
 
                 supplies to treat an injured employee, and has the 
 
                 right to choose the care.  The treatment must be 
 
                 offered promptly and be reasonably suited to treat 
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
                 the injury without undue inconvenience to the 
 
                 employee.  If the employee has reason to be 
 
                 dissatisfied with the care offered, the employee 
 
                 should communicate the basis of such 
 
                 dissatisfaction to the employer, in writing if 
 
                 requested, following which the employer and the 
 
                 employee may agree to alternate care reasonably 
 
                 suited to treat the injury.  If the employer and 
 
                 employee cannot agree on such alternate care, the 
 
                 commissioner may, upon application and reasonable 
 
                 proofs of the necessity therefor, allow and order 
 
                 other care.  In an emergency, the employee may 
 
                 choose the employee's care at the employer's 
 
                 expense, provided the employer or the employer's 
 
                 agent cannot be reached immediately.
 
            
 
                 Iowa Code section 86.13 provides, in part:
 
            
 
                    If a delay in commencement or termination of 
 
                 benefits occurs without reasonable or probable 
 
                 cause or excuse, the industrial commissioner shall 
 
                 award benefits in addition to those benefits 
 
                 payable under this chapter, or chapter 85, 85A, or 
 
                 85B, up to fifty percent of the amount of benefits 
 
                 that were unreasonably delayed or denied.
 
            
 
                 It is further concluded that:
 
            
 
                 Claimant incurred a work injury on July 31, 1990, that 
 
            arose out of and in the course of his employment, and that 
 
            said work injury caused claimant to incur a permanent 
 
            impairment and a body as a whole injury and certain 
 
            restrictions.
 
            
 
                 Claimant incurred certain restrictions that foreclosed 
 
            him from performing the work he was doing on July 31, 1990 
 
            for defendant employer and additionally foreclosed him from 
 
            many other occupations that he previously had for which he 
 
            was unable to use any transferable skills he may have had.
 
            
 
                 Claimant incurred a healing period beginning February 
 
            12, 1991 through October 25, 1991 (36.571 weeks), which was 
 
            a result of his work injury and was caused by his July 31, 
 
            1990 work injury.
 
            
 
                 Claimant is entitled to have his medical benefits, as 
 
            represented by claimant's exhibit 12 in the amount of 
 
            $7,789.52, paid by the defendants.
 
            
 
                 If claimant decides to have the additional suggested 
 
            surgery on his right shoulder said expenses shall be paid by 
 
            the defendants.
 
            
 
                 Claimant has a substantial loss of income and has 
 
            incurred a substantial loss of earning capacity.
 
            
 
                 Claimant has a 50 percent industrial disability and his 
 
            permanent partial benefits shall begin October 26, 1991, at 
 
            the rate of $407.01 per week.
 
            
 

 
            
 
            Page  13
 
            
 
            
 
            
 
            
 
                 Claimant is entitled to an additional 25 weeks of 
 
            penalty benefits under the provisions of 86.13(4) for the 
 
            reason that defendants denied payment of benefits without 
 
            reasonable or probable cause or excuse.  That said action of 
 
            defendants was not fairly debatable.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendants shall pay unto claimant healing period 
 
            benefits at the rate of four hundred seven and 01/100 
 
            dollars ($407.01) per week for the period beginning February 
 
            12, 1991 through October 25, 1991, involving thirty-six 
 
            point five seven one (36.571) weeks.
 
            
 
                 That defendants shall pay unto claimant two hundred 
 
            fifty (250) weeks of permanent partial disability at the 
 
            rate of four hundred seven and 01/100 dollars ($407.01) per 
 
            week, beginning October 26, 1991.
 
            
 
                 That defendants shall pay claimant twenty-five (25) 
 
            additional weeks at the rate of four hundred seven and 
 
            01/100 dollars ($407.01) per week as penalty benefits under 
 
            the provisions of Iowa Code section 86.13(4)
 
            
 
                 That defendants shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against the award for 
 
            weekly benefits previously paid.  Defendants have not 
 
            previously paid benefits.
 
            
 
                 That defendants shall pay claimant's medical bills in 
 
            the amount of seven thousand seven hundred eighty-nine and 
 
            52/100 dollars ($7,789.52).
 
            
 
                 That defendants shall pay interest on benefits awarded 
 
            herein as set forth in Iowa Code section 85.30.
 
            
 
                 That defendants shall pay the costs of this action, 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 That defendants shall file 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 June, 1992.
 
            
 
            
 
            
 
                                          ______________________________
 
                                          BERNARD J. O'MALLEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            Copies to:
 
            
 
            Mr Robert S Kinsey III
 
            Attorney at Law
 
            214 N Adams
 
            P O Box 679
 
            Mason City IA 50401
 
            
 

 
            
 
            Page  14
 
            
 
            
 
            
 
            
 
            Mr Rustin T Davenport
 
            Attorney at Law
 
            30 4th St NW
 
            P O Box 1953
 
            Mason City IA 50401
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                   1100; 1108; 1803
 
                                                   1802; 5-2500; 4000
 
                                                   Filed June 26, 1992
 
                                                   Bernard J. O'Malley
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            DAN A. RESON,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 970784
 
            NIEMAN'S LTD.,                :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            THE TRAVELERS COMPANIES,      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            1100; 1108; 1803
 
            Found 40-year-old claimant incurred a work injury on July 
 
            31, 1990, that caused claimant to have a right shoulder 
 
            surgery, incur a healing period and a 50% industrial 
 
            disability.
 
            
 
            1802
 
            Found claimant not entitled to a healing period shortly 
 
            after his surgery because he resigned in order to obtain 
 
            custody of his child and be able to be in town more than 
 
            driving over the road and being gone several days at a time.
 
            
 
            5-2500
 
            Claimant awarded medical benefits, 85.27.
 
            
 
            4000
 
            Claimant awarded 25 weeks of penalty benefits.  Defendant 
 
            denied all benefits based on their speculation or conjecture 
 
            that claimant must have injured himself in the towing 
 
            business.  They had no evidence of any other injury other 
 
            than claimant's July 31, 1990 injury.