BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
                                         :
 
         OLLIS P. HUNTER,                :
 
                                         :
 
              Claimant,                  :
 
                                         :
 
         vs.                             :
 
                                         :    File Nos. 973506/1013368
 
         JOHN MORRELL & CO.,             :
 
                                         :           A P P E A L
 
              Employer,                  :
 
                                         :         D E C I S I O N
 
         and                             :
 
                                         :
 
         HOME INSURANCE,                 :
 
                                         :
 
              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
 
         
 
              The issues on appeal are:  Whether claimant is entitled to 
 
         temporary total disability benefits as a result of a low back 
 
         injury on December 13, 1990; whether claimant is entitled to 
 
         permanent disability benefits as a result of an alleged injury to 
 
         his right wrist on October 8, 1990 or as a result of a low back 
 
         injury on December 13, 1990; whether defendants are liable for 
 
         payment of the full amount of an independent medical examination; 
 
         and whether claimant is entitled to certain medical benefits.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              The conclusions of law contained in the proposed agency 
 
         decision filed February 18, 1994 are adopted as set forth below.  
 
         Segments designated by asterisks (*****) indicate portions of the 
 
         language from the proposed agency decision that have been 
 
         intentionally deleted and do not form a part of this final agency 
 
         decision.  Segments designated by brackets ([ ]) indicate 
 
         language that is in addition to the language of the proposed 
 
         agency decision.
 
         
 
              A review of the pertinent medical evidence of record reveals 
 
         that claimant began complaining of right wrist pain in 1989.  He 
 

 
         
 
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         presented to D.M. Youngblade, M.D., on August 15, 1989, with 
 
         complaints of pain and discomfort in the volar surface of the 
 
         right wrist brought on by certain motions, movements, twists, and 
 
         turns.  He was placed on light duty for a short period of time 
 
         and placed in a Futuro splint.  Claimant returned to Dr. 
 
         Youngblade on September 6, 1989, with the same complaints as 
 
         before.  He was advised to work at another job rather than his 
 
         usual job of collaring hams.  (joint exhibit 14)
 
         
 
              Claimant's right wrist problems resurfaced on October 8, 
 
         1990.  At that time, he presented to John D. Kuhnlein, M.D., the 
 
         company physician, with pain in his right wrist.  On November 30, 
 
         1990, claimant underwent nerve conduction studies and EMG studies 
 
         of the right upper extremity.  The studies were normal with no 
 
         evidence of a mononeuropathy or plexopathy or evidence of a 
 
         radiculopathy.  (jt. ex. 17)  On December 3, 1990, Dr. Kuhnlein 
 
         released claimant to return to full duty with no work 
 
         restrictions.  (jt. ex. 16, page 2)
 
         
 
              On December 13, 1990, claimant reported that he had fallen 
 
         on a greasy floor surface while working on the production line 
 
         and hurt his right shoulder, arm and lower back.  [He was taken 
 
         off work on December 13, 1990.  (jt. ex. 18)]  He was put in the 
 
         back care program by Dr. Kuhnlein and participated in 15 
 
         sessions.  On April 5, 1991, Dr. Kuhnlein discontinued him from 
 
         the program because the therapists and technicians felt that he 
 
         had not put forth maximum effort and had been noncompliant in 
 
         attendance.  A physical examination revealed negative straight 
 
         leg raising and negative seated leg raising.  An MRI evaluation 
 
         which had previously been taken on February 8, 1991, was also 
 
         negative.  (jt. ex. 23)  In any event, Dr. Kuhnlein gave claimant 
 
         permanent restrictions of no lifting, pushing or pulling in 
 
         excess of 25 pounds on an occasional basis and no work above the 
 
         shoulder or below the waist and permanent restrictions from 
 
         knife, whizzard and hook work.  (jt. ex. 21, p. 4)
 
         
 
              Claimant requested a second opinion and Dr. Kuhnlein 
 
         referred him to J.T. Strittholt, M.D.  On April 25, 1991, Dr. 
 
         Strittholt evaluated claimant's right hand and wrist.  Dr. 
 
         Strittholt observed no soft tissue swelling, full range of motion 
 
         in supination pronation, no crepitance and no pain across the 
 
         basal thumb joint or dorsum of the wrist to palpitation.  Tinel's 
 
         was negative and Phalen's normal.  X-rays of the hand and wrist 
 
         reveled normal osseous structures.  Dr. Strittholt felt that 
 
         claimant's condition was one of residual flexor tenosynovitis.  
 
         (jt. ex. 39)
 
         
 
              On May 23, 1991, Dr. Strittholt examined claimant's back.  
 
         He noted that his upper extremity pain was markedly improved.  
 
         After reviewing x-rays and the MRI study and conducting a 
 
         physical examination, Dr. Strittholt concluded that claimant has 
 

 
         
 
         Page   3
 
         
 
         
 
         
 
         
 
         low back pain with a strong functional overlay component.  He had 
 
         no specific treatment recommendations.  (jt. ex. 39)
 
         
 
              On May 28, 1991, Dr. Strittholt indicated that he had not 
 
         completed a work restriction form supplied by employer because he 
 
         left the assessment of work restrictions up to Dr. Kuhnlein, 
 
         claimant's treating physician.  Apparently, claimant had returned 
 
         to employer a completed work restriction form which he denied 
 
         tampering with but which, nevertheless, was submitted as a 
 
         reflection of Dr. Strittholt's assessment.  Although employer had 
 
         suspected that claimant submitted a falsified work restriction 
 
         slip, they took no disciplinary measures against him.  (jt. exs. 
 
         39 & 40)
 
         
 
              On June 14, 1991, claimant presented to St. Luke's Regional 
 
         Medical Center emergency room with complaints of low back and 
 
         right leg pain.  He had previously reported there on June 12, 
 
         1991, and was told to return for a lumbosacral CT scan.  The 
 
         results revealed early spinal stenosis at the L4-5 level, 
 
         narrowing of the neural foraminal at the L5-S1 level and some 
 
         abnormalities at the L4-5 and L5-S1 level which was determined to 
 
         require further evaluation.  (jt. exs. 27 & 29)
 
         
 
              Claimant was then referred by Dr. Kuhnlein to Leonal 
 
         Herrera, M.D., for a neurological evaluation.  Dr. Herrera saw 
 
         claimant on August 28, 1991.  After reviewing the claimant's 
 
         medical history and noting his complaints, Dr. Herrera conducted 
 
         a physical examination.  Dr. Herrera found discrepancies in the 
 
         claimant's motion abnormalities and therefore concluded that his 
 
         test was invalid and could not be used for a disability rating 
 
         according to the AMA Guides to the Evaluation of Permanent 
 
         Impairment.  He therefore concluded that the claimant did not 
 
         have a measurable rating when using the abnormal motion in the 
 
         spine area and no other neurological impairment.  He gave 
 
         claimant a 0 percent rating for his lumbar spine.  (jt. ex. 26)
 
         
 
              Being dissatisfied with this determination, claimant 
 
         requested an independent medical examination by Horst Blume, M.D.  
 
         After reviewing the claimant's medical history, noting his 
 
         complaints and conducting a physical examination, he concluded 
 
         that claimant had spinal stenosis at L4-5 with evidence of a 
 
         ruptured disc at L4-5 and some evidence of spondylosis and 
 
         spondylolisthesis.  (jt. ex. 30)  However, he concluded that 
 
         since claimant has no radicular pain at the present time, surgery 
 
         was not warranted.  He recommended a thermogram to further 
 
         diagnose his problem.  (jt. exs. 31 & 42)
 
         
 
              On February 20, 1992, claimant presented to Marion Health 
 
         Center outpatient service with complaints of back pain.  He was 
 
         advised to follow-up with Dr. Kuhnlein.  (jt. ex. 32)
 
         
 

 
         
 
         Page   4
 
         
 
         
 
         
 
         
 
              On April 23, 1992, claimant presented to St. Luke's 
 
         emergency room with back pain.  He was diagnosed with persistent 
 
         lumbar strain and advised to take it easy.  (jt. ex. 33)
 
         
 
              On November 18, 1992, claimant presented to Dr. Kuhnlein and 
 
         indicated that he was capable of doing more physical work than 
 
         his previous restrictions allowed.  At this time, there was no 
 
         evidence of lumbosacral strain.  Claimant was given a 45-pound 
 
         lifting, pushing and pulling restriction with no knife or 
 
         whizzard and hook work.  (jt. ex. 18, page 10)
 
         
 
              Claimant testified that he returned to his former job with 
 
         employer on November 19, 1992, after being off work from December 
 
         1991 through November 1992.  Claimant testified that he received 
 
         unemployment benefits during that period of time.  He stated that 
 
         employer would not take him back to work in his old job collaring 
 
         hams until his restrictions were changed.  He testified that he 
 
         has been working collaring hams since November 19, 1992, but the 
 
         work is easier than before because there is now a three-man 
 
         rotation on the line and he doesn't have to spend as much time 
 
         performing the same repetitive movements as before.  He stated 
 
         that he earns $9.40 per hour doing this work and in 1990 he 
 
         earned $8.65 per hour.  
 
         
 
              [On April 23, 1992 claimant presented to St. Luke's 
 
         emergency room with lumbar back pain.  The medical note stated 
 
         that claimant was okay to go back to work but he was advised to 
 
         take it easy, rest and was given a shot and medication for pain.  
 
         (jt. ex. 34)]
 
         
 
              On June 24, 1993, claimant presented to St. Luke's emergency 
 
         room with complaints of low back pain.  He was given pain 
 
         medication and instructed to rest for the next 24 to 48 hours and 
 
         resume activity as tolerated.  [A note in the medical record 
 
         indicates that the employer would not authorize treatment.]  (jt. 
 
         ex. 34)
 
         
 
              On July 28, 1993, claimant presented to St. Luke's emergency 
 
         room again with complaints of low back pain. He was given a 
 
         refill of Naprosyn and referred to the Woodbury County Medical 
 
         Society to obtain a physician.  (jt. ex. 35)
 
         
 
              There are medical records in evidence which pertain to a 
 
         June 16, 1993, right wrist injury.  Because this injury is not in 
 
         issue at this time, that evidence will not be reviewed.  (jt. 
 
         exs., 36 & 43 [and defendants' exs. 23-25])
 
         
 
              Claimant was referred by defendants to Joel T. Cotton, M.D., 
 
         neurologist, for an examination on May 4, 1993.  Claimant 
 
         presented with increased right wrist pain and low back pain.  Dr. 
 
         Cotton indicated that claimant's neurological examination was 
 

 
         
 
         Page   5
 
         
 
         
 
         
 
         
 
         normal.  He noted marked variabilities and inconsistencies in 
 
         range of motion testing for flexion of the low back as well as 
 
         straight leg raising.  He found normal strength and sensation in 
 
         the extremities with no atrophy or paravertebral spasm present.  
 
         He also observed unrestricted movement of the wrist and found no 
 
         objective evidence of any physical injury at all.  He felt that 
 
         the marked inconsistencies and variabilities in range of motion 
 
         testing would not be seen in a patient with a bona fide physical 
 
         injury to the low back.  He felt that all of claimant's 
 
         complaints were subjective and he had no physical condition or 
 
         physical injury to the low back to account for any of his 
 
         complaints of pain.  He indicated that claimant had no permanent 
 
         partial impairment to his back or wrist and that he was capable 
 
         of pursuing all of his usual activity without any restrictions 
 
         whatsoever.  Dr. Cotton disagreed with Dr. Blume's assessment of 
 
         claimant's condition specifically that the spine x-rays showed 
 
         spondylosis and spondylolisthesis and ruptured discs at L4-5.  He 
 
         noted that Dr. Blume was at odds with both Dr. Kuhnlein and Dr. 
 
         Herrera regarding these findings.  He stated, that in his 
 
         opinion, claimant does not require any additional medical 
 
         attention, either conservative or surgical.  He noted that there 
 
         is no medical justification for a thermogram and stated that this 
 
         study is not recognized by the Academy of Neurology and is not 
 
         covered by Iowa Medicare or Iowa Medicaid as being a medically 
 
         reliable test.  (def. ex. 21)
 
         
 
              *****
 
         
 
              Claimant was again referred to Dr. Cotton for examination 
 
         and reevaluation on November 17, 1993.  The purpose of this 
 
         evaluation was to refute the findings made by Jay J. Parsow, 
 
         M.D., in an independent medical examination which he conducted on 
 
         March 16, 1993, but which he issued a report on November 2, 1993.  
 
         Dr. Parsow found a bulging disc at L4-5 which he felt was 
 
         preexisting and asymptomatic until aggravated by the December 13, 
 
         1990 work injury.  Dr. Parsow also indicated that claimant 
 
         sustained 1 percent upper extremity permanent impairment and a 7 
 
         percent whole person impairment as a result of the December 13, 
 
         1990 work injury.  He felt that claimant was capable of 
 
         performing medium work activity and his restrictions were similar 
 
         to the latest ones imposed by Dr. Kuhnlein.  (jt. ex. 44)  Dr. 
 
         Cotton reviewed Dr. Parsow's report and strongly disagreed with 
 
         his findings.  Dr. Cotton is board certified in electrodiagnostic 
 
         studies, specifically EMG and nerve conduction studies, and it 
 
         was his opinion that the EMG studies of November 30, 1990, were 
 
         correctly performed and the impressions accurate.  He reviewed 
 
         the EMG findings of February 13, 1991, and noted that that study 
 
         was also normal and showed no evidence of a right cervical or 
 
         lumbar radiculopathy by delayed responses or needle study.  
 
         Therefore, he felt that Dr. Parsow's assessment of claimant's 
 
         condition was inconsistent with objective testing.  He disputed 
 

 
         
 
         Page   6
 
         
 
         
 
         
 
         
 
         Dr. Parsow's findings regarding claimant's right upper extremity 
 
         symptoms.  He stated that in his opinion, claimant has no 
 
         involvement of the musculocutaneous nerve in the forearm and no 
 
         permanent partial impairment in the upper extremity.  
 
         Furthermore, he has no loss of active range of motion of the 
 
         wrist and no evidence of any loss of strength.  Therefore, he 
 
         opined that claimant has no permanent impairment to the right 
 
         upper extremity.  He also disagreed with Dr. Parsow's low back 
 
         impairment rating because he found no evidence of any permanent 
 
         loss of range of motion in the lumbar spine.  Furthermore, he 
 
         stated that there is no evidence of radiculopathy.  In his 
 
         opinion there is no involvement of the first sacral nerve root 
 
         (S1) for which any permanent partial impairment rating would be 
 
         justifiable.  Dr. Cotton reiterated that although claimant 
 
         complains of chronic and persistent pain in the low back, there 
 
         continues to be marked discrepancies, variabilities and 
 
         inconsistencies in his examination which are not and cannot be 
 
         seen in patient's with a true physical injury or physical 
 
         condition in the low back.  (def. ex. 22)
 
         
 
              [Steven Joyce was assistant personnel director in 1990 and 
 
         1991 for the employer, John Morrell & Co.  He testified that 
 
         there was no work with the employer within the 25 pound lifting 
 
         restriction that Dr. Kuhnlein placed on claimant.  (transcript, 
 
         pp. 141-142)  Claimant returned to work on November 19, 1992.  
 
         (Tr., p. 60)
 
         
 
              Dr. Parsow charged $975 for an independent medical 
 
         examination which he conducted on March 16, 1993.  In response to 
 
         defendants' request to breakdown the charges, Dr. Parsow wrote 
 
         that the cost of the examination and reviewing previously 
 
         obtained imaging studies was $175 and the cost of thoroughly 
 
         reviewing previous medical records and preparing the 
 
         comprehensive summary and report was $800.  (def. ex. 20)  Dr. 
 
         Parsow then charged interest because the bill had not been paid 
 
         by January 8, 1994.  (cl. ex. 3)  Dr. Parsow provided a statement 
 
         that the $975 for an independent medical examination was fair and 
 
         reasonable.  (cl. ex. 2)  Dr. Parson's report dated November 2, 
 
         1993 was nine pages long and over half of the report was a 
 
         restatement of claimant's medical history involving health care 
 
         providers other than Dr. Parsow.  (jt. ex. 44)]
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              The conclusions of law contained in the proposed agency 
 
         decision filed February 18, 1994 are adopted as set forth below.  
 
         Segments designated by asterisks (*****) indicate portions of the 
 
         language from the proposed agency decision that have been 
 
         intentionally deleted and do not form a part of this final agency 
 
         decision.  Segments designated by brackets ([ ]) indicate 
 
         language that is in addition to the language of the proposed 
 

 
         
 
         Page   7
 
         
 
         
 
         
 
         
 
         agency decision.
 
         
 
              The first issue to be determined is whether claimant's right 
 
         wrist injury on October 8, 1990, resulted in a permanent 
 
         impairment.  
 
         
 
              Since claimant has suffered an injury, the next question to 
 
         be resolved is whether the injury has caused a permanent 
 
         disability.  The claimant has the burden of proving by a 
 
         preponderance of the evidence that the injury of October 8, 1990, 
 
         is causally related to the disability on which he now bases his 
 
         claim.  Bodish v. Fischer, Inc., 133 N.W.2d 867, 868 (Iowa 1965);  
 
         Lindahl v. L. O. Boggs, 18 N.W.2d 607, 613-14 (Iowa 1945).  A 
 
         possibility is insufficient; a probability is necessary.  Burt v. 
 
         John Deere Waterloo Tractor Works, 73 N.W.2d 732, 738 (Iowa 
 
         1955).  The question of causal connection is essentially within 
 
         the domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
         Hospital, 101 N.W.2d 167, 171 (Iowa 1960).  Expert medical 
 
         evidence must be considered with all other evidence introduced 
 
         bearing on the causal connection.  Burt, 73 N.W.2d at 738.  The 
 
         opinion of the experts need not be couched in definite, positive 
 
         or unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
         903, 907 (Iowa 1974).  Moreover, the expert opinion may be 
 
         accepted or rejected, in whole or in part, by the trier of fact.  
 
         Sondag, 220 N.W.2d at 907.  Finally, the weight to be given to 
 
         such an opinion is for the finder of fact, and that may be 
 
         affected by the completeness of the premise given the expert and 
 
         other material circumstances.  Bodish, 133 N.W.2d at 870; 
 
         Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 
 
         (1967).  The supreme court has also observed that greater 
 
         deference is ordinarily accorded expert testimony where the 
 
         opinion necessarily rests on medical expertise.  Sondag, 220 
 
         N.W.2d at 907.
 
         
 
              A wrist injury is an injury to the hand, not the upper 
 
         extremity.  The hand extends to the distal end of the radius and 
 
         ulna, including the carpus or wrist.  Elam v. Midland Mfg., II 
 
         Iowa Industrial Commissioner Report 141 (App. 1981).
 
         
 
              Claimant has the burden of proof in this regard.  As 
 
         previously noted, claimant had initial symptoms in his right 
 
         wrist in 1989.  He was treated by Dr. Kuhnlein and given some 
 
         temporary restrictions.  EMG and nerve conduction studies taken 
 
         on November 30, 1990, were within normal limits.  (jt. ex. 17)  
 
         On December 3, 1990, Dr. Kuhnlein released claimant to return to 
 
         full duty with no restrictions.  (jt. exs. 16 & 19, p. 5)
 
         
 
              Accordingly, claimant has not met his burden of proof.  He 
 
         is not entitled to any permanent partial disability benefits as a 
 
         result of the October 8, 1990 injury to his right wrist.  
 
         
 

 
         
 
         Page   8
 
         
 
         
 
         
 
         
 
              *****
 
         
 
              The next issue to be determined is whether claimant is 
 
         entitled to any permanent partial disability benefits as a result 
 
         of his [low] back ***** [injury].
 
         
 
              A treating physician's testimony is not entitled to greater 
 
         weight as a matter of law than that of a physician who later 
 
         examines claimant in anticipation of litigation.  Weight to be 
 
         given testimony of physician is a fact issue to be decided by the 
 
         industrial commissioner in light of the record the parties 
 
         develop.  In this regard, both parties may develop facts as to 
 
         the physician's employment in connection with litigation; the 
 
         physician's examination at a later date and not when the injuries 
 
         were fresh; his arrangement as to compensation; the extent and 
 
         nature of the physician's examination; the physician's education, 
 
         experience, training, and practice; and all other factors which 
 
         bear upon the weight and value of the physician's testimony.  
 
         Both parties may bring all this information to the attention of 
 
         the fact finder as either supporting or weakening the physician's 
 
         testimony and opinion.  All factors go to the value of the 
 
         physician's testimony as a matter of fact not as a matter of law.  
 
         Rockwell Graphic Systems, Inc. v. Prince, 366 N.W.2d 176, 192 
 
         (Iowa 1985).
 
         
 
              Numerous physicians have been involved in claimant's case.  
 
         Dr. Kuhnlein, the company physician and claimant's treating 
 
         physician, gave claimant permanent work restrictions but did not 
 
         give him an impairment rating.  Instead, he relied on Dr. Herrera 
 
         to rate claimant's impairment.  Dr. Herrera felt that claimant 
 
         had no measurable rating in light of normal MRI and CT scans.  
 
         Dr. Strittholt did not rate claimant's impairment nor assign any 
 
         permanent restrictions, but instead indicated that those imposed 
 
         by Dr. Kuhnlein should be followed.  Dr. Blume and Dr. Parsow, 
 
         two of claimant's independent medical examiners, gave permanent 
 
         impairment ratings.  Dr. Cotton, defendants' independent medical 
 
         examiner, disputed the findings of Dr. Blume and Dr. Parsow and 
 
         in essence stated that claimant's subjective complaints are not 
 
         supported by the objective medical evidence.  Since Dr. Kuhnlein 
 
         gave claimant work restrictions in March 1991 and November 1992 
 
         based on claimant's subjective complaints, such restrictions are 
 
         given minimal weight and consideration especially since claimant 
 
         has been performing his usual and customary job since November 
 
         1992 without restriction or accommodation by employer.  It 
 
         appears that the greater weight of the evidence supports the 
 
         findings made by Dr. Cotton, a highly qualified neurologist and 
 
         board certified in electrodiagnostic studies, specifically EMG 
 
         and nerve conduction studies.  Dr. Cotton is of the opinion that 
 
         claimant's subjective complaints are far out of proportion to the 
 
         clinical and laboratory findings in the record.  It appears that 
 
         claimant is attempting to present himself as more disabled than 
 

 
         
 
         Page   9
 
         
 
         
 
         
 
         
 
         he really is.  Both Dr. Herrera and Dr. Cotton found 
 
         inconsistencies in claimant's test results.  This suggests that 
 
         claimant may have been attempting to manipulate the results in 
 
         order to appear significantly disabled.  
 
         
 
              Pain that is not substantiated by clinical findings is not a 
 
         substitute for impairment.  Waller v Chamberlain Mfg., II Iowa 
 
         Industrial Commissioner Report 419, 425 (1981); Godwin v. Hicklin 
 
         GM Power, II Iowa Industrial Commissioner Report 170 (1981).  
 
         Pain is not compensable under chapter 85 unless there is an 
 
         impact on earning capacity.  Benton v. Hyman Freightways, file 
 
         numbers 721933 and 754493 review-reopening (January 7, 1991).
 
         
 
              The record clearly indicates that claimant returned to work 
 
         on November 19, 1992.  He now earns $9.40 per hour and in 1990 
 
         was earning $8.65 per hour.  He has not had a loss of earnings 
 
         nor a loss of earning capacity since his pain has not interfered 
 
         with his ability to perform his usual and customary occupation.
 
         
 
              Accordingly, claimant has not met his burden of proof.  He 
 
         is not entitled to any permanent partial disability benefits as a 
 
         result of his [low] back injury on December 13, 1990, in view of 
 
         the fact that claimant's subjective complaints cannot be 
 
         substantiated by the objective medical evidence and claimant's 
 
         credibility is questionable.  
 
         
 
              [The next issue to be resolved is whether claimant is 
 
         entitled to temporary total disability benefits as a result of 
 
         his low back injury and if so the duration of these benefits.  
 
         Iowa Code section 85.33(1) governs the payment of temporary total 
 
         disability.  That section provides:
 
         
 
         
 
                 Except as provided in subsection 2 of this section, 
 
              the employer shall pay to an employee for injury 
 
              producing temporary total disability weekly 
 
              compensation benefits, as provided in section 85.32, 
 
              until the employee has returned to work or is  
 
              medically capable of returning to employment 
 
              substantially similar to the employment in which the 
 
              employee was engaged at the time of injury, whichever 
 
              occurs first.
 
         
 
              Claimant injured his lower back on December 13, 1990 and was 
 
         taken off work on that day.  He did not return to work until 
 
         November 19, 1992.  He underwent a variety of treatments.  On 
 
         April 5, 1991 Dr. Kuhnlein placed a permanent 25 pound lifting 
 
         restriction on claimant.  According to Steven Joyce there was no 
 
         work with the employer within that restriction.  Dr. Kuhnlein's 
 
         25 pound lifting restriction was changed to a 45 pound lifting 
 
         restriction on November 18, 1992, and claimant returned to work 
 
         the next day.  Prior to Dr. Kuhnlein increasing claimant's 
 

 
         
 
         Page  10
 
         
 
         
 
         
 
         
 
         lifting restrictions there is no definitive indication from the 
 
         medical evidence that claimant was capable of returning to 
 
         employment substantially similar to that which claimant was doing 
 
         at the time of his injury.  For example, on April 23, 1992 the 
 
         note from St. Luke's emergency room indicated that claimant could 
 
         go back to work but also stated that claimant should take it easy 
 
         and rest.  This seemingly contradictory note is not a definite 
 
         indication that claimant could do substantial similar employment.  
 
         Claimant is entitled to temporary total disability benefits 
 
         through November 18, 1992, the date his lifting restrictions were 
 
         raised and he returned to work.]
 
         
 
              The next issue to be determined is whether claimant is 
 
         entitled to certain medical benefits under Iowa Code section 
 
         85.27.  
 
         
 
              The employer shall furnish reasonable surgical, medical, 
 
         dental, osteopathic, chiropractic, podiatric, physical 
 
         rehabilitation, nursing, ambulance and hospital services and 
 
         supplies for all conditions compensable under the workers' 
 
         compensation law.  The employer shall also allow reasonable and 
 
         necessary transportation expenses incurred for those services.  
 
         The employer has the right to choose the provider of care, except 
 
         where the employer has denied liability for the injury.  Section 
 
         85.27.; Holbert v. Townsend Engineering Co., Thirty-second 
 
         Biennial Report of the Industrial Commissioner 78 (Review-reopen 
 
         1975).  Claimant has the burden of proving that the fees charged 
 
         for such services are reasonable.  Anderson v. High Rise Constr. 
 
         Specialists, Inc., File No. 850096 (App. 1990).
 
         
 
              Claimant is not entitled to reimbursement for medical bills 
 
         unless claimant shows they were paid from claimant's funds.  See 
 
         Caylor v. Employers Mut. Casualty Co., 337 N.W.2d 890 (Iowa Ct. 
 
         App. 1983).
 
         
 
              When a designated physician refers a patient to another 
 
         physician, that physician acts as the defendant employer's agent.  
 
         Permission for the referral from defendants is not necessary.  
 
         Kittrell v. Allen Memorial Hospital, Thirty-fourth Biennial 
 
         Report of the Industrial Commissioner 164 (Arb. Decn. 1979) 
 
         (aff'd by indus. comm'r).
 
         
 
              An employer's right to select the provider of medical 
 
         treatment to an injured worker does not include the right to 
 
         determine how an injured worker should be diagnosed, evaluated, 
 
         treated or other matters of professional medical judgment.  
 
         Assmann v. Blue Star Foods, Inc., File No. 866389 (Declaratory 
 
         Ruling, May 18, 1988).
 
         
 
              Claimant is requesting reimbursement for treatment received 
 
         in the emergency room of St. Luke's Hospital.  Since this was 
 

 
         
 
         Page  11
 
         
 
         
 
         
 
         
 
         emergency treatment for a flare-up of a work-related injury, 
 
         claimant is entitled to be reimbursed for the charges.  In an 
 
         emergency situation, claimant lacks time to seek authorization 
 
         for treatment.  This treatment minimized his pain and reduced his 
 
         industrial disability.  Claimant is entitled to be reimbursed for 
 
         charges associated with necessary emergency room treatment.  
 
         Claimant also submitted a medical bill from Marion Health Center 
 
         outpatient center for $451.30 and another bill for $86.60.  The 
 
         undersigned cannot ascertain from these bills the purpose of the 
 
         visit to Marion Health Center and the treatment received.  Since 
 
         defendants claim that such was not authorized and claimant could 
 
         not show any justification for the expenses incurred, the 
 
         undersigned cannot order the defendants to pay these bills.  
 
         
 
              *****
 
         
 
              [The next issue to address is whether claimant is entitled 
 
         to recover the costs of an independent medical examination from 
 
         Dr. Parsow.
 
         
 
              Iowa Code section 85.39 provides in pertinent part:
 
              
 
                 If an evaluation of permanent disability has been 
 
              made by a physician retained by the employer and the 
 
              employee believes this evaluation to be too low, the 
 
              employee shall, upon application to the commissioner 
 
              and upon delivery of a copy of the application to the 
 
              employer and its insurance carrier, be reimbursed by 
 
              the employer the reasonable fee for a subsequent 
 
              examination by a physician of the employee's own 
 
              choice, and reasonably necessary transportation 
 
              expenses incurred for the examination.  The physician 
 
              chosen by the employee has the right to confer with and 
 
              obtain from the employer-retained physician sufficient 
 
              history of the injury to make a proper examination.
 
         
 
              Section 85.39 permits an employee to be reimbursed for a 
 
         subsequent examination by a physician of the employee's 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 only responsible for reasonable fees 
 
         associated with claimant's independent medical examination.  
 
         Claimant has the burden of proof with respect to the issue of the 
 
         reasonableness of a fee.  See Schintgen v. Economy Fire and 
 
         Casualty Co.,  File No. 855298 (Appeal Decision, April 26, 1991).
 
         It is not necessary for claimant to obtain prior approval of 
 

 
         
 
         Page  12
 
         
 
         
 
         
 
         
 
         
 
         defendants or that claimant file an application with the office 
 
         of the industrial commissioner prior to seeing a medical 
 
         examiner.  Vaughn v. Iowa 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).
 
         
 
              With respect to the instant case, Dr. Parsow charged 
 
         claimant the fee of $975.00.  The fee charged included both 
 
         $800.00 for a medical report and $175.00 for an independent 
 
         medical examination and a record review.  Dr. Parsow issued a 
 
         nine page report relative to claimant's condition.  The report 
 
         discussed in detail claimant's history and prior work experience.
 
         
 
              Under 343 IAC 4.33, costs for a practitioner's report must 
 
         be "reasonable."  In other sections of rule 4.33, along with Iowa 
 
         Code sections 622.69 and 622.72, the costs of a physician 
 
         attending the hearing or a deposition are limited to $150.  
 
         Although the portion of rule 4.33 dealing with the cost of 
 
         reports is not directly linked to Iowa Code sections 622.69 and 
 
         622.72, nevertheless the case of Lytle v. Hormel Corporation, 
 
         State of Iowa Industrial Commissioner Decisions, Vol. l, No. 4, 
 
         p. 968 (Appeal Dec. 1985), establishes that to be reasonable, the 
 
         costs for generating a report should not exceed the cost 
 
         limitations available for attending the hearing or a deposition.  
 
         Thus, to be reasonable, the cost of the report is limited to 
 
         $150.
 
         
 
              Therefore, claimant should be reimbursed for the cost of the 
 
         independent medical exam ($175) and ($150) for the cost of the 
 
         report.  However, there is no statutory provision for payment of 
 
         interest of a bill for an independent medical exam.  See Klein v. 
 
         Furnas electric Co., 384 N.W.2d 370 (Iowa 1986)]
 
         
 
              WHEREFORE, the decision of the deputy is affirmed and 
 
         modified.
 
         
 
                                       ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              In file number 1013368:
 
         
 
              Claimant takes nothing further from these proceedings.
 
         
 
              In file number 973506:
 
         
 
              That defendants pay to claimant temporary total disability 
 

 
         
 
         Page  13
 
         
 
         
 
         
 
         
 
         benefits from November 9, 1991 through November 18, 1992, at the 
 
         stipulated rate of two hundred forty-one and 22/100 dollars 
 
         ($241.22) per week.
 
         
 
              That defendants pay the cost of claimant's emergency room 
 
         visits at St. Luke's Regional Medical Center.  
 
         
 
              That defendants shall also pay one hundred fifty and 00/l00 
 
         dollars ($150.00) for the medical report of Dr. Parsow and one 
 
         hundred seventy-five and 00/100 dollars ($175.00) for an 
 
         independent medical examination by Dr. Parsow.
 
         
 
              That defendants receive credit for any benefits previously 
 
         paid. 
 
         
 
              That defendants pay accrued amounts in a lump sum.
 
         
 
              That defendants pay interest pursuant to Iowa Code section 
 
         85.30, as amended.
 
         
 
              That claimant and defendants shall share equally the costs 
 
         of the appeal including transcription of the hearing.  Defendants 
 
         shall pay all other costs.
 
         
 
              That defendants file claim activity reports as required by 
 
         the agency pursuant to rule 343 IAC 3.1(2).
 
         
 
         
 
              Signed and filed this ____ day of September, 1994.
 
         
 
         
 
         
 
                                       ________________________________
 
                                                BYRON K. ORTON
 
                                           INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Dennis M. McElwain
 
         Attorney at Law
 
         PO Box 1194
 
         Sioux City, Iowa  51102-1194
 
         
 
         Mr. Thomas M. Plaza
 
         Attorney at Law
 
         701 Pierce St. STE 200
 
         PO Box 3086
 
         Sioux City, Iowa  51102-3086
 
         
 
         
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                       5-1801; 5-1803; 5-2700; 5-2907
 
                                       Filed September 26, 1994
 
                                       Byron K. Orton
 
                                       
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
                                         :
 
         OLLIS P. HUNTER,                :
 
                                         :
 
              Claimant,                  :
 
                                         :
 
         vs.                             :
 
                                         :    File Nos. 973506/1013368
 
         JOHN MORRELL & CO.,             :
 
                                         :           A P P E A L
 
              Employer,                  :
 
                                         :         D E C I S I O N
 
         and                             :
 
                                         :
 
         HOME INSURANCE,                 :
 
                                         :
 
              Insurance Carrier,         :
 
              Defendants.                :
 
         _________________________________________________________________
 
         
 
         
 
         5-1801
 
         
 
              Claimant found entitled to temporary total disability 
 
         benefits from November 9, 1991 through November 18, 1992, when he 
 
         returned to his usual and customary occupation with employer.
 
         
 
         5-1803
 
         
 
              Claimant not entitled to permanent partial disability 
 
         benefits for a right wrist injury incurred on October 8, 1990, or 
 
         for a back injury incurred on December 13, 1990.  Greater weight 
 
         of the evidence showed that claimant's subjective complaints were 
 
         far out of proportion to the clinical and laboratory findings in 
 
         the record and credible medical expert opinion found that 
 
         claimant exaggerated his symptoms and that he had no measurable 
 
         rated impairment.  
 
         
 

 
         
 
 
 
 
 
 
 
         5-2700
 
         
 
              Although not authorized, claimant found entitled to be 
 
         reimbursed for emergency room treatment for an exacerbation of 
 
         his low back symptoms because there was no time to get 
 
         authorization.  
 
         
 
         5-2907
 
         
 
              Claimant's independent medical examination physician filed a 
 
         professional statement that his examination charges were fair and 
 
         reasonable.  Defendants disputed the same but produced no 
 
         evidence to the contrary.  Claimant was awarded the costs of the 
 
         independent medical exam which the doctor indicated was $175.  
 
         Defendants were required to reimburse claimant $150 for a medical 
 
         report from the same doctor who had billed $800 for a nine page 
 
         report.
 
         
 
         
 
         
 
 
            
 
            
 
            
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ------------------------------------------------------------
 
            OLLIS P HUNTER,               :
 
                                          :
 
                 Claimant,                :      File Nos. 1013368
 
                                          :                 973506  
 
            vs.                           :
 
                                          :     
 
            JOHN MORRELL AND COMPANY,     :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            HOME INSURANCE,               :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ------------------------------------------------------------
 
                               STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Ollis P. 
 
            Hunter, claimant, against John Morrell and Company, 
 
            employer, and Home Insurance Company, insurance carrier, 
 
            defendants, to recover benefits under the Iowa Workers' 
 
            Compensation Act as a result of injuries sustained on 
 
            October 8, 1990 and December 13, 1990.  This matter came on 
 
            for hearing before the undersigned deputy industrial 
 
            commissioner on February 8, 1994, in Sioux City, Iowa.  The 
 
            record was considered fully submitted at the close of the 
 
            hearing.  The claimant was present and testified.  Also 
 
            present and testifying were defendants' witnesses Elizabeth 
 
            Mapes and Steven C. Joyce.  The documentary evidence 
 
            identified in the record consists of joint exhibits 1 
 
            through 27 and 29 through 45; claimant's exhibits 1 through 
 
            11 and defendants' exhibits 1 through 26.
 
            
 
                                     ISSUES
 
            
 
                 Pursuant to the hearing report and order approving same 
 
            dated February 8, 1994, the parties have presented the 
 
            following issues for resolution:
 
            
 
                 In file number 1013368 the issue to be determined is 
 
            whether claimant is entitled to permanent partial disability 
 
            benefits for an injury to his right wrist and if so, the 
 
            extent thereof.
 
            
 
                 In file number 973506 the parties have presented the 
 
            following issues for resolution:
 
            
 
                 .  The extent of healing period benefits as a result of 
 
            a work injury to claimant's lower back on December 13, 1990;
 
            
 
                 .  Whether claimant is entitled to permanent partial 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            disability benefits and if so, the extent thereof;
 
            
 
                 .  Whether claimant is entitled to payment of certain 
 
            medical benefits pursuant to Iowa Code section 85.27;
 
            
 
                 .  Whether claimant is entitled to payment of the full 
 
            cost of an independent medical examination conducted by Jay 
 
            J. Parsow, M.D.; and
 
            
 
                 .  Whether the fee charged by Dr. Parsow for the 
 
            independent medical examination is fair and reasonable.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The undersigned has carefully considered all the 
 
            testimony given at the hearing, arguments made, evidence 
 
            contained in the exhibits herein, and makes the following 
 
            findings:
 
            
 
                 A review of the pertinent medical evidence of record 
 
            reveals that claimant began complaining of right wrist pain 
 
            in 1989.  He presented to D.M. Youngblade, M.D., on August 
 
            15, 1989, with complaints of pain and discomfort in the 
 
            volar surface of the right wrist brought on by certain 
 
            motions, movements, twists, and turns.  He was placed on 
 
            light duty for a short period of time and placed in a Futuro 
 
            splint.  Claimant returned to Dr. Youngblade on September 6, 
 
            1989, with the same complaints as before.  He was advised to 
 
            work at another job rather than his usual job of collaring 
 
            hams.  (joint exhibit 14).
 
            
 
                 Claimant's right wrist problems resurfaced on October 
 
            8, 1990.  At that time, he presented to John D. Kuhnlein, 
 
            M.D., the company physician, with pain in his right wrist.  
 
            On November 30, 1990, claimant underwent nerve conduction 
 
            studies and EMG studies of the right upper extremity.  The 
 
            studies were normal with no evidence of a mononeuropathy or 
 
            plexopathy or evidence of a radiculopathy.  (jt. ex. 17).  
 
            On December 3, 1990, Dr. Kuhnlein released claimant to 
 
            return to full duty with no work restrictions.  (jt. ex. 16, 
 
            page 2).
 
            
 
                 On December 13, 1990, claimant reported that he had 
 
            fallen on a greasy floor surface while working on the 
 
            production line and hurt his right shoulder, arm and lower 
 
            back.  He was put in the back care program by Dr. Kuhnlein 
 
            and participated in 15 sessions.  On April 5, 1991, Dr. 
 
            Kuhnlein discontinued him from the program because the 
 
            therapists and technicians felt that he had not put forth 
 
            maximum effort and had been noncompliant in attendance.  A 
 
            physical examination revealed negative straight leg raising 
 
            and negative seated leg raising.  An MRI evaluation which 
 
            had previously been taken on February 8, 1991, was also 
 
            negative.  (jt. ex. 23).  In any event, Dr. Kuhnlein gave 
 
            claimant permanent restrictions of no lifting, pushing or 
 
            pulling in excess of 25 pounds on an occasional basis and no 
 
            work above the shoulder or below the waist and permanent 
 
            restrictions from knife, whizzard and hook work.  (jt. ex. 
 
            21, p. 4).  
 
            
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                 Claimant requested a second opinion and Dr. Kuhnlein 
 
            referred him to J.T. Strittholt, M.D.  On April 25, 1991, 
 
            Dr. Strittholt evaluated claimant's right hand and wrist.  
 
            Dr. Strittholt observed no soft tissue swelling, full range 
 
            of motion in supination pronation, no crepitance and no pain 
 
            across the basal thumb joint or dorsum of the wrist to 
 
            palpitation.  Tinel's was negative and Phalen's normal.  
 
            X-rays of the hand and wrist reveled normal osseous 
 
            structures.  Dr. Strittholt felt that claimant's condition 
 
            was one of residual flexor tenosynovitis.  (jt. ex. 39).
 
            
 
                 On May 23, 1991, Dr. Strittholt examined claimant's 
 
            back.  He noted that his upper extremity pain was markedly 
 
            improved.  After reviewing x-rays and the MRI study and 
 
            conducting a physical examination, Dr. Strittholt concluded 
 
            that claimant has low back pain with a strong functional 
 
            overlay component.  He had no specific treatment 
 
            recommendations.  (jt. ex. 39). 
 
            
 
                 On May 28, 1991, Dr. Strittholt indicated that he had 
 
            not completed a work restriction form supplied by employer 
 
            because he left the assessment of work restrictions up to 
 
            Dr. Kuhnlein, claimant's treating physician.  Apparently, 
 
            claimant had returned to employer a completed work 
 
            restriction form which he denied tampering with but which, 
 
            nevertheless, was submitted as a reflection of Dr. 
 
            Strittholt's assessment.  Although employer had suspected 
 
            that claimant submitted a falsified work restriction slip, 
 
            they took no disciplinary measures against him.  (jt. exs. 
 
            39 & 40).
 
            
 
                 On June 14, 1991, claimant presented to St. Luke's 
 
            Regional Medical Center emergency room with complaints of 
 
            low back and right leg pain.  He had previously reported 
 
            there on June 12, 1991, and was told to return for a 
 
            lumbosacral CT scan.  The results revealed early spinal 
 
            stenosis at the L4-5 level, narrowing of the neural 
 
            foraminal at the L5-S1 level and some abnormalities at the 
 
            L4-5 and L5-S1 level which was determined to require further 
 
            evaluation.  (jt. exs. 27 & 29).
 
            
 
                 Claimant was then referred by Dr. Kuhnlein to Leonal 
 
            Herrera, M.D., for a neurological evaluation.  Dr. Herrera 
 
            saw claimant on August 28, 1991.  After reviewing the 
 
            claimant's medical history and noting his complaints, Dr. 
 
            Herrera conducted a physical examination.  Dr. Herrera found 
 
            discrepancies in the claimant's motion abnormalities and 
 
            therefore concluded that his test was invalid and could not 
 
            be used for a disability rating according to the AMA Guides 
 
            to the Evaluation of Permanent Impairment.  He therefore 
 
            concluded that the claimant did not have a measurable rating 
 
            when using the abnormal motion in the spine area and no 
 
            other neurological impairment.  He gave claimant a 0 percent 
 
            rating for his lumbar spine.  (jt. ex. 26).
 
            
 
                 Being dissatisfied with this determination, claimant 
 
            requested an independent medical examination by Horst Blume, 
 
            M.D.  After reviewing the claimant's medical history, noting 
 
            his complaints and conducting a physical examination, he 
 
            concluded that claimant had spinal stenosis at L4-5 with 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            evidence of a ruptured disc at L4-5 and some evidence of 
 
            spondylosis and spondylolisthesis.  (jt. ex. 30).  However, 
 
            he concluded that since claimant has no radicular pain at 
 
            the present time, surgery was not warranted.  He recommended 
 
            a thermogram to further diagnose his problem.  (jt. exs. 31 
 
            & 42).
 
            
 
                 On February 20, 1992, claimant presented to Marion 
 
            Health Center outpatient service with complaints of back 
 
            pain.  He was advised to follow-up with Dr. Kuhnlein.  (jt. 
 
            ex. 32).  
 
            
 
                 On April 23, 1992, claimant presented to St. Luke's 
 
            emergency room with back pain.  He was diagnosed with 
 
            persistent lumbar strain and advised to take it easy.  (jt. 
 
            ex. 33).
 
            
 
                 On November 18, 1992, claimant presented to Dr. 
 
            Kuhnlein and indicated that he was capable of doing more 
 
            physical work than his previous restrictions allowed.  At 
 
            this time, there was no evidence of lumbosacral strain.  
 
            Claimant was given a 45-pound lifting, pushing and pulling 
 
            restriction with no knife or whizzard and hook work.  (jt. 
 
            ex. 18, page 10).
 
            
 
                 Claimant testified that he returned to his former job 
 
            with employer on November 19, 1992, after being off work 
 
            from December 1991 through November 1992.  Claimant 
 
            testified that he received unemployment benefits during that 
 
            period of time.  He stated that employer would not take him 
 
            back to work in his old job collaring hams until his 
 
            restrictions were changed.  He testified that he has been 
 
            working collaring hams since November 19, 1992, but the work 
 
            is easier than before because there is now a three-man 
 
            rotation on the line and he doesn't have to spend as much 
 
            time performing the same repetitive movements as before.  He 
 
            stated that he earns $9.40 per hour doing this work and in 
 
            1990 he earned $8.65 per hour.  
 
            
 
                 On June 24, 1993, claimant presented to St. Luke's 
 
            emergency room with complaints of low back pain.  He was 
 
            given pain medication and instructed to rest for the next 24 
 
            to 48 hours and resume activity as tolerated.  (jt. ex. 34).
 
            
 
                 On July 28, 1993, claimant presented to St. Luke's 
 
            emergency room again with complaints of low back pain. He 
 
            was given a refill of Naprosyn and referred to the Woodbury 
 
            County Medical Society to obtain a physician.  (jt. ex. 35).  
 
            
 
                 There are medical records in evidence which pertain to 
 
            a June 16, 1993, right wrist injury.  Because this injury is 
 
            not in issue at this time, that evidence will not be 
 
            reviewed.  (jt. exs., 36 & 43).
 
            
 
                 Claimant was referred by defendants to Joel T. Cotton, 
 
            M.D., neurologist, for an examination on May 4, 1993.  
 
            Claimant presented with increased right wrist pain and low 
 
            back pain.  Dr. Cotton indicated that claimant's 
 
            neurological examination was normal.  He noted marked 
 
            variabilities and inconsistencies in range of motion testing 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            for flexion of the low back as well as straight leg raising.  
 
            He found normal strength and sensation in the extremities 
 
            with no atrophy or paravertebral spasm present.  He also 
 
            observed unrestricted movement of the wrist and found no 
 
            objective evidence of any physical injury at all.  He felt 
 
            that the marked inconsistencies and variabilities in range 
 
            of motion testing would not be seen in a patient with a bona 
 
            fide physical injury to the low back.  He felt that all of 
 
            claimant's complaints were subjective and he had no physical 
 
            condition or physical injury to the low back to account for 
 
            any of his complaints of pain.  He indicated that claimant 
 
            had no permanent partial impairment to his back or wrist and 
 
            that he was capable of pursuing all of his usual activity 
 
            without any restrictions whatsoever.  Dr. Cotton disagreed 
 
            with Dr. Blume's assessment of claimant's condition 
 
            specifically that the spine x-rays showed spondylosis and 
 
            spondylolisthesis and ruptured discs at L4-5.  He noted that 
 
            Dr. Blume was at odds with both Dr. Kuhnlein and Dr. Herrera 
 
            regarding these findings.  He stated, that in his opinion, 
 
            claimant does not require any additional medical attention, 
 
            either conservative or surgical.  He noted that there is no 
 
            medical justification for a thermogram and stated that this 
 
            study is not recognized by the Academy of Neurology and is 
 
            not covered by Iowa Medicare or Iowa Medicaid as being a 
 
            medically reliable test.  (defendants' ex. 21).
 
            
 
                 Defendants' exhibits also contain medical records 
 
            referable to left wrist pain.  Because this injury is not an 
 
            issue at this hearing, the evidence in that regard will not 
 
            be reviewed.  (def. exs. 23-25).  In the future, the parties 
 
            are urged not to clutter the file with irrelevant and 
 
            immaterial evidence.
 
            
 
                 Claimant was again referred to Dr. Cotton for 
 
            examination and reevaluation on November 17, 1993.  The 
 
            purpose of this evaluation was to refute the findings made 
 
            by Jay J. Parsow, M.D., in an independent medical 
 
            examination which he conducted on March 16, 1993, but which 
 
            he issued a report on November 2, 1993.  Dr. Parsow found a 
 
            bulging disc at L4-5 which he felt was preexisting and 
 
            asymptomatic until aggravated by the December 13, 1990 work 
 
            injury.  Dr. Parsow also indicated that claimant sustained 1 
 
            percent upper extremity permanent impairment and a 7 percent 
 
            whole person impairment as a result of the December 13, 1990 
 
            work injury.  He felt that claimant was capable of 
 
            performing medium work activity and his restrictions were 
 
            similar to the latest ones imposed by Dr. Kuhnlein.  (jt. 
 
            ex. 44).  Dr. Cotton reviewed Dr. Parsow's report and 
 
            strongly disagreed with his findings.  Dr. Cotton is board 
 
            certified in electrodiagnostic studies, specifically EMG and 
 
            nerve conduction studies, and it was his opinion that the 
 
            EMG studies of November 30, 1990, were correctly performed 
 
            and the impressions accurate.  He reviewed the EMG findings 
 
            of February 13, 1991, and noted that that study was also 
 
            normal and showed no evidence of a right cervical or lumbar 
 
            radiculopathy by delayed responses or needle study.  
 
            Therefore, he felt that Dr. Parsow's assessment of 
 
            claimant's condition was inconsistent with objective 
 
            testing.  He disputed Dr. Parsow's findings regarding 
 
            claimant's right upper extremity symptoms.  He stated that 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            in his opinion, claimant has no involvement of the 
 
            musculocutaneous nerve in the forearm and no permanent 
 
            partial impairment in the upper extremity.  Furthermore, he 
 
            has no loss of active range of motion of the wrist and no 
 
            evidence of any loss of strength.  Therefore, he opined that 
 
            claimant has no permanent impairment to the right upper 
 
            extremity.  He also disagreed with Dr. Parsow's low back 
 
            impairment rating because he found no evidence of any 
 
            permanent loss of range of motion in the lumbar spine.  
 
            Furthermore, he stated that there is no evidence of 
 
            radiculopathy.  In his opinion there is no involvement of 
 
            the first sacral nerve root (S1) for which any permanent 
 
            partial impairment rating would be justifiable.  Dr. Cotton 
 
            reiterated that although claimant complains of chronic and 
 
            persistent pain in the low back, there continues to be 
 
            marked discrepancies, variabilities and inconsistencies in 
 
            his examination which are not and cannot be seen in 
 
            patient's with a true physical injury or physical condition 
 
            in the low back.  (def. ex. 22).
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 The first issue to be determined is whether claimant's 
 
            right wrist injury on October 8, 1990, resulted in a 
 
            permanent impairment.  
 
            
 
                 Since claimant has suffered an injury, the next 
 
            question to be resolved is whether the injury has caused a 
 
            permanent disability.  The claimant has the burden of 
 
            proving by a preponderance of the evidence that the injury 
 
            of October 8, 1990, is causally related to the disability on 
 
            which he now bases his claim.  Bodish v. Fischer, Inc., 133 
 
            N.W.2d 867, 868 (Iowa 1965);  Lindahl v. L. O. Boggs, 18 
 
            N.W.2d 607, 613-14 (Iowa 1945).  A possibility is 
 
            insufficient; a probability is necessary.  Burt v. John 
 
            Deere Waterloo Tractor Works, 73 N.W.2d 732, 738 (Iowa 
 
            1955).  The question of causal connection is essentially 
 
            within the domain of expert testimony.  Bradshaw v. Iowa 
 
            Methodist Hospital, 101 N.W.2d 167, 171 (Iowa 1960).  Expert 
 
            medical evidence must be considered with all other evidence 
 
            introduced bearing on the causal connection.  Burt, 73 
 
            N.W.2d at 738.  The opinion of the experts need not be 
 
            couched in definite, positive or unequivocal language.  
 
            Sondag v. Ferris Hardware, 220 N.W.2d 903, 907 (Iowa 1974).  
 
            Moreover, the expert opinion may be accepted or rejected, in 
 
            whole or in part, by the trier of fact.  Sondag, 220 N.W.2d 
 
            at 907.  Finally, the weight to be given to such an opinion 
 
            is for the finder of fact, and that may be affected by the 
 
            completeness of the premise given the expert and other 
 
            material circumstances.  Bodish, 133 N.W.2d at 870; 
 
            Musselman v. Central Telephone Co., 261 Iowa 352, 154 
 
            N.W.2d 128 (1967).  The supreme court has also observed that 
 
            greater deference is ordinarily accorded expert testimony 
 
            where the opinion necessarily rests on medical expertise.  
 
            Sondag, 220 N.W.2d at 907.
 
            
 
                 A wrist injury is an injury to the hand, not the upper 
 
            extremity.  The hand extends to the distal end of the radius 
 
            and ulna, including the carpus or wrist.  Elam v. Midland 
 

 
            
 
            Page   7
 
            
 
            
 
            Mfg., II Iowa Industrial Commissioner Report 141 (App. 
 
            1981).
 
            
 
                 Claimant has the burden of proof in this regard.  As 
 
            previously noted, claimant had initial symptoms in his right 
 
            wrist in 1989.  He was treated by Dr. Kuhnlein and given 
 
            some temporary restrictions.  EMG and nerve conduction 
 
            studies taken on November 30, 1990, were within normal 
 
            limits.  (jt. ex. 17).  On December 3, 1990, Dr. Kuhnlein 
 
            released claimant to return to full duty with no 
 
            restrictions.  (jt. exs. 16 & 19, p. 5).
 
            
 
                 Accordingly, claimant has not met his burden of proof.  
 
            He is not entitled to any permanent partial disability 
 
            benefits as a result of the October 8, 1990 injury to his 
 
            right wrist.  
 
            
 
                 The next issue to be determined is whether claimant is 
 
            entitled to healing period benefits as a result of the 
 
            injury to his low back on December 13, 1990.  
 
            
 
                 Section 85.34(1) provides that healing period benefits 
 
            are payable to an injured worker who has suffered permanent 
 
            partial disability until (1) the worker has returned to 
 
            work; (2) the worker is medically capable of returning to 
 
            substantially similar employment; or (3) the worker has 
 
            achieved maximum medical recovery.  The healing period can 
 
            be considered the period during which there is a reasonable 
 
            expectation of improvement of the disabling condition.  See 
 
            Armstrong Tire & Rubber Co. v. Kubli, 312 N.W.2d 60 (Iowa 
 
            Ct. App. 1981).  Healing period benefits can be interrupted 
 
            or intermittent.  Teel v. McCord, 394 N.W.2d 405 (Iowa 
 
            1986).
 
            
 
                 A review of the pertinent medical evidence of record is 
 
            ambivalent as to when claimant either achieved maximum 
 
            medical improvement or when claimant was medically 
 
            determined to be capable of returning to substantially 
 
            similar employment.  Therefore, one must look at the record 
 
            to determine when claimant actually returned to work in 
 
            order to end the healing period.  Claimant testified that he 
 
            returned to work on November 19, 1992.  Therefore, claimant 
 
            is entitled to healing period benefits from November 9, 1991 
 
            through November 18, 1992.
 
            
 
                 The next issue to be determined is whether claimant is 
 
            entitled to any permanent partial disability benefits as a 
 
            result of his back impairment.  
 
            
 
                 A treating physician's testimony is not entitled to 
 
            greater weight as a matter of law than that of a physician 
 
            who later examines claimant in anticipation of litigation.  
 
            Weight to be given testimony of physician is a fact issue to 
 
            be decided by the industrial commissioner in light of the 
 
            record the parties develop.  In this regard, both parties 
 
            may develop facts as to the physician's employment in 
 
            connection with litigation; the physician's examination at a 
 
            later date and not when the injuries were fresh; his 
 
            arrangement as to compensation; the extent and nature of the 
 
            physician's examination; the physician's education, 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            experience, training, and practice; and all other factors 
 
            which bear upon the weight and value of the physician's 
 
            testimony.  Both parties may bring all this information to 
 
            the attention of the fact finder as either supporting or 
 
            weakening the physician's testimony and opinion.  All 
 
            factors go to the value of the physician's testimony as a 
 
            matter of fact not as a matter of law.  Rockwell Graphic 
 
            Systems, Inc. v. Prince, 366 N.W.2d 176, 192 (Iowa 1985).
 
            
 
                 Numerous physicians have been involved in claimant's 
 
            case.  Dr. Kuhnlein, the company physician and claimant's 
 
            treating physician, gave claimant permanent work 
 
            restrictions but did not give him an impairment rating.  
 
            Instead, he relied on Dr. Herrera to rate claimant's 
 
            impairment.  Dr. Herrera felt that claimant had no 
 
            measurable rating in light of normal MRI and CT scans.  Dr. 
 
            Strittholt did not rate claimant's impairment nor assign any 
 
            permanent restrictions, but instead indicated that those 
 
            imposed by Dr. Kuhnlein should be followed.  Dr. Blume and 
 
            Dr. Parsow, two of claimant's independent medical examiners, 
 
            gave permanent impairment ratings.  Dr. Cotton, defendants' 
 
            independent medical examiner, disputed the findings of Dr. 
 
            Blume and Dr. Parsow and in essence stated that claimant's 
 
            subjective complaints are not supported by the objective 
 
            medical evidence.  Since Dr. Kuhnlein gave claimant work 
 
            restrictions in March 1991 and November 1992 based on 
 
            claimant's subjective complaints, such restrictions are 
 
            given minimal weight and consideration especially since 
 
            claimant has been performing his usual and customary job 
 
            since November 1992 without restriction or accommodation by 
 
            employer.  It appears that the greater weight of the 
 
            evidence supports the findings made by Dr. Cotton, a highly 
 
            qualified neurologist and board certified in 
 
            electrodiagnostic studies, specifically EMG and nerve 
 
            conduction studies.  Dr. Cotton is of the opinion that 
 
            claimant's subjective complaints are far out of proportion 
 
            to the clinical and laboratory findings in the record.  It 
 
            appears that claimant is attempting to present himself as 
 
            more disabled than he really is.  Both Dr. Herrera and Dr. 
 
            Cotton found inconsistencies in claimant's test results.  
 
            This suggests that claimant may have been attempting to 
 
            manipulate the results in order to appear significantly 
 
            disabled.  
 
            
 
                 Pain that is not substantiated by clinical findings is 
 
            not a substitute for impairment.  Waller v Chamberlain Mfg., 
 
            II Iowa Industrial Commissioner Report 419, 425 (1981); 
 
            Godwin v. Hicklin GM Power, II Iowa Industrial Commissioner 
 
            Report 170 (1981).  Pain is not compensable under chapter 85 
 
            unless there is an impact on earning capacity.  Benton v. 
 
            Hyman Freightways, file numbers 721933 and 754493 
 
            review-reopening (January 7, 1991).
 
            
 
                 The record clearly indicates that claimant returned to 
 
            work on November 19, 1992.  He now earns $9.40 per hour and 
 
            in 1990 was earning $8.65 per hour.  He has not had a loss 
 
            of earnings nor a loss of earning capacity since his pain 
 
            has not interfered with his ability to perform his usual and 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            customary occupation.
 
            
 
                 Accordingly, claimant has not met his burden of proof.  
 
            He is not entitled to any permanent partial disability 
 
            benefits as a result of his back injury on December 13, 
 
            1990, in view of the fact that claimant's subjective 
 
            complaints cannot be substantiated by the objective medical 
 
            evidence and claimant's credibility is questionable.  
 
            
 
                 The next issue to be determined is whether claimant is 
 
            entitled to certain medical benefits under Iowa Code section 
 
            85.27.  
 
            
 
                 The employer shall furnish reasonable surgical, 
 
            medical, dental, osteopathic, chiropractic, podiatric, 
 
            physical rehabilitation, nursing, ambulance and hospital 
 
            services and supplies for all conditions compensable under 
 
            the workers' compensation law.  The employer shall also 
 
            allow reasonable and necessary transportation expenses 
 
            incurred for those services.  The employer has the right to 
 
            choose the provider of care, except where the employer has 
 
            denied liability for the injury.  Section 85.27.; Holbert v. 
 
            Townsend Engineering Co., Thirty-second Biennial Report of 
 
            the Industrial Commissioner 78 (Review-reopen 1975).  
 
            Claimant has the burden of proving that the fees charged for 
 
            such services are reasonable.  Anderson v. High Rise Constr. 
 
            Specialists, Inc., File No. 850096 (App. 1990).
 
            
 
                 Claimant is not entitled to reimbursement for medical 
 
            bills unless claimant shows they were paid from claimant's 
 
            funds.  See Caylor v. Employers Mut. Casualty Co., 337 
 
            N.W.2d 890 (Iowa Ct. App. 1983).
 
            
 
                 When a designated physician refers a patient to another 
 
            physician, that physician acts as the defendant employer's 
 
            agent.  Permission for the referral from defendants is not 
 
            necessary.  Kittrell v. Allen Memorial Hospital, 
 
            Thirty-fourth Biennial Report of the Industrial Commissioner 
 
            164 (Arb. Decn. 1979) (aff'd by indus. comm'r).
 
            
 
                 An employer's right to select the provider of medical 
 
            treatment to an injured worker does not include the right to 
 
            determine how an injured worker should be diagnosed, 
 
            evaluated, treated or other matters of professional medical 
 
            judgment.  Assmann v. Blue Star Foods, Inc., File No. 866389 
 
            (Declaratory Ruling, May 18, 1988).
 
            
 
                 Claimant is requesting reimbursement for treatment 
 
            received in the emergency room of St. Luke's Hospital.  
 
            Since this was emergency treatment for a flare-up of a 
 
            work-related injury, claimant is entitled to be reimbursed 
 
            for the charges.  In an emergency situation, claimant lacks 
 
            time to seek authorization for treatment.  This treatment 
 
            minimized his pain and reduced his industrial disability.  
 
            Claimant is entitled to be reimbursed for charges associated 
 
            with necessary emergency room treatment.  Claimant also 
 
            submitted a medical bill from Marion Health Center 
 
            outpatient center for $451.30 and another bill for $86.60.  
 
            The undersigned cannot ascertain from these bills the 
 
            purpose of the visit to Marion Health Center and the 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            treatment received.  Since defendants claim that such was 
 
            not authorized and claimant could not show any justification 
 
            for the expenses incurred, the undersigned cannot order the 
 
            defendants to pay these bills.  
 
            
 
                 The final issue to be determined is whether claimant is 
 
            entitled to payment of an independent medical examination 
 
            conducted by Dr. Parsow.  Dr. Parsow charged $975 for an 
 
            independent medical examination which he conducted on March 
 
            16, 1993.  Dr. Parsow then charged interest because the bill 
 
            had not been paid by December 9, 1993 or January 9, 1994.  
 
            To date, his bill totals $999.38.  (claimant's exs. 2-3).  
 
            Defendants wrote to Dr. Parsow and asked him for a breakdown 
 
            of his charges.  Dr. Parsow stated that the cost of the 
 
            examination and reviewing previously obtained imagining 
 
            studies was $175.  The cost of thoroughly reviewing previous 
 
            medical records and preparing the comprehensive summary and 
 
            report was $800.  (def. ex. 20).  Dr. Parsow stated that 
 
            these charges are fair and reasonable in light of community 
 
            standards for such examinations.  Defendants disputed the 
 
            same but produced no evidence to the contrary.  (claimant's 
 
            ex. 2).
 
            
 
                 Section 85.39, subsection 2, states in pertinent part 
 
            that, "The physician chosen by the employee has the right to 
 
            confer with and obtain from the employer-retained physician 
 
            sufficient history of the injury to make a proper 
 
            examination."  Furthermore, agency expertise is not 
 
            sufficient evidence to support a finding that the medical 
 
            charges were reasonable or unreasonable.  McClellon v. Iowa 
 
            Southern Utilities, file number 894090 (App. Dec. January 
 
            31, 1992).  Since defendants produced no contrary evidence 
 
            indicating that Dr. Parsow's fees were unreasonable, 
 
            claimant has met his burden of proof.  Schneider v. Prairie 
 
            Contractors, Inc., file number 869747 (App. Dec. April 20, 
 
            1992).
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 In file number 1013368:
 
            
 
                 Claimant takes nothing further from these proceedings.
 
            
 
                 In file number 973506:
 
            
 
                 That defendants pay to claimant temporary total 
 
            disability benefits from November 9, 1991 through November 
 
            18, 1992, at the stipulated rate of two hundred forty-one 
 
            and 22/100 dollars ($241.22) per week.
 
            
 
                 That defendants pay the cost of claimant's emergency 
 
            room visits at St. Luke's Regional Medical Center.  
 
            
 
                 That defendants reimburse claimant for an independent 
 
            medical examination conducted by Dr. Parsow.
 
            
 
                 That defendants receive credit for any benefits 
 
            previously paid. 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            
 
                 That defendants pay accrued amounts in a lump sum.
 
            
 
                 That defendants pay interest pursuant to Iowa Code 
 
            section 85.30, as amended.
 
            
 
                 That defendants pay all other costs pursuant to rule 
 
            343 IAC 4.33.
 
            
 
                 That defendants file claim activity reports as required 
 
            by the agency pursuant to rule 343 IAC 3.1(2).
 
            
 
                 Signed and filed this ________ day of February, 1994.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          JEAN M. INGRASSIA
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            
 
            Copies to:
 
            
 
            Mr. Dennis McElwain
 
            Attorney at Law
 
            PO Box 1194
 
            Sioux City, Iowa  51102-1194
 
            
 
            Mr. Thomas Plaza
 
            Attorney at Law
 
            701 Pierce St. STE 200
 
            PO Box 3086
 
            Sioux City, Iowa  51102-3086
 
            
 
                 
 
            
 
 
            
 
            
 
            
 
            
 
                                             51801 51803 52700 52907
 
                                             Filed February 18, 1994
 
                                             Jean M. Ingrassia
 
            
 
                        BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ------------------------------------------------------------
 
            OLLIS P HUNTER,     
 
                      
 
                 Claimant,                       File Nos. 1013368
 
                                                            973506  
 
            vs.       
 
                           
 
            JOHN MORRELL AND COMPANY,     
 
                                               A R B I T R A T I O N
 
                 Employer, 
 
                                                   D E C I S I O N
 
            and       
 
                      
 
            HOME INSURANCE,     
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ------------------------------------------------------------
 
            51801
 
            Claimant found entitled to temporary total disability 
 
            benefits from November 9, 1991 through November 18, 1992, 
 
            when he returned to his usual and customary occupation with 
 
            employer.
 
            
 
            51803
 
            Claimant not entitled to permanent partial disability 
 
            benefits for a right wrist injury incurred on October 8, 
 
            1990, or for a back injury incurred on December 13, 1990.  
 
            Greater weight of the evidence showed that claimant's 
 
            subjective complaints were far out of proportion to the 
 
            clinical and laboratory findings in the record and credible 
 
            medical expert opinion found that claimant exaggerated his 
 
            symptoms and that he had no measurable rated impairment.  
 
            
 
            52700
 
            Although not authorized, claimant found entitled to be 
 
            reimbursed for emergency room treatment for an exacerbation 
 
            of his low back symptoms because there was no time to get 
 
            authorization.  
 
            
 
            52907
 
            Claimant's independent medical examination physician filed a 
 
            professional statement that his examination charges were 
 
            fair and reasonable.  Defendants disputed the same but 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            produced no evidence to the contrary.  Claimant prevailed.
 
            
 
 
            
 
            
 
            
 
            
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            CHRISTINE SLAIGHT,  
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                                  File No. 973529
 
            FIRST FEDERAL SAVINGS AND     
 
             LOAN,    
 
                                              A R B I T R A T I O N
 
                 Employer, 
 
                                                 D E C I S I O N
 
            and       
 
                      
 
            CHUBB/FEDERAL INSURANCE       
 
             COMPANY, 
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
                           STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration upon the petition 
 
            of claimant, Christine Slaight, against her employer, First 
 
            Federal Savings and Loan Association, and its insurance 
 
            carrier, Chubb Federal Insurance Co., defendants.  The case 
 
            was heard on 7-14-92, at the Woodbury County Courthouse in 
 
            Sioux City, Iowa.  The record consists of the testimony of 
 
            claimant.  The record also consists of the testimony of 
 
            Peggy Smith, a personnel director for defendant-employer.  
 
            Additionally, the record consists of joint exhibits 1-58.
 
            
 
                 It is noted that because of very poor duplication, it 
 
            has been difficult to read some of the exhibits, especially 
 
            some of the hospital records.
 
            
 
                 Prior to claimant's testimony, defendants' had agreed 
 
            to compensate claimant for 39 miles of travel at 21 cents 
 
            per mile for a total of $8.19.
 
            
 
                                      ISSUES
 
            
 
                 The issues to be determined are:
 
            
 
                 1)  Whether there is a causal relationship between the 
 
            alleged injury and any permanent disability; and 2)  Whether 
 
            claimant is entitled to any healing period or permanent 
 
            partial disability benefits.
 
            
 
                     
 
            
 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                                FINDINGS OF FACT
 
            
 
                 The deputy, having heard the testimony and considered 
 
            all the evidence, finds:
 
            
 
                 Claimant is a 36-year-old married woman who is the 
 
            mother of two children.  She had attended school in Sioux 
 
            Falls, South Dakota but dropped out when she was in the 
 
            ninth grade.  Claimant had obtained her GED in 1991.
 
            
 
                 In November of 1989 claimant commenced her employment 
 
            with defendant-employer.  She was hired to perform 
 
            janitorial duties during the evening hours.  Her duties 
 
            routinely included vacuuming, dusting, and general cleaning 
 
            of the building.  She worked up until the date of her work 
 
            injury on 1-10-91.
 
            
 
                 Claimant sustained a work injury on 1-10-91 when she 
 
            lifted a very heavy wastebasket.  She testified she 
 
            experienced a jerk in her right arm, neck, a burning 
 
            sensation in her low back, and buttock as well as pain in 
 
            her left hip and down her left leg.
 
            
 
                 Claimant testified she was unable to complete her shift 
 
            that night because of the intense pain she was experiencing.  
 
            She left a note for her supervisor, and went home.
 
            
 
                 On 1-11-91, Peggy Smith, the personnel director for 
 
            defendant-employer telephoned claimant.  The director 
 
            authorized claimant to obtain medical treatment.  Claimant 
 
            sought treatment from her family physician, John Roberts 
 
            M.D.  The physician recommended rest, no work and he 
 
            prescribed pain medication.  Dr. Roberts also restricted 
 
            claimant from lifting greater than five pounds and from 
 
            minimal stooping or bending (Joint Exhibit 24).  X-rays were 
 
            taken.  The results showed that:
 
            
 
                 Some mild disc space narrowing is suspected at 
 
                 L5-S1 and there is mild spurring of the opposing 
 
                 bones, findings consistent with degenerative disc 
 
                 disease.  The other discs appear intact.  The 
 
                 alignment is normal.  There is no evidence of 
 
                 fracture or bone destruction.
 
            
 
                 IMP:  Degenerative disc disease is suspected at L5-S1 
 
            with mild narrowing of the disc space (Jt. Ex. 25).
 
            
 
                 Dr. Roberts continued with conservative treatment 
 
            including physical therapy.  Eventually claimant requested a 
 
            referral to the University of Nebraska where she was 
 
            examined by Angelo Patil, M.D. an orthopedic surgeon.  By 
 
            this point in time, claimant was experiencing difficulties 
 
            because of a right carpal tunnel syndrome.
 
            
 
     
 
            
 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            Dr. Patil opined the following in his report of 3-1-91.
 
            On examination, she is a pleasant lady who's mentition is 
 
            normal.  Speech and memory is intact.  Pupils are equal and 
 
            reactive.  The face is symmetrical.  Motor examination, 
 
            tone, power and nutrition are normal.  Sensory examination 
 
            was normal to pinprick.  Deep tendon reflexes were equal and 
 
            symmetrically present.  Plantars were both downgoing.  
 
            Coordination was normal.  Gait was normal.  She had a full 
 
            range of back movement.  Straight leg raising was 
 
            bilaterally 90 degrees.  She had some limitation of neck 
 
            movement due to pain but on insistence, she was able to get 
 
            the full range.
 
            
 
                 Her plain x-rays show evidence of degenerative changes 
 
            between L5 and S1 with narrowing of the disk space and 
 
            osteophytic spurring.  CT scan shows perhaps some diffuse 
 
            bulging of the disks between 4-5 but no surgical lesions 
 
            were obviously visible.
 
            
 
                 The clinical impression is that her present problem is 
 
            from musculoskeletal strain and perhaps some pain could be 
 
            originating from the left sacro-iliac joint and the facet 
 
            joint.
 
            
 
                 I have showed her some back exercises and proper 
 
            posture and feel that she should continue with this type of 
 
            exercise for awhile.  If her problem continues, it may be 
 
            worthwhile getting an EMG to rule out any radiculopathy.  In 
 
            the absence of evidence of radiculopathy, I would feel that 
 
            her pain is musculoskeletal in origin and if this continues 
 
            and if the EMG studies are negative at that time, than 
 
            perhaps she may need some type of rehab. program.  . . .  
 
            
 
                 Claimant continued with physical therapy.  She returned 
 
            to Dr. Roberts.  Claimant also continued treating with Dr. 
 
            Patil.  As of 6-7-91, Dr. Patil opined:
 
            
 
                 1.  Ms. Slaight may return to work in two to three 
 
            weeks.
 
            
 
                 2.  Ms. Slaight is restricted to lifting weights no 
 
            greater than 40 pounds.
 
            
 
                 3.  Ms. Slaight must avoid prolonged standing (Jt. Ex. 
 
            41).
 
            
 
                 Dr. Patil also prescribed a chair back brace for her 
 
            back and a wrist splint (Jt. Ex. 42).
 
            
 
                 Claimant became dissatisfied with the treatment she 
 
            received from Dr. Patil.  She requested a referral to 
 
            another orthopedist.  Dr. Roberts referred claimant to Earl 
 
            M. Mumford, M.D. who noted that:
 
            
 
                 7-22-91  patient is C/O more pain rather than less pain 
 
            after the epidural.  She has neck and low back pain ill 
 
            defined.  I cannot really detect much of anything else going 
 
            on; in fact actually the straight leg raising is less tight 
 
            than before.  Certainly she is complaining quite a bit and I 
 
            am a little at a loss to explain what is going on.  I do 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            think I would recommend her to some type of pain clinic.
 
            
 
                 7-17-91 OV - New complaint - note dictated.
 
            
 
                 . . .
 
            
 
                 LOW BACK
 
            
 
                 7-18-91 - Epidural steroid injection by hospital.
 
            
 
                 7-22-91 OV - Patient is c/o more pain rather than less 
 
            pain after the epidural.  She has neck and low back pain ill 
 
            defined.  I cannot really detect much of anything else going 
 
            on; in fact actually the straight leg raising is less tight 
 
            than before.  Certainly she is complaining quite a bit and I 
 
            am at a loss to explain what is going on.  I do think I 
 
            would recommend her to some type of chronic pain clinic.  . 
 
            . . 
 
            
 
                 An associate of Dr. Mumford, Mark E. Wheeler, M.D. 
 
            rated claimant as having a zero percent functional 
 
            impairment (Jt. Ex. 47).
 
            
 
                 Claimant sought an evaluation from another orthopedic 
 
            surgeon, Timothy C. Fitzgibbons, M.D.  Dr. Fitzgibbons 
 
            opined in his report of 4-28-92 that:
 
            Prior to this incident of the 10 January 1991, the patient 
 
            stated that she had never had any trouble with her neck or 
 
            back or with any numbness problem in her hands.
 
            
 
            PHYSICAL EXAMINATION: 
 
            The patient is able to stand and walk reasonably well, 
 
            although she complains of some discomfort in her neck and 
 
            low back.  She walks on her heels and toes satisfactorily.  
 
            She has a negative Trendelenburg.  The range of motion of 
 
            the limbar spine is limited due to discomfort in the 
 
            lumbosacral and buttock area.
 
            The examination of the neck reveals some discomfort in the 
 
            posterior cervical area, with some radiation into the 
 
            interscapular area and also into the occipital attachment of 
 
            the muscles.  The neck range of motion is also limited due 
 
            to discomfort.  The shoulder shrug test is negative.  The 
 
            shoulder range of motion is negative.
 
            The neurologic examinations of both the upper and lower 
 
            extremities show no definite motor or reflex changes.  There 
 
            is a positive Phalen's test on the right side, consistent 
 
            with carpal tunnel syndrome, but a negative Tinel's sign.  
 
            The rest of the examination, I feel, is satisfactory.  No 
 
            other definite abnormalities, of any significance, were 
 
            noted.
 
            
 
            X-RAYS: 
 
            X-rays-- which include cervical spine views with oblique 
 
            views, and lumbar spine views with oblique views--were 
 
            obtained.  The patient has definite degenerative disc 
 
            disease at L-5 S-1, with disc space narrowing.  The rest of 
 
            the x-rays, in terms of both cervical spine and lumbar 
 
            spinc, are within normal limits.
 
            We did look at some old films, that the patient had from a 
 
            year ago, and it was an open-mouth odotoid view of the neck, 
 
            which was okay.  The rest of the films, I thought, were 
 
            okay.
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            I do note that the films, of the 14 January 1991, were read 
 
            as showing degenerative disc disease at L-5 S-1.  This was 
 
            taken at the Outpatient Imaging Center in Sioux City.
 
            IMPRESSIONS:
 
            1.  Post-traumatic cervical and lumbar strain.
 
            2.  L-5 S-1 degenerative disc disease.
 
            3.  Probable right carpal tunnel syndrome.
 
            REMARKS:
 
            We did get a chance to review some old records.  There were 
 
            a multitude of records, but of importance was an EMG--from 
 
            the 17 May 1991--which showed a right carpal tunnel 
 
            syndrome.
 
            We also saw a CT Scan--from the 31 January 1991--which 
 
            showed some mild flattening and generalized bulging of the 
 
            disc at L-4, but no other significant abnormalities.  There 
 
            are no imaging studies of the patient's neck.
 
            
 
                 He also opined that:
 
            I would absolutely not restrict the patient.  I would let 
 
            her do whatever her pain would allow.  I would encourage her 
 
            to be normal.  If, however, we were asked exactly what she 
 
            can and can't do, then I would recommend that a formal 
 
            Functional Capacity Assessment be done.  This could be done 
 
            by our therapy department here or at any number of different 
 
            therapy departments.
 
            In terms of the cause of the patient's symptoms, they appear 
 
            to have been caused by the accident of the 10 January 1991.
 
            In terms of the patient's degenerative disc disease at L-5 
 
            S-1, the accident did not cause this.  This was present 
 
            prior to the accident.
 
            However, the patient clearly indicated to me that she had 
 
            not had any low back or neck or right hand symptoms prior to 
 
            the accident and, therefore, given this history, the 
 
            accident was the cause of the symptoms of her neck and back 
 
            and right hand.
 
            In terms of prognosis, the patient has had symptoms now for 
 
            more than a year and I would feel that she has been left 
 
            with some permanent impairment.
 
            In terms of a percentage of impairment, for the patient's 
 
            neck and back problems, I would feel that a 5 percent 
 
            impairment of the body as a whole would be justified for her 
 
            neck and back problems.
 
            In terms of the patient's right hand symptoms, I would feel 
 
            that a 5 percent impairment of the right upper extremity 
 
            would be justified for these hand symptoms.
 
            I would be glad to see her at any time in the future, but 
 
            will not see her again unless she so desires.
 
            
 
                 Claimant was paid weekly benefits from 1-11-91 through 
 
            7-18-91.  Defendant-employer terminated claimant's 
 
            employment effective 5-1-91 (Jt. Ex. 56, p. 10).  In August 
 
            of 1991, claimant enrolled in college at Wayne State.  She 
 
            completed two semesters of college, however, she did not 
 
            carry a full time academic schedule.  Currently, claimant is 
 
            unemployed. 
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 The first issue to address is whether claimant can 
 
            establish a causal relationship between her work injury on 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            1-10-91 and any permanent disability.  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 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). 
 
            
 
                 Our supreme court has stated many times that a claimant 
 
            may recover for a work connected aggravation of a 
 
            preexisting condition.  Almquist v. Shenandoah Nurseries, 
 
            218 Iowa 724, 254 N.W. 35 (1934).  See also Auxier v. 
 
            Woodward State Hosp. Sch., 266 N.W.2d 139 (Iowa 1978); Gosek 
 
            v. Garmer and Stiles Co., 158 N.W.2d 731 (Iowa 1968); Barz 
 
            v. Oler, 257 Iowa 508, 133 N.W.2d 704 (1965); Olson v. 
 
            Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 
 
            (1963); Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 
 
            112 N.W.2d 299 (1961); Ziegler v. United States Gypsum Co., 
 
            252 Iowa 613, 106 N.W.2d 591 (1960).
 
            
 
                 There is no question that claimant had a pre-existing 
 
            back condition which pre-dated her employment with 
 
            defendant-employer.  As early as September of 1978, claimant 
 
            had experienced difficulties with "neuritis, myosits of the 
 
            lumbar area."  (Jt. Ex. 2, p. 2).  She had sought treatment 
 
            from chiropractor, Pat Luse, D.C. as early as April of 1981.  
 
            Her diagnosis had been lumbar strain or sprain (Jt. Ex. 7).  
 
            Claimant's present back condition was also diagnosed as 
 
            "musculoskeletal strain" by Dr. Fitzgibbons (Jt. Ex. 31, p. 
 
            1).  Dr. Roberts diagnosed claimant's condition as "Back 
 
            strain with possible intervertebral disc disease." (Jt. Ex. 
 
            26, p. 5).  The diagnosis was basically the same diagnosis 
 
            as those in prior years.  It does appear, however, the work 
 
            injury temporarily aggravated claimant's existing back 
 
            condition.  It does not appear that the condition has 
 
            resulted in any permanent back condition.
 
            
 
                 Claimant has not proven that she has a permanent back 
 
            condition from her work injury.  Dr. Wheller has found a 
 
            zero percent functional impairment.  Dr. Fitzgibbons has 
 
            rated claimant as having a five percent functional 
 
            impairment to the back.  However, Dr. Fitzgibbon's opinion 
 
            is based on a grossly erroneous history.  Claimant has 
 
            related to her orthopedic surgeon that "she had never had 
 
            any trouble with her neck or back or with any numbness 
 
            problem in her hands." (Jt. Ex. 48, p. 2).  Since Dr. 
 
            Fitzgibbon's opinion is based upon false or mistaken 
 
            information, his opinion is not accorded much weight.
 
            
 
                 There is very little objective evidence to support 
 
            claimant's allegation that she has a permanent back 
 
            condition resulting from her work injury.  Dr. Patil has 
 
            found a normal sensory examination.  Claimant's reflexes are 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            equal and symmetrical.  Her gait is normal.  She has full 
 
            range of motion.  She has straight leg raising bilaterally 
 
            to 90 degrees.  There is no evidence of redicylopathy (Jt. 
 
            Ex. 32).  X-rays show only slight reversal of the curve but 
 
            with the vertebral height and space otherwise well 
 
            maintained (Jt. Ex. 4, Sp 3).  L-5 spine films and an MIR 
 
            only show degenuative changes at L5-S1 (Jt. Ex. 45, p. 3).  
 
            The MRI results show nothing especially remarkable.  
 
            
 
                 Dr. Patil has never provided a functional impairment 
 
            rating.  Claimant's subjective complaints of pain far 
 
            surpass any observable evidence of a permanent low back 
 
            problem.  Moreover, during the cause of her physical therapy 
 
            treatment, claimant had  voluntarily suspended her therapy.  
 
            The undersigned is not persuaded by claimant's medical 
 
            evidence.
 
            
 
                 Claimant is also alleging a causal connection between 
 
            her work injury and claimant's right carpal tunnel syndrome.  
 
            Claimant, sometime after she had commenced her low back 
 
            treatment, also experienced difficulties with her right 
 
            wrist and arm.  She had voiced her complaints to three 
 
            physicians, Dr. Roberts, Dr. Patil and Dr. Fitzgibbons.  
 
            Claimant's rendition of the work injury is consistent with 
 
            respect to jerking her right arm when she had lifted the 
 
            trash can.  Her testimony is consistent.  Dr. Patil had 
 
            ordered nerve conduction tests.  The results show:
 
            The conduction and F-wave latency studies of both median and 
 
            right ulnar (segmental) nerves showed evidence of a right 
 
            carpal tunnel syndrome.  Please correlate clinically (Jt. 
 
            Ex. 39).  The objective evidence established a right carpal 
 
            tunnel syndrome.
 
            
 
                 Dr. Patil had ordered a wrist brace, once he had 
 
            obtained objective evidence of the right carpal tunnel 
 
            syndrome.  Dr. Fitzgibbons has related the wrist condition 
 
            to claimant's work injury on 1-10-91.  No medical expert 
 
            disputes his opinion.  Dr. Fitzgibbons has rated claimant as 
 
            having a five percent functional impairment.  The objective 
 
            evidence supports a permanent impairment.  
 
            
 
                 The permanent impairment involves an injury to the 
 
            hand.  A wrist injury is an injury to the hand, not the 
 
            upper extremity.  The hand extends to the distal end of the 
 
            radius and ulna, including the carpus or wrist.  Elam v. 
 
            Midland Mfg., II Iowa Industrial Commissioner Report 141 
 
            (App. 1981).
 
            
 
                 Claimant is entitled to benefits pursuant to section 
 
            85.34(1).  She is entitled to 9.5 weeks of benefits at the 
 
            stipulated rate of $119.98 per week.
 
            
 
                 Section 85.34(1) provides that healing period benefits 
 
            are payable to an injured worker who has suffered permanent 
 
            partial disability until (1) the worker has returned to 
 
            work; (2) the worker is medically capable of returning to 
 
            substantially similar employment; or (3) the worker has 
 
            achieved maximum medical recovery.  The healing period can 
 
            be considered the period during which there is a reasonable 
 
            expectation of improvement of the disabling condition.  See 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            Armstrong Tire & Rubber Co. v. Kubli, 312 N.W.2d 60 (Iowa 
 
            Ct. App. 1981).  Healing period benefits can be interrupted 
 
            or intermittent.  Teel v. McCord, 394 N.W.2d 405 (Iowa 
 
            1986).
 
            
 
                 Claimant is entitled to healing period benefits from 
 
            the date of her injury on 1-10-91 until the date she had 
 
            commenced her college education at Wayne State which was on 
 
            or about 8-23-91.  This period consists of 32.143 weeks at 
 
            the stipulated rate of $119.98 per week.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Defendants shall pay unto claimant healing period 
 
            benefits at the stipulated rate of one hundred nineteen and 
 
            98/100 dollars ($119.98) per week commencing on January 1, 
 
            1991 and payable through August 22, 1991, which is a period 
 
            of thirty-two point one four three (32.143) weeks.
 
            
 
                 Defendants shall also pay unto claimant permanent 
 
            partial disability benefits commencing on August 23, 1991 
 
            and continuing for nine point five (9.5) weeks at the 
 
            stipulated rate of one hundred nineteen and 98/100 dollars 
 
            ($119.98) per week.
 
            
 
                 Defendants shall also pay eight and 19/100 dollars 
 
            ($8.19) as mileage and pursuant to section 85.27.
 
            
 
                 Accrued benefits are to be paid in a lump sum together 
 
            with statutory interest at the rate of ten percent (10%) per 
 
            year pursuant to section 85.20, Iowa Code, as amended.
 
            
 
                 Costs are taxed to defendant pursuant to rule 343 IAC 
 
            4.33.
 
            
 
                 Defendants shall file a claim activity report as 
 
            requested by this division pursuant to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of October, 1992.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          MICHELLE A. MCGOVERN 
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Stephen Jensen
 
            Daryl L. Hecht
 
            Attorneys at Law
 
            614 Pierce Street
 
            P.O. Box 27
 
            Sioux City, IA  51102
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            
 
            Ms. Judith Ann Higgs
 
            Attorney at Law
 
            701 Pierce Street, Ste. 200
 
            P.O. Box 3086
 
            Sioux City, IA  51102
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
                                          5-1800, 5-1803.1
 
                                          Filed October 19, 1992
 
                                          Michelle A. McGovern
 
 
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            CHRISTINE SLAIGHT,  
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                                 File No. 973529
 
            FIRST FEDERAL SAVINGS AND     
 
             LOAN,    
 
                                             A R B I T R A T I O N
 
                 Employer, 
 
                                                D E C I S I O N
 
            and       
 
                      
 
            CHUBB/FEDERAL INSURANCE       
 
             COMPANY, 
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            
 
            5-1800, 5-1803.1
 
            Claimant was awarded a five percent permanent partial 
 
            disability to the right hand.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            
 
            TITO OLGUIN,     
 
                        
 
                 Claimant,                   File No. 974008
 
                        
 
            vs.                               A P P E A L
 
                        
 
            IBP, INC.,                       D E C I S I O N
 
                        
 
                 Employer,   
 
                 Self-Insured,    
 
                 Defendant.       
 
            ____________________________________________________________
 
           
 
            The record, including the transcript of the hearing before 
 
            the deputy and all exhibits admitted into the record, has 
 
            been reviewed de novo on appeal.  The decision of the deputy 
 
            filed October 26, 1992 is affirmed and is adopted as the 
 
            final agency action in this case.
 
            
 
            Defendant shall pay the costs of the appeal, including the 
 
            preparation of the hearing transcript.
 
            
 
            Signed and filed this ____ day of September, 1993.
 
            
 
            
 
            
 
            
 
                                     ________________________________
 
                                             BYRON K. ORTON
 
                                        INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Tito Trevino
 
            Attorney at Law
 
            P.O. Box 1680
 
            Fort Dodge, Iowa 50501
 
            
 
            Mr. John M. Comer
 
            Attorney at Law
 
            P.O. Box 515, Dept. #41
 
            Dakota City, NE 68731
 
            
 
 
            
 
 
 
               
 
 
 
 
 
                                            2800; 2700; 1802; 5-1100
 
                                            Filed September 21, 1993
 
                                            BYRON K. ORTON
 
                      
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            TITO OLGUIN,                  :
 
                                          :
 
                 Claimant,                :      File No. 974008
 
                                          :
 
            vs.                           :        A P P E A L
 
                                          :
 
            IBP, INC.,                    :      D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
            2800
 
            Defendant asserts a notice defense under Iowa Code section 
 
            85.23.  Defendant contends that claimant did not notify them 
 
            within 90 days of the alleged injury on May 1, 1989.  
 
            However, on the first report of injury, employer indicated 
 
            that they knew of claimant's condition in May 1989.  Iowa 
 
            Code section 86.11 provides in pertinent part that:
 
            
 
                 The report to the industrial commissioner of 
 
                 injury shall be without prejudice to the employer 
 
                 or insurance carrier and shall not be admitted in 
 
                 evidence or used in any trial or hearing before 
 
                 any court, the industrial commissioner or a deputy 
 
                 industrial commissioner except as to the notice 
 
                 under section 85.23.
 
            Defendant failed to prove by a preponderance of the evidence 
 
            that it lacked actual notice of claimant's injury.
 
            
 
            5-1100
 
            The greater weight of the uncontroverted medical evidence is 
 
            that claimant was asymptomatic as to neck and back pain 
 
            prior to May 1, 1989.  Claimant's testimony regarding the 
 
            work incident on May 1, 1989, is credible.  Defendant 
 
            produced no evidence to the contrary.
 
            
 
            1802
 
            Claimant entitled to a running healing period award 
 
            commencing September 20, 1990, the last time he was 
 
            employed, until the requirements of section 85.34(1) are 
 
            met.
 
            
 
            2700
 
            Defendant was ordered to pay for surgical treatment as 
 
            recommended by claimant's treating physician.
 
            Since defendant denied liability, they do not have the right 
 

 
            
 
 
 
 
 
 
 
 
 
 
 
            to choose the provider of care.  Claimant's pursuit of 
 
            medical care has not been unreasonable.  All treatment 
 
            modalities are causally related to his injury and, 
 
            therefore, are compensable.  Defendant is responsible for 
 
            payment of claimant's medical bills as summarized in his 
 
            exhibit 10.
 
            
 
 
            
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            TITO OLGUIN,                  :
 
                                          :
 
                 Claimant,                :      File No. 974008
 
                                          :
 
            vs.                           :
 
                                          :  A R B I T R A T I O N
 
            IBP, inc.,                    :
 
                                          :      D E C I S I O N
 
                 Employer,                :    
 
                 Self-Insured,            :      
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Tito 
 
            Olguin, claimant, against IBP, inc., self-insured employer, 
 
            defendant, to recover benefits under the Iowa Workers' 
 
            Compensation Act as a result of an injury sustained on May 
 
            1, 1989.  This matter came on for hearing before the 
 
            undersigned deputy industrial commissioner on October 14, 
 
            1992, in Des Moines, Iowa.  The record was considered fully 
 
            submitted at the close of the hearing.  The claimant was 
 
            present and testified.  Guadalupe McCarney, a Spanish 
 
            speaking interpreter, was present at the hearing and 
 
            translated for claimant.  Also present and testifying were 
 
            Reyna Olguin, Terry Zimmerman, Cheryl Schmitt, and Randy 
 
            Fehlberg.  The documentary evidence in the record consists 
 
            of joint exhibits 1 through 27 and A through F.
 
            
 
                                      ISSUES
 
            
 
                 Pursuant to the prehearing report and order dated 
 
            October 14, 1992 the parties have presented the following 
 
            issues for resolution:
 
            
 
                 1.  Whether claimant sustained an injury on May 1, 
 
            1989, which arose out of and in the course of employment 
 
            with employer;
 
            
 
                 2.  Whether the alleged injury is a cause of temporary 
 
            and permanent disability;
 
            
 
                 3.  The extent of entitlement to weekly compensation 
 
            for temporary total or healing period benefits;
 
            
 
                 4.  The extent of entitlement to weekly compensation 
 
            for permanent disability, if defendant is liable for the 
 
            injury;
 
            
 
                 5.  The commencement date for permanent partial 
 
            disability benefits; and
 
            
 
                 6.  Whether claimant's medical expenses are causally 
 
            related to the disability on which he now bases his claim.
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                 Defendant raises the defense of lack of notice under 
 
            Iowa Code section 85.23.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The undersigned has carefully considered all the 
 
            testimony given at the hearing, arguments made, evidence 
 
            contained in the exhibits herein, and makes the following 
 
            findings:
 
            
 
                 Claimant was born on February 6, 1954, and did not 
 
            attend school as a child.  Although claimant was born in the 
 
            state of Colorado, he cannot read or write English or 
 
            Spanish.  Claimant's primary spoken language is Spanish.  He 
 
            is unable to speak or understand English.  Claimant attended 
 
            adult education classes in an attempt to receive his GED 
 
            certificate, but was unable to complete the course work 
 
            required.  Claimant did attend a truck driving school from 
 
            May 30, 1987 to July 30, 1987, and received a certificate 
 
            upon completion of this program.  
 
            
 
                 Claimant testified that he worked as a truck driver for 
 
            Lofland Company in Fort Worth, Texas, from April 24, 1987 
 
            through March 3, 1989.  He became aware of employment 
 
            opportunities with IBP through radio advertisements in 
 
            Texas.  He met with representatives from employer's company 
 
            in Irvin, Texas, and negotiated for a job with the plant in 
 
            Columbus Junction, Iowa, for himself and his wife.  It was 
 
            his understanding that he would be working as a truck driver 
 
            for IBP.  When he arrived in Iowa in March 1989, he was told 
 
            that there were no truck driving jobs available, but that he 
 
            could work on the kill floor sticking pigs.  His wife was 
 
            also offered a job at that same time.
 
            
 
                 Claimant started employment with employer on March 8, 
 
            1989.  His starting pay was $6 per hour.  Claimant worked 
 
            the 4 p.m. to 1:30 a.m. shift.  On May 1, 1989, at 10 p.m., 
 
            while working on the kill line, a pig fell off the rack.  In 
 
            an attempt to avoid having the pig fall on him, he jumped 
 
            back and while off balance, twisted his back and neck.  He 
 
            testified that he reported the incident to his supervisor, 
 
            Dan Griffin, and was told that an incident report would be 
 
            completed at the end of the work shift.  He was also told to 
 
            report to the infirmary for back massages.  Despite 
 
            complaints of back and neck pain and ineffective massages, 
 
            the company refused to allow him to see a doctor for 
 
            assessment of his pain.  Claimant testified that during the 
 
            three weeks following the incident, his back pain became 
 
            worse and he decided to quit his job and return to Texas.  
 
            While in Texas, he reported to Lofland Trucking in an 
 
            attempt to secure a truck driving position.  He was told 
 
            that his physical examination revealed back problems and he 
 
            could not be rehired.  Claimant testified that in mid-July 
 
            1989, he went to Michigan, where he had worked before, and 
 
            applied for a truck driving job with Chase Farms.  He was 
 
            not required to take a physical examination or undergo 
 
            x-rays.  He worked three round trips for Chase Farms between 
 
            July 17 and October 17, 1989.  
 
            
 
                 Claimant testified that he was off work between October 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            17, 1989 and May of 1990.  On November 13, 1989, he moved to 
 
            Juarez, Mexico.  He returned to Fort Worth, Texas, in May of 
 
            1990.  On May 21, 1990, he was hired by a friend to work as 
 
            a waiter.  He worked part-time between May 21 and September 
 
            16, 1990.  He quit because he was unable to carry boxes of 
 
            beer and pop.  He stated he was advised by his doctors to 
 
            apply for social security benefits because of his back 
 
            problems.  He did so on September 20, 1990. 
 
            
 
                 A review of the pertinent medical evidence of record 
 
            reveals that claimant was examined on June 5, 1989, pursuant 
 
            to his application for employment at Lofland Company.  
 
            Lumbar spine x-rays were taken and according to Charles 
 
            Bailei, M.D., revealed moderate narrowing of the L5-S1 disc 
 
            space.  This was considered a Class III back condition and 
 
            disqualified claimant from performing work as a truck driver 
 
            (exhibit B).  
 
            
 
                 Claimant testified that he was so depressed by this 
 
            rejection that he went to Juarez, Mexico, on June 12, 1989, 
 
            and remained there until mid-July when he went to Michigan 
 
            to work for Chase Farms.  While in Mexico, he received 
 
            medical treatment in the nature of acupuncture and physical 
 
            therapy.  There are no medical records regarding treatment.
 
            
 
                 As previously noted, claimant was in Mexico from 
 
            November 13, 1989 through May of 1990.  Upon his return to 
 
            the United States, he procured a job as a part-time waiter 
 
            at Poncho's Restaurant.  On August 10, 1990, claimant 
 
            presented to Matthew Jernigan, D.C., at Chiro-Tech 
 
            Chiropractic Rehabilitation Center in Fort Worth, Texas.  
 
            His complaints were referable to left arm pain, pain in his 
 
            fingers, bilateral shoulder pain, headaches, and neck pain.  
 
            Claimant became involved in an active chiropractic treatment 
 
            program, but his symptomology persisted.  Dr. Jernigan then 
 
            referred claimant to Russell Zepeda, M.D., for further 
 
            evaluation.  The claimant's complaints were referable to 
 
            bilateral posterior cervical pain and bilateral lumbar pain.  
 
            Dr. Zepeda recommended continued chiropractic and physical 
 
            therapy.  
 
            
 
                 On October 26, 1990, claimant underwent a CT scan of 
 
            the lumbar spine.  There were no positive CT findings at 
 
            L3-4 (ex. 7).  
 
            
 
                 Despite a regimen of chiropractic treatments and 
 
            physical therapy, claimant's symptomatology persisted.  
 
            Therefore, Dr. Jernigan referred him for an MRI on November 
 
            7, 1990.  The results were consistent with an early 
 
            degenerative disc disease at L5-S1 with slight annular bulge 
 
            (ex. 8).  Due to the positive findings on MRI, Dr. Jernigan 
 
            referred claimant to Bruce Hinkley, M.D., board certified 
 
            orthopedic surgeon (ex. 1-2).
 
            
 
                 Claimant saw Dr. Hinkley on December 19, 1990.  On 
 
            examination, he demonstrated left L5 and S1 weakness as well 
 
            as a left L5 and left S1 hypesthesia.  A review of his films 
 
            showed rather definitive disc pathology at L5-6 with signal 
 
            change and protrusion.  It was Dr. Hinkley's opinion that 
 
            with his neurologic findings and the length of time since 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            his injury, operative intervention is warranted.  He 
 
            suggested an epidural steroid and L5-6 facet injections in 
 
            order to document the level of damage followed by a 
 
            discography and myelography (ex. 3).
 
            
 
                 On February 27, 1991, claimant underwent a lumbar 
 
            myelogram and CT scan of the lumbar spine.  On March 13, 
 
            1991, he underwent a lumbar discogram and postdiscogram CT 
 
            scan (ex. 4).  On March 26, 1991, Dr. Hinkley concluded that 
 
            claimant had a disc disruption of the L5-L6, L6-S1 levels 
 
            (ex. 3, p. 4).  Dr. Hinkley proposed a spinal fusion with 
 
            decompression to the defected disc levels (ex. 3, p. 5).  
 
            
 
                 The record contains a letter dated June 28, 1991, from 
 
            Kathy Lantz, workers' compensation examiner, to John 
 
            Stasikowski, M.D.  Ms. Lantz referred claimant to Dr. 
 
            Stasikowski for examination on July 24, 1991 (ex. 6).
 
            
 
                 Dr. Stasikowski saw claimant on July 24, 1991.  He 
 
            reviewed Dr. Hinkley's records and previously taken 
 
            diagnostic studies.  He obtained x-rays of the cervical, 
 
            thoracic and lumbosacral spine.  A diagnosis of lumbosacral 
 
            spine degenerative disc disease was made (ex. A, pp. 8-13). 
 
            
 
                 Dr. Stasikowski saw claimant again on August 26, 1992.  
 
            After reviewing claimant's medical history, noting his 
 
            complaints and conducting a physical examination, Dr. 
 
            Stasikowski's diagnosis remained the same as per his July 
 
            25, 1991, report.  He stated that claimant's partial 
 
            permanent medical impairment ranged from 0 to 5 percent.  He 
 
            then stated that his permanent impairment rating with regard 
 
            to the degenerative disc disease is 2 1/2 percent.  He 
 
            opined, without explanation, that none of claimant's 
 
            impairment relates to a work-related injury in May of 1989 
 
            (ex. A, pp. 1-5).
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 Defendant asserts a notice defense under Iowa Code 
 
            section 85.23, which provides:
 
            
 
                    Unless the employer or the employer's 
 
                 representative shall have actual knowledge of the 
 
                 occurrence of an injury received within ninety 
 
                 days from the date of the occurrence of the 
 
                 injury, or unless the employee or someone on the 
 
                 employee's behalf or a dependent or someone on the 
 
                 dependent's behalf shall give notice thereof to 
 
                 the employer within ninety days from the date of 
 
                 the occurrence of the injury, no compensation 
 
                 shall be allowed.
 
            
 
                 Failure to give timely notice is an affirmative defense 
 
            which defendant must prove by a preponderance of the 
 
            evidence.  DeLong v. Highway Commissioner, 229 Iowa 700, 295 
 
            N.W. 91 (1940); Reddick v. Grand Union Tea Co., 230 Iowa 
 
            108, 296 N.W. 800 (1941); Mefferd v. Ed Miller & Sons, Inc., 
 
            Thirty-third Biennial Report of the Industrial Commissioner 
 
            191 (Appeal Decision 1977).
 
            
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                 The purpose of the 90-day notice requirement or the 
 
            actual knowledge requirement is to give the employer an 
 
            opportunity to timely investigate the circumstances of the 
 
            alleged injury.  Knipe v. Skelgas Company, 229 Iowa 740, 
 
            759, 294 N.W. 880, 884 (1941); Hobbs v. Sioux City, 231 Iowa 
 
            860, 2 N.W.2d 275 (Iowa 1942); Robinson v. Department of 
 
            Transportation, 296 N.W.2d 809 (Iowa 1980); Dillinger v. 
 
            City of Sioux City, 368 N.W.2d 176 (Iowa 1985).
 
            
 
                 Claimant contends that he notified his supervisor, Dan 
 
            Griffin, immediately after the incident on May 1, 1989.  
 
            Claimant testified that Mr. Griffin told him that he would 
 
            file a first report of injury.  Claimant testified that he 
 
            received periodic back massages by the company nurse.  
 
            Defendant attempted to refute claimant's testimony through 
 
            Cheryl Schmitt, one of employer's nurses.  Ms. Schmitt 
 
            produced claimant's medical card (exhibit E) and stated that 
 
            such card indicates that claimant received no medical 
 
            treatment in the infirmary.  However, she also admitted that 
 
            she worked the morning shift (9 a.m. to 5 p.m.) and that 
 
            back rubs are not recorded on the medical card.  
 
            
 
                 Iowa Code section 86.11 provides in pertinent part 
 
            that:
 
            
 
                    The report to the industrial commissioner of 
 
                 injury shall be without prejudice to the employer 
 
                 or insurance carrier and shall not be admitted in 
 
                 evidence or used in any trial or hearing before 
 
                 any court, the industrial commissioner or a deputy 
 
                 industrial commissioner except as to the notice 
 
                 under section 85.23.
 
            
 
                 The employer's work injury report in this case is dated 
 
            September 28, 1990.  On this report, employer indicated that 
 
            they first knew of claimant's condition in May 1989.  
 
            Defendant alleges that this is in error.  However, they 
 
            failed to produce testimony from the preparer of the report 
 
            or Mr. Griffin and instead relied on a letter written by 
 
            Kathy Lantz to Dr. Stasikowski dated June 28, 1991, which 
 
            stated, "On September 28, 1990, Mr. Olquin [sic] contacted 
 
            us alleging that he was having back problems arising out of 
 
            an injury with us.  This was our first knowledge of any 
 
            claim,... (ex. A, p. 14).
 
            
 
                 The undersigned concludes that claimant's testimony 
 
            regarding verbal notice of the incident to his supervisor is 
 
            credible.  Defendant did not produce any evidence to support 
 
            the burden of proof of its affirmative defense that it did 
 
            not have knowledge regarding claimant's work-related injury.  
 
            Defendant did not produce Dan Griffin or the preparer of the 
 
            first report of injury.  Claimant's recitation of the events 
 
            surrounding notice to his supervisor is accepted as what 
 
            actually occurred.  Therefore, defendant fails to prove by a 
 
            preponderance of the evidence that it did not have actual 
 
            notice of an injury arising out of and in the course of 
 
            employment.  
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that he received an injury on May 1, 1989, 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            which arose out of and in the course of his employment. 
 
            McDowell v. Town of Clarksville, 241 N.W.2d 904, 908 (Iowa 
 
            1976); Musselman v. Central Telephone Co., 154 N.W.2d 128, 
 
            130 (Iowa 1967).  The words "arising out of" have been 
 
            interpreted to refer to the cause and origin of the injury.  
 
            McClure v. Union County, 188 N.W.2d 283, 287 (Iowa 1971);   
 
            Crowe v. DeSoto Consolidated School District, 68 N.W.2d 63, 
 
            65 (Iowa 1955).  The words "in the course of" refer to the 
 
            time, place and circumstances of the injury.  McClure, 188 
 
            N.W.2d at 287; Crowe, 68 N.W.2d at 65.  An injury occurs in 
 
            the course of the employment when it is within the period of 
 
            employment at a place the employee may reasonably be, and 
 
            while the employee is doing work assigned by the employer or 
 
            something incidental to it.  Cedar Rapids Community School 
 
            District v. Cady, 278 N.W.2d 298, 299 (Iowa 1979), McClure, 
 
            188 N.W.2d at 287; Musselman, 154 N.W.2d at 130. 
 
            
 
                 The supreme court has defined a personal injury for the 
 
            purposes of workers' compensation cases.  Almquist v. 
 
            Shenandoah Nurseries, 254 N.W. 35, 38 (Iowa 1934).  In this 
 
            case the court found that a personal injury, is an injury to 
 
            the body, the impairment of health, or a disease, not 
 
            excluded by the Workers Compensation Act, which comes about, 
 
            not through the natural building up and tearing down of the 
 
            human body, but because of a traumatic or other hurt or 
 
            damage to the health or body of an employee.  The injury to 
 
            the human body must be something, whether an accident or 
 
            not, that acts extraneously to the natural processes of 
 
            nature, and thereby impairs the health, overcomes, injures, 
 
            interrupts, or destroys some function of the body, or 
 
            otherwise damages or injures a part or all of the body.  
 
            
 
                 The Almquist court further observed that while a 
 
            personal injury does not include an occupational disease 
 
            under the Workmen's Compensation Act, yet an injury to the 
 
            health may be a personal injury.  A personal injury includes 
 
            a disease resulting from an injury.  However, the result of 
 
            changes in the human body incident to the general processes 
 
            of nature do not amount to a personal injury.  This is true, 
 
            even though natural change may come about because the life 
 
            has been devoted to labor and hard work.  Results of those 
 
            natural changes do not constitute a personal injury even 
 
            though the same brings about impairment of health or the 
 
            total or partial incapacity of the functions of the human 
 
            body. 
 
            
 
                 The supreme court has also recognized that a cumulative 
 
            injury may occur over a period of time.  The injury in such 
 
            cases occurs when, because of pain or physical disability, 
 
            the claimant is compelled to leave work.  McKeever Custom 
 
            Cabinets v. Smith, 379 N.W.2d 368, 374 (Iowa 1985).  
 
            Moreover, claimant's last employer becomes liable for the 
 
            cumulative injury, even if the incidents that lead to the 
 
            ultimate injury do not occur while a claimant is employed 
 
            with the last employer.  McKeever, 379 N.W.2d at 376; See 
 
            also, Doerfer Division of CCA v. Nicol, 359 N.W.2d 428, 
 
            434-35 (Iowa 1984).
 
            
 
                 The greater weight of the uncontroverted medical 
 
            evidence is that claimant was asymptomatic as to neck and 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            back pain prior to May 1, 1989.  Claimant's testimony 
 
            regarding the work incident on May 1, 1989, is found 
 
            credible.  Defendant produced no evidence to the contrary.
 
            
 
                 Accordingly, claimant has met his burden of proof in 
 
            this regard and has shown by a preponderance of the evidence 
 
            that he sustained a neck and back injury arising out of and 
 
            in the course of employment with employer.
 
            
 
                 Since claimant has suffered an injury, the next 
 
            question to be resolved is whether the injury has caused a 
 
            permanent disability.  The claimant has the burden of 
 
            proving by a preponderance of the evidence that the injury 
 
            of May 1, 1989, is causally related to the disability on 
 
            which he now bases his claim.  Bodish v. Fischer, Inc., 133 
 
            N.W.2d 867, 868 (Iowa 1965);  Lindahl v. L. O. Boggs, 18 
 
            N.W.2d 607, 613-14 (Iowa 1945).  A possibility is 
 
            insufficient; a probability is necessary.  Burt v. John 
 
            Deere Waterloo Tractor Works, 73 N.W.2d 732, 738 (Iowa 
 
            1955).  The question of causal connection is essentially 
 
            within the domain of expert testimony.  Bradshaw v. Iowa 
 
            Methodist Hospital, 101 N.W.2d 167, 171 (Iowa 1960).  Expert 
 
            medical evidence must be considered with all other evidence 
 
            introduced bearing on the causal connection.  Burt, 73 
 
            N.W.2d at 738.  The opinion of the experts need not be 
 
            couched in definite, positive or unequivocal language.  
 
            Sondag v. Ferris Hardware, 220 N.W.2d 903, 907 (Iowa 1974).  
 
            Moreover, the expert opinion may be accepted or rejected, in 
 
            whole or in part, by the trier of fact.  Sondag, 220 N.W.2d 
 
            at 907.  Finally, the weight to be given to such an opinion 
 
            is for the finder of fact, and that may be affected by the 
 
            completeness of the premise given the expert and other 
 
            material circumstances.  Bodish, 133 N.W.2d at 870; 
 
            Musselman, 154 N.W.2d at 133.  The supreme court has also 
 
            observed that greater deference is ordinarily accorded 
 
            expert testimony where the opinion necessarily rests on 
 
            medical expertise.  Sondag, 220 N.W.2d at 907.
 
            
 
                 The medical evidence in this case supports the finding 
 
            that claimant has a back impairment as a result of a work 
 
            injury on May 1, 1989.  X-rays on June 5, 1989, reveal 
 
            moderate narrowing of L5-S1 disc space.  Subsequent 
 
            diagnostic testing reveal disrupted discs at L5-6 and L6-S1.  
 
            Claimant's treating orthopedic surgeon, Dr. Hinkley, 
 
            recommended surgical intervention after a regimen of 
 
            conservative therapy proved unsuccessful.  Claimant has 
 
            worked sporadically since his injury and has not worked at 
 
            all since September 20, 1990.  At the present time, claimant 
 
            is not medically capable of returning to his prior work or 
 
            substantially similar employment and he has not achieved 
 
            maximum medical recovery.  Therefore, a finding of 
 
            permanency is premature.
 
            
 
                 Section 85.34(1) provides that healing period benefits 
 
            are payable to an injured worker who has suffered permanent 
 
            partial disability until (1) the worker has returned to 
 
            work; (2) the worker is medically capable of returning to 
 
            substantially similar employment; or (3) the worker has 
 
            achieved maximum medical recovery.  The healing period can 
 
            be considered the period during which there is a reasonable 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            expectation of improvement of the disabling condition.  See 
 
            Armstrong Tire & Rubber Co. v. Kubli, 312 N.W.2d 60 (Iowa 
 
            Ct. App. 1981).  Healing period benefits can be interrupted 
 
            or intermittent.  Teel v. McCord, 394 N.W.2d 405 (Iowa 
 
            1986).
 
            
 
                 Defendant shall pay claimant a running healing period 
 
            award commencing September 20, 1990, at the rate of $226.08 
 
            per week until the requirements of section 85.34(1) are met.  
 
            
 
                 Claimant shall promptly undergo the appropriate 
 
            surgical procedure as outlined by Dr. Hinkley and agreed to 
 
            by claimant.  The costs of such treatment shall be borne by 
 
            defendant under the terms of Iowa Code section 85.27.  
 
            
 
                 The final issue to be determined is claimant' 
 
            entitlement to medical benefits under Iowa Code section 
 
            85.27.
 
            
 
                 The employer shall furnish reasonable surgical, 
 
            medical, dental, osteopathic, chiropractic, podiatric, 
 
            physical rehabilitation, nursing, ambulance and hospital 
 
            services and supplies for all conditions compensable under 
 
            the workers' compensation law.  The employer shall also 
 
            allow reasonable and necessary transportation expenses 
 
            incurred for those services.  The employer has the right to 
 
            choose the provider of care, except where the employer has 
 
            denied liability for the injury.  Section 85.27; Holbert v. 
 
            Townsend Engineering Co., Thirty-second Biennial Report of 
 
            the Industrial Commissioner 78 (Review-reopen 1975).  
 
            Claimant has the burden of proving that the fees charged for 
 
            such services are reasonable.  Anderson v. High Rise 
 
            Construction Specialists, Inc., file number 850096 (Appeal 
 
            Decision July 31, 1990).
 
            
 
                 Claimant is not entitled to reimbursement for medical 
 
            bills unless claimant shows they were paid from claimant's 
 
            funds.  See Caylor v. Employers Mut. Casualty Co., 337 
 
            N.W.2d 890 (Iowa Ct. App. 1983).  
 
            
 
                 When a designated physician refers a patient to another 
 
            physician, that physician acts as the defendant employer's 
 
            agent.  Permission for referral from defendant is not 
 
            necessary.  Kittrell v. Allen Memorial Hospital, 
 
            Thirty-fourth Biennial Report of the Industrial Commissioner 
 
            164 (Arb. Decn. 1979) (aff'd by indus. comm'r).
 
            
 
                 An employer's right to select the provider of medical 
 
            treatment to an injured worker should be diagnosed, 
 
            evaluated, treated or other matters of professional medical 
 
            judgement.  Assman v. Blue Star Foods, Inc., file no. 866389 
 
            (declaratory Ruling, May 18, 1988).
 
            
 
                 Defendant has denied liability in this case.  Claimant 
 
            pursued medical treatment in the nature of chiropractic 
 
            manipulations and conservative physical therapy.  Such 
 
            treatment was not effective and did not improve claimant's 
 
            condition.  He sought treatment and assessment from an 
 
            orthopedic surgeon who has recommended surgery.  Defendant's 
 
            physician states, without explanation, that claimant's 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            condition does not warrant surgery.  In view of claimant's 
 
            medical history and his persistent symptomatology, the 
 
            undersigned agrees with his treating orthopedic surgeon that 
 
            surgery may be the most effective means of treatment.  
 
            Claimant's pursuit of medical care has not been 
 
            unreasonable.  All treatment modalities are causally related 
 
            to his injury and, therefore, are compensable.  Defendant is 
 
            responsible for payment of claimant's medical bills as 
 
            summarized in claimant's exhibit 10.  
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 That defendant pay to claimant healing period benefits 
 
            from September 20, 1990, until such time as claimant meets 
 
            the requirements found in Iowa Code section 85.34(1) for the 
 
            termination of healing period, at a rate of two hundred 
 
            twenty-six and 08/100 dollars ($226.08) per week.
 
            
 
                 That defendant pay to claimant medical expenses 
 
            incurred for treatment of his work-related injury as set out 
 
            in exhibit ten.  
 
            
 
                 That defendant pay the costs of surgery as recommended 
 
            by Dr. Hinkley.
 
            
 
                 That defendant pay accrued weekly benefits in a lump 
 
            sum.
 
            
 
                 That defendant pay interest pursuant to Iowa Code 
 
            section 85.30.
 
            
 
                 That defendant pay all costs pursuant to rule 343 IAC 
 
            4.33.
 
            
 
                 That defendant file claim activity reports as required 
 
            by the agency pursuant to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of October, 1992.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          JEAN M. INGRASSIA
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Tito Trevino
 
            Attorney at Law
 
            PO Box 1680
 
            Fort Dodge, Iowa  50501
 
            
 
            Mr. John Comer
 
            Attorney at Law
 
            PO Box 515 Department 41
 
            Dakota City, Nebraska  68731
 
            
 
            
 
            
 
            
 
                 
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
                      2800 51100 1802 2700
 
                      Filed October 26, 1992
 
                      Jean M. Ingrassia
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            TITO OLGUIN,                  :
 
                                          :
 
                 Claimant,                :      File No. 974008
 
                                          :
 
            vs.                           :
 
                                          :  A R B I T R A T I O N
 
            IBP, inc.,                    :
 
                                          :      D E C I S I O N
 
                 Employer,                :    
 
                 Self-Insured,            :      
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
            2800
 
            Defendant asserts a notice defense under Iowa Code section 
 
            85.23.  Defendant contends that claimant did not notify them 
 
            within 90 days of the alleged injury on May 1, 1989.  
 
            However, on the first report of injury, employer indicated 
 
            that they knew of claimant's condition in May 1989.  Iowa 
 
            Code section 86.11 provides in pertinent part that:
 
            
 
                 The report to the industrial commissioner of 
 
                 injury shall be without prejudice to the employer 
 
                 or insurance carrier and shall not be admitted in 
 
                 evidence or used in any trial or hearing before 
 
                 any court, the industrial commissioner or a deputy 
 
                 industrial commissioner except as to the notice 
 
                 under section 85.23.
 
            Defendant failed to prove by a preponderance of the evidence 
 
            that it lacked actual notice of claimant's injury.
 
            
 
            51100
 
            The greater weight of the uncontroverted medical evidence is 
 
            that claimant was asymptomatic as to neck and back pain 
 
            prior to May 1, 1989.  Claimant's testimony regarding the 
 
            work incident on May 1, 1989, is credible.  Defendant 
 
            produced no evidence to the contrary.
 
            
 
            1802
 
            Claimant entitled to a running healing period award 
 
            commencing September 20, 1990, the last time he was 
 
            employed, until the requirements of section 85.34(1) are 
 
            met.
 
            
 
            2700
 
            Defendant was orderd to pay for surgical treatment as 
 
            recommended by claimant's treating physician.
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            Since defendant denied liability, they do not have the right 
 
            to choose the provider of care.  Claimant's persuit of 
 
            medical care has not been unreasonable.  All treatment 
 
            modalities are causally related to his injury and, 
 
            therefore, are compensible.  Defendant is responsible for 
 
            payment of claimant's medical bills as summarized in his 
 
            exhibit 10.
 
            
 
            
 
 
            
 
            
 
            
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            JAMES STANDFIELD,     
 
                        
 
                 Claimant,                    File No. 974012
 
                        
 
            vs.                                 A P P E A L
 
                        
 
            THE DIAL CORPORATION,              D E C I S I O N
 
                        
 
                 Employer,   
 
                 Self-Insured,    
 
                 Defendant.       
 
            ____________________________________________________________
 
            
 
            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
 
            
 
            Defendant states the following issues on appeal:
 
            
 
            I.        Did the deputy err in admitting exhibits 31,32 and 
 
            33 into evidence?
 
            
 
            II.  Did the deputy err in determining claimant's disability 
 
            is causally connected to his injury of May 20, 1989?
 
            
 
            III. Did the deputy err in awarding permanent partial 
 
            disability benefits equal to five percent of the body as a 
 
            whole?
 
            
 
                               FINDINGS OF FACT
 
            
 
            The findings of fact contained in the proposed agency 
 
            decision filed November 30, 1993 are adopted as final agency 
 
            action.
 
            
 
                             CONCLUSIONS OF LAW
 
            
 
            The conclusions of law contained in the proposed agency 
 
            decision filed November 30, 1993 are adopted as set forth 
 
            below.  Segments designated by asterisks (*****) indicate 
 
            portions of the language from the proposed agency decision 
 
            that have been intentionally deleted and do not form a part 
 
            of this final agency decision.  Segments designated by 
 
            brackets ([ ]) indicate language that is in addition to the 
 
            language of the proposed agency decision.
 
            
 
                 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).
 

 
            
 
            Page   2
 
            
 
            
 
            
 
                 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).
 
            
 
                 Expert testimony that condition could be causally 
 
            related to claimant's employment together with non-expert 
 
            testimony tending to show causation may be sufficient to 
 
            sustain an award but does not compel an award.  Anderson v. 
 
            Oscar Mayer & Co., 217 N.W.2d 531 (Iowa 1974). 
 
            *****
 
            [Claimant bears the burden of proof to show that his 
 
            condition is causally connected to the work injury.  In this 
 
            case, claimant has offered only medical evidence that a 
 
            co-worker who was working under the same conditions suffered 
 
            adverse results, and that the co-worker's condition was 
 
            found by his doctors to be causally connected to the work 
 
            exposure.  That evidence deals with the co-worker only.  
 
            None of that evidence indicates that any of the doctors ever 
 
            examined claimant or offered an opinion in claimant's case.  
 
            In addition, even the medical evidence pertaining to the 
 
            co-worker is divided as to causal connection.  Claimant has 
 
            offered no explanation why medical evidence pertaining to 
 
            his condition was not presented.
 
            It is axiomatic that human bodies vary in their reactions to 
 
            outside factors, including exposure to Freon.  Medical 
 
            evidence is unique to each claimant.  Claimant has wholly 
 
            failed to offer evidence that his present loss of smell is 
 
            causally connected to his exposure to Freon.  Claimant 
 
            cannot "piggyback" another claimant's medical evidence to 
 
            satisfy his own burden of proof. 
 
            This is not to say that the evidence of a co-worker's 
 
            diagnosis and other medical evidence was irrelevant to 
 
            claimant's case.  Such evidence might well be relevant as 
 
            corroborative of claimant's other evidence pertaining to his 
 
            condition.  But, standing alone and in the absence of any 
 
            evidence whatsoever on the relationship between claimant's 
 
            condition and his work exposure, it must be concluded that 
 
            claimant has failed to carry his burden of proof.]
 
            WHEREFORE, the decision of the deputy is reversed.
 
            
 
                                    ORDER
 
            
 
            THEREFORE, it is ordered:
 
            That claimant shall take nothing from these proceedings.
 
            Signed and filed this ____ day of April, 1994.
 
            
 
            
 
            
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
                                    ________________________________
 
                                              BYRON K. ORTON
 
                                         INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. James P. Hoffman
 
            Attorney at Law
 
            Middle Road
 
            P.O. Box 1087
 
            Keokuk, Iowa 52632
 
            
 
            Mr. Greg A. Egbers
 
            Attorney at Law
 
            600 Union Arcade Bldg.
 
            111 East Third St.
 
            Davenport, Iowa 52801-1596
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                             2602
 
                                             Filed April 29, 1994
 
                                             BYRON K. ORTON
 
            
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            JAMES STANDFIELD,     
 
                        
 
                 Claimant,                    File No. 974012
 
                        
 
            vs.                                 A P P E A L
 
                        
 
            THE DIAL CORPORATION,              D E C I S I O N
 
                        
 
                 Employer,   
 
                 Self-Insured,    
 
                 Defendant.       
 
            ____________________________________________________________
 
            
 
            2602
 
            Claimant who suffered from exposure to freon did not offer 
 
            any medical evidence causally connecting his condition to 
 
            the work exposure.  Rather, claimant relied wholly on 
 
            medical evidence pertaining to a co-worker who suffered the 
 
            same exposure.  Held that although such evidence might be 
 
            relevant to corroborate medical evidence pertaining to 
 
            claimant, it did not satisfy claimant's burden of proof 
 
            standing alone and in the complete absence of medical 
 
            evidence relating to claimant.
 
            
 
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            JAMES STANDFIELD,   
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                                  File No. 974012
 
            THE DIAL CORPORATION,    
 
                                              A R B I T R A T I O N
 
                 Employer, 
 
                 Self-Insured                     D E C I S I O N
 
                 Defendant.     
 
                 
 
            ___________________________________________________________
 
                            STATEMENT OF THE CASE
 
                 
 
                 This is a proceeding in arbitration brought by the 
 
            claimant, James Standfield, against his self-insured 
 
            employer, The Dial Corporation, to recover benefits under 
 
            the Iowa Workers' Compensation Act, as a result of an injury 
 
            sustained on May 20, 1989.  This matter came on for hearing 
 
            before the undersigned deputy industrial commissioner in 
 
            Burlington, Iowa, on October 25, 1993.  A first report of 
 
            injury has been filed.  The record consists of the testimony 
 
            of claimant, of claimant's exhibits 1 through 22, 26 through 
 
            29, 30 through 33 as well as defendant's exhibit E.  
 
            Defendant's objections to exhibits 31, 32, and 33 are 
 
            expressly overruled.  While those exhibits do relate to an 
 
            individual other than claimant, the exhibits are relevant to 
 
            the issues the parties present here.
 
            
 
                                      ISSUES
 
            
 
                 Pursuant to the hearing report and the oral 
 
            stipulations of the parties at hearing, the parties have 
 
            agreed to the following:
 
            
 
                 1.  An employer-employer relationship existed between 
 
            claimant and the defendant on May 20, 1989;
 
            
 
                 2.  Claimant did receive an injury arising out of and 
 
            in the course of his employment on May 20, 1989; and
 
            
 
                 3.  Claimant had gross weekly earnings of $580 and was 
 
            single and entitled to two exemptions on May 20, 1989 
 
            resulting in a weekly rate of $335.64.
 
            
 
                 Issues remaining to be decided are:
 
            
 
                 1.  Whether a causal relationship exists between 
 
            claimant's injury and claimed disability;
 
            
 
                 2.  The nature and extent of any disability 
 
            entitlement; and
 
            
 
                 3.  Whether claimant is entitled to alternate medical 
 
            care pursuant to section 85.27.
 
            
 

 
            
 
            Page   2
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The deputy, having heard the testimony and considered 
 
            the evidence, finds:
 
            
 
                 Claimant is a 48-year-old gentleman who is certified in 
 
            refrigeration.  He has had several years of college and has 
 
            also taken community college courses and on-the-job training 
 
            with the employer in Freon use.  Claimant continues to work 
 
            for the employer.  He does not now work in any Freon 
 
            exposure areas.
 
            
 
                 In May 1989, claimant and several other employees 
 
            including Timothy Leazer were attempting to resolve a 
 
            problem with the plant's Freon based cold area cooling 
 
            system.  Claimant reported that the Freon in the atmosphere 
 
            was so high that it was not measurable on the Freon 
 
            monitors.  He indicated that throughout approximately a 
 
            three week period he worked up to 21 hours per day in this 
 
            setting.  Claimant reported that he lost his senses of taste 
 
            and smell after this exposure.  Claimant also reports that 
 
            he now loses his wind in stressful work situations and, 
 
            therefore, has to slow down.  
 
            
 
                 Claimant has not lost time on account of the May 20, 
 
            1989 injury.  The employer has moved claimant into the 
 
            warehouse where he is not exposed to Freon, asbestos, or 
 
            gases on a regular basis.  Claimant's number of work hours 
 
            per day and number of work days per week now are the same as 
 
            his hours and days before the injury.  Claimant was earning 
 
            between $8 and $9 per hour on May 20, 1989.  Claimant earns 
 
            $14.83 per hour now.  Claimant stated that Dial is likely to 
 
            switch to an ammonia based air-conditioning system in 1995, 
 
            given that federal [environmental] regulations will prohibit 
 
            use of Freon systems after that date.  Claimant stated he 
 
            could not work with an ammonia based system given his 
 
            inability to smell, in that undetected ammonia exposure can 
 
            be fatal. 
 
            
 
                 J. Kannenberg, M.D., a family physician and the company 
 
            physician, has seen claimant.  Claimant acknowledged that 
 
            Dr. Kannenberg has not referred claimant to a specialist.  
 
            Claimant did state that Dr. Kannenberg has indicated he can 
 
            do no more for claimant, however.  
 
            
 
                 Claimant expressed his belief that employer supervisory 
 
            personnel had assured him that Mr. Leazer would be evaluated 
 
            at University of Iowa Hospitals and Clinics and were Mr. 
 
            Leazer to have positive results from that experience, 
 
            claimant would be referred to the Hospitals and Clinics for 
 
            an examination.
 
            
 
                 Freon health hazard information contained in the 
 
            Material Safety Data Sheets in the record do not list loss 
 
            of the senses of taste and smell as potential hazards of 
 
            Freon exposure.
 
            
 
                 Claimant had a chest x-ray on June 20, 1989.  The x-ray 
 
            showed shallow inspiration and thickened pleura or subpleura 
 
            fatty deposits along both chest walls but was otherwise 
 

 
            
 
            Page   3
 
            
 
            
 
            negative.  
 
            
 
                 A medical record of Rodrigo O. Kuljis, M.D., of the 
 
            University of Iowa Department of Neurology, regarding 
 
            Timothy Leazer and dated September 7, 1989, noted that Mr. 
 
            Leazer had anosmia and dysgeusia.  Taber's Encyclopedic 
 
            Medical Dictionary defines these as the absence of the sense 
 
            of smell and the perversion or impairment of the sense of 
 
            taste, respectively.  Dr. Kuljis stated that Mr. Leazer's 
 
            symptoms were of obscure cause and that the evidence was 
 
            insufficient to either rule out or rule in Freon as an agent 
 
            in their etiology.  
 
            
 
                 On October 5, 1989, Jeff Kaplan, M.D., of The 
 
            University of Iowa Department of Neurology, reported that on 
 
            Otolaryngology referral, the impression was that Mr. Leazer 
 
            had true anosmia, most likely secondary to Freon-12 
 
            exposure.  
 
            
 
                 David Tsen, M.D., was a second year resident in The 
 
            University of Iowa Department of Otolaryngology when deposed 
 
            in the matter of "Timothy Leazer v. Dial Corporation" on May 
 
            15, 1990.  Dr. Tsen opined that Mr. Leazer's anosmia was 
 
            permanent and that given Mr. Leazer's history and the ruling 
 
            out of other causes, his Freon-12 exposure likely produced 
 
            his anosmia.  Dr. Tsen admitted that at the time of his 
 
            deposition he had personally seen less than ten patients 
 
            with total losses of smell.  
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 We first consider the issue of causation.
 
            
 
                 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).
 
            
 
                 Expert testimony that condition could be causally 
 
            related to claimant's employment together with non-expert 
 
            testimony tending to show causation may be sufficient to 
 

 
            
 
            Page   4
 
            
 
            
 
            sustain an award but does not compel an award.  Anderson v. 
 
            Oscar Mayer & Co., 217 N.W.2d 531 (Iowa 1974). 
 
            
 
                  This case presents a unique situation in that the only 
 
            expert medical evidence bearing on the question of causation 
 
            does not relate expressly to claimant but instead to a 
 
            co-worker of claimant.  The record overall demonstrates that 
 
            the co-worker was subject to the same stresses and the same 
 
            Freon exposure as claimant, however.  The record does not 
 
            reflect any factors relative to the co-worker's overall 
 
            physical condition or relative to claimant's overall 
 
            physical condition which would suggest that different 
 
            etiologies as to each individual's impaired sense of taste 
 
            and loss of sense of smell are likely.  Given that, the 
 
            opinions as to causation or lack of causation as regards 
 
            claimant's co-worker can be relied upon in assessing the 
 
            causation issue relative to claimant.  The University of 
 
            Iowa Department of Neurology experts believe the evidence 
 
            was insufficient to either rule in or rule out Freon as the 
 
            cause of the co-worker's problems.  The University of Iowa 
 
            Department of Otolaryngology felt that on the basis of the 
 
            co-worker's history, the Freon-12 exposure was the probable 
 
            cause of the individual's loss of his sense of smell.  The 
 
            record demonstrates that following the period of Freon 
 
            exposure claimant and at least another co-worker of Mr. 
 
            Leazer's had similar symptoms.  The opinion expressed by the 
 
            department of otolaryngology and the lay evidence are 
 
            sufficient to establish a probable causal relationship 
 
            between the symptoms Mr. Leazer, claimant and another 
 
            co-worker manifested and the Freon exposure.  Claimant, 
 
            therefore, prevails as regard the causation issue.  
 
            
 
                 We consider the nature and extent of benefit 
 
            entitlement issue.  
 
            
 
                 Claimant acknowledges that claimant has lost no work 
 
            time on account of his injury.  Hence, claimant is not 
 
            entitled to any award of healing period or temporary total 
 
            disability.  The question then is whether claimant is 
 
            entitled to any permanent disability.  Claimant's Iowa City 
 
            physicians opine that claimant's co-worker's loss of his 
 
            sense of smell is likely permanent.  The evidence presented 
 
            suggests that this is the case for claimant as well.  Any 
 
            permanent disability must be evaluated under section 
 
            85.34(2)(u) in that neither the loss of the sense of smell 
 
            nor the impairment of the sense of taste are included as 
 
            scheduled member disabilities.  
 
            
 
                 Since claimant has an impairment to the body as a 
 
            whole, an industrial disability has been sustained.  
 
            Industrial disability was defined in Diederich v. Tri-City 
 
            Ry. Co., 219 Iowa 587, 258 N.W.2d 899 (1935) as follows: "It 
 
            is therefore plain that the legislature intended the term 
 
            `disability' to mean `industrial disability' or loss of 
 
            earning capacity and not a mere `functional disability' to 
 
            be computed in the terms of percentages of the total 
 
            physical and mental ability of a normal man."
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 

 
            
 
            Page   5
 
            
 
            
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, 
 
            experience, motivation, loss of earnings, severity and situs 
 
            of the injury, work restrictions, inability to engage in 
 
            employment for which the employee is fitted and the 
 
            employer's offer of work or failure to so offer.  Olson v. 
 
            Goodyear Serv. Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); 
 
            McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980); 
 
            Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 
 
            (1961).
 
            
 
                 Compensation for permanent partial disability shall 
 
            begin at the termination of the healing period.  
 
            Compensation shall be paid in relation to 500 weeks as the 
 
            disability bears to the body as a whole.  Section 85.34.
 
            
 
                 Claimant's age, education, qualifications, experience, 
 
            current earnings and secure employment with his long-term 
 
            employer all mitigate against a substantial industrial 
 
            disability award.  Nevertheless, claimant's loss of his 
 
            sense of smell precludes claimant working in areas where for 
 
            reasons of health or safety, perception and recognition of 
 
            possible emissions through one's sense of smell would be 
 
            necessary.  That inability to seek employment for which he 
 
            would otherwise be suited on account of his work-related 
 
            loss of sense of smell results in a current loss of job 
 
            mobility for claimant.  Current loss of job mobility is a 
 
            factor that may be assessed in considering industrial 
 
            disability.  At present, this does not represent a serious 
 
            detriment to claimant, however, in that the employer has 
 
            offered claimant work that does not require an ability to 
 
            smell potentially hazardous materials.  In balance, claimant 
 
            has demonstrated a 5 percent industrial disability on 
 
            account of his work injury.
 
            
 
                 Claimant seeks further medical care as regards his 
 
            condition. 
 
            
 
                 The employer shall furnish reasonable surgical, 
 
            medical, dental, osteopathic, chiropractic, podiatric, 
 
            physical rehabilitation, nursing, ambulance and hospital 
 
            services and supplies for all conditions compensable under 
 
            the workers' compensation law.  The employer shall also 
 
            allow reasonable and necessary transportation expenses 
 
            incurred for those services.  The employer has the right to 
 
            choose the provider of care, except where the employer has 
 
            denied liability for the injury.  Section 85.27.  Holbert v. 
 
            Townsend Engineering Co., Thirty-second Biennial Report of 
 
            the Industrial Commissioner 78 (Review-reopen 1975).
 
            
 
                 On this record, claimant has not established that 
 
            further care is either reasonable or necessary.  The 
 
            University of Iowa medical records indicate that claimant's 
 
            co-worker's loss of smell is permanent and not amenable to 
 
            treatment.  In that claimant's condition has been found to 
 
            have the same source and origin in a work-related Freon 
 
            exposure, of necessity, claimant's condition as well is 
 
            likely permanent and not amenable to further treatment.  
 
            Given that, further care and evaluation as regards the 
 
            treatment cannot be considered reasonable and necessary care  
 

 
            
 
            Page   6
 
            
 
            
 
            which defendants are obligated to provide.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Defendant pay claimant permanent partial disability 
 
            benefits for twenty-five (25) weeks at the rate of three 
 
            hundred thirty-five and 64/100 dollars ($335.64) with those 
 
            benefits to commence on May 20, 1989.
 
            
 
                 Defendant pay accrued amounts in a lump sum.  
 
            
 
                 Defendant pay interest pursuant to section 85.30 as 
 
            amended.
 
            
 
                 Defendant pay costs pursuant to rule 343 IAC 4.33.
 
            
 
                 Defendant file claim activity reports as the agency 
 
            orders.  
 
            
 
                 Signed and filed this ____ day of November, 1993.
 
            
 
            
 
            
 
                                          ______________________________
 
                                          HELENJEAN M. WALLESER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. James P. Hoffman
 
            Attorney at Law
 
            P.O. Box 1087
 
            Keokuk, IA  52632
 
            
 
            Mr. Greg A. Egbers
 
            Attorney at Law
 
            600 Union Arcade Bldg.
 
            111 East Third Street
 
            Davenport, IA  52801-1596
 
            
 
 
            
 
            
 
            
 
            
 
                                              1402.40, 1803
 
                                              Filed November 30, 1993
 
                                              Helenjean M. Walleser
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            JAMES STANDFIELD,   
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                                  File No. 974012
 
            THE DIAL CORPORATION,    
 
                                              A R B I T R A T I O N
 
                 Employer, 
 
                 Self-Insured                     D E C I S I O N
 
                 Defendant.  
 
            __________________________________________________________
 
            1402.40
 
            
 
                 In unique fact situation, medical records relative to 
 
            claimant's co-worker and not to claimant were found 
 
            sufficient together with supporting lay testimony establish 
 
            that claimant's loss of his sense of smell and impairment of 
 
            his sense of taste resulted from Freon exposure in the 
 
            course of his employment.  Claimant and several co-workers 
 
            were all exposed to the Freon simultaneously.  The employer 
 
            chose to send only one of the workers for examination and 
 
            evaluation.  All the workers described similar symptoms.  
 
            For that reason, the medical records as regards the only 
 
            worker sent for examination and evaluation were considered 
 
            with the evidence of similar exposure and the lack of 
 
            evidence of unique situations as regards the co-worker and 
 
            claimant which might have impacted on causation, such that 
 
            evidence in total was sufficient to establish causation in 
 
            claimant's case.  
 
            
 
            1803
 
            
 
                 Claimant who was certified in refrigeration and whom 
 
            the employer had accommodated awarded 5 percent permanent 
 
            partial industrial disability where claimant's loss of sense 
 
            of smell precluded claimant from working in environments 
 
            where he would need to distinguish potentially life 
 
            threating odors.