BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
                                         :
 
         TOM LYLE DESKIN,                :
 
                                         :
 
              Claimant,                  :
 
                                         :
 
         vs.                             :
 
                                         :        File No. 978786
 
         METRO AIR, INC.,                :
 
                                         :          A P P E A L
 
              Employer,                  :
 
                                         :        D E C I S I O N
 
         and                             :
 
                                         :
 
         AETNA CASUALTY & SURETY CO.,    :
 
                                         :
 
              Insurance Carrier,         :
 
              Defendants.                :
 
         _________________________________________________________________
 
         
 
              The record, including the transcript of the hearing before 
 
         the deputy and all exhibits admitted into the record, has been 
 
         reviewed de novo on appeal.
 
         
 
                                      ISSUES
 
         
 
              Defendants state the following issues on appeal:
 
         
 
              I.   Whether the work-related injury caused permanent 
 
              disability.
 
         
 
              II.  Whether the arbitration decision awarded the 
 
              claimant an erroneously high industrial disability.
 
         
 
              III. Whether claimant is entitled to payment of certain 
 
              medical expenses that were not authorized by the 
 
              defendants.
 
         
 
                             FINDINGS OF FACT
 
         
 
              The findings of fact contained in the proposed agency 
 
         decision filed April 14, 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.
 
         
 
                causal connection/entitlement/permanent disability
 
         
 

 
         
 
         Page   2
 
         
 
         
 
         
 
         
 
              It is determined that the injury was the cause of permanent 
 
         disability and that claimant sustained a 15 percent industrial 
 
         disability to the body as a whole and that claimant is entitled 
 
         to 75 weeks of permanent partial disability benefits.
 
         
 
               Claimant, born December 10, 1957, was 33 years old at the 
 
         time of the injury and 35 years old at the time of the hearing.  
 
         He completed high school, two years of college and truck driving 
 
         school which lasted four to six weeks.  His primary occupation 
 
         has been an over-the-road truck driver.  He performed clerical 
 
         work in the air force for two years and was honorably discharged.  
 
         He also performed clerical work for his father for short periods 
 
         of time obtaining information from courthouse records to be used 
 
         in real estate appraisals.  Claimant denies and there is no 
 
         evidence of any prior back problems or workers' compensation 
 
         claims (Transcript pp. 61-72, 83 & 129).
 
         
 
               Claimant started to work for employer as an over-the-road 
 
         truck driver in August of 1990.
 
         
 
              Claimant injured his back on March 6, 1991 while unloading 
 
         freight at North Liberty, Iowa at approximately 4:00 a.m. in the 
 
         morning.  Claimant testified that a 600-pound crate toppled over 
 
         and caught his right hand in the metal binding strap.  He was 
 
         jerked forward and fell to his knees and hit his right arm and 
 
         right side on the side of the trailer.  Claimant testified that 
 
         he immediately experienced a burning sensation between his 
 
         shoulder blades and that he subsequently developed pain in his 
 
         mid to low back as well as headaches.  He reported the injury by 
 
         telephone to employer but managed to get the tractor back to Des 
 
         Moines with some difficulty.  Upon arriving back at the terminal 
 
         claimant reported to employer that he was going to the emergency 
 
         room to be treated for this injury (Tran. pp. 72-77).
 
         
 
              William Eischen, D.O., at the emergency room reported, 
 
         "Crate caught R hand it pulled him forward, pt states he 
 
         immediately experienced a burning sensation between shoulders.  
 
         Now has tingling type pain mid to low back with numbness tingling 
 
         sensation R side of back.  C/O headaches.  pt states he is unable 
 
         to straighten up." (Exhibit 1, p. 1).
 
         
 
               Dr. Eischen diagnosed dorsal spine strain and sprain (Ex. 
 
         2, p. 2).  Claimant was taken off work by Becky Davis-Kramer, 
 
         D.O., on March 6, 1991 (Ex. 3, p. 3).
 
         
 
              X-rays were taken of the cervical, dorsal and lumbar spine 
 
         on March 6, 1991.  The cervical films showed subtle early 
 
         degenerative disc disease at C-7, T-1 but no other cervical 
 
         abnormalities.  The thoracic spine repeated the reading for the 
 
         cervical spine and found minimal spondylosis but no signs of 
 
         fracture.  The lumbar spine disclosed L-5, S-1 degenerative 
 

 
         
 
         Page   3
 
         
 
         
 
         
 
         
 
         changes at their facets, spondylolysis, but no other 
 
         abnormalities of significance (Ex. 5, p. 5).
 
         
 
              Mark Rankleman, D.O., diagnosed dorsal muscle strain on 
 
         March 11, 1991 and ordered physical therapy and continued 
 
         claimant off work (Ex. 6, p. 6; Ex. 7, p. 7; Ex. 8, p. 8; Ex. 9, 
 
         p. 9 & 10).
 
         
 
              On March 14, 1991, Dr. Davis-Kramer diagnosed thoraco/lumbar 
 
         strain, continued claimant off work and ordered more physical 
 
         therapy (Ex. 10, p. 11).
 
         
 
              Next, claimant saw Daniel J. McGuire, M.D., an orthopedic 
 
         surgeon, on three occasions on March 25, April 8, and April 15, 
 
         1991.  Dr. McGuire also verified by his notes that claimant 
 
         complained of low back pain, upper back pain, neck pain, pain 
 
         into his shoulders and headaches.  Dr. McGuire recorded that over 
 
         the 19 days since the injury that his low back pain was almost 
 
         completely gone but that he had persistent neck, shoulder and 
 
         right arm discomfort.  He kept claimant off work and prescribed 
 
         medications and physical therapy.  
 
         
 
              Dr. McGuire estimated, "I think his time off work will be 
 
         three to six months.  His prognosis is excellent.  His permanent 
 
         partial disability should be in the single digits." (Ex. 13, p. 
 
         14).  
 
         
 
              Dr. McGuire talked about a bone scan because claimant had so 
 
         many areas of pain but there is no evidence from his notes or 
 
         otherwise in the record that a bone scan was performed at Dr. 
 
         McGuire's request.  
 
         
 
              A communication problem developed between claimant and Dr. 
 
         McGuire because claimant considered all of his various areas of 
 
         pain as one area of pain and Dr. McGuire considered them as 
 
         several areas of pain.  Dr. McGuire also became upset with 
 
         claimant because he complained to the nurse that he had to wait 
 
         45 minutes in a straight back chair with his back in pain in 
 
         order to see the doctor.  This seems to have greatly upset Dr. 
 
         McGuire.  Dr. McGuire stated on April 15, 1991, "I am unable to 
 
         communicate with him.  I apologized.  I think he should get a new 
 
         physician.  I called Aetna and talked to somebody there and told 
 
         them I was sorry I could not help this gentleman and that I felt 
 
         that we need to proceed with a different physician." (Ex. 13, p. 
 
         15).
 
         
 
              Claimant explained this incident as follows, 
 
              
 
                 And he told me that -- that I had -- that every time 
 
              I come in to see him that my pain would change 
 
              location, and I refuted with him saying, "It's always 
 
     
 
         
 
         
 
         Page   4
 
         
 
         
 
         
 
         
 
              been the same location.  I don't know who you're 
 
              getting me confused with."  And he told me that he 
 
              thought I should go see another doctor, so I did." (Ex. 
 
              C, p. 20).
 
         
 
              Claimant denied that he was rude to Dr. McGuire's nurse.  
 
         Claimant testified, "No, that's not true." (Tran. p. 116).
 
         
 
              Dr. McGuire wrote a letter to defendants' counsel on 
 
         September 1, 1993 in which he stated he did not find any evidence 
 
         of neurological damage.  He further stated that he did not doubt 
 
         that claimant may have some aches and pains following this work 
 
         incident based on subjective complaints but based on objective 
 
         physical examination and objective diagnostic studies he was 
 
         unable to place any permanent restrictions on him.  He further 
 
         stated that he could not give any objective reason to assign a 
 
         permanent impairment rating.  However, Dr. McGuire's office notes 
 
         do not show that he performed any objective tests nor are there 
 
         any introduced into evidence by either party.  Dr. McGuire did 
 
         suggest the bone scan but there is no evidence that one was 
 
         carried out at his request (Ex. 13, pp. 14 & 15).
 
         
 
              In his letter of September 1, 1993, Dr. McGuire suggested 
 
         that claimant possibly might be entitled to a 2 percent 
 
         disability rating.  Dr. McGuire stated,
 
              
 
                 Based on the fact that his initial problem was 
 
              "dorsal spine sprain and strain" and, according to the 
 
              AMA Guidelines, whether we use the Third or Fourth, it 
 
              makes no difference, someone could assign an impairment 
 
              of 2 percent as it pertains to his dorsal "thoracic" 
 
              spine.  I cannot give you an objective reason to do 
 
              that; but, since he claims his injury was to the 
 
              "dorsal spine", and there was no spasm or rigidity 
 
              noted and his CT scan and bone scan are benign, someone 
 
              could assign a 2 percent disability rating. (Ex. D, p. 
 
              2).
 
         
 
              It would appear that Dr. McGuire is making reference to the  
 
         Guides to the Evaluation of Permanent Impairment, Third Edition 
 
         Revised, Table 53. Impairments Due to Specific Disorders of the 
 
         Spine, 
 
              
 
              II. Intervertebral disc or other soft-tissue         
 
              lesions:  
 
              
 
              B. Unoperated, with medically documented injury and a 
 
              minimum of six months of medically documented pain and 
 
              rigidity with or without muscle spasm, associated with 
 
              none-to minimal degenerative changes on structural 
 
              tests 
 

 
         
 
         Page   5
 
         
 
         
 
         
 
         
 
              
 
              In the thoracic column it shows a percentage impairment 
 
              of the whole person of 2 percent.  This is found on 
 
              page 80 of the Revised Third Edition.  
 
         
 
              It would further appear that Dr. McGuire is relying on a 
 
         bone scan and CT scan taken by other physicians since his records 
 
         do not show any diagnostic tests were actually taken by him.  
 
         
 
              The worksheet of Dr. McGuire has a place to show what tests 
 
         were ordered.  The worksheet lists myelogram, CT scan, MRI, bone 
 
         scan, EMG and lab work.  There are no entries for any of these 
 
         tests and in the column "date scheduled" there is also no entries 
 
         (Ex. 14, p. 16).  Dr. McGuire did give the insurance carrier a 
 
         prescription for a whole body bone scan on April 19, 1991 but 
 
         there is no evidence that it was ever used (Ex. 15, p. 17).
 
         
 
              In conclusion, it would appear that even though Dr. McGuire 
 
         had communication problems and personality problems with 
 
         claimant, and even though he found no objective evidence of 
 
         impairment, he nevertheless, granted that it was possible for 
 
         claimant to have a 2 percent permanent impairment based upon his 
 
         continuing subjective symptoms of pain in the thoracic spine. 
 
         
 
              Claimant testified that the insurance carrier then directed 
 
         him to see William R. Boulden, M.D., an orthopedic surgeon, on 
 
         April 25, 1991 (Tran. p. 83; Ex. C, p. 21).  
 
         
 
              Dr. Boulden also verified that claimant had complaints in 
 
         all three segments of his back --- lumbar, thoracic and cervical.  
 
         The opening sentence in Dr. Boulden's notes are as follows, "Tom 
 
         is a 33 year old truck driver who is here with low back pain, 
 
         upper lumbar pain, neck and shoulder pain." (Ex. 16, p. 18).  Dr. 
 
         Boulden also related that claimant had been treated for his neck 
 
         and that his neck seemed to be getting better but that claimant 
 
         felt that his back pain was worsening.  Dr. Boulden ordered a 
 
         limited CAT scan from L3 to S1 which turned out to be very normal 
 
         in appearance (Ex. 17, p. 20 & Ex. E).
 
         
 
              Dr. Boulden recommended back conditioning exercises 
 
         preparatory to work hardening  and an eventual return to work in 
 
         five weeks (Ex. 16, p. 18 to Ex. 19, p. 22).  Claimant testified 
 
         that the restrictions under which Dr. Boulden returned him to 
 
         work would not enable him to work with any other trucking company 
 
         in the industry, but that employer did agree to accommodate him 
 
         by honoring these restrictions (Ex. C, pp. 21 & 22).  
 
         
 
              The first release signed by Dr. Boulden is dated July 3, 
 
         1991.  It states that claimant is released back to work on July 
 
         8, 1991 because no heavy lifting will be required of him.  The 
 
         release states, "On 7-8-91 this patient is released back to work  
 

 
         
 
         Page   6
 
         
 
         
 
         
 
         
 
         Reports to follow no lifting restrictions based on patient 
 
         information that no heavy lifting is required.  Should take 
 
         intermittent breaks." (Ex. 20, p. 23).  
 
         
 
              Thus, it would appear that since employer had agreed to 
 
         accommodate claimant with no heavy lifting it was not necessary 
 
         for Dr. Boulden to write this in his release specifically (Ex. C, 
 
         p. 22; Tran. p. 88).  At the same time it is clear that claimant 
 
         was restricted from performing heavy lifting.
 
         
 
              Claimant testified at the hearing that he showed the 
 
         restrictions to employer and they agreed to palletize the loads 
 
         so that there would be no lifting.
 
         
 
              Dr. Boulden issued a similar release dated July 12, 1991, in 
 
         which he stated that, "This patient is released back to work with 
 
         driving for 40-45 minutes, Stop, walk around, extend for 1-2 
 
         minutes" (Ex. 21, p. 24).  
 
         
 
              Claimant testified that he did return to work for employer 
 
         with the understanding that these were his restrictions, however, 
 
         there were several occasions when the freight which came out of 
 
         Chicago was not palletized.  Therefore claimant could not carry 
 
         out the rest of his duties which were unloading the trailer.  
 
         Claimant testified there were two different occasions when he had 
 
         to call the supervisor that lives up in Iowa City or Cedar Rapids 
 
         to come down and help him unload the trailer (Tran. p. 90).   
 
         
 
              On July 23, 1991, Dr. Boulden stated, "Effective today, we 
 
         feel he has reached his maximum medical improvement.  Since we 
 
         have not found any type of operative lesion, we do not feel there 
 
         is any permanent disability rating." (Ex. 22, p. 25).
 
         
 
              On July 29, 1991, Dr. Boulden wrote to claimant's attorney 
 
         as follows:
 
              
 
                 ... I understand that the patient still has 
 
              symptoms, but basically, these symptoms we feel are 
 
              from the soft tissues of this back and we have not 
 
              found anything abnormal in his diagnosis from cast 
 
              [sic] scan or clinical examination.  We have not found 
 
              anything that can be treated surgically and he has 
 
              maxed out his conservative management.
 
              
 
                 I do not evaluate necks and am only a low back 
 
              specialist.  I have previously discussed that with him.
 
              
 
                 In reference to how long is [sic] pain will be 
 
              present, I am afraid that as long as he is a truck 
 
              driver, there will always be some components of pain 
 
              based on the fact of that type of occupation.  I do not 
 
     
 
         
 
         
 
         Page   7
 
         
 
         
 
         
 
         
 
              recommend pain pills to treat pain in the back since it 
 
              is a very poor choice of therapy.
 
              
 
                 The only treatment that he needs to do is properly 
 
              use his back and maintain himself in good physical 
 
              shape and in the future consider alternative type of 
 
              work from the stand point that truck drivers are 
 
              notorious for developing back problems (Ex. 23, p. 26).
 
         
 
              On August 8, 1991, Dr. Boulden wrote to the insurance 
 
         carrier as follows,
 
              
 
                 I believe you have a copy of the patient's 
 
              functional capacities evaluation by this point.
 
              
 
                 We do not recommend any further treatment.  He has 
 
              been maxed out in his treatment and no surgery is 
 
              expected to help him.
 
              
 
                 I feel that he has reached his maximum medical 
 
              improvement as to 7/23/91.
 
              
 
                 The main problem that I have is the fact that the 
 
              patient will definitely have a problem returning back 
 
              to being a truck driver.  Truck driving, as you well 
 
              know, shows a high incidence of low back problems.  I 
 
              think that type of work may continue to aggravate his 
 
              back.
 
              
 
                 I do not feel that the patient has sustained any 
 
              type of permanent injuries since we have not identified 
 
              any pathology (Ex. 24, p. 28).  
 
         
 
              On July 3, 1991, Thomas W. Bower, L.P.T., who conducted the 
 
         therapy program prescribed by Dr. Boulden wrote as follows,
 
              
 
                 The patient demonstrates full range of motion at 
 
              this time, and although he still has some thoracic 
 
              spine pain, the lower back is completely normal in 
 
              terms of function and pain.
 
              
 
                 ....
 
              
 
                 We have given this patient a return to work 
 
              effective July 8, 1991 for full release under the 
 
              present restrictions, although this patient tells me 
 
              that he is not going to have to do any heavy lifting.  
 
              There is some concern that the long distance driving is 
 
              going to be a problem, and I have advised him to not 
 
              sustain a sitting position for longer than 30 to 45 
 
              minutes at a time.
 

 
         
 
         Page   8
 
         
 
         
 
         
 
         
 
              
 
                 The following restrictions would apply to this 
 
              individual:
 
                   
 
                             MAXIMUM   FREQUENT   REPETITIVE 
 
              POSITION         LIFT      LIFT       LIFT
 
         
 
              Floor to waist   70 lbs.   42 lbs.   32 lbs.
 
              Overhead         50 lbs.   40 lbs.   30 lbs.
 
              Carry            72 lbs.   42 lbs.   32 lbs.
 
              Push/Pull       185 lbs.   (Ex. 31, p. 37 & 38)
 
         
 
              Claimant testified that Mr. Bower gave an evaluation at the 
 
         end of the physical therapy and he was pushed to do as well as he 
 
         could.  He agreed that he did that and was able to lift those 
 
         weights, "... but then after I did this, then my back was always 
 
         in so much pain I couldn't do anything of any good for about the 
 
         next day and a half.  So I mean, I could do that; but after I did 
 
         that, I was in extreme pain." (Ex. C, p. 23).
 
         
 
              On July 23, 1991, Mr. Bower wrote,
 
              
 
                 I have seen Tommy Deskin with Dr. Boulden today, in 
 
              Dr. Boulden's office.  Mr. Deskin has been return (sic) 
 
              to work, as you well know, and apparently has not done 
 
              terribly well.  He continues to insist that he has 
 
              something substantially abnormal with his back.
 
              
 
                 Dr. Boulden has told Mr. Deskin today that there is 
 
              no surgical lesion that can be corrected and as a 
 
              matter of fact, he will likely have to live with the 
 
              problem.  Mr. Deskin is not happy with that response 
 
              and apparently is seeking other opinions.
 
              
 
                 We, at this time, have nothing further to offer Mr. 
 
              Deskin.  Based on the previous functional capacity that 
 
              was done, he still falls within the limits of his 
 
              previous job. (Ex. 32, p. 39).
 
         
 
              Mr. Bower neglected to say that he still falls within the 
 
         limits of his previous job, provided (1) that he performs no 
 
         heavy lifting and (2) he stops the truck every 40 to 45 minutes, 
 
         walks around and extends his back for one to two minutes (Ex. 20, 
 
         p. 23; Ex. 21, p. 24).  
 
         
 
              Thus, even though Dr. Boulden could not find a surgical 
 
         lesion, and his limited CT scan from L3 through S1 found no 
 
         objective evidence to account for claimant's continuing pain, and 
 
         Dr. Boulden as a low back specialist could not find any permanent 
 
         or functional impairment of the lumbar spine, Dr. Boulden, 
 
         nevertheless, indicated that claimant (1) was restricted from 
 

 
         
 
         Page   9
 
         
 
         
 
         
 
         
 
         heavy lifting, (2) that claimant should stop the truck every 
 
         forty to forty-five minutes, walk around and extend his back for 
 
         one to two minutes, (3) that as long as he continued to drive a 
 
         truck he will continue to have problems and (4) that he should 
 
         look for an alternative type of work.  
 
         
 
              Thus, even though Dr. Boulden did not assess a permanent 
 
         impairment rating, he nevertheless indicated that claimant was 
 
         disabled in several respects from the occupation that he was 
 
         performing at the time this injury occurred.  
 
         
 
              Furthermore, all of his back problems became symptomatic 
 
         with this traumatic injury when the 600-pound crate fell and 
 
         caught claimant's hand in the metal strap and pulled him forward 
 
         down on his knees and his right side struck the trailer.  
 
         
 
              Even if claimant did not receive a physical impairment he 
 
         nevertheless has sustained an economic loss because of the 
 
         restrictions on his ability to drive a truck over the road.  
 
         Blacksmith v. All-American, Inc., 290 N.W.2d 348, 354 (Iowa 
 
         1980); McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980).
 
         
 
              Joann Bell testified that based upon the information in the 
 
         claim file that Dr. McGuire and Dr. Boulden were the only 
 
         designated treating physicians (Tran. p. 136 & 137).  She further 
 
         testified that there was no reference in the file that Dr. 
 
         Rosenfeld was an authorized treating physician (Tran. p. 138).
 
         
 
              Claimant testified that he next consulted Marvin H. 
 
         Dubansky, M.D., another orthopedic surgeon, on the advice of his 
 
         previous attorney (Ex. C, p. 24 & Tran. p. 95).  
 
         
 
              Claimant explained that after Dr. Boulden released him he 
 
         was not able to get any further treatment even though he 
 
         continued to have continuing back pain.  Claimant testified, "My 
 
         health insurance wouldn't pay for it because it was work related, 
 
         and Aetna [the workers' compensation insurance carrier] was more 
 
         or less telling me that I had to go with what that doctor said or 
 
         nothing at all." (Tran. p. 84).
 
         
 
              Claimant saw Dr. Dubansky on July 26, 1991 (Tran. pp. 95 & 
 
         123; Ex. 34).  Claimant again described his initial symptoms as 
 
         severe pain, unable to stand upright, popping and cracking in the 
 
         spine and neck (Ex. 33, pp. 40, 41, 42 & 43).  In the diagram 
 
         completed by claimant for Dr. Dubansky claimant illustrated that 
 
         he had an ache in his neck but the main pain was between his 
 
         shoulder blades and that he had a stabbing sensation in the upper 
 
         dorsal spine (Ex. 33, p. 44).  This is the area where Dr. McGuire 
 
         indicated that claimant might have a 2 percent permanent 
 
         impairment based on long-term pain from an established injury 
 
         which had persisted for more than six months.
 

 
         
 
         Page  10
 
         
 
         
 
         
 
         
 
         
 
              Dr. Dubansky reported on his first office note that 
 
         claimant's main complaint was cervical and thoracic strain caused 
 
         from the incident at work but that claimant denied that he has or 
 
         has had any pain in his lumbar area.  Claimant testified that Dr. 
 
         Dubansky prescribed medications and showed claimant a better way 
 
         to do the exercises that had been recommended by Dr. Boulden and 
 
         Mr. Bower (Tran. pp. 34, 47, & 48).
 
         
 
              Dr. Dubansky administered some trigger point injections in 
 
         the lower dorsal spine which provided some temporary relief on 
 
         August 9, 1991 and again on August 16, 1991 (Ex. 34, pp. 49 & 
 
         50).  Dr. Dubansky wrote that claimant insisted that Dr. Boulden 
 
         told him that there was a crack in his back and therefore Dr. 
 
         Dubansky ordered a bone scan on August 16, 1991 (Ex. 34, pp. 47, 
 
         49 & 50).  The bone scan dated August 20, 1991 showed no evidence 
 
         of fracture (Ex. 34, p. 51; Ex. 35, p. 52).  The cost of the bone 
 
         scan performed on August 20, 1991 was $366.35 (Ex. 23, p. 71).  
 
         
 
              It should be noted that the bone scan recommended and 
 
         prescribed by Dr. McGuire had never been performed.  It should be 
 
         noted also that the insurance carrier and employer have the right 
 
         to choose the care but do not have the right of determining what 
 
         care is to be provided.  The medical care is in the province of 
 
         the doctor chosen, not the insurance carrier.  Pote v. Mikow 
 
         Corp., File No. 694639 (Review-Reopening Decn., June 17, 1986).
 
         
 
              On August 30, 1991, Dr. Dubansky also ordered an MRI of the 
 
         dorsal spine for September 10, at 8:15 a.m. at Mercy Hospital.  
 
         The MRI was actually performed on September 20, 1991 at Mercy 
 
         Hospital at a cost of $1,191 (Ex. 44, p. 72).  The MRI results 
 
         are not in evidence in this case.  Defendants' description of 
 
         disputes presented at the time of hearing stated that both the 
 
         bone scan and MRI were normal (defendants' description of 
 
         disputes page 2).
 
         
 
              It should be noted that claimant's continuing complaints 
 
         were to his dorsal spine and that no objective tests had as yet 
 
         been performed on the dorsal spine until claimant saw Dr. 
 
         Dubansky.  Dr. McGuire discontinued seeing claimant without 
 
         performing any objective tests of any kind.  Dr. Boulden only 
 
         performed a CT scan of the lumbar spine from L3 through S1.  
 
         Thus, even though claimant had been complaining about his dorsal 
 
         spine ever since his first visit to the emergency room on the 
 
         date of the injury, the bone scan and MRI ordered by Dr. Dubansky 
 
         were the first objective tests ordered to attempt to make an 
 
         objective diagnosis of this portion of claimant's back.  
 
         Furthermore, claimant had not received a diagnosis on his dorsal 
 
         spine since the emergency room treatment at Des Moines General 
 
         Hospital.  Dr. McGuire diagnosed neck pain and Dr. Boulden 
 
         diagnosed and treated lumbar pain.
 

 
         
 
         Page  11
 
         
 
         
 
         
 
         
 
         
 
              Claimant testified that he returned to work from August 5, 
 
         1991 through November 28, 1991 (Tran. p. 100).  When claimant 
 
         returned to work at Metro Air it was with a partial release.  He 
 
         was not fully released (Ex. C, p. 25).  Claimant testified that 
 
         it was impossible to stop the rig every 40 to 45 minutes and 
 
         extend his back for one to two minutes because there are very few 
 
         places where you can park a big rig and get out and stretch.  The 
 
         other reason is because you are always on a tight time schedule 
 
         (Tran. p. 94 & 98).  Claimant related that the employer was 
 
         supposed to have the palletized loads which they did not do (Ex. 
 
         C, p. 25).
 
         
 
              Claimant further testified that he tried to limit his 
 
         lifting but on two occasions he had to call the guy that was in 
 
         charge at North Liberty to come down and unload his truck because 
 
         it was not loaded on pallets like it was suppose to have been 
 
         (Tran. p. 94).  Claimant testified that during this period of 
 
         time he worked 40 or more hours per week and had a good 
 
         attendance record (Tran. pp. 93 & 102).
 
         
 
              Claimant testified that he was terminated by the terminal 
 
         manager, Tom Olson, on Thanksgiving night, November 28, 1991 
 
         because he refused to take a load out when the roads were 80 to 
 
         100 percent ice covered and radio and television was advising 
 
         everyone to stay home (Ex. C, pp. 27 & 28; Tran. pp. 102 & 103).  
 
         Claimant testified that Olson said that, "as long as I can back 
 
         the truck into the dock, the truck was going out." (Ex. C, p. 
 
         28).
 
         
 
              Tom Olson, the terminal manager, was present at the hearing 
 
         but did not testify.  Therefore, claimant's testimony was not 
 
         controverted, contradicted, rebutted or refuted.  Thus, it must 
 
         be considered as the weight of the evidence on this point.  
 
         
 
              *****
 
         
 
              Claimant further testified that he was granted unemployment 
 
         compensation, employer appealed the award, and it was determined 
 
         that claimant was entitled to unemployment compensation.  It was 
 
         not shown claimant committed any misconduct by refusing to go out 
 
         on treacherous roads and highways (Ex. C, p. 29).  Again, Tom 
 
         Olson, terminal manager, was present at the hearing and 
 
         claimant's testimony was not controverted, contradicted, rebutted 
 
         or refuted.
 
         
 
              Claimant testified that he had no further medical care until 
 
         he saw Martin S. Rosenfeld, D.O., another orthopedic surgeon on 
 
         April 21, 1992 at the suggestion of his current attorney (Tran. 
 
         p. 103).  Dr. Rosenfeld related that there had always been 
 
         confusion because Dr. McGuire thought claimant was complaining of 
 

 
         
 
         Page  12
 
         
 
         
 
         
 
         
 
         neck problems and Dr. Boulden thought claimant was complaining of 
 
         low back problems, whereas, the pain has always been in the 
 
         thoracic-lumbar area.  Claimant testified that he has always 
 
         contended that the main pain was between his shoulder blades and 
 
         that has never changed (Tran. p. 115).  Claimant further 
 
         explained that the pain is in the middle of his back and that is 
 
         what he has complained about since day one (Tran. p. 117).  
 
         
 
              Dr. Rosenfeld diagnosed thoraco-lumbar strain with residual 
 
         myofascitis.  Dr. Rosenfeld contended that claimant needed 
 
         epidural steroid injections in the dorsal spine before he could 
 
         determine whether claimant had reached maximum medical 
 
         improvement.  
 
         
 
              With respect to causal connection, Dr. Rosenfeld stated, "It 
 
         would seem obvious to me that the March 06, 1991 injury is the 
 
         cause of his injury, continuing discomfort, complaints, and 
 
         problems." (Ex. 39, pp. 63 & 64).
 
         
 
              Dr. Rosenfeld testified live at the hearing that he had been 
 
         a board certified orthopedic surgeon since 1977.  The doctor 
 
         related that he recommended that epidural steroid injections be 
 
         given for the reason that the thoraco lumbar junction had never 
 
         yet been treated.  He further stated that claimant now had 
 
         chronic pain and needed treatment and medication for chronic pain 
 
         (Tran. pp. 30 & 31).  
 
         
 
              Claimant returned to Dr. Rosenfeld a little over a year 
 
         later on May 25, 1993, at which time Dr. Rosenfeld prescribed the 
 
         epidural steroid injections and Elavil.  The doctor said the 
 
         cause was for treatment of the injury which occurred on March of 
 
         1991 (Tran. pp. 37 & 38; Ex. 40, p. 66).
 
         
 
              These injections were administered on June 1, 1993, June 15, 
 
         1993, and June 21, 1993 at a cost of $1,116 (Ex. 42, p. 70).  On 
 
         July 23, 1990, Dr. Rosenfeld noted that claimant had a good 
 
         response to the epidural injections but that the discomfort 
 
         recurred, with the most discomfort in the intrascapular area.  He 
 
         concluded that since the injections had not significantly 
 
         improved his pain that he then felt that claimant had reached 
 
         maximum medical improvement.  The doctor said that claimant will 
 
         need retraining for a more sedentary occupation (Ex. 39, p. 67).  
 
         
 
              On August 10, 1993, Dr. Rosenfeld opined, "The diagnosis 
 
         remains thoraco-lumbar strain with residual myofascitis.  I do 
 
         believe he has a permanent physical impairment of seven (7%) 
 
         percent to the body as a whole as a result of the March 06, 1991 
 
         injury." (Ex. 40, p. 65).  Dr. Rosenfeld also testified at the 
 
         hearing that he used the Guides to the Evaluation of Permanent 
 
         Impairment published by the American Medical Association to 
 
         arrive at this rating.  He further stated that it was based upon 
 

 
         
 
         Page  13
 
         
 
         
 
         
 
         
 
         
 
         thoraco-lumbar strain and residual pain caused by the injury of 
 
         March 6, 1991 (Tran. pp. 37-41).
 
         
 
              Dr. Rosenfeld said that claimant was restricted from sitting 
 
         for prolonged periods of time and that he would have difficulty 
 
         loading, unloading, chaining and strapping loads.  He further 
 
         specified that these restrictions were caused by the injury of 
 
         March 6, 1991 (Tran. p. 43).  He added that there was no further 
 
         treatment or care that he recommended for claimant (Tran. p. 43).  
 
         
 
              Dr. Rosenfeld testified that the unpaid charges for his 
 
         services would amount to approximately $75 or $85, which he 
 
         considered fair and reasonable in this community (Tran. p. 43).
 
         
 
              Dr. Rosenfeld said he used Table 53 on page 80 of the Guides 
 
         to the Evaluation of Permanent Impairment, Third Edition Revised, 
 
         II Intervertebral disc or other soft-tissue lesions, C. 
 
         Unoperated, with medically documented injury and a minimum of six 
 
         months of medically documented pain and rigidity with or without 
 
         muscle spasm, associated with moderate to severe degenerative 
 
         changes on structural tests; includes unoperated herniated 
 
         nucleus pulposus with or without radiculopathy.
 
         
 
              Under questioning by opposing counsel Dr. Rosenfeld admitted 
 
         that he took the 7 percent from the lumbar column but that the 
 
         thoracic column only allowed a 3 percent impairment of the whole 
 
         person (Tran. p. 46).  He further admitted that neither Dr. 
 
         McGuire, Dr. Boulden or Dr. Dubansky found any rigidity (Tran. 
 
         pp. 46 & 47).  However, he said he found rigidity and that 
 
         statement was made in his report of April 21, 1992 when he found 
 
         that claimant had decreased side bending at the thoraco-lumbar 
 
         area (Ex. 39, pp. 63 & 64; Tran. pp. 48 & 49).
 
         
 
              Dr. Rosenfeld explained that the Guides are simply a guide.  
 
         He contended that he was still free to apply his own judgment and 
 
         he chose to rate claimant at 7 percent (Tran. pp. 51 & 52).  Dr. 
 
         Rosenfeld further explained that his rating was distinguished 
 
         from Dr. McGuire and Dr. Boulden because originally there was 
 
         neck pain and there was low back pain and that those resolved.  
 
         But he found the thoraco-lumbar pain was a residual that had not 
 
         been dealt with by either one of those doctors (Tran. p. 58).
 
         
 
              Claimant related that he can only sit for approximately 10 
 
         to 15 minutes before his back starts hurting and his neck starts 
 
         popping (Tran. pp. 105 & 106).  Claimant testified that he could 
 
         drive a truck but he would be in a lot of pain doing it.  
 
         Claimant testified that trucking companies are not interested in 
 
         him once they learn he has had a back injury and a workers' 
 
         compensation claim (Tran. p. 107).  Most of the time claimant's 
 
         back hurts in the same area if it hurts for a long time it 
 
         radiates into his shoulder or lower back (Ex. C, p. 34).
 

 
         
 
         Page  14
 
         
 
         
 
         
 
         
 
         
 
              Claimant testified that he was diagnosed as HIV positive on 
 
         July 6, 1992 (Tran. p. 131).  The medical records, however, show 
 
         that he has been hospitalized and treated for AIDS (Ex. 36, pp. 
 
         53-59; Ex. 36, p. 60; Ex. 38, p. 61).  When claimant was 
 
         hospitalized for Aids in July of 1992, he was given pain killers 
 
         for his back at that time (Ex. C, p. 33).  He further testified 
 
         that he has been dealing with the State of Iowa Rehabilitation 
 
         Service since 1992 and is waiting for a determination from them 
 
         as to whether he is disabled on account of his back or not before 
 
         they proceed with their program (Tran. pp. 111 & 112).
 
         
 
              Claimant was approved for social security disability as of 
 
         July 1992 with payments to begin January of 1993 (Ex. C, p. 32).
 
         
 
              Claimant testified that he was receiving $512 per month for 
 
         social security disability effective June of 1992 because they 
 
         consider the HIV diagnosis as disabling in itself (Tran. pp. 112, 
 
         113, 131 & 132).  
 
         
 
              Claimant testified that the doctors told him that he was 
 
         able to work in terms of daily exercutional abilities (Tran. p. 
 
         108).  Claimant maintained he could do office work or nonheavy 
 
         work (Tran. p. 109).  Furthermore, social security permitted him 
 
         to earn up to $1,000 per month (Tran. p. 113).  Claimant 
 
         testified that he is motivated to find work but it is difficult 
 
         to find a job truck driving, which is the only occupation he 
 
         knows, with his current restrictions (Tran. p. 114).  Claimant 
 
         further maintained that there are bigger rigs which would be 
 
         easier for him to drive because the ride is easier and he has 
 
         tried to limit his applications to these particular employers 
 
         (Tran. p. 127).  Claimant admitted he was not actively job 
 
         seeking at the time of his deposition on December 22, 1992 (Ex. 
 
         C, p. 6).
 
         
 
              Claimant's interrogatory number 16 shows 16 places where 
 
         claimant has applied for employment most of which appear to be 
 
         truck driving companies (Ex. A, p. 31).  The interrogatory is 
 
         dated September 14, 1992 (Ex. A, p. 2).
 
         
 
              Claimant testified that the applications for employment as a 
 
         truck driver all contained questions requesting information about 
 
         prior workers' compensation claims or time loss due to injuries 
 
         (Ex. C, p. 39).
 
         
 
              Based on the foregoing evidence it is determined that the 
 
         injury was the cause of permanent impairment and disability.  All 
 
         of the doctors proceeded on the history of this injury --- Dr. 
 
         McGuire, Dr. Boulden, Dr. Dubansky and Dr. Rosenfeld.  Dr. 
 
         Dubansky and Dr. Rosenfeld specifically stated that claimant's 
 
         complaints and problems were caused by this injury.  
 

 
         
 
         Page  15
 
         
 
         
 
         
 
         
 
         
 
              *****
 
         
 
              Claimant never was released to return to work as a truck 
 
         driver in the same capacity that he was performing prior to the 
 
         injury.  Dr. Boulden and Mr. Bower released claimant on the 
 
         restricted basis that he would not perform any heavy lifting, 
 
         that he would stop the truck every 40 to 45 minutes, walk around, 
 
         and extend his back for one to two minutes.  Thus, claimant is 
 
         permanently disabled by this injury based upon Dr. Boulden's 
 
         restrictions.  
 
         
 
              Dr. Rosenfeld found that claimant had sustained a 7 percent 
 
         permanent impairment of thoraco-lumbar spine which had not been 
 
         either diagnosed or treated by either Dr. McGuire or Dr. Boulden.  
 
         Dr. Rosenfeld further stated that claimant was restricted to 
 
         perform sedentary work (Ex. 39, p. 67).
 
         
 
              Thus, three out of four board certified orthopedic surgeons 
 
         found either some percentage of permanent physical impairment or 
 
         permanent disability after treating and examining claimant.  Dr. 
 
         Dubansky did not comment on either permanent impairment or 
 
         restrictions in this record.  
 
         
 
              [Dr. Maguire's opinion is read as an opinion that claimant 
 
         does not have any functional disability as a result of her work 
 
         injury.  Dr. Maguire's statement that "someone" could give 
 
         claimant a two percent permanent partial impairment rating falls 
 
         far short of a rating by Dr. Maguire.  Instead, Dr. Maguire's 
 
         testimony is read to state a rating of no permanent impairment. 
 
         
 
              Dr. Boulden states that claimant has no permanency and 
 
         declines to give a rating of impairment.  Yet, Dr. Boulden 
 
         imposes restrictions that severely restrict claimant's ability to 
 
         earn a living as a truck driver, and in fact he states that 
 
         continued truck driving will aggravate claimant's condition.  
 
         Taken as a whole, Dr. Boulden's testimony does set forth a 
 
         finding that claimant's work injury did result in a physical 
 
         impairment, even though Dr. Boulden does not assign a rating to 
 
         that impairment.  Before the work injury, claimant was able to 
 
         drive a truck and to sit for long periods of time; after the work 
 
         injury, Dr. Boulden states he cannot sit for longer than 30-45 
 
         minutes, and that he cannot drive a truck without aggravating his 
 
         condition.
 
         
 
              Dr. Dubansky expresses no opinion on permanency.
 
         
 
              Dr. Rosenfeld states that claimant does have a permanent 
 
         impairment as a result of his injury, and he rates it at seven 
 
         percent of the body as a whole.  However, cross-examination 
 
         suggests that if the AMA Guides to the Evaluation of Permanent 
 

 
         
 
         Page  16
 
         
 
         
 
         
 
         
 
         Impairment are correctly followed, the rating should perhaps be 
 
         three percent.  
 
         
 
              It is noted that Dr. Maguire and claimant did not have the 
 
         best physician-patient relationship, and Dr. Maguire declined to 
 
         treat claimant further.  Dr. Maguire was replaced by other 
 
         physicians that also had extensive contact with claimant.  Two of 
 
         those physicians found claimant to have either significant 
 
         permanent restrictions, or a ratable permanent physical 
 
         impairment as a result of his injury.]
 
         
 
           Considering all of the medical evidence, it appears that 
 
         claimant has carried his burden of proof to show that he has 
 
         suffered a permanent partial impairment as a result of his work 
 
         injury.  
 
         
 
              Wherefore, (1) based upon the fact that claimant sustained a 
 
         traumatic injury when a 600-pound crate fell and caught his right 
 
         hand in a metal binding strap and jerked him forward suddenly and 
 
         pulled him to his knees on the floor and bumped his right side 
 
         against the trailer, (2) based upon the fact that claimant 
 
         immediately reported the injury and immediately sought medical 
 
         treatment for cervical, dorsal and lumbar spine complaints at Des 
 
         Moines General Hospital, (3) based upon the fact that Dr. McGuire 
 
         found a possible 2 percent permanent impairment of claimant's 
 
         dorsal spine based upon his subjective symptoms of pain which 
 
         have persisted for quite some period of time, (4) based upon Dr. 
 
         Boulden and Mr. Bower's restrictions that claimant is not to 
 
         perform heavy work and is to stop the truck every forty to 
 
         forty-five minutes, walk around and extend his back for one to 
 
         two minutes, (5) based upon the fact that Dr. Rosenfeld found 
 
         that claimant sustained a 7 percent permanent impairment to the 
 
         thoraco-lumbar spine and is now restricted to sedentary 
 
         occupations because he would have trouble loading, unloading, 
 
         strapping and chaining loads, (6) based upon the fact that 
 
         claimant is 35 years old, has a high school education, two years 
 
         of college and has completed truck driving school, (7) based upon 
 
         the fact that claimant is probably foreclosed from many truck 
 
         driving jobs, especially from those that require loading and 
 
         unloading, strapping or chaining, or riding in trucks with high 
 
         vibration, (8) based upon the fact that claimant still has 
 
         continuing symptoms of pain in the middle of his back between his 
 
         shoulder blades and in his neck and right shoulder, (9) based 
 
         upon the fact that claimant was a credible witness, (10) based 
 
         upon the fact that claimant's unreasonable termination raises the 
 
         question of whether he was terminated because of the restrictions 
 
         caused by this injury, and the accommodations that employer was 
 
         required to make in order to mitigate their workers' compensation 
 
         liability, became burdensome to employer when the loads of 
 
         freight were not palletized as they agreed to do, (11) based upon 
 
         the fact that claimant's restrictions require him to stop the 
 

 
         
 
         Page  17
 
         
 
         
 
         
 
         
 
         truck every forty to forty-five minutes, get out walk around and 
 
         extend his back for one to two minutes which as claimant pointed 
 
         out is almost impossible to do in the truck driving industry, 
 
         (12) based upon the fact that his restrictions of no heavy 
 
         lifting foreclose him from a rather significant number of 
 
         over-the-road truck driving jobs and make him less employable 
 
         than healthier workers with no previous injuries or restrictions, 
 
         (13) based upon all the factors used to determine industrial 
 
         disability Christensen v. Hagen, Inc., vol. I, no. 3, State of 
 
         Iowa Industrial Commissioner Decisions 529 (App. Dec. March 26, 
 
         1985); Peterson v. Truck Haven Cafe, Inc., vol. 1, no. 3 State of 
 
         Iowa Industrial Commissioner Decisions 654, 658 (App. Dec. 
 
         February 28, 1985), (14) applying agency expertise [Iowa 
 
         Administrative Procedure Act 17A.14(5)], it is determined that 
 
         claimant has sustained a 15 percent permanent impairment to the 
 
         body as a whole and is entitled to 75 weeks of permanent partial 
 
         disability benefits.  Claimant's permanent disability is 
 
         determined as of the end of healing period.  Iowa Code section 
 
         85.34(2); Teel v. McCord, 394 N.W.2d 405 (Iowa 1986).
 
                                         
 
                        
 
         
 
         
 
         Page  18
 
         
 
         
 
         
 
         
 
         
 
                           MEDICAL EXPENSES
 
         
 
              It is determined that the injury of March 6, 1991 was the 
 
         cause of the bone scan ordered by Dr. Dubansky which was 
 
         performed on August 20, 1991 and the MRI performed at the request 
 
         of Dr. Dubansky on September 20, 1991.  
 
         
 
              As pointed out earlier claimant only received superficial 
 
         treatment for his neck and upper dorsal spine from Dr. McGuire on 
 
         three different dates before Dr. McGuire determined that he could 
 
         not communicate with claimant and refused to treat him further.  
 
         
 
              Claimant did receive excellent care for his low back from 
 
         Dr. Boulden but as Dr. Boulden pointed out his CT scan as well as 
 
         his expertise is limited to the lumbar spine.
 
         
 
              Dr. Dubansky and Dr. Rosenfeld both correctly determined 
 
         that claimant's pain between his shoulder blades and in the
 
         middle of his back which are defined as the dorsal area and also 
 
         the thoraco-lumbar area were never treated even though claimant 
 
         reported that these were his main complaints from his first day 
 
         in the emergency room until the time of the hearing.  Therefore, 
 
         claimant is entitled to recover the cost of the bone scan ordered 
 
         by Dr. Dubansky in the amount of $366.35 (Ex. 43, p. 71) and the 
 
         MRI ordered by Dr. Dubansky in the amount of $1,191.00 (Ex. 44, 
 
         p. 72).
 
         
 
              *****
 
         
 
              Claimant is not entitled to have the thoraco-lumbar spine 
 
         treated a second time with a second round of epidural steroid 
 
         injections by Dr. Rosenfeld because this area had already been 
 
         diagnosed and treated by Dr. Dubansky with epidural steroid 
 
         injections.  
 
         
 
              The epidural steroid injections to the dorsal spine by Dr. 
 
         Dubansky only temporarily improved claimant's condition the first 
 
         time as well as the second time.  Therefore, it cannot be stated 
 
         that the second round of injections substantially improved 
 
         claimant's condition.  Therefore, the injections ordered by Dr. 
 
         Rosenfeld are not allowed.
 
         
 
              Furthermore, Dr. Rosenfeld was clearly an unauthorized 
 
         physician and his charges in the amount of $75 or $85 cannot be 
 
         allowed as authorized medical treatment pursuant to Iowa Code 
 
         section 85.27.  
 
         
 
              Whether his charges are allowable as an Iowa Code section 
 
         85.39 examination was not one of the designated issues in this 
 
         case by the parties and therefore no determination is made on 
 
         this point.  Claimant and his attorney knew that Dr. Rosenfeld 
 

 
         
 
         Page  19
 
         
 
         
 
         
 
         
 
         was unauthorized.  Joann Bell testified that Dr. Rosenfeld was 
 
         unauthorized.  The proper method to obtain the authorized care of 
 
         Dr. Rosenfeld would have been to have made a request to the 
 
         defendants for alternate care and if it was rejected claimant was 
 
         entitled to bring an action for alternate medical care pursuant 
 
         to rule 343 IAC 4.48 and could have received a decision and 
 
         determination from the agency within ten days after the receipt 
 
         of the proper application if a telephone hearing was held or 14 
 
         working days of a proper application after an in-person hearing 
 
         was held.  Rule 343 IAC 4.48(14).  
 
         
 
              Wherefore, it is determined that claimant is entitled to 
 
         recover $366.35 for the bone scan ordered by Dr. Dubansky and 
 
         $1,191.00 for the MRI ordered by Dr. Dubansky (Ex. 43, p. 71; Ex. 
 
         44, p.72).  Claimant is not entitled to $1,161.00 for epidural 
 
         steroid injections to the dorsal spine ordered by Dr. Rosenfeld 
 
         (Ex. 42, p. 70).  
 
         
 
              It should be noted that Dr. McGuire earlier recommended and 
 
         prescribed a bone scan which defendants never had performed and 
 
         therefore did not follow the advice and judgment of their own 
 
         selected physician.
 
         
 
                            CONCLUSIONS OF LAW
 
         
 
              The conclusions of law contained in the proposed agency 
 
         decision filed April 14, 1994 are adopted as final agency action.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed.
 
         
 
                                       ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That defendants pay to claimant seventy-five (75) weeks of 
 
         permanent partial disability benefits based upon a fifteen 
 
         percent (15%) industrial disability to the body as a whole at the 
 
         stipulated rate of three hundred fourteen and 96/100 dollars 
 
         ($314.96) per week in the total amount of twenty-three thousand 
 
         six hundred twenty-two dollars ($23,622.00) commencing on August 
 
         5, 1991 as stipulated to by the parties.
 
         
 
              That interest will accrue pursuant to Iowa Code section 
 
         85.30.
 
         
 
              That these benefits are to be paid in a lump sum.
 
         
 
              That defendants pay to claimant or the provider of medical 
 
         services three hundred sixty-six and 35/100 dollars ($366.35) for 
 
         the bone scan and one thousand one hundred ninety-one dollars 
 
         ($1,191.00) for the MRI as described above.  Iowa Code section 
 

 
         
 
         Page  20
 
         
 
         
 
         
 
         
 
         85.27.
 
         
 
              That the costs of this action, including the cost of the 
 
         attendance of the court reporter at hearing and the transcript of 
 
         hearing, are charged to defendants pursuant to rule 343 IAC 4.33 
 
         and Iowa Code sections 86.19(1) and 86.40.
 
         
 
              That defendants file claim activity reports as requested by 
 
         this agency pursuant to rule 343 IAC 3.1.
 
         
 
              Signed and filed this ____ day of September, 1994.
 
         
 
         
 
         
 
         
 
                                       ________________________________
 
                                                BYRON K. ORTON
 
                                            INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Robert W. Pratt
 
         Attorney at Law
 
         6959 University Ave.
 
         Des Moines, IA  50311-1540
 
         
 
         Mr. Glenn Goodwin
 
         Ms. Dawn R. Siebert
 
         Attorneys at Law
 
         4th Floor, Equitable Bldg.
 
         Des Moines, IA  50309
 
         
 
 
         
 
         
 
         
 
         
 
         
 
                                       1108.50; 1401; 1402.40;
 
                                       1803; 2501; 2700
 
                                       Filed September 26, 1994
 
                                       Byron K. Orton
 
                                       
 
         
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
                                         :
 
         TOM LYLE DESKIN,                :
 
                                         :
 
              Claimant,                  :
 
                                         :
 
         vs.                             :
 
                                         :        File No. 978786
 
         METRO AIR, INC.,                :
 
                                         :          A P P E A L
 
              Employer,                  :
 
                                         :        D E C I S I O N
 
         and                             :
 
                                         :
 
         AETNA CASUALTY & SURETY CO.,    :
 
                                         :
 
              Insurance Carrier,         :
 
              Defendants.                :
 
         _________________________________________________________________
 
         
 
         
 
         1108.50, 1401, 1402.40, 1803, 2501, 2700
 
         
 
              Claimant injured his cervical, dorsal and lumbar spine in a 
 
         traumatic unloading incident.  
 
         
 
              Dr. McGuire treated the cervical and upper dorsal area 
 
         briefly then dismissed claimant because he found that he had a 
 
         communication problem and a personality problem with claimant.
 
         
 
              Dr. Boulden then treated the lumbar spine until claimant 
 
         attained maximum medical improvement.
 
         
 
              Claimant continued to have dorsal spine pain and was forced 
 
         to seek treatment from Dr. Dubansky at his own expense.  His 
 
         health insurance would not pay because it was workers' 
 
         compensation and workers' compensation would not pay because Dr. 
 
         Boulden had discharged claimant.
 
         
 
              The bone scan and MRI ordered by Dr. Dubansky were allowed.  
 
         Dr. McGuire had recommended a bone scan earlier and wrote a 
 
         prescription for it but it was never performed.  Insurance 
 

 
         
 
         Page   2
 
         
 
         
 
         
 
         carriers and employers can choose the doctor; however the care to 
 
         be provided is in the province of the doctor chosen.  The bone 
 
         scan and MRI were allowed as reasonable treatment pursuant to 
 
         Iowa Code section 85.27.  Claimant is entitled to care reasonably 
 
         suited to treat the injury without undue inconvenience to the 
 
         injured employee.  Claimant was not entitled to a second round of 
 
         epidural steroid injections ordered by Dr. Rosenfeld because he 
 
         had already received this treatment from Dr. Dubansky with only 
 
         temporary relief.
 
         
 
              Dr. McGuire speculated that Claimant possibly had suffered a 
 
         two percent permanent impairment of the dorsal spine.
 
         
 
              Dr. Rosenfeld found that claimant had sustained a seven 
 
         percent permanent impairment of the thoraco-lumbar area, was 
 
         restricted to sedentary work and should find other work.
 
         
 
              Dr. Boulden found no permanent partial impairment and issued 
 
         no permanent impairment rating because he found no surgical 
 
         lesion and his lumbar CT scan showed no objective evidence of 
 
         injury.  Dr. Boulden and Mr. Bower purported to return claimant 
 
         to work with the ability to perform his over-the-road truck 
 
         driving job based on their physical capacity examination.  
 
         However, the conditions were (1) that claimant was to perform no 
 
         heavy lifting, (2) claimant was to stop the truck every 40 to 45 
 
         minutes and extend his back for one or two minutes, (3) that as 
 
         long as claimant drove a truck he would have continued problems 
 
         and (4) that claimant should look for an alternative type of 
 
         work.  It was noted that work restrictions were more indicative 
 
         of permanent disability than a percentage impairment rating.  
 
         Furthermore, Claimant suffered an economic loss because of his 
 
         restrictions on over-the-road truck driving.  Blacksmith and 
 
         McSpadden cited.
 
         
 
              Claimant returned to accommodated work for about four months 
 
         and was fired because he would not take a load out on 80 to 100 
 
         percent ice covered highways.  This unreasonable termination 
 
         raised the question of whether the real reason for the 
 
         termination was the difficulty that employer encountered in 
 
         providing accommodated work in order to reduce their worker 
 
         compensation liability earlier.
 
         
 
              Claimant was age 35.  He completed high school, two years of 
 
         college, and truck driving school.  He is probably foreclosed 
 
         from most truck driving jobs.  Claimant has AIDS and is receiving 
 
         social security disability for this reason.  He has not been 
 
         actively seeking employment.  It was determined that claimant had 
 
         sustained a 15 percent industrial disability to the body as a 
 
         whole and was entitled to 75 weeks of permanent partial 
 
         disability benefits.
 
 
            
 
            
 
            
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            TOM LYLE DESKIN,    
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                                 File No. 978786
 
            METRO AIR, INC.,    
 
                                               A R B I T R A T I O N
 
                 Employer, 
 
                                                  D E C I S I O N
 
            and       
 
                      
 
            AETNA CASUALTY & SURETY CO.,  
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
                                  INTRODUCTION
 
            
 
                 This is a proceeding in arbitration filed by Tom Lyle 
 
            Deskin, claimant, against Metro Air, Inc., employer and 
 
            Aetna Casualty & Surety Co., insurance carrier, defendants 
 
            for benefits as the result of an alleged injury which 
 
            occurred on March 6, 1991.  A hearing was held in Des 
 
            Moines, Iowa, on September 9, 1993, and the case was fully 
 
            submitted at the close of the hearing.  Claimant was 
 
            represented by Robert W. Pratt.  Defendants were represented 
 
            by Dawn R. Siebert.  The record consists of the testimony of 
 
            Tom Lyle Deskin, claimant, Joann Bell, claim representative, 
 
            Martin Rosenfeld, D.O., orthopedic surgeon, joint exhibits 1 
 
            through 44 and defendants' exhibits A through F.  Also 
 
            present in the courtroom at the time of the hearing was Tom 
 
            Olson, terminal manager.  The deputy ordered a transcript of 
 
            the hearing.  
 
            
 
                                      ISSUES
 
            
 
                 The parties submitted the following issues for 
 
            determination at the time of the hearing.
 
            
 
                 Whether the injury was the cause of permanent 
 
            disability.
 
            
 
                 Whether claimant is entitled to permanent disability 
 
            benefits, and if so, the extent of benefits to which he is 
 
            entitled.
 
            
 
                 Whether claimant is entitled to the payment of certain 
 
            medical expenses pursuant to Iowa Code section 85.27.
 
            
 
                                FINDINGS OF FACT
 
            
 
                causal connection/entitlement/permanent disability
 
            
 
                 It is determined that the injury was the cause of 
 
            permanent disability and that claimant sustained a 15 
 
            percent industrial disability to the body as a whole and 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            that claimant is entitled to 75 weeks of permanent partial 
 
            disability benefits.
 
            
 
                  Claimant, born December 10, 1957, was 33 years old at 
 
            the time of the injury and 35 years old at the time of the 
 
            hearing.  He completed high school, two years of college and 
 
            truck driving school which lasted four to six weeks.  His 
 
            primary occupation has been an over-the-road truck driver.  
 
            He performed clerical work in the air force for two years 
 
            and was honorably discharged.  He also performed clerical 
 
            work for his father for short periods of time obtaining 
 
            information from courthouse records to be used in real 
 
            estate appraisals.  Claimant denies and there is no evidence 
 
            of any prior back problems or workers' compensation claims 
 
            (Transcript pp. 61-72, 83 & 129).
 
            
 
                  Claimant started to work for employer as an 
 
            over-the-road truck driver in August of 1990.
 
            
 
                 Claimant injured his back on March 6, 1991 while 
 
            unloading freight at North Liberty, Iowa at approximately 
 
            4:00 a.m. in the morning.  Claimant testified that a 
 
            600-pound crate toppled over and caught his right hand in 
 
            the metal binding strap.  He was jerked forward and fell to 
 
            his knees and hit his right arm and right side on the side 
 
            of the trailer.  Claimant testified that he immediately 
 
            experienced a burning sensation between his shoulder blades 
 
            and that he subsequently developed pain in his mid to low 
 
            back as well as headaches.  He reported the injury by 
 
            telephone to employer but managed to get the tractor back to 
 
            Des Moines with some difficulty.  Upon arriving back at the 
 
            terminal claimant reported to employer that he was going to 
 
            the emergency room to be treated for this injury (Tran. pp. 
 
            72-77).
 
            
 
                 William Eischen, D.O., at the emergency room reported, 
 
            "Crate caught R hand it pulled him forward, pt states he 
 
            immediately experienced a burning sensation between 
 
            shoulders.  Now has tingling type pain mid to low back with 
 
            numbness tingling sensation R side of back.  C/O headaches.  
 
            pt states he is unable to straighten up." (Exhibit 1, p. 1).
 
            
 
                  Dr. Eischen diagnosed dorsal spine strain and sprain 
 
            (Ex. 2, p. 2).  Claimant was taken off work by Becky 
 
            Davis-Kramer, D.O., on March 6, 1991 (Ex. 3, p. 3).
 
            
 
                 X-rays were taken of the cervical, dorsal and lumbar 
 
            spine on March 6, 1991.  The cervical films showed subtle 
 
            early degenerative disc disease at C-7, T-1 but no other 
 
            cervical abnormalities.  The thoracic spine repeated the 
 
            reading for the cervical spine and found minimal spondylosis 
 
            but no signs of fracture.  The lumbar spine disclosed L-5, 
 
            S-1 degenerative changes at their facets, spondylolysis, but 
 
            no other abnormalities of significance (Ex. 5, p. 5).
 
            
 
                 Mark Rankleman, D.O., diagnosed dorsal muscle strain on 
 
            March 11, 1991 and ordered physical therapy and continued 
 
            claimant off work (Ex. 6, p. 6; Ex. 7, p. 7; Ex. 8, p. 8; 
 
            Ex. 9, p. 9 & 10).
 
            
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                 On March 14, 1991, Dr. Davis-Kramer diagnosed 
 
            thoraco/lumbar strain, continued claimant off work and 
 
            ordered more physical therapy (Ex. 10, p. 11).
 
            
 
                 Next, claimant saw Daniel J. McGuire, M.D., an 
 
            orthopedic surgeon, on three occasions on March 25, April 8, 
 
            and April 15, 1991.  Dr. McGuire also verified by his notes 
 
            that claimant complained of low back pain, upper back pain, 
 
            neck pain, pain into his shoulders and headaches.  Dr. 
 
            McGuire recorded that over the 19 days since the injury that 
 
            his low back pain was almost completely gone but that he had 
 
            persistent neck, shoulder and right arm discomfort.  He kept 
 
            claimant off work and prescribed medications and physical 
 
            therapy.  
 
            
 
                 Dr. McGuire estimated, "I think his time off work will 
 
            be three to six months.  His prognosis is excellent.  His 
 
            permanent partial disability should be in the single 
 
            digits." (Ex. 13, p. 14).  
 
            
 
                 Dr. McGuire talked about a bone scan because claimant 
 
            had so many areas of pain but there is no evidence from his 
 
            notes or otherwise in the record that a bone scan was 
 
            performed at Dr. McGuire's request.  
 
            
 
                 A communication problem developed between claimant and 
 
            Dr. McGuire because claimant considered all of his various 
 
            areas of pain as one area of pain and Dr. McGuire considered 
 
            them as several areas of pain.  Dr. McGuire also became 
 
            upset with claimant because he complained to the nurse that 
 
            he had to wait 45 minutes in a straight back chair with his 
 
            back in pain in order to see the doctor.  This seems to have 
 
            greatly upset Dr. McGuire.  Dr. McGuire stated on April 15, 
 
            1991, "I am unable to communicate with him.  I apologized.  
 
            I think he should get a new physician.  I called Aetna and 
 
            talked to somebody there and told them I was sorry I could 
 
            not help this gentleman and that I felt that we need to 
 
            proceed with a different physician." (Ex. 13, p. 15).
 
            
 
                 Claimant explained this incident as follows, 
 
            
 
                    And he told me that -- that I had -- that every 
 
                 time I come in to see him that my pain would 
 
                 change location, and I refuted with him saying, 
 
                 "It's always been the same location.  I don't know 
 
                 who you're getting me confused with."  And he told 
 
                 me that he thought I should go see another doctor, 
 
                 so I did." (Ex. C, p. 20).
 
            
 
                 Claimant denied that he was rude to Dr. McGuire's 
 
            nurse.  Claimant testified, "No, that's not true." (Tran. p. 
 
            116).
 
            
 
                 Dr. McGuire wrote a letter to defendants' counsel on 
 
            September 1, 1993 in which he stated he did not find any 
 
            evidence of neurological damage.  He further stated that he 
 
            did not doubt that claimant may have some aches and pains 
 
            following this work incident based on subjective complaints 
 
            but based on objective physical examination and objective 
 
            diagnostic studies he was unable to place any permanent 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            restrictions on him.  He further stated that he could not 
 
            give any objective reason to assign a permanent impairment 
 
            rating.  However, Dr. McGuire's office notes do not show 
 
            that he performed any objective tests nor are there any 
 
            introduced into evidence by either party.  Dr. McGuire did 
 
            suggest the bone scan but there is no evidence that one was 
 
            carried out at his request (Ex. 13, pp. 14 & 15).
 
            
 
                 In his letter of September 1, 1993, Dr. McGuire 
 
            suggested that claimant possibly might be entitled to a 2 
 
            percent disability rating.  Dr. McGuire stated,
 
            
 
                    Based on the fact that his initial problem was 
 
                 "dorsal spine sprain and strain" and, according to 
 
                 the AMA Guidelines, whether we use the Third or 
 
                 Fourth, it makes no difference, someone could 
 
                 assign an impairment of 2 percent as it pertains 
 
                 to his dorsal "thoracic" spine.  I cannot give you 
 
                 an objective reason to do that; but, since he 
 
                 claims his injury was to the "dorsal spine", and 
 
                 there was no spasm or rigidity noted and his CT 
 
                 scan and bone scan are benign, someone could 
 
                 assign a 2 percent disability rating. (Ex. D, p. 
 
                 2).
 
            
 
                 It would appear that Dr. McGuire is making reference to 
 
            the  Guides to the Evaluation of Permanent Impairment, Third 
 
            Edition Revised, Table 53. Impairments Due to Specific 
 
            Disorders of the Spine, 
 
            
 
                 II. Intervertebral disc or other soft-tissue         
 
                 lesions:  
 
            
 
                 B. Unoperated, with medically documented injury 
 
                 and a minimum of six months of medically 
 
                 documented pain and rigidity with or without 
 
                 muscle spasm, associated with none-to minimal 
 
                 degenerative changes on structural tests 
 
            
 
                 In the thoracic column it shows a percentage 
 
                 impairment of the whole person of 2 percent.  This 
 
                 is found on page 80 of the Revised Third Edition.  
 
            
 
                 It would further appear that Dr. McGuire is relying on 
 
            a bone scan and CT scan taken by other physicians since his 
 
            records do not show any diagnostic tests were actually taken 
 
            by him.  
 
            
 
                 The worksheet of Dr. McGuire has a place to show what 
 
            tests were ordered.  The worksheet lists myelogram, CT scan, 
 
            MRI, bone scan, EMG and lab work.  There are no entries for 
 
            any of these tests and in the column "date scheduled" there 
 
            is also no entries (Ex. 14, p. 16).  Dr. McGuire did give 
 
            the insurance carrier a prescription for a whole body bone 
 
            scan on April 19, 1991 but there is no evidence that it was 
 
            ever used (Ex. 15, p. 17).
 
            
 
                 In conclusion, it would appear that even though Dr. 
 
            McGuire had communication problems and personality problems 
 
            with claimant, and even though he found no objective 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            evidence of impairment, he nevertheless, granted that it was 
 
            possible for claimant to have a 2 percent permanent 
 
            impairment based upon his continuing subjective symptoms of 
 
            pain in the thoracic spine. 
 
            
 
                 Claimant testified that the insurance carrier then 
 
            directed him to see William R. Boulden, M.D., an orthopedic 
 
            surgeon, on April 25, 1991 (Tran. p. 83; Ex. C, p. 21).  
 
            
 
                 Dr. Boulden also verified that claimant had complaints 
 
            in all three segments of his back --- lumbar, thoracic and 
 
            cervical.  The opening sentence in Dr. Boulden's notes are 
 
            as follows, "Tom is a 33 year old truck driver who is here 
 
            with low back pain, upper lumbar pain, neck and shoulder 
 
            pain." (Ex. 16, p. 18).  Dr. Boulden also related that 
 
            claimant had been treated for his neck and that his neck 
 
            seemed to be getting better but that claimant felt that his 
 
            back pain was worsening.  Dr. Boulden ordered a limited CAT 
 
            scan from L3 to S1 which turned out to be very normal in 
 
            appearance (Ex. 17, p. 20 & Ex. E).
 
            
 
                 Dr. Boulden recommended back conditioning exercises 
 
            preparatory to work hardening  and an eventual return to 
 
            work in five weeks (Ex. 16, p. 18 to Ex. 19, p. 22).  
 
            Claimant testified that the restrictions under which Dr. 
 
            Boulden returned him to work would not enable him to work 
 
            with any other trucking company in the industry, but that 
 
            employer did agree to accommodate him by honoring these 
 
            restrictions (Ex. C, pp. 21 & 22).  
 
            
 
                 The first release signed by Dr. Boulden is dated July 
 
            3, 1991.  It states that claimant is released back to work 
 
            on July 8, 1991 because no heavy lifting will be required of 
 
            him.  The release states, "On 7-8-91 this patient is 
 
            released back to work  Reports to follow no lifting 
 
            restrictions based on patient information that no heavy 
 
            lifting is required.  Should take intermittent breaks." (Ex. 
 
            20, p. 23).  
 
            
 
                 Thus, it would appear that since employer had agreed to 
 
            accommodate claimant with no heavy lifting it was not 
 
            necessary for Dr. Boulden to write this in his release 
 
            specifically (Ex. C, p. 22; Tran. p. 88).  At the same time 
 
            it is clear that claimant was restricted from performing 
 
            heavy lifting.
 
            
 
                 Claimant testified at the hearing that he showed the 
 
            restrictions to employer and they agreed to palletize the 
 
            loads so that there would be no lifting.
 
            
 
                 Dr. Boulden issued a similar release dated July 12, 
 
            1991, in which he stated that, "This patient is released 
 
            back to work with driving for 40-45 minutes, Stop, walk 
 
            around, extend for 1-2 minutes" (Ex. 21, p. 24).  
 
            
 
                 Claimant testified that he did return to work for 
 
            employer with the understanding that these were his 
 
            restrictions, however, there were several occasions when the 
 
            freight which came out of Chicago was not palletized.  
 
            Therefore claimant could not carry out the rest of his 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            duties which were unloading the trailer.  Claimant testified 
 
            there were two different occasions when he had to call the 
 
            supervisor that lives up in Iowa City or Cedar Rapids to 
 
            come down and help him unload the trailer (Tran. p. 90).   
 
            
 
                 On July 23, 1991, Dr. Boulden stated, "Effective today, 
 
            we feel he has reached his maximum medical improvement.  
 
            Since we have not found any type of operative lesion, we do 
 
            not feel there is any permanent disability rating." (Ex. 22, 
 
            p. 25).
 
            
 
                 On July 29, 1991, Dr. Boulden wrote to claimant's 
 
            attorney as follows:
 
            
 
                    ... I understand that the patient still has 
 
                 symptoms, but basically, these symptoms we feel 
 
                 are from the soft tissues of this back and we have 
 
                 not found anything abnormal in his diagnosis from 
 
                 cast (sic) scan or clinical examination.  We have 
 
                 not found anything that can be treated surgically 
 
                 and he has maxed out his conservative management.
 
            
 
                    I do not evaluate necks and am only a low back 
 
                 specialist.  I have previously discussed that with 
 
                 him.
 
            
 
                    In reference to how long is (sic) pain will be 
 
                 present, I am afraid that as long as he is a truck 
 
                 driver, there will always be some components of 
 
                 pain based on the fact of that type of occupation.  
 
                 I do not recommend pain pills to treat pain in the 
 
                 back since it is a very poor choice of therapy.
 
            
 
                    The only treatment that he needs to do is 
 
                 properly use his back and maintain himself in good 
 
                 physical shape and in the future consider 
 
                 alternative type of work from the stand point that 
 
                 truck drivers are notorious for developing back 
 
                 problems (Ex. 23, p. 26).
 
            
 
                 On August 8, 1991, Dr. Boulden wrote to the insurance 
 
            carrier as follows,
 
            
 
                    I believe you have a copy of the patient's 
 
                 functional capacities evaluation by this point.
 
            
 
                    We do not recommend any further treatment.  He 
 
                 has been maxed out in his treatment and no surgery 
 
                 is expected to help him.
 
            
 
                    I feel that he has reached his maximum medical 
 
                 improvement as to 7/23/91.
 
            
 
                    The main problem that I have is the fact that 
 
                 the patient will definitely have a problem 
 
                 returning back to being a truck driver.  Truck 
 
                 driving, as you well know, shows a high incidence 
 
                 of low back problems.  I think that type of work 
 
                 may continue to aggravate his back.
 
            
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
                    I do not feel that the patient has sustained 
 
                 any type of permanent injuries since we have not 
 
                 identified any pathology (Ex. 24, p. 28).  
 
            
 
                 On July 3, 1991, Thomas W. Bower, L.P.T., who conducted 
 
            the therapy program prescribed by Dr. Boulden wrote as 
 
            follows,
 
            
 
                    The patient demonstrates full range of motion 
 
                 at this time, and although he still has some 
 
                 thoracic spine pain, the lower back is completely 
 
                 normal in terms of function and pain.
 
            
 
                    ....
 
            
 
                    We have given this patient a return to work 
 
                 effective July 8, 1991 for full release under the 
 
                 present restrictions, although this patient tells 
 
                 me that he is not going to have to do any heavy 
 
                 lifting.  There is some concern that the long 
 
                 distance driving is going to be a problem, and I 
 
                 have advised him to not sustain a sitting position 
 
                 for longer than 30 to 45 minutes at a time.
 
            
 
                    The following restrictions would apply to this 
 
                 individual:
 
                      
 
                                MAXIMUM   FREQUENT   REPETITIVE 
 
                 POSITION         LIFT      LIFT       LIFT
 
            
 
                 Floor to waist   70 lbs.   42 lbs.   32 lbs.
 
                 Overhead         50 lbs.   40 lbs.   30 lbs.
 
                 Carry            72 lbs.   42 lbs.   32 lbs.
 
                 Push/Pull       185 lbs.   (Ex. 31, p. 37 & 38)
 
            
 
                 Claimant testified that Mr. Bower gave an evaluation at 
 
            the end of the physical therapy and he was pushed to do as 
 
            well as he could.  He agreed that he did that and was able 
 
            to lift those weights, "... but then after I did this, then 
 
            my back was always in so much pain I couldn't do anything of 
 
            any good for about the next day and a half.  So I mean, I 
 
            could do that; but after I did that, I was in extreme pain." 
 
            (Ex. C, p. 23).
 
            
 
                 On July 23, 1991, Mr. Bower wrote,
 
            
 
                    I have seen Tommy Deskin with Dr. Boulden 
 
                 today, in Dr. Boulden's office.  Mr. Deskin has 
 
                 been return (sic) to work, as you well know, and 
 
                 apparently has not done terribly well.  He 
 
                 continues to insist that he has something 
 
                 substantially abnormal with his back.
 
            
 
                    Dr. Boulden has told Mr. Deskin today that 
 
                 there is no surgical lesion that can be corrected 
 
                 and as a matter of fact, he will likely have to 
 
                 live with the problem.  Mr. Deskin is not happy 
 
                 with that response and apparently is seeking other 
 
                 opinions.
 
            
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
                    We, at this time, have nothing further to offer 
 
                 Mr. Deskin.  Based on the previous functional 
 
                 capacity that was done, he still falls within the 
 
                 limits of his previous job. (Ex. 32, p. 39).
 
            
 
                 Mr. Bower neglected to say that he still falls within 
 
            the limits of his previous job, provided (1) that he 
 
            performs no heavy lifting and (2) he stops the truck every 
 
            40 to 45 minutes, walks around and extends his back for one 
 
            to two minutes (Ex. 20, p. 23; Ex. 21, p. 24).  
 
            
 
                 Thus, even though Dr. Boulden could not find a surgical 
 
            lesion, and his limited CT scan from L3 through S1 found no 
 
            objective evidence to account for claimant's continuing 
 
            pain, and Dr. Boulden as a low back specialist could not 
 
            find any permanent or functional impairment of the lumbar 
 
            spine, Dr. Boulden, nevertheless, indicated that claimant 
 
            (1) was restricted from heavy lifting, (2) that claimant 
 
            should stop the truck every forty to forty-five minutes, 
 
            walk around and extend his back for one to two minutes, (3) 
 
            that as long as he continued to drive a truck he will 
 
            continue to have problems and (4) that he should look for an 
 
            alternative type of work.  
 
            
 
                 Thus, even though Dr. Boulden did not assess a 
 
            permanent impairment rating, he nevertheless indicated that 
 
            claimant was disabled in several respects from the 
 
            occupation that he was performing at the time this injury 
 
            occurred.  
 
            
 
                 Furthermore, all of his back problems became 
 
            symptomatic with this traumatic injury when the 600-pound 
 
            crate fell and caught claimant's hand in the metal strap and 
 
            pulled him forward down on his knees and his right side 
 
            struck the trailer.  
 
            
 
                 Even if claimant did not receive a physical impairment 
 
            he nevertheless has sustained an economic loss because of 
 
            the restrictions on his ability to drive a truck over the 
 
            road.  Blacksmith v. All-American, Inc., 290 N.W.2d 348, 354 
 
            (Iowa 1980); McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 
 
            (Iowa 1980).
 
            
 
                 Joann Bell testified that based upon the information in 
 
            the claim file that Dr. McGuire and Dr. Boulden were the 
 
            only designated treating physicians (Tran. p. 136 & 137).  
 
            She further testified that there was no reference in the 
 
            file that Dr. Rosenfeld was an authorized treating physician 
 
            (Tran. p. 138).
 
            
 
                 Claimant testified that he next consulted Marvin H. 
 
            Dubansky, M.D., another orthopedic surgeon, on the advice of 
 
            his previous attorney (Ex. C, p. 24 & Tran. p. 95).  
 
            
 
                 Claimant explained that after Dr. Boulden released him 
 
            he was not able to get any further treatment even though he 
 
            continued to have continuing back pain.  Claimant testified, 
 
            "My health insurance wouldn't pay for it because it was work 
 
            related, and Aetna [the workers' compensation insurance 
 
            carrier] was more or less telling me that I had to go with 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            what that doctor said or nothing at all." (Tran. p. 84).
 
            
 
                 Claimant saw Dr. Dubansky on July 26, 1991 (Tran. pp. 
 
            95 & 123; Ex. 34).  Claimant again described his initial 
 
            symptoms as severe pain, unable to stand upright, popping 
 
            and cracking in the spine and neck (Ex. 33, pp. 40, 41, 42 & 
 
            43).  In the diagram completed by claimant for Dr. Dubansky 
 
            claimant illustrated that he had an ache in his neck but the 
 
            main pain was between his shoulder blades and that he had a 
 
            stabbing sensation in the upper dorsal spine (Ex. 33, p. 
 
            44).  This is the area where Dr. McGuire indicated that 
 
            claimant might have a 2 percent permanent impairment based 
 
            on long-term pain from an established injury which had 
 
            persisted for more than six months.
 
            
 
                 Dr. Dubansky reported on his first office note that 
 
            claimant's main complaint was cervical and thoracic strain 
 
            caused from the incident at work but that claimant denied 
 
            that he has or has had any pain in his lumbar area.  
 
            Claimant testified that Dr. Dubansky prescribed medications 
 
            and showed claimant a better way to do the exercises that 
 
            had been recommended by Dr. Boulden and Mr. Bower (Tran. pp. 
 
            34, 47, & 48).
 
            
 
                 Dr. Dubansky administered some trigger point injections 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            in the lower dorsal spine which provided some temporary 
 
            relief on August 9, 1991 and again on August 16, 1991 (Ex. 
 
            34, pp. 49 & 50).  Dr. Dubansky wrote that claimant insisted 
 
            that Dr. Boulden told him that there was a crack in his back 
 
            and therefore Dr. Dubansky ordered a bone scan on August 16, 
 
            1991 (Ex. 34, pp. 47, 49 & 50).  The bone scan dated August 
 
            20, 1991 showed no evidence of fracture (Ex. 34, p. 51; Ex. 
 
            35, p. 52).  The cost of the bone scan performed on August 
 
            20, 1991 was $366.35 (Ex. 23, p. 71).  
 
            
 
                 It should be noted that the bone scan recommended and 
 
            prescribed by Dr. McGuire had never been performed.  It 
 
            should be noted also that the insurance carrier and employer 
 
            have the right to choose the care but do not have the right 
 
            of determining what care is to be provided.  The medical 
 
            care is in the province of the doctor chosen, not the 
 
            insurance carrier.  Pote v. Mikow Corp., File No. 694639 
 
            (Review-Reopening Decn., June 17, 1986).
 
            
 
                 On August 30, 1991, Dr. Dubansky also ordered an MRI of 
 
            the dorsal spine for September 10, at 8:15 a.m. at Mercy 
 
            Hospital.  The MRI was actually performed on September 20, 
 
            1991 at Mercy Hospital at a cost of $1,191 (Ex. 44, p. 72).  
 
            The MRI results are not in evidence in this case.  
 
            Defendants' description of disputes presented at the time of 
 
            hearing stated that both the bone scan and MRI were normal 
 
            (defendants' description of disputes page 2).
 
            
 
                 It should be noted that claimant's continuing 
 
            complaints were to his dorsal spine and that no objective 
 
            tests had as yet been performed on the dorsal spine until 
 
            claimant saw Dr. Dubansky.  Dr. McGuire discontinued seeing 
 
            claimant without performing any objective tests of any kind.  
 
            Dr. Boulden only performed a CT scan of the lumbar spine 
 
            from L3 through S1.  Thus, even though claimant had been 
 
            complaining about his dorsal spine ever since his first 
 
            visit to the emergency room on the date of the injury, the 
 
            bone scan and MRI ordered by Dr. Dubansky were the first 
 
            objective tests ordered to attempt to make an objective 
 
            diagnosis of this portion of claimant's back.  Furthermore, 
 
            claimant had not received a diagnosis on his dorsal spine 
 
            since the emergency room treatment at Des Moines General 
 
            Hospital.  Dr. McGuire diagnosed neck pain and Dr. Boulden 
 
            diagnosed and treated lumbar pain.
 
            
 
                 Claimant testified that he returned to work from August 
 
            5, 1991 through November 28, 1991 (Tran. p. 100).  When 
 
            claimant returned to work at Metro Air it was with a partial 
 
            release.  He was not fully released (Ex. C, p. 25).  
 
            Claimant testified that it was impossible to stop the rig 
 
            every 40 to 45 minutes and extend his back for one to two 
 
            minutes because there are very few places where you can park 
 
            a big rig and get out and stretch.  The other reason is 
 
            because you are always on a tight time schedule (Tran. p. 94 
 
            & 98).  Claimant related that the employer was supposed to 
 
            have the palletized loads which they did not do (Ex. C, p. 
 
            25).
 
            
 
                 Claimant further testified that he tried to limit his 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            lifting but on two occasions he had to call the guy that was 
 
            in charge at North Liberty to come down and unload his truck 
 
            because it was not loaded on pallets like it was suppose to 
 
            have been (Tran. p. 94).  Claimant testified that during 
 
            this period of time he worked 40 or more hours per week and 
 
            had a good attendance record (Tran. pp. 93 & 102).
 
            
 
                 Claimant testified that he was terminated by the 
 
            terminal manager, Tom Olson, on Thanksgiving night, November 
 
            28, 1991 because he refused to take a load out when the 
 
            roads were 80 to 100 percent ice covered and radio and 
 
            television was advising everyone to stay home (Ex. C, pp. 27 
 
            & 28; Tran. pp. 102 & 103).  Claimant testified that Olson 
 
            said that, "as long as I can back the truck into the dock, 
 
            the truck was going out." (Ex. C, p. 28).
 
            
 
                 Tom Olson, the terminal manager, was present at the 
 
            hearing but did not testify.  Therefore, claimant's 
 
            testimony was not controverted, contradicted, rebutted or 
 
            refuted.  Thus, it must be considered as the weight of the 
 
            evidence on this point.  
 
            
 
                 Such an unreasonable termination raises the unanswered 
 
            question of whether claimant was terminated because employer 
 
            no longer wished to endure the inconvenience of providing 
 
            accommodated work of palletized loads for claimant.  This 
 
            caused an inconvenience to their supervisors in eastern Iowa 
 
            because claimant called them to unload the truck when the 
 
            loads were not palletized.  This raises the serious question 
 
            of whether employer used this incident as an excuse to 
 
            terminate claimant and replace him with a healthier worker 
 
            without any restrictions who required no accommodations.
 
            
 
                 Claimant further testified that he was granted 
 
            unemployment compensation, employer appealed the award, and 
 
            it was determined that claimant was entitled to unemployment 
 
            compensation.  It was not shown claimant committed any 
 
            misconduct by refusing to go out on treacherous roads and 
 
            highways (Ex. C, p. 29).  Again, Tom Olson, terminal 
 
            manager, was present at the hearing and claimant's testimony 
 
            was not controverted, contradicted, rebutted or refuted.
 
            
 
                 Claimant testified that he had no further medical care 
 
            until he saw Martin S. Rosenfeld, D.O., another orthopedic 
 
            surgeon on April 21, 1992 at the suggestion of his current 
 
            attorney (Tran. p. 103).  Dr. Rosenfeld related that there 
 
            had always been confusion because Dr. McGuire thought 
 
            claimant was complaining of neck problems and Dr. Boulden 
 
            thought claimant was complaining of low back problems, 
 
            whereas, the pain has always been in the thoracic-lumbar 
 
            area.  Claimant testified that he has always contended that 
 
            the main pain was between his shoulder blades and that has 
 
            never changed (Tran. p. 115).  Claimant further explained 
 
            that the pain is in the middle of his back and that is what 
 
            he has complained about since day one (Tran. p. 117).  
 
            
 
                 Dr. Rosenfeld diagnosed thoraco-lumbar strain with 
 
            residual myofascitis.  Dr. Rosenfeld contended that claimant 
 
            needed epidural steroid injections in the dorsal spine 
 
            before he could determine whether claimant had reached 
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            maximum medical improvement.  
 
            
 
                 With respect to causal connection, Dr. Rosenfeld 
 
            stated, "It would seem obvious to me that the March 06, 1991 
 
            injury is the cause of his injury, continuing discomfort, 
 
            complaints, and problems." (Ex. 39, pp. 63 & 64).
 
            
 
                 Dr. Rosenfeld testified live at the hearing that he had 
 
            been a board certified orthopedic surgeon since 1977.  The 
 
            doctor related that he recommended that epidural steroid 
 
            injections be given for the reason that the thoraco lumbar 
 
            junction had never yet been treated.  He further stated that 
 
            claimant now had chronic pain and needed treatment and 
 
            medication for chronic pain (Tran. pp. 30 & 31).  
 
            
 
                 Claimant returned to Dr. Rosenfeld a little over a year 
 
            later on May 25, 1993, at which time Dr. Rosenfeld 
 
            prescribed the epidural steroid injections and Elavil.  The 
 
            doctor said the cause was for treatment of the injury which 
 
            occurred on March of 1991 (Tran. pp. 37 & 38; Ex. 40, p. 
 
            66).
 
            
 
                 These injections were administered on June 1, 1993, 
 
            June 15, 1993, and June 21, 1993 at a cost of $1,116 (Ex. 
 
            42, p. 70).  On July 23, 1990, Dr. Rosenfeld noted that 
 
            claimant had a good response to the epidural injections but 
 
            that the discomfort recurred, with the most discomfort in 
 
            the intrascapular area.  He concluded that since the 
 
            injections had not significantly improved his pain that he 
 
            then felt that claimant had reached maximum medical 
 
            improvement.  The doctor said that claimant will need 
 
            retraining for a more sedentary occupation (Ex. 39, p. 67).  
 
            
 
                 On August 10, 1993, Dr. Rosenfeld opined, "The 
 
            diagnosis remains thoraco-lumbar strain with residual 
 
            myofasciitis.  I do believe he has a permanent physical 
 
            impairment of seven (7%) percent to the body as a whole as a 
 
            result of the March 06, 1991 injury." (Ex. 40, p. 65).  Dr. 
 
            Rosenfeld also testified at the hearing that he used the 
 
            Guides to the Evaluation of Permanent Impairment published 
 
            by the American Medical Association to arrive at this 
 
            rating.  He further stated that it was based upon 
 
            thoraco-lumbar strain and residual pain caused by the injury 
 
            of March 6, 1991 (Tran. pp. 37-41).
 
            
 
                 Dr. Rosenfeld said that claimant was restricted from 
 
            sitting for prolonged periods of time and that he would have 
 
            difficulty loading, unloading, chaining and strapping loads.  
 
            He further specified that these restrictions were caused by 
 
            the injury of March 6, 1991 (Tran. p. 43).  He added that 
 
            there was no further treatment or care that he recommended 
 
            for claimant (Tran. p. 43).  
 
            
 
                 Dr. Rosenfeld testified that the unpaid charges for his 
 
            services would amount to approximately $75 or $85, which he 
 
            considered fair and reasonable in this community (Tran. p. 
 
            43).
 
            
 
                 Dr. Rosenfeld said he used Table 53 on page 80 of the 
 
            Guides to the Evaluation of Permanent Impairment, Third 
 

 
            
 
            Page  13
 
            
 
            
 
            
 
            
 
            Edition Revised, II Intervertebral disc or other soft-tissue 
 
            lesions, C. Unoperated, with medically documented injury and 
 
            a minimum of six months of medically documented pain and 
 
            rigidity with or without muscle spasm, associated with 
 
            moderate to severe degenerative changes on structural tests; 
 
            includes unoperated herniated nucleus pulposus with or 
 
            without radiculopathy.
 
            
 
                 Under questioning by opposing counsel Dr. Rosenfeld 
 
            admitted that he took the 7 percent from the lumbar column 
 
            but that the thoracic column only allowed a 3 percent 
 
            impairment of the whole person (Tran. p. 46).  He further 
 
            admitted that neither Dr. McGuire, Dr. Boulden or Dr. 
 
            Dubansky found any rigidity (Tran. pp. 46 & 47).  However, 
 
            he said he found rigidity and that statement was made in his 
 
            report of April 21, 1992 when he found that claimant had 
 
            decreased side bending at the thoraco-lumbar area (Ex. 39, 
 
            pp. 63 & 64; Tran. pp. 48 & 49).
 
            
 
                 Dr. Rosenfeld explained that the Guides are simply a 
 
            guide.  He contended that he was still free to apply his own 
 
            judgment and he chose to rate claimant at 7 percent (Tran. 
 
            pp. 51 & 52).  Dr. Rosenfeld further explained that his 
 
            rating was distinguished from Dr. McGuire and Dr. Boulden 
 
            because originally there was neck pain and there was low 
 
            back pain and that those resolved.  But he found the 
 
            thoraco-lumbar pain was a residual that had not been dealt 
 
            with by either one of those doctors (Tran. p. 58).
 
            
 
                 Claimant related that he can only sit for approximately 
 
            10 to 15 minutes before his back starts hurting and his neck 
 
            starts popping (Tran. pp. 105 & 106).  Claimant testified 
 
            that he could drive a truck but he would be in a lot of pain 
 
            doing it.  Claimant testified that trucking companies are 
 
            not interested in him once they learn he has had a back 
 
            injury and a workers' compensation claim (Tran. p. 107).  
 
            Most of the time claimant's back hurts in the same area if 
 
            it hurts for a long time it radiates into his shoulder or 
 
            lower back (Ex. C, p. 34).
 
            
 
                 Claimant testified that he was diagnosed as HIV 
 
            positive on July 6, 1992 (Tran. p. 131).  The medical 
 
            records, however, show that he has been hospitalized and 
 
            treated for AIDS (Ex. 36, pp. 53-59; Ex. 36, p. 60; Ex. 38, 
 
            p. 61).  When claimant was hospitalized for Aids in July of 
 
            1992, he was given pain killers for his back at that time 
 
            (Ex. C, p. 33).  He further testified that he has been 
 
            dealing with the State of Iowa Rehabilitation Service since 
 
            1992 and is waiting for a determination from them as to 
 
            whether he is disabled on account of his back or not before 
 
            they proceed with their program (Tran. pp. 111 & 112).
 
            
 
                 Claimant was approved for social security disability as 
 
            of July 1992 with payments to begin January of 1993 (Ex. C, 
 
            p. 32).
 
            
 
                 Claimant testified that he was receiving $512 per month 
 
            for social security disability effective June of 1992 
 
            because they consider the HIV diagnosis as disabling in 
 
            itself (Tran. pp. 112, 113, 131 & 132).  
 

 
            
 
            Page  14
 
            
 
            
 
            
 
            
 
            
 
                 Claimant testified that the doctors told him that he 
 
            was able to work in terms of daily exercutional abilities 
 
            (Tran. p. 108).  Claimant maintained he could do office work 
 
            or nonheavy work (Tran. p. 109).  Furthermore, social 
 
            security permitted him to earn up to $1,000 per month (Tran. 
 
            p. 113).  Claimant testified that he is motivated to find 
 
            work but it is difficult to find a job truck driving, which 
 
            is the only occupation he knows, with his current 
 
            restrictions (Tran. p. 114).  Claimant further maintained 
 
            that there are bigger rigs which would be easier for him to 
 
            drive because the ride is easier and he has tried to limit 
 
            his applications to these particular employers (Tran. p. 
 
            127).  Claimant admitted he was not actively job seeking at 
 
            the time of his deposition on December 22, 1992 (Ex. C, p. 
 
            6).
 
            
 
                 Claimant's interrogatory number 16 shows 16 places 
 
            where claimant has applied for employment most of which 
 
            appear to be truck driving companies (Ex. A, p. 31).  The 
 
            interrogatory is dated September 14, 1992 (Ex. A, p. 2).
 
            
 
                 Claimant testified that the applications for employment 
 
            as a truck driver all contained questions requesting 
 
            information about prior workers' compensation claims or time 
 
            loss due to injuries (Ex. C, p. 39).
 
            
 
                 Based on the foregoing evidence it is determined that 
 
            the injury was the cause of permanent impairment and 
 
            disability.  All of the doctors proceeded on the history of 
 
            this injury --- Dr. McGuire, Dr. Boulden, Dr. Dubansky and 
 
            Dr. Rosenfeld.  Dr. Dubansky and Dr. Rosenfeld specifically 
 
            stated that claimant's complaints and problems were caused 
 
            by this injury.  
 
            
 
                 With respect to claimant's dorsal spine, Dr. McGuire 
 
            determined that claimant's injury would allow a permanent 
 
            impairment rating of 2 percent based on the AMA Guides as 
 
            described above.
 
            
 
                 Dr. Boulden did not find any permanent physical 
 
            impairment because there were no surgical lesions and there 
 
            was no objective evidence for the cause of claimant's lumbar 
 
            pain.  Nevertheless, disability can be predicated upon 
 
            permanent restrictions as well as a percentage impairment 
 
            rating.  In fact, many deputies, consider restrictions more 
 
            indicative of permanent disability than a percentage 
 
            impairment rating.  
 
            
 
                 Claimant never was released to return to work as a 
 
            truck driver in the same capacity that he was performing 
 
            prior to the injury.  Dr. Boulden and Mr. Bower released 
 
            claimant on the restricted basis that he would not perform 
 
            any heavy lifting, that he would stop the truck every 40 to 
 
            45 minutes, walk around, and extend his back for one to two 
 
            minutes.  Thus, claimant is permanently disabled by this 
 
            injury based upon Dr. Boulden's restrictions.  
 
            
 
                 Dr. Rosenfeld found that claimant had sustained a 7 
 
            percent permanent impairment of thoraco-lumbar spine which 
 

 
            
 
            Page  15
 
            
 
            
 
            
 
            
 
            had not been either diagnosed or treated by either Dr. 
 
            McGuire or Dr. Boulden.  Dr. Rosenfeld further stated that 
 
            claimant was restricted to perform sedentary work (Ex. 39, 
 
            p. 67).
 
            
 
                 Thus, three out of four board certified orthopedic 
 
            surgeons found either some percentage of permanent physical 
 
            impairment or permanent disability after treating and 
 
            examining claimant.  Dr. Dubansky did not comment on either 
 
            permanent impairment or restrictions in this record.  
 
            
 
                 Wherefore, (1) based upon the fact that claimant 
 
            sustained a traumatic injury when a 600-pound crate fell and 
 
            caught his right hand in a metal binding strap and jerked 
 
            him forward suddenly and pulled him to his knees on the 
 
            floor and bumped his right side against the trailer, (2) 
 
            based upon the fact that claimant immediately reported the 
 
            injury and immediately sought medical treatment for 
 
            cervical, dorsal and lumbar spine complaints at Des Moines 
 
            General Hospital, (3) based upon the fact that Dr. McGuire 
 
            found a possible 2 percent permanent impairment of 
 
            claimant's dorsal spine based upon his subjective symptoms 
 
            of pain which have persisted for quite some period of time, 
 
            (4) based upon Dr. Boulden and Mr. Bower's restrictions that 
 
            claimant is not to perform heavy work and is to stop the 
 
            truck every forty to forty-five minutes, walk around and 
 
            extend his back for one to two minutes, (5) based upon the 
 
            fact that Dr. Rosenfeld found that claimant sustained a 7 
 
            percent permanent impairment to the thoraco-lumbar spine and 
 
            is now restricted to sedentary occupations because he would 
 
            have trouble loading, unloading, strapping and chaining 
 
            loads, (6) based upon the fact that claimant is 35 years 
 
            old, has a high school education, two years of college and 
 
            has completed truck driving school, (7) based upon the fact 
 
            that claimant is probably foreclosed from many truck driving 
 
            jobs, especially from those that require loading and 
 
            unloading, strapping or chaining, or riding in trucks with 
 
            high vibration, (8) based upon the fact that claimant still 
 
            has continuing symptoms of pain in the middle of his back 
 
            between his shoulder blades and in his neck and right 
 
            shoulder, (9) based upon the fact that claimant was a 
 
            credible witness, (10) based upon the fact that claimant's 
 
            unreasonable termination raises the question of whether he 
 
            was terminated because of the restrictions caused by this 
 
            injury, and the accommodations that employer was required to 
 
            make in order to mitigate their workers' compensation 
 
            liability, became burdensome to employer when the loads of 
 
            freight were not palletized as they agreed to do, (11) based 
 
            upon the fact that claimant's restrictions require him to 
 
            stop the truck every forty to forty-five minutes, get out 
 
            walk around and extend his back for one to two minutes which 
 
            as claimant pointed out is almost impossible to do in the 
 
            truck driving industry, (12) based upon the fact that his 
 
            restrictions of no heavy lifting foreclose him from a rather 
 
            significant number of over-the-road truck driving jobs and 
 
            make him less employable than healthier workers with no 
 
            previous injuries or restrictions, (13) based upon all the 
 
            factors used to determine industrial disability Christensen 
 
            v. Hagen, Inc., vol. I, no. 3, State of Iowa Industrial 
 
            Commissioner Decisions 529 (App. Dec. March 26, 1985); 
 

 
            
 
            Page  16
 
            
 
            
 
            
 
            
 
            Peterson v. Truck Haven Cafe, Inc., vol. 1, no. 3 State of 
 
            Iowa Industrial Commissioner Decisions 654, 658 (App. Dec. 
 
            February 28, 1985), (14) applying agency expertise [Iowa 
 
            Administrative Procedure Act 17A.14(5)], it is determined 
 
            that claimant has sustained a 15 percent permanent 
 
            impairment to the body as a whole and is entitled to 75 
 
            weeks of permanent partial disability benefits.  Claimant's 
 
            permanent disability is determined as of the end of healing 
 
            period.  Iowa Code section 85.34(2); Teel v. McCord, 394 
 
            N.W.2d 405 (Iowa 1986).
 
            
 
                                 MEDICAL EXPENSES
 
            
 
                 It is determined that the injury of March 6, 1991 was 
 
            the cause of the bone scan ordered by Dr. Dubansky which was 
 
            performed on August 20, 1991 and the MRI performed at the 
 
            request of Dr. Dubansky on September 20, 1991.  
 
            
 
                 As pointed out earlier claimant only received 
 
            superficial treatment for his neck and upper dorsal spine 
 
            from Dr. McGuire on three different dates before Dr. McGuire 
 
            determined that he could not communicate with claimant and 
 
            refused to treat him further.  
 
            
 
                 Claimant did receive excellent care for his low back 
 
            from Dr. Boulden but as Dr. Boulden pointed out his CT scan 
 
            as well as his expertise is limited to the lumbar spine.
 
            
 
                 Dr. Dubansky and Dr. Rosenfeld both correctly 
 
            determined that claimant's pain between his shoulder blades 
 
            and in the middle of his back which are defined as the 
 
            dorsal area and also the thoraco-lumbar area were never 
 
            treated even though claimant reported that these were his 
 
            main complaints from his first day in the emergency room 
 
            until the time of the hearing.  Therefore, claimant is 
 
            entitled to recover the cost of the bone scan ordered by Dr. 
 
            Dubansky in the amount of $366.35 (Ex. 43, p. 71) and the 
 
            MRI ordered by Dr. Dubansky in the amount of $1,191.00 (Ex. 
 
            44, p. 72).
 
            
 
                 Employer and insurance carrier have the right to choose 
 
            the care but when they fail to provide adequate care then 
 
            claimant is free to go into the open market and obtain care 
 
            which is reasonably suited to promptly treat the 
 
            work-related injury without undue inconvenience to the 
 
            employee.  Iowa Code section 85.27 unnumbered paragraph 4.
 
            
 
                 Claimant is not entitled to have the thoraco-lumbar 
 
            spine treated a second time with a second round of epidural 
 
            steroid injections by Dr. Rosenfeld because this area had 
 
            already been diagnosed and treated by Dr. Dubansky with 
 
            epidural steroid injections.  
 
            
 
                 The epidural steroid injections to the dorsal spine by 
 
            Dr. Dubansky only temporarily improved claimant's condition 
 
            the first time as well as the second time.  Therefore, it 
 
            cannot be stated that the second round of injections 
 
            substantially improved claimant's condition.  Therefore, the 
 
            injections ordered by Dr. Rosenfeld are not allowed.
 
            
 

 
            
 
            Page  17
 
            
 
            
 
            
 
            
 
                 Furthermore, Dr. Rosenfeld was clearly an unauthorized 
 
            physician and his charges in the amount of $75 or $85 cannot 
 
            be allowed as authorized medical treatment pursuant to Iowa 
 
            Code section 85.27.  
 
            
 
                 Whether his charges are allowable as an Iowa Code 
 
            section 85.39 examination was not one of the designated 
 
            issues in this case by the parties and therefore no 
 
            determination is made on this point.  Claimant and his 
 
            attorney knew that Dr. Rosenfeld was unauthorized.  Joann 
 
            Bell testified that Dr. Rosenfeld was unauthorized.  The 
 
            proper method to obtain the authorized care of Dr. Rosenfeld 
 
            would have been to have made a request to the defendants for 
 
            alternate care and if it was rejected claimant was entitled 
 
            to bring an action for alternate medical care pursuant to 
 
            rule 343 IAC 4.48 and could have received a decision and 
 
            determination from the agency within ten days after the 
 
            receipt of the proper application if a telephone hearing was 
 
            held or 14 working days of a proper application after an 
 
            in-person hearing was held.  Rule 343 IAC 4.48(14).  
 
            
 
                 Wherefore, it is determined that claimant is entitled 
 
            to recover $366.35 for the bone scan ordered by Dr. Dubansky 
 
            and $1,191.00 for the MRI ordered by Dr. Dubansky (Ex. 43, 
 
            p. 71; Ex. 44, p.72).  Claimant is not entitled to $1,161.00 
 
            for epidural steroid injections to the dorsal spine ordered 
 
            by Dr. Rosenfeld (Ex. 42, p. 70).  
 
            
 
                 It should be noted that Dr. McGuire earlier recommended 
 
            and prescribed a bone scan which defendants never had 
 
            performed and therefore did not follow the advice and 
 
            judgment of their own selected physician.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 Wherefore, based upon the foregoing and following 
 
            principles of law, these conclusions of law are made:
 
            
 
                 That the injury of March 6, 1991 was the cause of 
 
            permanent impairment and disability to claimant's dorsal 
 
            spine.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 
 
            867 (1965); Lindahl v. L.O. Boggs Co., 236 Iowa 296 18 
 
            N.W.2d 607 (1945).
 
            
 
                 That claimant sustained a 15 percent industrial 
 
            disability to the body as a whole and is entitled to 75 
 
            weeks of permanent partial disability benefits.  Iowa Code 
 
            section 85.34(2)(u).
 
            
 
                 That the injury of March 6, 1991 was the cause of the 
 
            bone scan in the amount of $366.35 and the MRI in the amount 
 
            of $1,191.00 and that it was not legally the cause of the 
 
            second round of epidural steroid injections ordered by Dr. 
 
            Rosenfeld in the amount of $1,116.00 in June of 1993.  Iowa 
 
            Code section 85.27.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 

 
            
 
            Page  18
 
            
 
            
 
            
 
            
 
                 That defendants pay to claimant seventy-five (75) weeks 
 
            of permanent partial disability benefits based upon a 
 
            fifteen percent (15%) industrial disability to the body as a 
 
            whole at the stipulated rate of three hundred fourteen and 
 
            96/100 dollars ($314.96) per week in the total amount of 
 
            twenty-three thousand six hundred twenty-two dollars 
 
            ($23,622.00) commencing on August 5, 1991 as stipulated to 
 
            by the parties.
 
            
 
                 That interest will accrue pursuant to Iowa Code section 
 
            85.30.
 
            
 
                 That these benefits are to be paid in a lump sum.
 
            
 
                 That defendants pay to claimant or the provider of 
 
            medical services three hundred sixty-six and 35/100 dollars 
 
            ($366.35) for the bone scan and one thousand one hundred 
 
            ninety-one dollars ($1,191.00) for the MRI as described 
 
            above.  Iowa Code section 85.27.
 
            
 
                 That the costs of this action, including the cost of 
 
            the attendance of the court reporter at hearing and the 
 
            transcript of hearing, are charged to defendants pursuant to 
 
            rule 343 IAC 4.33 and Iowa Code sections 86.19(1) and 86.40.
 
            
 
                 That defendants file claim activity reports as 
 
            requested by this agency pursuant to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of April, 1994.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          WALTER R. McMANUS, JR.
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Robert W. Pratt
 
            Attorney at Law
 
            6959 University Ave.
 
            Des Moines, IA  50311-1540
 
            
 
            Mr. Glenn Goodwin
 
            Ms. Dawn R. Siebert
 
            Attorneys at Law
 
            4th Floor, Equitable Bldg.
 
            Des Moines, IA  50309
 
            
 
 
            
 
            
 
            
 
            
 
                                  1108.50, 1401, 1402.40, 1803, 2501,
 
                                  2700
 
                                  Filed April 14, 1994
 
                                  Walter R. McManus, Jr.
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            TOM LYLE DESKIN,    
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                              File No. 978786
 
            METRO AIR, INC.,    
 
                                           A R B I T R A T I O N
 
                 Employer, 
 
                                              D E C I S I O N
 
            and       
 
                      
 
            AETNA CASUALTY & SURETY CO.,  
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            1108.50, 1401, 1402.40, 1803, 2501, 2700
 
            
 
                 Claimant injured his cervical, dorsal and lumbar spine 
 
            in a traumatic unloading incident.  
 
            
 
                 Dr. McGuire treated the cervical and upper dorsal area 
 
            briefly then dismissed claimant because he found that he had 
 
            a communication problem and a personality problem with 
 
            claimant.
 
            
 
                 Dr. Boulden then treated the lumbar spine until 
 
            claimant attained maximum medical improvement.
 
            
 
                 Claimant continued to have dorsal spine pain and was 
 
            forced to seek treatment from Dr. Dubansky at his own 
 
            expense.  His health insurance would not pay because it was 
 
            workers' compensation and workers' compensation would not 
 
            pay because Dr. Boulden had discharged claimant.
 
            
 
                 The bone scan and MRI ordered by Dr. Dubansky were 
 
            allowed.  Dr. McGuire had recommended a bone scan earlier 
 
            and wrote a prescription for it but it was never performed.  
 
            Insurance carriers and employers can choose the doctor; 
 
            however the care to be provided is in the province of the 
 
            doctor chosen.  The bone scan and MRI were allowed as 
 
            reasonable treatment pursuant to Iowa Code section 85.27.  
 
            Claimant is entitled to care reasonably suited to treat the 
 
            injury without undue inconvenience to the injured employee.  
 
            Claimant was not entitled to a second round of epidural 
 
            steroid injections ordered by Dr. Rosenfeld because he had 
 
            already received this treatment from Dr. Dubansky with only 
 
            temporary relief.
 
            
 
                 Dr. McGuire speculated that Claimant possibly had 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            suffered a 2 percent permanent impairment of the dorsal 
 
            spine.
 
            
 
                 Dr. Rosenfeld found that claimant had sustained a 7 
 
            percent permanent impairment of the thoraco-lumbar area, was 
 
            restricted to sedentary work and should find other work.
 
            
 
                 Dr. Boulden found no permanent partial impairment and 
 
            issued no permanent impairment rating because he found no 
 
            surgical lesion and his lumbar CT scan showed no objective 
 
            evidence of injury.  Dr. Boulden and Mr. Bower purported to 
 
            return claimant to work with the ability to perform his 
 
            over-the-road truck driving job based on their physical 
 
            capacity examination.  However, the conditions were (1) that 
 
            claimant was to perform no heavy lifting, (2) claimant was 
 
            to stop the truck every 40 to 45 minutes and extend his back 
 
            for one or two minutes, (3) that as long as claimant drove a 
 
            truck he would have continued problems and (4) that claimant 
 
            should look for an alternative type of work.  It was noted 
 
            that work restrictions were more indicative of permanent 
 
            disability than a percentage impairment rating.  
 
            Furthermore, Claimant suffered an economic loss because of 
 
            his restrictions on over-the-road truck driving.  Blacksmith 
 
            and McSpadden cited.
 
            
 
                 Claimant returned to accommodated work for about four 
 
            months and was fired because he would not take a load out on 
 
            80 to 100 percent ice covered highways.  This unreasonable 
 
            termination raised the question of whether the real reason 
 
            for the termination was the difficulty that employer 
 
            encountered in providing accommodated work in order to 
 
            reduce their worker compensation liability earlier.
 
            
 
                 Claimant was age 35.  He completed high school, two 
 
            years of college, and truck driving school.  He is probably 
 
            foreclosed from most truck driving jobs.  Claimant has AIDS 
 
            and is receiving social security disability for this reason.  
 
            He has not been actively seeking employment.  It was 
 
            determined that claimant had sustained a 15 percent 
 
            industrial disability to the body as a whole and was 
 
            entitled to 75 weeks of permanent partial disability 
 
            benefits.
 
 
            
 
            
 
            
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            JAYNE CENTENO,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 978798
 
            HY-VEE FOOD STORES, INC.,     :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            EMPLOYERS MUTUAL,             :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by 
 
            claimant, Jayne Centeno, against her former employer, Hy-Vee 
 
            Food Stores, Inc., and its insurance carrier, Employers 
 
            Mutual Insurance Company.  Claimant sustained an injury on 
 
            March 16, 1991 which arose out of and in the course of her 
 
            employment.
 
            
 
                 The evidence in this case consists of testimony from 
 
            the claimant, John Centeno, claimant's husband, and James 
 
            Siemens, manager of the Ottumwa Hy-Vee Food Store; and, 
 
            Joint Exhibits 1-12.  The case came on for hearing before 
 
            the undersigned deputy industrial commissioner on August 4, 
 
            1993 at Oskaloosa, Iowa.  
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The undersigned deputy, having reviewed all of the 
 
            evidence received, finds the following facts:
 
            
 
                 Claimant, Jayne Centeno is married with two children.  
 
            At the time of her injury in March of 1991, she was 32 years 
 
            of age.  
 
            
 
                 Claimant is a high school graduate, and earned her 
 
            degree in 1976.  She has received an Associate Arts degree 
 
            in psychology from Ottumwa Heights College, Ottumwa, Iowa, 
 
            and a Bachelor of Arts degree in management science from 
 
            Buena Vista College, Ottumwa, Iowa.  
 
            
 
                 Claimant worked as a bookkeeper's assistant on a 
 
            full-time basis for the defendant employer from 1980 until 
 
            January of 1991, when her child was born.  Once her child 
 
            was born, claimant requested and received part-time work.  
 
            While her intent was to return within a few months to a 
 
            full-time position with the store, these plans were never 
 
            discussed with the management of the Hy-Vee Food Store.  
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                 While working for the store, she received bonuses 
 
            contingent upon the store's profitability, and was also paid 
 
            $1,918.40 in vacation benefits.  
 
            
 
                 On March 16, 1991, claimant was walking down the 
 
            stairs, slipped and fell.  She was taken by ambulance to the 
 
            Ottumwa Regional Hospital, where she was treated by Donald 
 
            Berg, M.D., an orthopedic specialist.  Dr. Berg examined 
 
            claimant, and diagnosed a compression fracture at the 
 
            mid-back, T-8.  She was fitted with a Jewitt brace, and was 
 
            instructed not to perform any heavy lifting, twisting or 
 
            bending with her back for several months.  Although Dr. Berg 
 
            recommended hospitalization, claimant was nursing her young 
 
            child and requested home care.  Dr. Berg released claimant 
 
            to recover at her home, but maintained that claimant would 
 
            require assistance in caring for her newborn child, 
 
            particularly lifting her child.  He recommended in-home care 
 
            for a six-week period.  The insurance company was aware of 
 
            this recommendation, and claimant requested in-home care, 
 
            but the request was denied.  During the next several weeks, 
 
            claimant proceeded to hire help, and paid $666.75 for the 
 
            in-home care.  She stated that the individuals hired were 
 
            not registered nurses (Joint Exhibit 4, pp. 115-116; 119; 
 
            Jt. Ex. 5, pp. 127-130; Jt. Ex. 7).  
 
            
 
                 Claimant returned to Dr. Berg on June 17, 1991.  She 
 
            was complaining of upper back discomfort, but Dr. Berg felt 
 
            she could return to work on July 1, 1991 with a 10 pound 
 
            lifting restriction for one month.  His final diagnosis was 
 
            a compression fracture of T-8, and a permanent physical 
 
            impairment rating of 3 percent, secondary to the fracture 
 
            (Jt. Ex. 4, pp. 118-119).  
 
            
 
                 In August of 1991, claimant began a two-week course of 
 
            physical therapy at the Ottumwa Regional Health Center.  
 
            After an examination that revealed some limitation lumbar 
 
            extension on the right side, Karen Meyer, the physical 
 
            therapist, determined that claimant should undergo hot pack 
 
            treatment and massages to the upper back.  A series of 
 
            exercises was also explored (Jt. Ex. 4, p. 123).  
 
            
 
                 Claimant received additional physical therapy in 
 
            January of 1992, and in addition to hot packs and massages, 
 
            also received ultrasound therapy.  She also reported that 
 
            she was suffering from headaches.  Claimant was to undergo 
 
            treatment three times per week for one to two weeks (Jt. Ex. 
 
            4, pp. 119; 124-126).  
 
            
 
                 Claimant returned to Dr. Berg in March of 1992 with 
 
            complaints of neck and upper back pain and occasional 
 
            headaches.  A neurovascular examination showed good range of 
 
            motion, but elicited tenderness in the dorsal spine area.  
 
            No muscle spasms were noted.  Dr. Berg recommended 
 
            evaluation for muscle weakness in the neck and dorsal spine 
 
            muscles at the Southern Iowa Rehabilitation Unit.  
 
            (Apparently, this evaluation was not undertaken at this 
 
            time, as the only notes from the Southern Iowa 
 
            Rehabilitation Unit are dated January through March of 1993 
 
            (Jt. Ex. 6).)  
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
                 On April 7, 1993 claimant underwent an evaluation 
 
            performed by Peter Wirtz, M.D.  His examination revealed 
 
            tenderness on the right and left side of the eighth vertebra 
 
            in the thoracic spine.  No muscle spasm was noted, and range 
 
            of motion tests on the neck and back were within normal 
 
            limits.  Dr. Wirtz diagnosed a "healed T7 thoracic 
 
            vertebrae" and recommended continuing her at-home regimen of 
 
            stretching and physical therapy exercises for neck 
 
            symptomatology.  Dr. Wirtz believed that claimant's symptoms 
 
            would continue to be present, "but would be limiting only 
 
            with excessive activities beyond her physiologic strength 
 
            and dexterity; therefore, social activities and home 
 
            activities and work activities within her physical ability 
 
            would be tolerated."  He opined that moving furniture, 
 
            painting ceilings and chopping ice would produce temporary 
 
            symptoms, and should be avoided.  Lifting a child would also 
 
            cause a temporary flare-up of her symptoms (Jt. Ex. 8).
 
            
 
                 Currently, claimant works at the Hy-Vee courtesy desk 
 
            one day per week for approximately seven hours per day.  Her 
 
            job duties include waiting on customers for doling out 
 
            change for can and bottle deposits; receiving payment of 
 
            utility bills; cashing checks; and other miscellaneous 
 
            duties.  While she continues to perform exercises 
 
            recommended by her physical therapists, claimant continues 
 
            to feel pain in the back area, which travels up to her 
 
            shoulders, neck and head.  She complained of severe 
 
            headaches.  Her symptoms come and go on a day-to-day basis.  
 
            Claimant testified that the pain does not keep her from 
 
            performing any activities, but that it is a constant pain, 
 
            particularly felt when she performs repetitive movements.  
 
            Her sleep patterns have changed, and she no longer sleeps in 
 
            her bed during the night, but is forced to sleep on the 
 
            couch because it provides more comfort.  
 
            
 
                 Joint Exhibit 11 contains several requests written by 
 
            claimant to her supervisor regarding time off.  Most of the 
 
            notes are out of order, poorly copied, and unreadable.  
 
            
 
                 Joint Exhibit 12 is claimant's statement regarding 
 
            mileage incurred totaling 1,336 miles times $.21 per mile 
 
            totaling $280.56. 
 
            
 
                 Dr. Berg was deposed for the case.  He confirmed that 
 
            claimant had reached maximum healing on the date she was 
 
            released to return to work, July 1, 1991.  He posed that 
 
            claimant would continue to have intermittent flare-ups of 
 
            her condition (Jt. Ex. 9, pp. 14-15 or pp. 163-164).  He was 
 
            of the opinion that claimant should not lift more than 40 to 
 
            50 pounds on a frequent basis, and a 3 percent permanent 
 
            impairment to the body as a whole due to the compression 
 
            fracture (Jt. Ex. 9, pp. 18-19 or pp. 167-168).  When 
 
            pressed, Dr. Berg stated that he assigned an additional 3 
 
            percent impairment because of persistent pain and muscle 
 
            weakness, but he "tend[ed] not to rate those things because 
 
            it seems to be an intermittent problem."  (Jt. Ex. 9, p. 20 
 
            or p. 169)  He was unable to state that these problems were 
 
            permanent (Jt. Ex. 9, p. 20 or p. 169).  He believed all 
 
            physical therapy treatment was necessitated by the original 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            injury (Jt. Ex. 9, p. 40-41).
 
            
 
                         ANALYSIS AND CONCLUSIONS OF LAW
 
            
 
                 The first issue to address is whether claimant is 
 
            entitled to temporary disability or healing period benefits. 
 
            
 
                 The party who would suffer loss if an issue were not 
 
            established has the burden of proving that issue by a 
 
            preponderance of the evidence.  Iowa R. App. P. 14(f).
 
            
 
                 Iowa Code section 85.33 provides the following 
 
            guidance:
 
            
 
                    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.
 
            
 
                 Iowa Code section 85.34(1) provides, in relevant part:
 
            
 
                    Compensation for permanent disabilities and 
 
                 during a healing period for permanent partial 
 
                 disabilities shall be payable to an employee as 
 
                 provided in this section...
 
            
 
                    1. Healing period.  If an employee has suffered 
 
                 a personal injury causing permanent partial 
 
                 disability for which compensation is payable as 
 
                 provided in subsection 2 of this section, the 
 
                 employer shall pay to the employee compensation 
 
                 for a healing period, as provided in section 
 
                 85.37, beginning on the date of injury, and until 
 
                 the employee has returned to work or it is 
 
                 medically indicated that significant improvement 
 
                 from the injury is not anticipated or until the 
 
                 employee is medically capable of returning to 
 
                 employment substantially similar to the employment 
 
                 in which the employee was engaged at the time of 
 
                 the injury, whichever occurs first.
 
            
 
                 Dr. Berg is clearly claimant's treating physician.  He 
 
            provided an opinion that claimant had sustained a 3 percent 
 
            permanent impairment rating due to the compression fracture.  
 
            While claimant argues that an additional 3 percent is added 
 
            to this rating due to the pain and muscle weakness, the 
 
            undersigned is unable to conclude that Dr. Berg intended 
 
            that claimant has a 6 percent impairment.  His opinion with 
 
            respect to the additional 3 percent impairment is equivocal, 
 
            and is not based on a reasonable degree of medical 
 
            certainty.  He limits claimant's activities to no lifting of 
 
            more than 40 to 50 pounds on a frequent basis.  
 
            
 
                 The only other physician involved in the case is Dr. 
 
            Wirtz, who provided a one-time evaluation of claimant's 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            condition.  He assigns no permanent impairment rating, and 
 
            limits claimant's activities only to those social, home and 
 
            work activities within her physical ability.  This opinion 
 
            provides little, if any, guidance as to claimant's ability 
 
            to perform work activities.  
 
            
 
                 While a treating physician's opinion is not 
 
            automatically given more weight than that opinion provided 
 
            by an evaluating physician, the undersigned finds Dr. Berg's 
 
            assessment of claimant's abilities and physical condition to 
 
            be more persuasive.  
 
            
 
                 As a result, it is found that claimant has sustained a 
 
            permanent disability due to the work-related accident.  She 
 
            is entitled to healing period benefits from March 17, 1991 
 
            through June 30, 1991, as she was released to return to work 
 
            beginning July 1, 1991.  While claimant argues that the 
 
            healing period lasted longer, until March 16, 1993, her 
 
            argument is totally without merit, and the undersigned is 
 
            not provided with any justification for allowing claimant to 
 
            receive healing period benefits for two years after the 
 
            injury.  Claimant was released to return to work on July 1, 
 
            1991, and while the undersigned agrees that she was released 
 
            to light duty work, claimant has always performed light duty 
 
            work for the employer.  The description of her duties 
 
            provided by claimant reveals that she has always been 
 
            employed in a sendentary/light duty capacity, so the 10 
 
            pound lifting restriction imposed on her activities for one 
 
            month following the release to return to work, does not 
 
            extend her healing period.  Under no circumstances would 
 
            claimant's healing period be extended to March 15, 1993, as 
 
            claimant argues.  There is no question that claimant was 
 
            released to return to work similar to that which she was 
 
            performing at the time of her injury. 
 
            
 
                 The next issue to address is claimant's entitlement to 
 
            permanent partial disability benefits.  As claimant has 
 
            sustained an injury to the body as a whole, an evaluation of 
 
            her industrial disability is warranted. 
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, expe
 
            rience and inability to engage in employment for which he is 
 
            fitted.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 
            125 N.W.2d 251 (1963).  Barton v. Nevada Poultry, 253 Iowa 
 
            285, 110 N.W.2d 660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial disabil
 
            ity.  This is so as impairment and disability are not syn
 
            onymous.  Degree of industrial disability can in fact be 
 
            much different than the degree of impairment because in the 
 
            first instance reference is to loss of earning capacity and 
 
            in the latter to anatomical or functional abnormality or 
 
            loss.  Although loss of function is to be considered and 
 
            disability can rarely be found without it, it is not so that 
 
            a degree of industrial disability is proportionally related 
 
            to a degree of impairment of bodily function.
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
                 Factors to be considered in determining industrial 
 
            disability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  These are matters which the 
 
            finder of fact considers collectively in arriving at the 
 
            determination of the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  There are no 
 
            guidelines which give, for example, age a weighted value of 
 
            10 percent of the total value, education a value of 15 
 
            percent of total, motivation - 5 percent; work experience - 
 
            30 percent, etc.  Neither does a rating of functional 
 
            impairment directly correlate to a degree of industrial 
 
            disability to the body as a whole.  In other words, there 
 
            are no formulae which can be applied and then added up to 
 
            determine the degree of industrial disability.  It therefore 
 
            becomes necessary for the deputy or commissioner to draw 
 
            upon prior experience, general and specialized knowledge to 
 
            make the finding with regard to degree of industrial dis
 
            ability.  See Peterson v. Truck Haven Cafe, Inc., (Appeal 
 
            Decision, February 28, 1985); Christensen v. Hagen, Inc., 
 
            (Appeal Decision, March 26, l985).
 
            
 
                 At the time of the injury, claimant was 32 years of 
 
            age.  She has several post-high school degrees, and has 
 
            maintained a successfully career and working relationship 
 
            with the employer, Hy-Vee. 
 
            
 
                 Although claimant sustained a serious injury due to her 
 
            fall at work, she has recuperated and there appears to be no 
 
            significant deleterious side effects stemming from the 
 
            injury and subsequent impairment.  Her physical limitations 
 
            are such that they do not substantially interfere with her 
 
            work or social activities.  While claimant is under a work 
 
            restriction not to lift more than 40 to 50 pounds on a 
 
            frequent basis, there is no evidence in the record that she 
 
            has ever been required to perform this amount of lifting in 
 
            any job she has held.  Likewise, although she has a 3 
 
            percent permanent impairment, range of motion tests 
 
            performed have yielded results that are within normal 
 
            limits.  
 
            
 
                 Claimant has had various exacerbations resulting from 
 
            activities such as painting ceilings, chipping ice from the 
 
            driveway and moving heavy furniture.  The undersigned 
 
            believes it would be common for most people to feel some 
 
            aches and pains after performing these types of activities. 
 
            
 
                 After considering all of the factors listed above that 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            comprise an industrial disability, including the three month   
 
            healing period; the 3 percent impairment; the lifting 
 
            restriction of not more than 40 to 50 pounds on a frequent 
 
            basis; the employer's willingness to continue to employ 
 
            claimant in a suitable position; claimant's elevated level 
 
            of education; the nature of the injury; and, claimant's 
 
            motivation to work more hours, it is found that she has 
 
            sustained a 5 percent industrial disability. 
 
            
 
                 The next issue to resolve is claimant's workers' 
 
            compensation rate. 
 
            
 
                 The parties were able to stipulate that claimant was 
 
            married at the time of her injury, and entitled to four 
 
            exemptions.  
 
            
 
                 Apparently, claimant believes her rate is $246.09 per 
 
            week, based on her earnings thirteen weeks prior to the 
 
            injury, including bonuses and vacation pay.  Claimant does 
 
            not provide the gross weekly earnings, but merely states 
 
            that she is a full-time employee, and even though she had 
 
            requested and had received part-time status one month prior 
 
            to the injury, she intended to return to full time status 
 
            eventually. 
 
            
 
                 The employer was unaware of her intentions, and 
 
            defendants argue that claimant's rate is $147.09 based on 
 
            gross earnings totaling $10,161.23 during the 50 weeks prior 
 
            to the injury.  Defendants argue that claimant is a 
 
            part-time employee, and her rate is calculated under Iowa 
 
            Code section 85.36(10).  
 
            
 
                 The undersigned is unable to find a workers' 
 
            compensation rate of $246.09 for a married person with four 
 
            exemptions in the appropriate rate book, the July 1, 1990 
 
            Guide to Iowa Workers' Compensation Claim Handling.  In 
 
            fact, when checking the July, 1991 and July, 1992 Guides, 
 
            she is unable to find this particular rate.  Claimant failed 
 
            to provide the necessary information to substantiate a rate 
 
            other than the one provided by defendant.  
 
            
 
                 However, the law allows vacation and regular bonus pay 
 
            to be included in calculation of a workers' compensation 
 
            rate.  As a result, it is found that claimant's rate is 
 
            $185.59 based on gross earnings of $13,321.29 divided by 50 
 
            weeks, or $266.43 per week.
 
            
 
                 Finally, claimant argues that she is entitled to 
 
            reimbursement of $666.75 paid for in-home care during her 
 
            recovery time. 
 
            
 
                 Iowa Code section 85.27 provides, in relevant part:
 
            
 
                    The employer, for all injuries compensable 
 
                 under this chapter or chapter 85A, shall furnish 
 
                 reasonable surgical, medical, dental, osteopathic, 
 
                 chiropractic, podiatric, physical rehabilitation, 
 
                 nursing, ambulance and hospital services and 
 
                 supplies therefor and shall allow reasonably 
 
                 necessary transportation expense incurred for such 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
                 services.
 
            
 
                 Claimant has asked that penalty benefits be awarded due 
 
            to defendants' refusal to pay medical benefits.
 
            
 
                 The agency has consistently held that penalty benefits 
 
            are allowed only for weekly benefits unreasonably terminated 
 
            or delayed.  Claimant's argument fails.
 
            
 
                 While claimant may have been entitled to reimbursement 
 
            for those amounts paid for in-home care, the record is 
 
            confusing as to the amount of time spent helping claimant 
 
            recover from her injury, and what percentage of time the 
 
            in-home care spent on other activities, such as baby-sitting 
 
            and housekeeping.  Claimant has failed to establish 
 
            entitlement to reimbursement for this amount.
 
            
 
                 Also, defendants' affirmative defense of lack of 
 
            authorization fails.  The record reflects that the 
 
            defendants did not take any initiative in directing 
 
            claimant's care.  They did not authorized anyone to manage 
 
            claimant's care.  To argue that they did not authorize care 
 
            equates to an acquiescence as to claimant's choice of care.  
 
            As a result, Dr. Berg is the authorized treating physician.  
 
            He believed the original injury mandated further treatment.  
 
            As a result, all treatment recommended by Dr. Berg is to be 
 
            paid by the defendants, except that amount paid to the 
 
            in-home assistance.  As stated earlier, the record shows 
 
            that some of the help included house cleaning and 
 
            baby-sitting duties.
 
            
 
                 Finally, the defendants sent claimant to Dr. Wirtz for 
 
            an independent medical examination.  They did not pay her 
 
            expenses incurred for driving to the appointment.  
 
            Defendants are required to pay for "the reasonable cost of 
 
            transportation."  Iowa Code section 85.39.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendants shall pay claimant healing period 
 
            benefits from March 16, 1991 through June 30, 1991, at the 
 
            rate of one hundred eighty-five and 59/100 dollars ($185.59) 
 
            per week commencing July 1, 1991.
 
            
 
                 That defendants shall pay medical expenses provided by 
 
            Donald Berg, M.D., and the costs of physical therapy 
 
            recommended by Dr. Berg.
 
            
 
                 That defendants shall immediately reimburse the costs 
 
            incurred for travel to the independent medical examination 
 
            performed by Peter Wirtz, M.D.
 
            
 
                 That defendants shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against the award for 
 
            weekly benefits previously paid.
 
            
 
                 That defendants shall pay interest on benefits awarded 
 
            herein as set forth in Iowa Code section 85.30.
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            
 
                 That defendants shall pay the costs of this action, 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 That defendants shall file an activity report upon 
 
            payment of this award as required by this agency, pursuant 
 
            to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of August, 1993.
 
            
 
            
 
            
 
            
 
                                          
 
                                        ________________________________
 
                                          PATRICIA J. LANTZ
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr David J Hester
 
            Attorney at Law
 
            111 W Second St
 
            P O Box 716
 
            Ottumwa IA 52501
 
            
 
            Ms Ann Clark
 
            Mr E J Kelly
 
            Attorney at Law
 
            Terrace Ctr  Ste 111
 
            2700 Grand Ave
 
            Des Moines IA 50312
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 5-1803
 
                                                 Filed August 26, 1993
 
                                                 Patricia J. Lantz
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            JAYNE CENTENO,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 978798
 
            HY-VEE FOOD STORES, INC.,     :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            EMPLOYERS MUTUAL,             :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            Claimant awarded 5% industrial disability due to age (35); 
 
            education (two post-high school degrees); motivation to 
 
            return to work (questionable); employer's willingness to 
 
            employ claimant in suitable job (present); severity of 
 
            injury (compression fracture right T8); length of healing 
 
            period (two months); restrictions (no frequent lifting of 
 
            40-50 pounds).
 
            
 
 
            
 
            
 
            
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
             ------------------------------------------------------------
 
            TIMOTHY THOMAS,               :
 
                                          :
 
                 Claimant,                :
 
                                          :       File Nos. 978914
 
            vs.                           :                1039815
 
                                          :
 
            RDR CONTRACTING CORP. and     :     A R B I T R A T I O N
 
            KEITH L. DE HEUS,             :
 
                                          :        D E C I S I O N
 
                 Employer,                :
 
                                          :
 
            and                           :
 
                                          :
 
            ALLIED GROUP INS. CO.,        :
 
                                          :
 
                 Insurance Carrier,       :
 
                                          :
 
            and                           :
 
                                          :
 
            MIDLAND HOMES                 :
 
                                          :
 
            and                           :
 
                                          :
 
            HAWKEYE SECURITY,             :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
                                          :
 
            ------------------------------------------------------------
 
                               STATEMENT OF THE CASE
 
            
 
                 These cases came on for hearing on July 5, 1994, at Des 
 
            Moines, Iowa.  File No. 978914 is a proceeding in 
 
            arbitration wherein claimant seeks compensation for 
 
            permanent partial disability benefits as a result of an 
 
            alleged injury occurring on December 7, 1990.  RDR 
 
            Contracting Corporation then cross-petitioned and brought in 
 
            Midland Homes contending that claimant incurred an injury on 
 
            November 23, 1992.  The record in the proceedings consist of 
 
            the testimony of the claimant; claimant's wife, Sheila 
 
            Thomas; Tracy Ingram; Chester Purkey; Keith DeHeus; Jackie 
 
            Buffum and Bob Seely; and, claimant's exhibits 1 through 11 
 
            and joint exhibits A through K(2).
 
            
 
                                      ISSUES
 
            
 
                 The issues for resolution are:
 
            
 
                 1.  Whether an injury arose out of and in the course of 
 
            claimant's employment on December 7, 1990 or November 23, 
 
            1992.
 

 
            
 
            Page   2
 
            
 
            
 
            
 
                 2.  Whether there is a causal connection as to any 
 
            temporary total disability, healing period or permanent 
 
            partial disability and the alleged injuries;
 
            
 
                 3.  The nature and extent of any disability and 
 
            claimant's entitlement to disability benefits, if any;
 
            
 
                 4.  Whether claimant gave notice under 85.23 (as to 
 
            file 1039815 only);
 
            
 
                 5.  The issue of 85.27 medical benefits - whether 
 
            defendants should provide claimant with an MRI; and,
 
            
 
                 6.  Whether claimant is entitled to any 86.13 penalty 
 
            benefits.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The undersigned deputy, having heard the testimony and 
 
            considered all the evidence, finds that:
 
            
 
                 Claimant is a 32-year-old high school graduate who has 
 
            no other further formal education after high school.  He was 
 
            in the military but that training was of no benefit for his 
 
            subsequent jobs other than it gave him some computer 
 
            training.
 
            
 
                 Claimant testified as to his work history which 
 
            basically was manual labor in either construction, working 
 
            for the railroad, maintenance or carpenter or general labor.  
 
            Claimant worked for RDR on two occasions, the first one from 
 
            around April 1985 to May 1989, and then after a three month 
 
            lapse went back to work for defendant employer when offered 
 
            more money.  He worked with them until December 7, 1990.
 
            
 
                 Claimant described the nature of his work which was 
 
            basically a rough framer carpenter.
 
            
 
                 Claimant described how he got hurt in December 1990.  
 
            He said his back progressively got worse due to lifting and 
 
            constructing walls.  He said the December 7, 1990 date was 
 
            chosen because this is the date Keith DeHeus came up with.
 
            
 
                 Claimant stated he was not working on December 7, 1990, 
 
            and because he was unable to work he went up to a River Bend 
 
            addition in Cedar Rapids to have Keith fill out a workers' 
 
            compensation claim.  He said he discussed the date that the 
 
            injury took place and indicated it was on the Jim Jenson 
 
            home putting up 17 foot walls.  He said there were three of 
 
            them, himself, Keith and Dale, lifting up the wall.  He said 
 
            he noticed a pain different than previous pains and it got 
 
            worse as the day went on.  He indicated it was a ten hour 
 
            day and normally he would work from 6:30 to 5:00 or 5:30 in 
 
            the evening.
 
            
 
                 Claimant then was referred to joint exhibit I, which is 
 
            a photocopy of the defendant RDR's calendar book.  Claimant 
 
            said that Mr. DeHeus did not have these sheets with him when 
 
            a date was picked.  Claimant said he wanted to make sure a 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            workers' compensation claim would be filed so he could 
 
            proceed with his medicine due to the pain in his low back 
 
            and left leg.  He described his pain to be on the scale of 
 
            9.75 out of the scale of 1 to 10.  Claimant described how 
 
            hard the work was and the various places and houses he 
 
            worked on.  These are represented by claimant's exhibit 10.  
 
            He identified about 14 of those pictures as houses he worked 
 
            on and did the framing.  Claimant indicated he thought these 
 
            houses he worked on were about two years before his alleged 
 
            injury of December 7, 1990.  Claimant described the sizes of 
 
            some of these houses which appeared to be around 2,500 to 
 
            3,000 square feet.  Claimant indicated it seems like he 
 
            always had a pain or something while working for RDR because 
 
            of the nature of the work.  There is no dispute that this 
 
            type of work can cause one to have pain after a good hard 
 
            day at work.
 
            
 
                 Claimant acknowledged that on September 9, 1991, it was 
 
            indicated he had reached maximum improvement but he said he 
 
            couldn't go back to his old job.  Claimant then became 
 
            employed with Midland Homes on December 4, 1991.  He said he 
 
            got this job on his own.  He described the nature of this 
 
            job which is basically as a supervisory-manager for the 
 
            construction of single family homes.  He supervises the 
 
            subcontractors and also does the punch list and sees that a 
 
            job is done right.
 
            
 
                 Claimant insisted that he incurred no new injury on 
 
            November 23, 1992, while working for Midland Homes.  
 
            Claimant said he has had good days and bad days and 
 
            sometimes doesn't feel like getting out of bed.  It has 
 
            affected his attitude and he gets grouchy and irritable.  He 
 
            indicated he has depression, back pain, loses sleep, has 
 
            lost his appetite and is in constant pain.
 
            
 
                 Claimant acknowledged that he told Douglas Koontz, 
 
            M.D., the work hardening program was a joke and a waste of 
 
            time as they were trying to work him into work he previously 
 
            did but felt that he would not be able to go back to that 
 
            work.  Claimant testified as to the various things he cannot 
 
            do now that he contends he could do prior to November 7, 
 
            1990.
 
            
 
                 On cross-examination, claimant then indicated he was 
 
            not injured on December 7, 1990, but went to Cedar Rapids to 
 
            have Mr. DeHeus fill out his workers' compensation form.  He 
 
            acknowledged that on claimant's exhibit 1, item 29, he wrote 
 
            in December 7, 1990 as the date of his injury but indicated 
 
            again that he did not injure himself on that date.  He 
 
            indicated he was present when Keith DeHeus's deposition was 
 
            taken and agreed that he was not working on December 7, 
 
            1990, as Mr. DeHeus indicated.  He then indicated it was in 
 
            September or October 1990, at the Grand Oaks job, that he 
 
            injured himself.  Again, he was asked and admitted he was 
 
            not working and received no injury on December 7, 1990, but 
 
            that his injury was in October 1990 before Thanksgiving.  
 
            Claimant was referred to his petition in which the injury 
 
            date of December 7, 1990 was stated thereon and that he 
 
            injured himself lifting the walls.  Claimant again indicated 
 
            that it was September or October 1990 that he incurred an 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            injury when he lifted the walls and not December 7, 1990.
 
            
 
                 Claimant then was referred to interrogatory No. 6, page 
 
            61, joint exhibit D.  Again, he set out in detail what 
 
            happened on December 7, 1990.  These interrogatories were 
 
            signed approximately one and one-half years after his 
 
            alleged December 7, 1990 injury.
 
            
 
                 Claimant believed he told the doctor that he was 
 
            injured on December 7, 1990.
 
            
 
                 On further cross-examination, claimant was referred to 
 
            line 23 and following of joint exhibit K(2), which date is 
 
            also in joint exhibit K(1), in which he again emphasized his 
 
            injury was on December 7, 1990, and explained what he was 
 
            doing on that particular day.  He specifically refers to 
 
            building a house and describes the size of the walls, the 
 
            length, the height, the header, etc.  The undersigned might 
 
            note that this is contrary to his testimony in court in 
 
            which he absolutely said he was not working on that date.  
 
            He also emphasized he was not hurt on that date.  Claimant 
 
            could not show or indicate any medical records where there 
 
            is a history that claimant indicated he was hurt in October 
 
            or September 1990.  He also could not show anywhere where he 
 
            told people that he had an accident that did not occur on 
 
            December 7, 1990, but instead in September or October 1990.
 
            
 
                 Claimant then seemed to indicate a specific incident 
 
            occurred prior to Thanksgiving but he really couldn't recall 
 
            a specific time.  He then said he remembers lifting a wall 
 
            and having a sudden incident of pain.
 
            
 
                 On the cross-examination, the claimant seemed to be 
 
            contending that he means disability rather than injury when 
 
            he refers to December 7, 1990.  It would appear the claimant 
 
            started using the disability word when there were either 
 
            arguments or interruptions among the attorneys as to certain 
 
            questions and claimant seemed to have got the opinion that 
 
            it may be a benefit to use the word disability rather than 
 
            injury.  Of course, the petition refers to injury and 
 
            everything else during his deposition refers to injury.  It 
 
            would appear they are synonymous as far as the claimant's 
 
            use of the word.   The claimant made it clear that he did 
 
            nothing on December 7, 1990, at least as far as work because 
 
            he wasn't working.  It is also obvious from the testimony 
 
            and evidence in this case that claimant was going to be laid 
 
            off or in the process of being laid off because there was no 
 
            work in this industry usually this time of year and the 
 
            evidence shows he didn't work on December 7, 1990 or after 
 
            that time as there was no work to be done.
 
            
 
                 The undersigned is likewise concerned about the 
 
            credibility of this claimant.  The undersigned does not 
 
            think the claimant really believed he had a cumulative, 
 
            otherwise, he would not be so specific as he has in both his 
 
            testimony and written evidence and would not have set out in 
 
            his answers to interrogatories and his petition indicating a 
 
            specific injury on a specific date.  This agency's 
 
            experience is that if one is contending a cumulative injury, 
 
            that word would be used in the petition, at least in item 10 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            of the petition, and usually in items 4 and 10 or in item 4 
 
            alone.  There is no indication that claimant was contending 
 
            cumulative injury.  The petition was filed on April 15, 
 
            1992, which is almost a year and a half after the alleged 
 
            injury and this hearing is over two and one-half years from 
 
            the date of the petition and this appears to be the first 
 
            time there is a contention of a cumulative injury versus a 
 
            specific injury and there has been no attempt by claimant to 
 
            change the written evidence or documents.  In addition 
 
            thereto, claimant states specifically what he was doing on 
 
            December 7, 1990 to bring about his specific injury and yet 
 
            he now swears under oath contrary to his previous testimony 
 
            under oath that he was not even working that day nor was 
 
            that the day he was injured.  He contends his employer 
 
            picked the date for him.  The undersigned finds that the 
 
            evidence does not support that, but even assuming the 
 
            employer suggested that date and the claimant acknowledges 
 
            he wrote that date on the first report, he has had legal 
 
            representation for a number of years and has not changed his 
 
            petition, amended it or supplemented any of the 
 
            interrogatory answers.
 
            
 
                 Claimant then was referred to page 56, line 7, of his 
 
            deposition taken November 25, 1992, joint exhibit K(1), in 
 
            which he indicated he had no other injury to his body except 
 
            a burned hand by a cutting torch.  He then was referred to 
 
            interrogatory 11 of joint exhibit D in which he did not 
 
            refer to any motorcycle accident in 1984.  In fact, there 
 
            has never been a mention of the motorcycle accident in 1984 
 
            in the deposition.  He indicated December 10, 1990 was the 
 
            last day there would have been any work and he was told to 
 
            seek unemployment.  Claimant contends that on December 7, 
 
            1990 his back was so bad he couldn't work.  As will be 
 
            addressed later on, there is a question as to whether 
 
            claimant actually went up to Cedar Rapids on December 7, 
 
            1990 to get a paper signed by Mr. DeHeus.  Also, there is 
 
            evidence that claimant did other work for people in 
 
            constructing houses or doing certain projects on his time 
 
            away from the job with RDR Contracting.
 
            
 
                 Claimant did not know that his lawyer wrote Dr. Koontz 
 
            in October 1993, asking for an opinion.  The October 18, 
 
            1993 letter of Dr. Koontz, joint exhibit A, page 1, reflects 
 
            that after having reviewed claimant's files, there is no 
 
            question claimant indicated to him that when he initially 
 
            saw him on February 21, 1991, that the point of time in 
 
            which claimant developed pain was not at a time he was 
 
            working.  He also did not indicate to him that lifting at 
 
            work caused an aggravation of his pain.  The doctor also 
 
            noticed that when he saw claimant he did not understand when 
 
            taking the information initially or his office taking 
 
            information, that this was a workers' compensation matter.  
 
            Likewise, at the time of the surgery in February 1991, the 
 
            doctor did not know this was a workers' compensation matter.  
 
            The doctor also mentioned that there are many 
 
            inconsistencies in the history claimant gave and it was 
 
            difficult for him to say with any reasonable degree of 
 
            certainty exactly what is the causative factor here.  He can 
 
            only say its a possibility.  Claimant said he had a lot of 
 
            confidence in Dr. Koontz and believed he knew what he was 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            talking about.
 
            
 
                 Claimant acknowledged that he made $16,332 with RDR in 
 
            1988, which is the only income figure on his tax return.  He 
 
            acknowledged he did odd jobs for his relatives but he 
 
            downplayed that as if he was more or less a supervisor.  He 
 
            declared nothing on his tax return for any compensation he 
 
            may have received from these jobs or any value of anything 
 
            that might have been bartered.  He then went over his other 
 
            income tax returns plus income he makes with his current 
 
            employer, Midland Homes.
 
            
 
                 Claimant then was questioned as to the first report 
 
            being filed on March 22, 1991, approximately three months 
 
            after his alleged December 7, 1990 injury.  Claimant 
 
            contends he turned in this to the insurance company or 
 
            adjuster the day after he had it signed by Mr. DeHeus.  
 
            Claimant was also questioned as to certain time limits or 
 
            how they could occur if in fact he turned it in around 
 
            December 8, 1990 to December 10, 1990.
 
            
 
                 One area that claimant was questioned for which he did 
 
            not have any logical explanation was that he placed his age 
 
            at 29 as of the December 1991 date where, in fact, he was 
 
            only 28 and would not have been 29 until January 22, 1991 of 
 
            the next year.  Claimant again tried to explain how the 
 
            December 7, 1990 date got in there.  The undersigned finds 
 
            that claimant's explanation is totally unacceptable.
 
            
 
                 Claimant was then cross-examined by the attorney for 
 
            Midland Homes and the claimant again emphasized that he was 
 
            in no way injured on November 23, 1990.  He believed his 
 
            only injury was December 7, 1990.  The undersigned 
 
            substantially questions claimant's credibility on many of 
 
            his answers and explanations on issues herein, but believes 
 
            he wasn't injured on November 23, 1990.
 
            
 
                 Sheila Thomas, claimant's wife, testified that 
 
            claimant's back flared up when he was working for defendant 
 
            employer.  She said he had no hobbies outside of his work.  
 
            She was living with claimant on December 7, 1990 and she 
 
            knows of nothing at home that could have caused claimant to 
 
            hurt his back other than his work at defendant employer.  
 
            She said he was lifting trusses and bending over over a long 
 
            period of time and that his back was getting worse.  She 
 
            said claimant worked on December 7, 1990, and after that 
 
            date his condition got worse and he was in pain a lot.  She 
 
            said claimant has had a change of attitude since December 7, 
 
            1990, and that he was very energetic before.  She went over 
 
            various things he cannot do now that he could do before.
 
            
 
                 On cross-examination, she indicated that claimant did 
 
            side contracting jobs and that these outside jobs earned him 
 
            extra cash.  She did not know whether he claimed this on his 
 
            income tax or not.  The undersigned might note that claimant 
 
            downplayed any outside work and seemed to indicate that he 
 
            did not get any extra cash.  There seems to be a 
 
            contradiction in this regard.  It is obvious that in 
 
            claimant's testimony he did not claim anything on his tax 
 
            return.
 

 
            
 
            Page   7
 
            
 
            
 
            
 
                 Mrs. Thomas could not remember any other incident 
 
            whereby claimant had a dramatic increase in his pain.
 
            
 
                 She was then referred to joint exhibit D, which is 
 
            interrogatory No. 6, in which the claimant indicated the 
 
            date of accident was December 7, 1990, and he was working on 
 
            a home in West Des Moines, Grant Oaks addition.  She 
 
            indicated claimant wasn't able to finish the job that day 
 
            even though he was working on that particular job on 
 
            December 7, 1990.  She then gave the impression that he then 
 
            didn't quit work but he just wasn't able to go back to work 
 
            because of his injury.  She then was handed claimant's 
 
            deposition (jt. ex. K(1)) and referred to page 6, line 20, 
 
            in which her husband had testified that he worked the next 
 
            day and worked until December 10, 1990, when they ran out of 
 
            work and his boss put him on unemployment.  She had no 
 
            response to this.
 
            
 
                 Chester Purkey, who is self-employed doing house 
 
            framing, testified that he worked with defendant employer 
 
            off and on in the early 1970s until approximately two years 
 
            prior to the hearing.  He indicated he worked with the 
 
            claimant on some occasions.  He described the work they did, 
 
            the lifting, the nature of the lifting, the weight and size 
 
            of objects.  He also referred to claimant's exhibit 10, 
 
            which is the various photographs of houses and identified 
 
            those on which he worked with claimant.  He was asked what 
 
            he was making now as his own boss or self-employed versus 
 
            when he was working for defendant employer.  He indicated 
 
            one has the capability of making more if he has his own 
 
            business.  The undersigned might note that Mr. Purkey's 
 
            explanation of what in fact he is grossing versus netting, 
 
            it would appear he is not doing as well as he was when he 
 
            was employed.  He also wasn't sure what his overall 
 
            situation is.  The reason for this question was that 
 
            claimant or his wife had indicated that claimant had a goal 
 
            of having his own business and own framing crew.
 
            
 
                 On cross-examination, Mr. Purkey acknowledged that his 
 
            business had zero profit for the past year.
 
            
 
                 Tracy Ingram, who was subpoenaed by the claimant, 
 
            testified she works for Des Moines Neurosurgeons as their 
 
            business manager.  Her testimony in this case is basically 
 
            insignificant but the point that claimant was trying to make 
 
            was that the bills that were paid were paid by the workers' 
 
            compensation carrier and not by private health insurance of 
 
            claimant.  The law is very clear that the mere fact that one 
 
            might pay a bill or might be making benefit payments is not 
 
            an admission of liability.
 
            
 
                 Keith DeHeus testified that he recalls when his 
 
            deposition was taken in February 1994 in which the 
 
            claimant's attorney went through the original records of the 
 
            log books, a copy of which is represented by joint exhibit 
 
            I.
 
            
 
                 Mr. DeHeus said claimant did not work on December 7, 
 
            1990, and that the company did not work that day nor the 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            prior week.
 
            
 
                 He said the claimant brought him the forms that have 
 
            been referred to either the last week of February or the 
 
            first week of March 1991.  He said he was actually working 
 
            at a project himself when claimant brought him the form.  
 
            Mr. DeHeus said that on December 7, 1990, he was working in 
 
            the Pella area.
 
            
 
                 He recalled claimant bringing him a first report of 
 
            injury and claimant said he had back problems and wanted him 
 
            to sign the form so he could get it filed.  He agrees with 
 
            what he signed but has no idea where the December 7, 1990 
 
            date came from.  He emphasized he did not tell the claimant 
 
            to put the December 7, 1990 date on the form nor did he 
 
            indirectly suggest he use that date.
 
            
 
                 He was aware he had workers' compensation insurance in 
 
            1990.  He said his business was on a fiscal year beginning 
 
            December 1 of each year.
 
            
 
                 Mr. DeHeus was not aware claimant sustained an injury 
 
            to his back at any point in time.  He indicated everyone off 
 
            and on went to get an adjustment.  He said claimant never 
 
            asked him to pay any medical except possibly a chiropractor 
 
            bill.
 
            
 
                 He said that as to the December 7, 1990 date, this was 
 
            related not to an injury but that their work ended and he 
 
            told the claimant to file for unemployment.
 
            
 
                 On cross-examination, Mr. DeHeus then went over how he 
 
            kept his books and the nature of his operation.  He 
 
            emphasized he did not make these records all at the same 
 
            time but that they were made either as the events occurred 
 
            or he would keep notes in his truck and at the end of a 
 
            week, he would correlate them and put them on his official 
 
            records.  He would originally make an entry on a scratch pad 
 
            and then put them on the log, a copy of which is in the 
 
            record.
 
            
 
                 Jackie Buffum, who is a claims adjuster from Allied 
 
            Insurance Company, testified.  The undersigned sees no need 
 
            to set out her testimony as it is not significant in light 
 
            of the decision herein.
 
            
 
                 Bob Seely testified.  He is vice president of defendant 
 
            Midland Homes.  He testified as to claimant's position with 
 
            his company.  He testified as to claimant's job performance 
 
            and his opportunity for promotion and substantial salary 
 
            increases and his ability to receive bonuses.
 
            
 
                 Mr. Seely is familiar with claimant's personnel records 
 
            and they have no record of a work injury or any claim of 
 
            work injury that claimant made with Midland Homes.
 
            
 
                 On cross-examination, he indicated that they are very 
 
            satisfied with claimant but that he has limitations but 
 
            because of the nature of his work with them, it does not 
 
            call for any job limitations.
 

 
            
 
            Page   9
 
            
 
            
 
            
 
                 On further cross-examination, he indicated claimant's 
 
            salary could go in the $40,000 range after he is there for 
 
            awhile.
 
            
 
                 The undersigned does not feel it necessary to go into 
 
            anymore detail or set out any more medical information or 
 
            other parts of exhibits that are in evidence.
 
            
 
                 The undersigned finds that there is a big issue of 
 
            credibility regarding this claimant.  It is clear from the 
 
            records in looking at claimant's answers to interrogatories 
 
            and his deposition and his petition that he alleges he 
 
            incurred an injury on December 7, 1990, while working on a 
 
            house in West Des Moines.  Claimant's petition filed April 
 
            1992 specifically refers to him lifting a wall when he hurt 
 
            his back.  This agency's experience is that if one is 
 
            alleging a cumulative injury, it is usually noted somewhere 
 
            in the petition that one is relying on a cumulative injury.  
 
            Claimant has had over two years to amend his petition and 
 
            has had substantial time to attempt to correct his various 
 
            testimonies under oath or to clarify the same.
 
            
 
                 Joint exhibit D reflects claimant's answer to 
 
            interrogatory No. 6 in which he specifically refers to the 
 
            date of his accident as December 7, 1990, and describes what 
 
            he was doing.  In claimant's deposition taken November 25, 
 
            1992, joint exhibit K(1), on page 43, claimant again 
 
            indicated he had no doubt whatsoever as to the time he was 
 
            injured and that his injury involved a specific incident at 
 
            work.
 
            
 
                 Claimant attempted to muddy the water by indicating 
 
            someone else, namely, a Mr. DeHeus, either wrote in or told 
 
            him to put December 7, 1990 on the first report.  There is 
 
            also suspicion as to when that report was made out since it 
 
            wasn't filed until March 1991.
 
            
 
                 Claimant stated several times that in fact he wasn't 
 
            even working on December 7, 1990.  The undersigned also 
 
            believes Mr. DeHeus when he said that on December 7, 1990, 
 
            he was not working in Cedar Rapids but was working in Pella, 
 
            so that claimant could not have come to see him in Cedar 
 
            Rapids on December 7, 1990.  At the hearing, claimant now 
 
            indicates that sometime in September or October was when he 
 
            apparently injured or felt he was becoming injured and that 
 
            the lifting of the walls on December 7, 1990 was a 
 
            combination of what he now claims as a cumulative injury.  
 
            Again, claimant was emphatic that he was not working on 
 
            December 7, 1990.  Also, it appears that at that time or 
 
            just around that time the company no longer had work and he 
 
            was laid off which is normal for that time of the year.  It 
 
            appears that at least as of December 10, 1990, there was a 
 
            complete layoff.  Mr. DeHeus, the owner of defendant 
 
            employer, indicated not only wasn't there work on December 
 
            7, 1990, but the prior week there was no work.  There would 
 
            appear to be no coincidence that claimant picked that 
 
            particular date of December 7, 1990 under the circumstances.
 
            
 
                 Claimant indicated that he had no other injury but did 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            acknowledge that he did other work for other relatives or 
 
            friends without pay or at least on a barter system.  In 
 
            other words, he would do something for someone who 
 
            apparently would do something for him.  This seems contrary 
 
            to his wife's testimony who indicated that claimant had some 
 
            outside jobs and received cash for them.  The wife didn't 
 
            know if he included it on his income tax return but it is 
 
            obvious he didn't and claimant contends he received no cash.
 
            
 
                 The undersigned could go into further detail but finds 
 
            it unnecessary in light of the strong evidence in this case 
 
            and taking into consideration the demeanor of this claimant 
 
            and his lack of credibility.  The undersigned therefore 
 
            finds that claimant has not carried his burden to prove that 
 
            he incurred an injury on December 7, 1990, nor that he 
 
            incurred a cumulative injury on December 7, 1990, and 
 
            therefore takes nothing from these proceedings.
 
            
 
                 As to file No. 1039815, which is an action actually 
 
            initiated by the defendants who brought in a third party, 
 
            Midland Homes, the undersigned is surprised that this action 
 
            was not objected to by the claimant or by the third party 
 
            brought in.
 
            
 
                 Under the rules of this agency and the law, the 
 
            defendants are unable to bring in a third party under these 
 
            circumstances.  It is only the claimant that can file an 
 
            action alleging an injury.  There was no objection so this 
 
            matter was before the undersigned.  How the date of November 
 
            23, 1992 was chosen is also a mystery, particularly, in 
 
            light of the fact that claimant absolutely denied any injury 
 
            and the defendant Midland Homes had no knowledge of any 
 
            claim of an injury.  It would appear that defendants were 
 
            trying to divert attention from litigation against 
 
            themselves.  There were no sanctions requested under rule 80 
 
            or under Iowa Code section 616.19, therefore, that will not 
 
            be addressed by the undersigned but it would appear this 
 
            could very well be a situation in which those rules or law 
 
            could be triggered as an investigation would surely have 
 
            prevented this suit from being filed, particularly, since 
 
            this is contrary to the law.  It is unfortunate the 
 
            defendant Midland Homes had to defend this matter and incur 
 
            legal expenses.  The undersigned therefore dismisses with 
 
            prejudice the action in file No. 1039815.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 As to file No. 978914:
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the alleged injury 
 
            actually occurred and that it arose out of and in the course 
 
            of employment.  McDowell v. Town of Clarksville, 241 N.W.2d 
 
            904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 
 
            154 N.W.2d 128 (1967).  The words "arising out of" refer to 
 
            the cause or source of the injury.  The words "in the course 
 
            of" refer to the time, place and circumstances of the 
 
            injury.  Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986); 
 
            McClure v. Union County, 188 N.W.2d 283 (Iowa 1971).
 
            
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
                 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).
 
            
 
                 It is further concluded that claimant did not incur a 
 
            specific injury nor a cumulative injury on December 7, 1990.
 
            
 
                 Claimant's credibility is substantially questioned as 
 
            to his testimony concerning his alleged injury.
 
            
 
                 As to file No. 1039815:
 
            
 
                 Claimant was not contending he incurred an injury on 
 
            November 23, 1992.
 
            
 
                                       ORDER
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 As to file No. 978914:
 
            
 
                 Claimant takes nothing from these proceedings.
 
            
 
                 Costs are assessed against the claimant.
 
            
 
                 As to file No. 1039815:
 
            
 
                 The petition is dismissed with prejudice and the costs 
 
            are assessed against defendants RDR Contracting Corporation 
 
            and Allied Group Insurance.
 
            
 
                 Signed and filed this ____ day of July, 1994.
 
            
 
            
 
            
 
                                          ______________________________
 
                                          BERNARD J. O'MALLEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr Stephen D Lombardi
 
            Attorney at Law
 
            10101 University Ave  Ste 202
 
            Clive IA 50325
 
            
 
            Mr D Brian Scieszinski
 
            Attorney at Law
 
            801 Grand Ave  Ste 3700
 
            Des Moines IA 50309
 
            
 
            Mr Thomas Henderson
 
            Attorney at Law
 
            317 6th Ave  Ste 1200
 
            Des Moines IA 50309
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                              1100; 1108; 1402
 
                                              Filed July 21, 1994
 
                                              Bernard J. O'Malley
 
            
 
                        BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
             ------------------------------------------------------------
 
            TIMOTHY THOMAS,               :
 
                                          :
 
                 Claimant,                :
 
                                          :       File Nos. 978914
 
            vs.                           :                1039815
 
                                          :
 
            RDR CONTRACTING CORP. and     :     A R B I T R A T I O N
 
            KEITH L. DE HEUS,             :
 
                                          :        D E C I S I O N
 
                 Employer,                :
 
                                          :
 
            and                           :
 
                                          :
 
            ALLIED GROUP INS. CO.,        :
 
                                          :
 
                 Insurance Carrier,       :
 
                                          :
 
            and                           :
 
                                          :
 
            MIDLAND HOMES                 :
 
                                          :
 
            and                           :
 
                                          :
 
            HAWKEYE SECURITY,             :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
                                          :
 
            ------------------------------------------------------------
 
            1100; 1108; 1402
 
            Found claimant was not credible and that he did not incur an 
 
            injury on December 7, 1990, as he alleged in his petition, 
 
            answers to interrogatories and deposition, but apparently 
 
            contends at hearing it was sometime in September or October 
 
            1990 and was now a cumulative injury.  Claimant took 
 
            nothing.
 
            There were many examples of claimant's inconsistency.
 
            
 
            1100; 1108
 
            Defendant insurance company brought in a third party, 
 
            employer and insurance company, alleging claimant was 
 
            injured on another date (November 23, 1992), which if proven 
 
            would exonerate the original employer and insurance company 
 
            that claimant originally sued.  No one objected to this 
 
            improper action as only the claimant can bring an action for 
 

 
            
 
 
 
 
 
 
 
 
 
 
 
            an injury.  Claimant adamantly denied he was injured on 
 
            November 23, 1992.  The third party action was dismissed 
 
            with prejudice.