BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            DEBRA TWEDT,   
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                                File No. 979758
 
            CABIN CRAFT MIDWEST INC.,     
 
                                             A R B I T R A T I O N
 
                 Employer, 
 
                                                D E C I S I O N
 
            and       
 
                      
 
            UNION INSURANCE COMPANY, 
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
                             STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Debra 
 
            Twedt, claimant, against Cabin Craft Midwest Inc., employer, 
 
            and Union Insurance Company, insurance carrier, defendants, 
 
            to recover benefits under the Iowa Workers' Compensation Act 
 
            as a result of an injury sustained on January 23, 1991.  
 
            This matter came on for hearing before the undersigned 
 
            deputy industrial commissioner on April 20, 1994, in Des 
 
            Moines, Iowa.  The record was considered fully submitted at 
 
            the close of the hearing.  The claimant was present and 
 
            testified.  Also present and testifying were Stanley Twedt, 
 
            Steve Twedt and Ann Mauldin.  The documentary evidence 
 
            identified in the record consists of joint exhibits 1-5, 
 
            claimant's exhibits 6-10 and defendants' exhibits A, B & C.
 
            
 
                                      ISSUES
 
            
 
                 Pursuant to the prehearing report and order dated April 
 
            20, 1994, the parties have presented the following issues 
 
            for resolution:
 
            
 
                 1.  Whether claimant sustained a right shoulder injury 
 
            arising out of and in the course of employment with employer 
 
            (defendants admit that claimant sustained a right elbow 
 
            injury arising out of and in the course of employment with 
 
            employer);
 
            
 
                 2.  Whether the alleged right shoulder injury is the 
 
            cause of temporary and permanent disability and if so, the 
 
            extent thereof; and
 
            
 
                 3.  Whether claimant is entitled to payment of an 
 
            independent medical examination pursuant to Iowa Code 
 
            section 85.39.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The undersigned has carefully considered all the 
 
            testimony given at the hearing, arguments made, evidence 
 

 
            
 
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            contained in the exhibits herein, and makes the following 
 
            findings:
 
            
 
                 Claimant was born on October 7, 1954 and completed the 
 
            ninth grade of school.  She received her GED certificate in 
 
            1971.  Prior to commencing work with employer in 1989, 
 
            claimant worked as a waitress, sandblaster, factory 
 
            assembler, kitchen helper, truck driver and counter clerk.  
 
            She commenced working part-time for employer in 1989 in the 
 
            warehouse shipping and receiving department.  She was put on 
 
            full-time duty in January of 1990.  Claimant alleges an 
 
            injury to her right elbow and right shoulder on January 23, 
 
            1991.  She went off work in March of 1991 and never 
 
            returned.  In 1993, she was a paid baby-sitter and worked 
 
            three months on weekends for Caseys.  On February 28, 1994, 
 
            she commenced working for Iowa State University in the 
 
            housekeeping department.  She earns $7.02 per hour which is 
 
            a $1.70 increase from the $5.25 she was earning at the time 
 
            of her injury.
 
            
 
                 A review of the pertinent medical evidence of record 
 
            reveals that claimant presented to J. M. Koester, D.O., a 
 
            family physician, on January 23, 1991, with complaints of 
 
            right elbow pain radiating to the right thumb of one months 
 
            duration.  She reported that her pain increases with 
 
            activity.  Dr. Koester diagnosed tendonitis, probably 
 
            secondary to overuse at work (Exhibit 1-2).  
 
            
 
                 Claimant had follow-up visits with Dr. Koester on 
 
            February 11 and March 11, 1991.  Her complaints were 
 
            referable to persistent pain in her right elbow.  Dr. 
 
            Koester diagnosed lateral epicondylitis and/or tendonitis of 
 
            the right elbow secondary to overuse at work.  At this time, 
 
            he took her off work to rest her arm (Ex. 1-3).  
 
            
 
                 On March 25, 1991, claimant had x-rays taken of her 
 
            right elbow at Story City Memorial Hospital.  The results 
 
            were normal without evidence of fracture or significant 
 
            hemarthrosis (Ex. 5).
 
            
 
                 Claimant saw Dr. Koester for follow-up visits on March 
 
            25 and April 28, 1991.  Again, her complaints were referable 
 
            to right elbow pain (Ex. 1-3-4).
 
            
 
                 Dr. Koester referred claimant to the McFarland Clinic, 
 
            Department of Orthopedics on May 9, 1991.  Claimant related 
 
            complaints of pain in the elbow, forearm and occasionally up 
 
            into the upper arm.  On examination she had full range of 
 
            motion of the elbow.  She had some mild tenderness over the 
 
            lateral epicondyle and pain upon resistive maneuvers 
 
            involving the later muscle mass.  Dr. Buck referred claimant 
 
            for physical therapy and recommended that she return to work 
 
            after a couple of weeks of therapy (Ex. 1-2).
 
            
 
                 Claimant returned to Dr. Koester on May 22, 1991.  She 
 
            continued to complain of right elbow pain.  He advised her 
 
            to speak with employer regarding some sort of job assignment 
 
            which would be light in terms of physical use of the right 
 
            upper extremity (Ex. 1-5).
 
            
 

 
            
 
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                 Defendant insurance carrier referred claimant's case to 
 
            Intracorp on May 24, 1991 for the purpose of obtaining a 
 
            medical release of information, completing a job analysis 
 
            and reviewing a job analysis with Dr. Koester and Dr. Buck 
 
            to determine whether she can return to the same job and 
 
            employer.  A job analysis was completed and employer 
 
            informed Shelley Foss, rehabilitation specialist, assigned 
 
            to the case that employer was willing to make some job 
 
            modifications to enable claimant to return to work (Ex. C, 
 
            pp. 1-4).
 
            
 
                 Claimant returned to Dr. Koester on July 2, 1991.  Her 
 
            complaints were referable to pain in the right elbow.  He 
 
            diagnosed persistent lateral epicondylitis of the right 
 
            upper extremity (Ex. 1-5).
 
            
 
                 Claimant was then referred by defendants to Thomas F. 
 
            DeBartolo, M.D., for an independent medical examination.  On 
 
            July 17, 1991, claimant was accompanied to the examination 
 
            by Shelley Foss who provided Dr. DeBartolo with an analysis 
 
            of claimant's job duties with employer.  On examination, she 
 
            was only able to forward flex her right shoulder to 
 
            approximately 155-160 degrees.  Abduction of her arm was 
 
            slightly limited at the extreme of motion.  She was unable 
 
            to rotate her arm behind her back touching the opposite 
 
            shoulder blade.  She had full flexion and extension of her 
 
            elbow with evidence of significant ulnaritis.  There was 
 
            some mild tenderness around the lateral epicondyle.  Dr. 
 
            DeBartolo's impression was that claimant's symptoms are 
 
            primarily of radial nerve entrapment in the proximal forearm 
 
            as opposed to an epicondylitis.  He felt that in order to 
 
            make a positive diagnosis, a radial nerve block should be 
 
            performed and her arm immobilized in a cast (Ex. 4, pp. 
 
            1-2).
 
            
 
                 Claimant communicated to Ms. Foss that she agreed to 
 
            transfer her medical care to Dr. DeBartolo and to follow 
 
            through with the nerve block (Ex. C-11).  On August 8, 1991, 
 
            a radial nerve block proximal to the localized area of 
 
            discomfort was performed by Dr. Ming.  Since the claimant 
 
            was leaving for a one week visit to Texas, Dr. DeBartolo did 
 
            not apply a long-arm cast at this time.  The nerve block 
 
            confirmed the diagnosis of radial nerve entrapment and a 
 
            long-arm cast was applied on September 4, 1991, when 
 
            claimant returned from Texas (Ex. 4-3 & Ex. C-12).
 
            
 
                 Claimant returned to Dr. DeBartolo on September 24, 
 
            1991.  The cast was removed and she reported decreased pain 
 
            in the right forearm.  Dr. DeBartolo advised claimant to 
 
            avoid repetitive supination of her right upper extremity 
 
            (Ex. 4-4).
 
            
 
                 Ms. Foss, who accompanied claimant on her visit with 
 
            Dr. DeBartolo, contacted employer regarding a job compatible 
 
            with her physical restriction of no repetitive supination of 
 
            the right upper extremity.  Employer indicated that there 
 
            was an opening for a bandsaw operator in the wood shop.  Dr. 
 
            DeBartolo had no problem with claimant performing this job 
 
            since it involved basically radial ulnar deviation of the 
 
            wrist.  He outlined a program of gradual return to full-time 
 

 
            
 
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            work activity (Ex. 4-5).
 
            
 
                 In the meantime, claimant reported to Ms. Foss that she 
 
            probably would not return to Cabin Craft even if work were 
 
            available to her because she had a disagreement with 
 
            employer several months prior regarding contract work she 
 
            did for them and decided to go into business with a friend 
 
            who had a country craft store (Ex. C-17).
 
            
 
                 Ms. Foss met with claimant in her home on October 1, 
 
            1991.  There is a written memorandum in evidence concerning 
 
            this meeting.  In essence, claimant reported to Ms. Foss 
 
            that she probably would not return to work at Cabin Craft 
 
            because she was considering working for herself or with a 
 
            friend as a craft painter (Ex. C-18).  A letter from Ms. 
 
            Foss to Dr. DeBartolo dated October 15, 1991, reiterates 
 
            claimant's intentions (Ex. C-22).  
 
            
 
                 Employer had work available for claimant beginning 
 
            October 28, 1991.  Ms. Foss contacted claimant via telephone 
 
            on October 24, 1991, to inform her that the job was cleared 
 
            by Dr. DeBartolo.  At this time, claimant stated that she 
 
            would not return to work for employer due to a personal 
 
            conflict and that she could work in her own wood shop 
 
            operating a wood lath and bandsaw to fill orders for Cabin 
 
            Craft in Nevada, Iowa and Texas (Ex. C, pp. 28-29).
 
            
 
                 Claimant returned to Dr. DeBartolo after a four month 
 
            absence on February 12, 1992.  At this time, Dr. DeBartolo 
 
            reported that: 
 
            
 
                    The patient returns and states that as she uses 
 
                 her band saw she tends to have her shoulder 
 
                 abducted.  She feels that she is not able to 
 
                 tolerate that activity.  She has a sense of the 
 
                 shoulder joint coming out of place.  She describes 
 
                 discomfort in the right shoulder and in the neck 
 
                 area. 
 
            
 
                 He also noted that her elbow was not particularly 
 
            discomforting at this time.  He noted that Ms. Foss was no 
 
            longer actively following her case.  Claimant was adamant 
 
            that she needed some information about continuing to work 
 
            with the bandsaw.  Based on the history she related, Dr. 
 
            DeBartolo stated that she appears to be unable to tolerate 
 
            the abducted position of her arm.  He indicated that it is 
 
            primarily postural and muscle fatigability as opposed to any 
 
            type of underlying structural problem.  Dr. DeBartolo 
 
            reiterated his October 23, 1991 return to work program with 
 
            avoidance of repetitive supination and 15 pound lifting 
 
            limit (Ex. 4, pp. 6-7).
 
            
 
                 Claimant was referred by Dr. DeBartolo to M. Davenport, 
 
            physical therapist, for neck and upper extremity evaluation 
 
            on March 31, 1992.  Claimant reported that she was presently 
 
            working an average of 25 hours per week at home running a 
 
            lathe bandsaw and painting for Cabin Craft.  It was noted 
 
            that recent x-rays of the cervical spine and right shoulder 
 
            were negative.  Claimant's complaints were referable to pain 
 
            in the right scapular region, right anterior shoulder and 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            the dorsal proximal right forearm in the area of supinator.  
 
            A functional capacity evaluation was performed and it was 
 
            determined, among other things that claimant was capable of 
 
            occasionally working with her arms at shoulder level and 
 
            performing overhead work but that she should avoid 
 
            repetitive pronation/supination with the right upper 
 
            extremity (Ex. 3).
 
            
 
                 Claimant was seen again by Dr. DeBartolo on May 6, 
 
            1992.  Claimant's complaints were referable to neck and 
 
            shoulder discomfort.  Dr. DeBartolo felt that this was due 
 
            primarily to some strain in the shoulder area as a result of 
 
            altered use of her right arm.  Nevertheless, he felt that 
 
            this has not resulted in measurable impairment and that she 
 
            had reached maximum medical improvement at this time (Ex. 4, 
 
            pp. 9-10).
 
            
 
                 Being dissatisfied with Dr. DeBartolo's assessment, 
 
            claimant requested a second opinion.  
 
            
 
                 Claimant was referred by defendants to Rodney E. 
 
            Johnson, M.D., for evaluation on July 1, 1992.  Dr. Johnson 
 
            reported that claimant was self-employed at this time doing 
 
            arts and crafts using a saw to cut wood blocks and also 
 
            doing some painting.  She presented with complaints of right 
 
            shoulder discomfort with no specific history of trauma.  Dr. 
 
            Johnson agreed with Dr. DeBartolo that her discomfort 
 
            resulted from a substitution pattern with active use of the 
 
            arm but he also felt that the nature of her work contributed 
 
            to her shoulder discomfort.  After conducting a physical 
 
            examination, Dr. Johnson injected in and around the AC joint 
 
            and the subacromial space.  He concluded that she has some 
 
            impingement.  He indicated that an MRI may be warranted in 
 
            the future (Ex. 6).
 
            
 
                 At this juncture, Ms. Foss became reinvolved with 
 
            claimant's case.  She accompanied claimant to Dr. Johnson's 
 
            office visit.  She recounted the particulars of the visit in 
 
            a letter to claimant dated July 9, 1992.  She noted that Dr. 
 
            Johnson recommended three weeks of physical therapy to work 
 
            on range of motion and then to work on strengthening (Ex. 
 
            C-39).
 
            
 
                 Dr. Johnson then referred claimant to Bradley R. Adams, 
 
            D.O., for evaluation of her right shoulder.  Dr. Adams saw 
 
            claimant on July 22, 1992.  He obtained x-rays of her right 
 
            shoulder and noted some mineralization of the inferior 
 
            aspect of the AC joint with definite tenderness in the area.  
 
            He locally injected the area and she experienced some mild 
 
            relief of her symptoms.  Dr. Adams suspected an impingement 
 
            syndrome as well as AC pathology.  He recommend an MRI and 
 
            bone scan to further assess rotator cuff structures and to 
 
            determined whether surgery was necessary (Ex. 7-3).
 
            
 
                 On October 2, 1992, claimant underwent an MRI of the 
 
            right shoulder and a bone scan.  The MRI revealed severe 
 
            impingement and probable full thickness tear.  The bone scan 
 
            of both shoulders revealed good distribution of radial 
 
            activity and symmetrical uptake of radial activity in both 
 
            shoulders.  The intensity around the glenoid area of the 
 

 
            
 
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            right shoulder was slightly greater than the left (Ex. 9).
 
            
 
                 Claimant returned to Dr. Adams on October 5, 1992.  He 
 
            noted that the MRI scanned findings were consistent with 
 
            probable partial tear of the rotator cuff and severe 
 
            impingement.  He discussed with her the option of continuing 
 
            with pain, reinstituting a therapy program or considering 
 
            surgical intervention.  She indicated a willingness to 
 
            proceed with surgery (Ex. 7-5).
 
            
 
                 Claimant testified that she did not proceed with 
 
            surgery because she developed severe respiratory problems 
 
            and was bedridden while taking prescribed Prednisone.  
 
            Claimant presented no medical records in this regard.  
 
            Nevertheless, on March 15, 1993, claimant presented to Dr. 
 
            Adams stating that she was significantly better and had less 
 
            pain than the last time she was seen in October, 1992.  On 
 
            examination, she had full range of motion of her shoulder 
 
            with normal strength.  Dr. Adams indicated that since she 
 
            had clinically improved and despite the MRI findings, there 
 
            was no need to operate on her shoulder at this time.  He 
 
            attributed her improvement to the Prednisone and released 
 
            her from his care (Ex. 7-6).
 
            
 
                 One year later, claimant presented to Dr. Adams on 
 
            February 9, 1994.  On examination, her pain was still 
 
            localized in the anterior clavicle acromial complex.  On 
 
            examination, she lacked approximately 20 degrees of forward 
 
            flexion.  She was able to painfully abduct to 90 degrees.  
 
            She had a positive speeds impingement sign and tenderness in 
 
            the anterior coracoacormial complex.  No instability was 
 
            evident and strength was 5/5.  Dr. Adams was unable to 
 
            answer whether she would require surgery in the future (Ex. 
 
            7-7).
 
            
 
                 Claimant was referred by her attorney to Thomas W. 
 
            Bower, P.T., for an independent functional capacity and 
 
            impairment evaluation on April 5, 1994.  After an extensive 
 
            functional capacity evaluation, Mr. Bower indicated that 
 
            claimant cannot perform any work requiring overhead reaching 
 
            or any overhead activity above shoulder height.  He felt 
 
            that she had reached maximum medical improvement at this 
 
            time since she has not had surgery and felt that she had 
 
            sustained an overall 14 percent impairment to the right 
 
            upper extremity which converts to 8 percent to the body as a 
 
            whole (Ex. 8-12).
 
            
 
                 Mr. Bower's impairment rating contrasts with the rating 
 
            given by Dr. DeBartolo on May 6, 1992.  At that time, Dr. 
 
            DeBartolo gave claimant a 10 percent impairment rating of 
 
            the upper extremity due to entrapment neuropathy and radial 
 
            nerve at the elbow (Ex. 4-9).  
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 The first issue to be determined is whether claimant is 
 
            entitled to additional temporary total disability benefits.  
 
            Defendants have paid claimant benefits from March 11, 1991 
 
            through November 3, 1991.  Claimant contends that she is 
 
            entitled to benefits through November 4, 1992, the date she 
 

 
            
 
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            was scheduled to undergo right shoulder surgery but was 
 
            unable to do so because of respiratory problems.
 
            
 
                 Section 85.34(1) provides that healing period benefits 
 
            are payable to an injured worker who has suffered permanent 
 
            partial disability until (1) the worker has returned to 
 
            work; (2) the worker is medically capable of returning to 
 
            substantially similar employment; or (3) the worker has 
 
            achieved maximum medical recovery.  The healing period can 
 
            be considered the period during which there is a reasonable 
 
            expectation of improvement of the disabling condition.  See 
 
            Armstrong Tire & Rubber Co. v. Kubli, 312 N.W.2d 60 (Iowa 
 
            Ct. App. 1981).  Healing period benefits can be interrupted 
 
            or intermittent.  Teel v. McCord, 394 N.W.2d 405 (Iowa 
 
            1986).
 
            
 
                 Claimant was employed by Cabin Craft Midwest, Inc. from 
 
            February 1, 1990 to March 12, 1991, when Dr. Koester took 
 
            her off work due to right elbow pain.  On October 23, 1991, 
 
            Dr. DeBartolo released claimant to initially return to work 
 
            three to four hours every other day for three weeks, and if 
 
            she continued to do well, three to four hours daily for 
 
            another three-week period, and then a full day every other 
 
            day for three weeks and ultimately a 40-hour week with no 
 
            overtime (Ex. 4-5).  Employer had agreed to accommodate this 
 
            program and provide claimant with a job approved by Dr. 
 
            DeBartolo.  Insurance carrier agreed to pay claimant 
 
            temporary partial disability benefits during those times she 
 
            was not working.  Claimant indicated to Ms. Foss, the 
 
            rehabilitation specialist assigned to her case by defendant 
 
            insurance carrier, that instead of returning to work with 
 
            employer, she intended to work out of her home as a hand 
 
            craft painter and bandsaw operator.  She indicated that she 
 
            already had 600 orders lined up for customers in Iowa and 
 
            Texas (Ex. C pp. 18-32)
 
            
 
                 Accordingly, the undersigned concludes that claimant is 
 
            not entitled to receive additional temporary total 
 
            disability benefits than what has already been paid to her 
 
            by defendants.  Employer cannot be obligated to pay claimant 
 
            healing period benefits after being released to return to 
 
            work by her physician and after refusing to participate in 
 
            the work offered by employer which was previously approved 
 
            by claimant's treating physician as work well within her 
 
            physical restrictions.  
 
            
 
                 The next issue to be determined is whether claimant's 
 
            right shoulder injury is the proximate result of her 
 
            original injury.  
 
            
 
                 In 1936, the Iowa Supreme Court attempted to supply 
 
            some guidance for sorting through this type of case in 
 
            Oldham v. Scofield and Welch, 222 Iowa 764, 767, 266 N.W. 
 
            480, 482 (Iowa 1936).
 
            
 
                 The question of whether the disability sustained 
 
                 by the employee shall be attributed to the first 
 
                 accident or to the later accidents depends on 
 
                 whether or not the disability sustained was caused 
 
                 by a change in the original condition, or by a 
 

 
            
 
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                 recurrence of the original injury, or by an 
 
                 independent and subsequent cause.  If the employee 
 
                 suffers a compensable injury and thereafter 
 
                 suffers further disability which is the proximate 
 
                 result of the original injury, such further 
 
                 disability is compensable.  Where an employee 
 
                 suffers a compensable injury and thereafter 
 
                 returns to work and, as a result thereof, his 
 
                 first injury is aggravated and accelerated so that 
 
                 he is greater disabled than before, the entire 
 
                 disability may be compensated for.
 
            
 
                 More recently the court in DeShaw v. Energy 
 
            Manufacturing Co., 192 N.W.2d 777, 780 (Iowa 1971) 
 
            established this rule:
 
            
 
                 When a workman sustains an injury, later sustained 
 
                 another injury, and subsequently seeks to reopen 
 
                 an award predicted on the first injury, he must 
 
                 prove one or two things:  (a) that the disability 
 
                 for which he seeks additional compensation was 
 
                 proximately caused by the first injury, or (b) 
 
                 that the second injury (and ensuring disability) 
 
                 was proximately caused by the first injury.
 
            
 
                 This issue has been addressed by Dr. DeBartolo and Dr. 
 
            Johnson.  On May 6, 1992, Dr. DeBartolo indicated that 
 
            claimant's neck and shoulder discomfort is related to the 
 
            altered use of her right arm.  He noted that she was 
 
            instructed to avoid repetitive supinatory motions of the arm 
 
            and in attempting to compensate for and to protect the 
 
            elbow, she may have strained the shoulder area (Ex. 4-9).  
 
            Dr. Johnson stated that he agrees with Dr. DeBartolo as to 
 
            the cause of her shoulder pain but added that her work with 
 
            employer also contributed to her shoulder discomfort (Ex. 
 
            601).  Both of these opinions were available to defendants 
 
            on September 22, 1992, when a telephone conference was held 
 
            pursuant to a petition for alternate medical care filed by 
 
            claimant.  In the proceeding, defendants admitted liability 
 
            for both the elbow and right shoulder condition.  They have 
 
            not produced any additional evidence to dispute or discredit 
 
            the opinions rendered by Dr. DeBartolo and Dr. Johnson in 
 
            this regard.  Therefore, the determination that claimant's 
 
            right elbow and right shoulder problems arose out of and in 
 
            the course of employment with employer is res judicata and 
 
            will not be relitigated in this proceeding.  
 
            
 
                 The next issue to be determined is whether claimant's 
 
            injury is to a scheduled member or to the body as a whole.
 
            
 
                 Dr. Adams saw claimant specifically for her right 
 
            shoulder problems.  An MRI and bone scan were taken on 
 
            October 2, 1992 (Ex. 9).  On April 6, 1994, Dr. Adams 
 
            reported that the test results indicate a probability that 
 
            claimant has a full thickness rotator cuff tear of the right 
 
            shoulder (Ex. 7-8).
 
            
 
                 A shoulder injury is an injury to the body as a whole 
 
            if the injury affects the "body side" or the shoulder joint.  
 
            Lauhoff Grain v. McIntosh, 395 N.W.2d 834 (Iowa 1986).  The 
 

 
            
 
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            agency has typically compensated shoulder injuries 
 
            industrially on the basis that such injuries involve 
 
            disability to the body as a whole.  
 
            
 
                 When disability is found in the shoulder, a body as a 
 
            whole situation may exist.  Alm V. Morris Barick Cattle Co., 
 
            240 Iowa 1174, 38 N.W.2d 161 (1949).  In Nazarenus the Oscar 
 
            Mayer & Co., II Iowa Industrial Commissioner Report 281 
 
            (Appeal 1982), a torn rotator cuff was found to cause 
 
            disability to the body as a whole.  
 
            
 
                 Accordingly, claimant has met her burden of proof that 
 
            her upper extremity injury extends beyond the scheduled 
 
            member and into the body as a whole.  Kellogg v. Shute and 
 
            Lewis Coal Company, 130 N.W.2d 667 (1964).  
 
            
 
                 The next issue to be determined is whether claimant's 
 
            injury has caused permanent disability.
 
            
 
                 Since claimant has suffered an injury, the next 
 
            question to be resolved is whether the injury has caused 
 
            permanent disability.  The claimant has the burden of 
 
            proving by a preponderance of the evidence that the injury 
 
            of , is causally related to the disability on which now 
 
            bases claim.  Bodish v. Fischer, Inc., 133 N.W.2d 867, 868 
 
            (Iowa 1965); Lindahl v. L. O. Boggs, 18 N.W.2d 607, 613-14 
 
            (Iowa 1945).  A possibility is insufficient; a probability 
 
            is necessary.  Burt v. John Deere Waterloo Tractor Works, 73 
 
            N.W.2d 732, 738 (Iowa 1955).  The question of causal 
 
            connection is essentially within the domain of expert 
 
            testimony.  Bradshaw v. Iowa Methodist Hospital, 101 N.W.2d 
 
            167, 171 (Iowa 1960).  Expert medical evidence must be 
 
            considered with all other evidence introduced bearing on the 
 
            causal connection.  Burt, 73 N.W.2d at 738.  The opinion of 
 
            the experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903, 907 (Iowa 1974).  Moreover, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Sondag, 220 N.W.2d at 907.  Finally, the weight to be 
 
            given to such an opinion is for the finder of fact, and that 
 
            may be affected by the completeness of the premise given the 
 
            expert and other material circumstances.  Bodish, 133 N.W.2d 
 
            at 870; Musselman v. Central Telephone Co., 261 Iowa 352, 
 
            154 N.W.2d 128 (1967).  The supreme court has also observed 
 
            that greater deference is ordinarily accorded expert 
 
            testimony where the opinion necessarily rests on medical 
 
            expertise.  Sondag, 220 N.W.2d at 907.
 
            
 
                 Claimant has received two permanent partial disability 
 
            ratings.  One from Dr. DeBartolo and another from Thomas 
 
            Bower.  Claimant has permanent restrictions which have been 
 
            validated on a functional capacity evaluation performed on 
 
            April 5, 1994.  The greater weight of the evidence supports 
 
            claimant's contention that she has suffered permanent 
 
            disability as a result of her injury.  
 
            
 
                 The next issue to be determined is the extent of 
 
            permanent  disability.  Since claimant's injury extends into 
 
            the body as a whole she is entitled to industrial 
 
            disability.  
 

 
            
 
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                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, expe
 
            rience and inability to engage in employment for which the 
 
            employee is fitted.  Olson v. Goodyear Serv. Stores, 255 
 
            Iowa 1112, 125 N.W.2d 251 (1963); Barton v. Nevada Poultry, 
 
            253 Iowa 285, 110 N.W.2d 660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial 
 
            disability.  Impairment and disability are not synonymous.  
 
            The degree of industrial disability can be much different 
 
            than the degree of impairment because industrial disability 
 
            references to loss of earning capacity and impairment 
 
            references to anatomical or functional abnormality or loss.  
 
            Although loss of function is to be considered and disability 
 
            can rarely be found without it, it is not so that a degree 
 
            of industrial disability is proportionally related to a 
 
            degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of the 
 
            healing period; the work experience of the employee prior to 
 
            the injury and after the injury and the potential for 
 
            rehabilitation; the employee's qualifications 
 
            intellectually, emotionally and physically; earnings prior 
 
            and subsequent to the injury; age; education; motivation; 
 
            functional impairment as a result of the injury; and 
 
            inability because of the injury to engage in employment for 
 
            which the employee is fitted.  Loss of earnings caused by a 
 
            job transfer for reasons related to the injury is also 
 
            relevant.  Likewise, an employer's refusal to give any sort 
 
            of work to an impaired employee may justify an award of 
 
            disability.  McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 
 
            (Iowa 1980).  These are matters which the finder of fact 
 
            considers collectively in arriving at the determination of 
 
            the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  Neither does a 
 
            rating of functional impairment directly correlate to a 
 
            degree of industrial disability to the body as a whole.  In 
 
            other words, there are no formulae which can be applied and 
 
            then added up to determine the degree of industrial 
 
            disability.  It therefore becomes necessary for the deputy 
 
            or commissioner to draw upon prior experience as well as 
 
            general and specialized knowledge to make the finding with 
 
            regard to degree of industrial disability.  See Christensen 
 
            v. Hagen, Inc., Vol. 1 No. 3 State of Iowa Industrial 
 
            Commissioner Decisions 529 (App. March 26, 1985); Peterson 
 
            v. Truck Haven Cafe, Inc., Vol. 1 No. 3 State of Iowa 
 
            Industrial Commissioner Decisions 654 (App. February 28, 
 
            1985).
 
            
 
                 Compensation for permanent partial disability shall 
 
            begin at the termination of the healing period.  
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            Compensation shall be paid in relation to 500 weeks as the 
 
            disability bears to the body as a whole.  Section 85.34.
 
            
 
                 Claimant is 40 years old and a younger individual at 
 
            the peak time of her earnings career.  Her disability is 
 
            therefore worse than it would be for a younger or older 
 
            employee.  Becke v. Turner-Busch, Inc., Thirty-fourth 
 
            Biennial Report of the Industrial Commissioner 34 (Appeal 
 
            Decision  1979); Walton v. B & H Tank Corp., II Iowa 
 
            Industrial Commissioner Report 426 (1981); McCoy v. 
 
            Donaldson Company, Inc., file numbers 782670 & 805200 (App. 
 
            Dec. 1989); IAWC decisions of the Iowa Industrial 
 
            Commissioner 400 (1989).
 
            
 
                 Claimant's functional limitations limit her to 
 
            light-medium work activity (Ex. 8-13).  
 
            
 
                 Claimant had a non-surgically treated elbow injury 
 
            which has now resolved and a non-surgically treated shoulder 
 
            injury with persistent shoulder discomfort and limited range 
 
            of motion.  The pain is localized in the anterior clavicle 
 
            acromial complex (Ex. 7-7).  Nevertheless, claimant has been 
 
            gainfully employed since February 28, 1994 and earns more 
 
            now than she did when she was originally injured in January 
 
            of 1991.  
 
            
 
                 It is entirely possibly for a claimant to suffer a loss 
 
            of earning capacity and yet to continue to work and not 
 
            experience a loss of wages.  Holland v. Associated Grocers 
 
            of Iowa, No. 757549 (Appeal Decn., February 26, 1990).  
 
            
 
                 Based on a functional capacity evaluation and using the 
 
            AMA Guides to the Evaluation of Permanent Impairment, Fourth 
 
            Edition, Mr. Bower gave claimant a 14 percent impairment to 
 
            the right upper extremity which converts to an 8 percent 
 
            whole person impairment (Ex. 8-12).
 
            
 
                 After carefully considering all of the factors of 
 
            industrial disability and employing agency expertise, it is 
 
            determined that claimant is 10 percent industrially disabled 
 
            and entitled to 50 weeks of permanent partial disability 
 
            benefits at the rate of $104.47 per week commencing November 
 
            4, 1991.  
 
            
 
                 The final issue to be determined is whether claimant is 
 
            entitled to payment for an independent medical examination 
 
            pursuant to Iowa Code section 85.39.  
 
            
 
                 At the hearing, defendants indicated that they had not 
 
            reimbursed claimant for the independent medical examination 
 
            performed by Mr. Bower because they had not received his 
 
            bill.  They voluntarily agreed to pay for this examination 
 
            upon receipt of the bill. 
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 That defendants pay to claimant fifty (50) weeks of 
 
            permanent partial disability benefits at the rate of one 
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            hundred four and 47/100 dollars ($104.47) per week 
 
            commencing November 4, 1991.
 
            
 
                 That defendants pay to claimant healing period benefits 
 
            from March 11, 1991 through November 3, 1991.
 
            
 
                 That defendants receive credit for any benefits 
 
            previously paid.  
 
            
 
                 That defendants pay accrued amounts in a lump sum.
 
            
 
                 That defendants pay interest pursuant to Iowa Code 
 
            section 85.30.
 
            
 
                 That defendants reimburse claimant for the cost of an 
 
            independent medical examination pursuant to Iowa Code 
 
            section 85.39.
 
            
 
                 That defendants pay costs pursuant to Iowa Code section 
 
            85.30.
 
            
 
                 That defendants file claim activity reports as required 
 
            by the agency pursuant to rule 343 IAC 3.1(2).
 
            
 
                 Signed and filed this ____ day of May, 1994.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          JEAN M. INGRASSIA
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Christopher D. Spaulding
 
            Attorney at Law
 
            840 Fifth Ave.
 
            Des Moines, IA  50309
 
            
 
            Mr. Joseph S. Cortese II
 
            Attorney at Law
 
            500 Liberty Bldg.
 
            Des Moines, IA  50309
 
            
 
            
 
 
            
 
            
 
            
 
            
 
                                    1100, 5-1802, 5-18-3, 5-1803.1
 
                                    5-2200
 
                                    Filed May 11, 1994
 
                                    Jean M. Ingrassia
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            DEBRA TWEDT,   
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                              File No. 979758
 
            CABIN CRAFT MIDWEST INC.,     
 
                                           A R B I T R A T I O N
 
                 Employer, 
 
                                              D E C I S I O N
 
            and       
 
                      
 
            UNION INSURANCE COMPANY, 
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            5-1802
 
            
 
                 Claimant's request for additional healing period 
 
            benefits denied.  Claimant's treating physician released her 
 
            to return to work and employer had a job available which was 
 
            within her restrictions and approved by her treating 
 
            physician.  Claimant declined the offer of employment and 
 
            instead became self-employed.  
 
            
 
            5-2200
 
            
 
                 Based on uncontroverted medical opinion from 
 
            defendants' own physicians, claimant's shoulder problems 
 
            found to be a sequela of compensating for and protecting her 
 
            right elbow which was injured as a result of her repetitive 
 
            work activities.  
 
            
 
            1100
 
            
 
                 Defendants admission of liability for claimant's elbow 
 
            and right shoulder problems in a previous alternate medical 
 
            care hearing was determined to be res judicata and 
 
            relitigation of liability was not permitted at this hearing.
 
            
 
            5-1803.1
 
            
 
                 Claimant's shoulder injury which was described as a 
 
            full thickness rotator cuff tear of the right shoulder was 
 
            found to be an injury to the body as a whole rather than to 
 
            a scheduled member.  Alm v. Morris Barick Cattle Co., 240 
 
            Iowa 1174, 38 N.W.2d 161 (1949).
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            5-1803
 
            
 
                 Based upon all the factors of industrial disability 
 
            including claimant's ability to work full-time and earn more 
 
            now than she did when she was injured, it was determined 
 
            that claimant is 10 percent industrially disabled.
 
            
 
 
            
 
            
 
            
 
            
 
            
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            DEBRA TWEDT,                  :
 
                                          :      File No. 979758
 
                                          :
 
                 Claimant,                :
 
                                          :     A L T E R N A T E
 
            vs.                           :
 
                                          :       M E D I C A L
 
            CABIN CRAFT,                  :
 
                                          :          C A R E
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            UNION INSURANCE,              :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding for alternate care brought by 
 
            Debra Twedt, claimant, against Cabin Craft and Union 
 
            Insurance, as defendants.  On January 23, 1991, Ms. Twedt 
 
            sustained an injury to her elbow and shoulder which arose 
 
            out of and in the course of her employment.  She is 
 
            dissatisfied with the medical treatment provided by the 
 
            employer.
 
            
 
                 The petition for alternate medical care was filed on 
 
            September 10, 1992.  A telephone conference hearing was held 
 
            on September 22, 1992.  Claimant appeared personally and 
 
            through counsel; defendants appeared through counsel.
 
            
 
                 The record consists of testimony from claimant; 
 
            claimant's exhibit A, consisting of nine pages of medical 
 
            documentation; and, defendants' exhibit 1, a two page letter 
 
            dated July 27, 1992, under the signature of Thomas F. 
 
            DeBartolo, M.D.
 
            
 
                 Claimant, Debra Twedt, injured her right upper 
 
            extremity at work and was sent to Thomas DeBartolo, M.D., 
 
            for treatment.  Dr. DeBartolo practices in Mason City, Iowa, 
 
            and claimant drove approximately 200 miles round trip for 
 
            her appointments, which have totaled six or seven in number.  
 
            His initial diagnosis was that of radial nerve entrapment 
 
            with associated muscle fatigue.  He did not prescribe any 
 
            medications but placed claimant in a cast which reached half 
 
            way between her right elbow and shoulder.  Once the cast was 
 
            removed, claimant's arm had improved but she would 
 
            experience pain when she began to move or use her arm and 
 
            shoulder.  She explained that whenever the arm and/or 
 
            shoulder "flared up" she would call for an appointment with 
 
            Dr. DeBartolo which would be scheduled for a date four to 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            six weeks later.
 
            
 
                 Dr. DeBartolo last examined claimant on May 6, 1992.  
 
            His report marked claimant's exhibit A, pages 8 through 9, 
 
            notes that claimant was complaining of discomfort in the 
 
            paraspinous musculature of the neck on the right side and 
 
            achy discomfort in the shoulder.  The results of x-rays 
 
            revealed no evidence of any significant bony abnormality, 
 
            fracture, dislocation or significant arthritis.  He was of 
 
            the opinion that claimant's shoulder discomfort was related 
 
            to her work injury of the elbow.  He noted restricted range 
 
            of motion, and recommended conservative treatment such as 
 
            heat, nonsteroidal inflammatories and strengthening 
 
            exercises.  He indicated that claimant would not be able to 
 
            return to normal job duties which required repetitive 
 
            rotations and that claimant felt unable to return to light 
 
            duty work.  He stated that she reached maximal medical 
 
            improvement on May 6, 1992, and had sustained a 10 percent 
 
            permanent impairment of the right upper extremity.
 
            
 
                 Claimant asked for and received a second opinion when 
 
            she was sent to Rodney Johnson, M.D., a physician she first 
 
            saw on July 1, 1992.  Claimant's exhibit A, pages 6 through 
 
            7, documents Dr. Johnson's findings that although he agreed 
 
            with Dr. DeBartolo's evaluation that claimant's pain in the 
 
            right shoulder was a sequela of the substitution pattern of 
 
            active use of her arm, he also thought that her work 
 
            activities contributed to the shoulder discomfort.  His 
 
            examination revealed that active movement of the shoulder 
 
            elicited neck discomfort as well as limited range of motion.  
 
            To palpation, claimant displayed pain over the AC joint and 
 
            cortical acromial ligament as well as over the lateral 
 
            subacromial.  Claimant showed positive signs of impingement.  
 
            Dr. Johnson injected the AC joint and the subacromial space 
 
            with Xylocaine which enabled increased range of motion.  he 
 
            recommended claimant undergo physical therapy in Story City 
 
            for increased range of motion and strength.  She was to 
 
            return in three weeks.
 
            
 
                 On July 22, 1992, claimant returned to Dr. Johnson.  
 
            The physical therapy had improved the range of motion, but 
 
            she continued to complain of pain in the shoulder and 
 
            displayed an arc of impingement on forward flexion and 
 
            abduction as well as moderate discomfort over the AC joint.  
 
            Dr. Johnson referred claimant to his partner, Bradley Adams, 
 
            D.O.  Dr. Adams ordered x-rays which showed mineralization 
 
            of the inferior aspect of the AC joint.  His examination 
 
            revealed full range of motion but a positive impingement 
 
            sign.  His diagnosis was that of an impingement and AC 
 
            pathology, and he recommended an MRI scan and bone scan to 
 
            further assess rotator cuff structures to determine whether 
 
            claimant was in need of surgical intervention.  He was aware 
 
            that claimant had undergone conservative therapy (Claimant's 
 
            Exhibit A, pages 5-7).
 
            
 
                 Dr. DeBartolo's correspondence to Shelly Foss, a 
 
            rehabilitation specialist assigned to claimant's case, 
 
            indicated that he recommends further conservative treatment, 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            and seemed unwilling to order other tests.  He is of the 
 
            opinion that claimant does not have a significant pathology, 
 
            and that although her "right upper extremity function is 
 
            never going to be normal" a nonsurgical approach is in the 
 
            patient's best interests.
 
            
 
                 Apparently, the insurance company has not authorized 
 
            claimant to undergo the MRI and bone scan.  Claimant does 
 
            not have any future doctor appointments scheduled.
 
            
 
                         ANALYSIS AND CONCLUSIONS OF LAW
 
            
 
                 In pertinent part, Iowa Code section 85.27 provides:
 
            
 
                    For purposes of this section, the employer is 
 
                 obliged to furnish reasonable services and 
 
                 supplies to treat an injured employee, and has the 
 
                 right to choose the care.  The treatment must be 
 
                 offered promptly and be reasonably suited to treat 
 
                 the injury without undue inconvenience to the 
 
                 employee.  If the employee has reason to be 
 
                 dissatisfied with the care offered, the employee 
 
                 should communicate the basis of such 
 
                 dissatisfaction to the employer, in writing if 
 
                 requested, following which the employer and the 
 
                 employee may agree to alternate care reasonably 
 
                 suited to treat the injury.   If the employer and 
 
                 employee cannot agree on such alternate care, the 
 
                 commissioner may, upon application and reasonable 
 
                 proofs of the necessity therefor, allow and order 
 
                 other care.
 
            
 
                 This statute was amended as House File 2250 by the 74th 
 
            General Assembly, effective July 1, 1992.  The amendment 
 
            required the Industrial Commissioner to provide a method to 
 
            expeditiously resolve disputes under this section.
 
            
 
                 An employer's right to select the provider of medical 
 
            treatment to an injured worker does not include the right to 
 
            determine how an injured worker should be diagnosed, 
 
            evaluated, treated, or other matters of professional medical 
 
            judgment.  Graves v. Crouse Cartilage Co., (Arbitration 
 
            Decision, July 27, 1987); Pote v. Mickow Corp., 
 
            (Review-Reopening Decision, June 17, 1986).
 
            
 
                 The physicians involved with the case have two 
 
            conflicting opinions:  Dr. DeBartolo recommends further 
 
            conservative treatment; Drs. Johnson and Adams both 
 
            recommend further testing to ascertain the extent of 
 
            claimant's physical problems.  Claimant has undergone 
 
            conservative treatment for several months but to no avail.  
 
            She continues to complain of pain and objective tests 
 
            corroborate her complaints.  The recommendations from Drs. 
 
            Johnson and Adams are consistent with the general practice 
 
            of therapy to treat this type of physical ailment.  Although 
 
            Dr. DeBartolo's final report of July 27, 1992 continues to 
 
            support conservative treatment and restrengthening 
 
            exercises, he has not seen claimant since May 6, 1992, and 
 
            his recommendations are based on a report by Dr. Johnson.  
 
            Defendants have neither provided claimant with other care, 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            as claimant has no further appointment with Dr. DeBartolo, 
 
            nor have they proposed any expressed alternative to 
 
            recommendations from Drs. Johnson and Adams.  As a result, 
 
            claimant's application is granted; defendants are ordered to 
 
            provide claimant with further treatment from Drs. Johnson 
 
            and Adams.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendants provide claimant further care with Drs. 
 
            Johnson and Adams.
 
            
 
                 Signed and filed this ____ day of September, 1992.
 
            
 
            
 
            
 
            
 
                                          
 
                                          ________________________________
 
                                          PATRICIA J. LANTZ
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Ms. Christopher D. Spaulding
 
            Attorney at Law
 
            840 5th Ave
 
            Des Moines IA 50309
 
            
 
            Mr Joseph Cortese III
 
            Attorney at Law
 
            500 Liberty Bldg
 
            Des Moines IA 50309
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                              5-2700
 
                                              Filed September 23, 1992
 
                                              Patricia J. Lantz
 
            
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            DEBRA TWEDT,                  :
 
                                          :      File No. 979758
 
                                          :
 
                 Claimant,                :
 
                                          :     A L T E R N A T E
 
            vs.                           :
 
                                          :       M E D I C A L
 
            CABIN CRAFT,                  :
 
                                          :          C A R E
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            UNION INSURANCE,              :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-2700
 
            Claimant awarded alternate medical care where defendants did 
 
            not provide any medical care even though authorized 
 
            physicians familiar with the claimant had recommended 
 
            further tests.
 
            
 
            
 
 
            
 
            
 
            
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            MICHAEL REEVES,     
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                                 File No. 979818
 
            PEPSI COLA GENERAL BOTTLERS,  
 
                                              A R B I T R A T I O N
 
                 Employer, 
 
                                                  D E C I S I O N
 
            and       
 
                      
 
            NATIONAL UNION FIRE 
 
            INSURANCE COMPANY,  
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
                                INTRODUCTION
 
            
 
                 This is a proceeding in arbitration filed by Michael 
 
            Reeves, claimant, against Pepsi Cola General Bottlers, 
 
            employer, and National Union Fire Insurance Company, 
 
            insurance carrier, defendants, for benefits as the result of 
 
            an injury which occurred on March 14, 1991.  A hearing was 
 
            held in Des Moines, Iowa, on June 30, 1993, and the case was 
 
            fully submitted at the close of the hearing.  Claimant was 
 
            represented by Jerry L. Schnurr, III.  Defendants were 
 
            represented by Stephen W. Spencer.  The hearing was 
 
            scheduled for six hours but actually consumed approximately 
 
            eight and one-half hours, and generated a 235 page 
 
            transcript.  The deputy ordered a transcript.
 
            
 
                 The record consists of the testimony of Michael Reeves, 
 
            claimant, Brenda Reeves, claimant's wife, David Reeves, 
 
            claimant's brother, Daniel P. Berg, sales manager, 
 
            claimant's exhibit 1, the deposition testimony of Susan 
 
            White, rehabilitation specialist, consisting of 116 pages 
 
            with 9 deposition exhibits, and claimant's exhibits 2 
 
            through 21 consisting of another 146 pages of evidence 
 
            (Transcript pp. 217 & 236).  Defendants' exhibits admitted 
 
            into evidence are defendants' exhibits A through H 
 
            consisting of 97 pages, exhibit J the deposition testimony 
 
            of Bob Morris, human resources manager, exhibit K, the 
 
            deposition testimony of Dan Berg, sales manager, Exhibit L, 
 
            the deposition testimony of Daniel J. McGuire, M.D., a board 
 
            certified orthopedic surgeon, exhibit M, the deposition 
 
            testimony of Samuel Reeves, claimant's father, exhibit N, 
 
            the deposition testimony of John Babyar, private 
 
            investigator, exhibit O, the deposition testimony of David 
 
            Miller, private investigator, exhibit P, containing 15 pages 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            and exhibit Q consisting of 60 pages.  Defendants' exhibit 
 
            I, was withdrawn at the time of the hearing.  With respect 
 
            to defendants' exhibit F, pages 2, 4, 5, 6, 7, 8, 9, were 
 
            excluded from evidence but remain with the record as an 
 
            offer of proof (Tran. pp. 235 & 236).  The excluded pages of 
 
            exhibit F are the surveillance reports of Doug Johnson, Rich 
 
            Silver, and Donya Allen.  The motion to exclude these 
 
            reports was granted at hearing for the reason that the 
 
            identity of these witnesses was not timely disclosed by 
 
            defendants to claimant before defendants' discovery deadline 
 
            which was 30 days prior to hearing and it was determined 
 
            that their reports constituted prejudicial unfair surprise 
 
            to claimant (Tran. p. 17).  
 
            
 
                 The parties presented a much larger number of exhibits 
 
            at the beginning of the hearing.  The deputy reminded the 
 
            parties that paragraph 9 of the hearing assignment order 
 
            requires exclusion of irrelevant, immaterial and unduly 
 
            repetitious evidence and that a party's submission of 50 
 
            pages or more would be subject to a detailed review at the 
 
            hearing for compliance with Iowa Code section 17A.14(1).  
 
            After the testimonial evidence, the parties did reduce the 
 
            amount of initially proposed exhibits by approximately 
 
            one-third (Tran. pp. 205-236).  Nevertheless, claimant's 
 
            exhibits still constitute 146 pages counting the lengthy 
 
            deposition of Susan White and the deposition exhibits as 
 
            only one page.  Defendants' exhibits still constitute 178 
 
            pages counting each of the six depositions as only one page.  
 
            A significant number of the remaining exhibits still were 
 
            not relevant, material, essential or helpful in the 
 
            determination of the issues of this case.  
 
            
 
                                      ISSUES
 
            
 
                 The parties submitted the following issues for 
 
            determination at the time of the hearing.
 
            
 
                 Whether claimant is entitled to permanent disability 
 
            benefits, and if so, the extent of benefits to which he is 
 
            entitled.
 
            
 
                 Whether defendants are entitled to the hourly rate they 
 
            paid to their private surveillance investigators for 
 
            testifying at a deposition at the request of claimant's 
 
            counsel.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                causal connection-entitlement-permanent disability
 
            
 
                 It is determined that claimant has sustained a 35 
 
            percent industrial disability to the body as a whole and is 
 
            entitled to 175 weeks of permanent partial disability 
 
            benefits. 
 
            
 
                 Claimant, born December 1, 1958, was 32 years old at 
 
            the time of the injury and 34 years old at the time of the 
 
            hearing (Tran. p. 74).  Growing-up claimant lived and worked 
 
            on a farm.  In high school claimant worked as a clerk in a 
 
            grocery store stocking shelves and sacking groceries for 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            approximately one year from May of 1976 to August of 1977.  
 
            He graduated from high school in 1977 and has received no 
 
            advanced education or training after high school.  In the 
 
            Summer of 1978 he drove a tractor and mowed roadways for 
 
            Warren County.
 
            
 
                 Claimant's first real permanent employment was for this 
 
            employer.  Claimant applied for work with employer on 
 
            September 7, 1978.  He was hired as a route helper an 
 
            eventually a route salesman.  Claimant continued to work for 
 
            employer until the date of this injury on March 14, 1991.  
 
            Thus, up until the time of the injury claimant had been a 
 
            career employee of employer for a period of approximately 13 
 
            years from approximately age 19 to age 32 (Tran. pp. 74-76; 
 
            Ex. 27, pp. 1 & 2).  
 
            
 
                 On his application for employment with employer 
 
            claimant indicated that he did not have any physical 
 
            condition which limited his ability to work (Ex. 27, p. 1).  
 
            Claimant took a preemployment physical examination on 
 
            September 7, 1978, which included an x-ray of his back.  The 
 
            examining physician stated, "lumbar spine - ok" (Ex. 26, p. 
 
            1).  The physician further stated on the physical 
 
            examination report that claimant was "Satisfactory for any 
 
            type of duty." (Ex. 26, p. 2).  
 
            
 
                 As a route salesman, claimant drove a 14 bay 
 
            semi-trailer, delivered product to stores, setup displays, 
 
            stocked shelves, and sorted and removed empty bottles from 
 
            the stores he serviced.  Claimant was also responsible for 
 
            sales, merchandising and opening new accounts (Ex. 23, p. 
 
            2).  Empties were normally sorted in a bent over position.  
 
            Unloading the truck involved lifting cases of pop from the 
 
            truck to a 2-wheeler, then unloading the 2-wheeler to the 
 
            shelf or storage area in the store.  Claimant's job required 
 
            constant lifting, bending, stooping, squatting and twisting.  
 
            All of the witnesses unanimously agreed with claimant that 
 
            claimant's job was very physically demanding and strenuous 
 
            (Tran. pp. 76-79 & 80).  Claimant testified that a full case 
 
            of 16 ounce bottles weighed approximately 55 pounds (Tran. 
 
            pp. 79, 81 & 82).
 
            
 
                 Since claimant worked on commission it was in his best 
 
            interest to work as fast and as energetically and as 
 
            effectively as he could (Tran. pp. 79-81).  Claimant 
 
            estimated that he handled possibly 400 or more cases of pop 
 
            every working day.  He said that on a big day when there was 
 
            a promotion or sale he would handle as many as 1,000 to 
 
            1,200 cases of pop a day (Tran. p. 82).  Claimant estimated 
 
            that he handled approximately 135,000 cases of pop a year 
 
            (Tran. pp. 81 & 82).  
 
            
 
                 Claimant denied any prior injuries other than 
 
            occasional back strain which was not uncommon for the type 
 
            of work that he was performing (Tran. p. 82).  He only lost 
 
            time from work on three occasions prior to this injury and 
 
            then the only time lost was the day on which he saw the 
 
            doctor.  These dates were on March 25, 1983, July 11, 1983 
 
            and September 20, 1983 as reported by Adeline McCormick, 
 
            D.O., on October 11, 1983 (Ex. 2, Tran. p. 82). 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
                 Claimant testified that immediately prior to the injury 
 
            that he was working approximately 14, 15, and 16 hours per 
 
            day and approximately 80 to 100 hours per week.  Claimant 
 
            related that his back began hurting to the point where it 
 
            did not recuperate overnight just immediately prior to this 
 
            injury in late 1990 and early 1991 (Tran. pp. 83 & 84).  
 
            Claimant testified that he asked Dan Berg, the sales 
 
            manager, in January of 1991 to reduce the size of his route 
 
            (Tran. pp. 84-86).
 
            
 
                 On March 14, 1991, claimant reported his back pain to 
 
            employer.  On March 15, 1991, claimant consulted his 
 
            personal physician who diagnosed low back pain and advised 
 
            claimant to see the company physician (Ex. 3, p. 1).  It was 
 
            arranged for claimant to see Richard D. Miller, D.O., on 
 
            March 20, 1991.  Dr. Miller diagnosed degenerative disc 
 
            disease at L5, S1 with a grade I spondylolisthesis and he 
 
            referred claimant to William R. Boulden, M.D., an orthopedic 
 
            surgeon (Exs. 4, 5 & 6).  
 
            
 
                 Dr. Boulden saw claimant on March 28, 1991 and found, 
 
            "The patient has overstressed a Grade I spondylolisthesis.  
 
            I think it has just been a matter of time with the 
 
            underlying degenerative condition that he has, that he would 
 
            develop symptoms." (Ex. 8, p. 1).  Dr. Boulden placed 
 
            claimant on a stabilization program initially and that was 
 
            followed by a work hardening program.  
 
            
 
                 On May 7, 1991, Dr. Boulden commented that claimant had 
 
            good strength but persisted in using poor back mechanics.  
 
            Dr. Boulden stated, "In other words, he keeps doing abnormal 
 
            mechanical lifting and techniques which are stressing his 
 
            back and we told him that this needs to be changed or it 
 
            will be very difficult to get him back to work." (Ex. 8, p. 
 
            2).  
 
            
 
                 On May 23, 1991, Dr. Boulden stated, "He has been an 
 
            excellent worker but we are also dealing with a situation 
 
            that he has an unstable segment in his back and he may be to 
 
            the point where he cannot return back to that work." (Ex. 8, 
 
            p. 2).
 
            
 
                 After an MRI which was performed on May 24, 1991 (Ex. 
 
            9), Dr. Boulden stated on June 11, 1991, 
 
            
 
                    ... we have found that the patient is really 
 
                 limited in the fact that he has degenerative disc 
 
                 disease at L1-2, L2-3, L4-5, besides the L5-S1 
 
                 problem.  He basically only has one normal 
 
                 appearing disc. 
 
            
 
                    Therefore, I don't think surgery is an 
 
                 alternative answer at this point.  I do not feel 
 
                 that he can return back to his previous 
 
                 employment.  Major job modification may have to be 
 
                 carried out where he does not have to bend and 
 
                 twist with his back and does not have prolonged 
 
                 sitting.  If that cannot be accomplished, then 
 
                 vocational rehabilitation will be necessary." (Ex. 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                 8, p. 3).
 
            
 
                 The radiologist who performed the MRI on May 24, 1991 
 
            stated that the bulging disc at L5-S1 was probably related 
 
            to the spondylolisthesis (Ex. 9).  
 
            
 
                 On July 17, 1991, Dr. Boulden stated that claimant had 
 
            attained maximum medical improvement and recommended job 
 
            vocational rehabilitation since he did not feel that 
 
            claimant needed surgery (Ex. 8, p. 3).  Claimant last saw 
 
            Dr. Boulden on December 18, 1991.  At that time he said that 
 
            there were no neurological deficits.  Straight leg raising 
 
            was negative.  He said that claimant should be treated very 
 
            conservatively with anti-inflammatory medications and 
 
            exercises and that claimant could return to see him as 
 
            necessary (Ex. 8, p. 4).  
 
            
 
                 With respect to causal connection, on April 23, 1993, 
 
            Dr. Boulden, who was the primary treating orthopedic 
 
            surgeon, stated, 
 
            
 
                    Michael Reeves as [sic] an acquired problem 
 
                 called spondylolysis and spondylolisthesis.  These 
 
                 were pre-existing to his work activities but it 
 
                 would be my medical opinion that the patient's 
 
                 work over these years has definitely made this 
 
                 unstable segment more symptomatic.
 
            
 
                    Therefore, we feel that it has definitely 
 
                 aggravated a pre-existing problem." (Ex. 8, p. 5).  
 
            
 
                 On May 6, 1993, Dr. Boulden wrote,
 
            
 
                    Therefore, I really have nothing else to 
 
                 recommend at this point in time.  I doubt surgery 
 
                 would be in his best interest because of the 
 
                 multiple levels of degenerative disc disease.  
 
                 Therefore, doing surgery at one level will put 
 
                 undo [sic] stress in the other levels and may 
 
                 cause other secondary problems in the future.
 
            
 
                    Therefore, the conservative approach is still 
 
                 the best in our opinion. (Ex. 8, p. 6).
 
            
 
                 Dr. Boulden did not impose any permanent work 
 
            restrictions, as such.  He did indicate, however, on June 
 
            11, 1991 that if major job modifications with respect to 
 
            bending and twisting with his back, and prolonged sitting, 
 
            were not accomplished then vocational rehabilitation would 
 
            be necessary (Ex. 8, p. 3).  Thus, it would appear that Dr. 
 
            Boulden feels that claimant should be limited in the amount 
 
            of bending, twisting and prolonged sitting that he can 
 
            perform.  
 
            
 
                 In the course of his physical therapy treatment 
 
            claimant saw Thomas E. Bower, L.P.T. on April 16, 1991 (Ex. 
 
            10).  On May 7, 1991, Mr. Bower wrote to employer relating 
 
            his difficulty in getting claimant to abandon poor body 
 
            mechanics and to adopt proper lifting techniques (Ex. B, p. 
 
            1).  On May 20, 1991, Mr. Bower commented on claimant's 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            functional capacity.  He stated, 
 
            
 
                    As you recall, the functional capacity 
 
                 evaluation that was done on May 6, 1991, 
 
                 demonstrated an individual lifting 105 pounds 
 
                 maximally from a floor to waist position with 
 
                 frequent lifts of 72 pounds and repetitive lifts 
 
                 of 52 pounds.  I would refer you to that letter 
 
                 for the specifics on overall restrictions for this 
 
                 patient." (Ex. 11, p. 1).
 
            
 
                 Mr. Bower further stated that claimant continued to use 
 
            poor body mechanics and should focus on this problem.  He 
 
            indicated that claimant was probably foreclosed from 
 
            performing repetitive work.  Mr. Bower stated, "It is 
 
            doubtful that he is going to be able to handle the 
 
            repetition that is required in setting up displays, and 
 
            supplying his route customers on the basis of what I'm 
 
            seeing today." (Ex. 11, p. 1).  He said further work 
 
            hardening was not indicated (Ex. 11, p. 1).  
 
            
 
                 On July 23, 1991, Mr. Bower wrote to employer that 
 
            claimant admitted that he was not doing his stabilization 
 
            exercises faithfully (Ex. B, p. 2).  
 
            
 
                 Mr. Bower performed a newer form of a functional 
 
            capacity examination which was called a lift trak analysis 
 
            on August 29, 1991.  He said that claimant continued to use 
 
            poor body mechanics and that this has contributed to his 
 
            inability to perform his job.  Mr. Bower concluded, "I am 
 
            uncertain as to why Mr. Reeves cannot master better 
 
            technique.  However, until he can, we are going to be forced 
 
            to recommend this patient not exceed a lift of 57 pounds, 
 
            otherwise the back compression forces will reproduce 
 
            increased symptoms." (Ex. 12, p. 3).
 
            
 
                 On September 17, 1991, Mr. Bower commented that the 
 
            stabilization and work hardening program did not improve 
 
            claimant's condition to where he was satisfactorily able to 
 
            return back to his previous job.  He phrased claimant's 
 
            permanent impairment rating based on the Guides to 
 
            Evaluation of Permanent Impairment as follows, "In regards 
 
            to impairment, the patient, in accordance with Table 49, 
 
            specifically a Grade I spondylolisthesis, has sustained an 
 
            8% impairment to the body as a whole.  This is strictly 
 
            based on the pathology noted." (Ex. 13, p. 1).
 
            
 
                 Mr. Bower commented that in the past he had arbitrarily 
 
            apportioned one-half of such an impairment rating to the 
 
            preexisting condition, but he had no way to prove it, and 
 
            therefore, he refused to make an apportionment as to how 
 
            much of this rating should be apportioned to the preexisting 
 
            condition (Ex. 13, p. 2).  
 
            
 
                 Dr. Boulden also signed this evaluation along with Mr. 
 
            Bower, adopting it as his evaluation also.
 
            
 
                 Claimant admitted that he was not faithful to Dr. 
 
            Boulden's exercise program (Tran. pp. 92 & 93).  With 
 
            respect to body mechanics, claimant testified, 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
                    Well, I did the best I could, you know.  My 
 
                 back hurt but you don't say anything about it, you 
 
                 just do it, you know.  It's like a job.  I know 
 
                 they had problems with me not doing the body 
 
                 mechanics correctly but I've been doing them like 
 
                 I had for 13 years, It's hard to change just like 
 
                 that, you know." (Tran. p. 89).
 
            
 
                 Claimant also admitted he was not faithful to the 
 
            recommendation of Daniel G. McGuire, M.D. and Mr. Bower to 
 
            exercise and maintain his back in good condition (Tran. pp. 
 
            163 & 164).
 
            
 
                 Thus, it would appear that claimant's failure to fully 
 
            recover from this injury may be due to his refusal to 
 
            perform the exercises recommended.  Furthermore, it would 
 
            appear that claimant's lifting techniques may have 
 
            contributed significantly to both his injury and his 
 
            disability.  
 
            
 
                 Defendants referred claimant to Dr. McGuire for an 
 
            independent medical examination with an excellent summary of 
 
            the treatment claimant had received up to that time (Ex. 14 
 
            & 15).  Dr. McGuire saw claimant on July 15, 1991.  He 
 
            stated that claimant was not participating in his own 
 
            recovery and that he was not working hard enough with 
 
            physical therapy.  Dr. McGuire found the lower extremities 
 
            to be intact neurologically.  Dr. McGuire recorded, 
 
            
 
                    He has very small spondylo, he has multiple 
 
                 level degenerative disc disease in his lumbar 
 
                 spine.  There is no way in heck that all of these 
 
                 problems are the result of something that happened 
 
                 in March.  He has a worn out disc as a part of his 
 
                 aging process, he has a spondylolisthesis as a 
 
                 result of probably a congenital situation or 
 
                 realistically speaking, as a young child." (Ex. C, 
 
                 p. 1).
 
            
 
                 Dr. McGuire diagnosed "back pain" but stated that there 
 
            is no guarantee that the spondylolisthesis or his worn out 
 
            discs were the cause of his back pain.  "I think he would be 
 
            nuts to have surgery at this point.  ... I think it would be 
 
            really ludicrous to do some type of anterior spine fusion at 
 
            three or four levels for these bad discs.  ... He is a young 
 
            guy, he has problems, there is no guarantee we can cure him 
 
            with surgery, it would be best for him to try get himself 
 
            better." (Ex. C., p. 1).  Thus, Dr. McGuire felt that either 
 
            all, or a substantial portion of claimant's permanent 
 
            disability, was not caused by this injury, but rather was 
 
            caused by claimant's own peculiar congenital, developmental 
 
            or preexisting back condition prior to March 14, 1991.
 
            
 
                 Dr. McGuire thought that claimant could perform light 
 
            duty.  Claimant reported to employer to perform light duty.  
 
            Employer had claimant place adhesive back letters on a 
 
            banner on a table, but claimant walked out after two hours 
 
            saying that it caused him too much pain.  Claimant testified 
 
            that putting the letters on the banner required bending over 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            and that it hurt his back (Tran. p. 96 & 177).  Claimant 
 
            further testified that he told Dr. McGuire that he did not 
 
            want to work light duty unless Dr. McGuire would guarantee 
 
            him that more damage would not result to his back (Tran. pp. 
 
            94 & 96).
 
            
 
                 On July 29, 1991, Dr, McGuire stated, "The only thing 
 
            keeping him from working is his subjective complaints of 
 
            pain." (Ex. C, p. 3).
 
            
 
                 On September 26, 1991, Dr. McGuire assessed that 
 
            claimant had an 8 percent permanent impairment and that he 
 
            attributed 75 percent of it to claimant's preexisting 
 
            condition.  The doctor concluded, "Based on my two visits, 
 
            very minimal PPD. 2-3 %  No real permanent life-long 
 
            restrictions" (Ex. C, p. 6).
 
            
 
                 At a conference on July 29, 1992, Dr. McGuire told 
 
            defendants' counsel that claimant's spondylolisthesis, "... 
 
            is not the result of working at the job, but, instead, 7% of 
 
            the population have it and it probably related to activities 
 
            children do at age four and five." (Ex. C, p. 8).  Also at 
 
            that conference Dr. McGuire contended that claimant's 
 
            disability was also related to the aging process and poor 
 
            lifting techniques (Ex. C, p. 8).  Dr. McGuire concluded 
 
            that note by stating, "Realistically speaking, Mike Reeves 
 
            may have to do a few thing to help us.  At this time, I have 
 
            nothing further to offer." (Ex. C, p. 8).  
 
            
 
                 At his deposition given on June 4, 1993, Dr. McGuire 
 
            ruled out a serious intervertebral disc problem.  He stated, 
 
            "... if that disk rupture is clinically significant, he 
 
            should have a lot of leg pain.  By history he didn't have 
 
            much leg pain.  Then we would expect to find a neurological 
 
            deficit in his lower extremities.  He didn't have that.  ... 
 
            My impression at that time was he must not be working too 
 
            hard on his exercises at PT because he was so tight yet." 
 
            (Ex. L, pp. 7 & 8).
 
            
 
                 Dr. McGuire further testified that simply having pain 
 
            while working did not mean that it was causing any damage 
 
            (Ex. L, pp. 13 & 24).  He said that claimant should be able 
 
            to lift things in the 30 to 50 pound range (Ex. L, p. 16).  
 
            He added that if claimant was capable of performing dairy 
 
            farming that claimant was capable of performing hard work 
 
            (Ex. L, pp. 17-21).  Dr. McGuire said that the functional 
 
            capacity examination of Mr. Bower that claimant could lift 
 
            105 pounds maximally from floor to waist with frequent lifts 
 
            of 72 pounds and repetitive lifts of 52 pounds was 
 
            compatible with his examination of claimant (Ex. L, p. 23).  
 
            The doctor said that the spondylolisthesis may or may not 
 
            have been present at the preemployment physical examination 
 
            x-ray depending on several factors (Ex. L, pp. 47 & 49).  
 
            Dr. McGuire said that work might cause an increase of 
 
            claimant's symptoms due to the spondylolisthesis but it 
 
            would not increase the slippage of it from Grade I to Grade 
 
            II (Ex. L, pp. 51 & 52).
 
            
 
                 Claimant was examined by his own independent evaluator, 
 
            Ronald C. Evans, D.C., on June 15, 1992 and he made a report 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            on July 10, 1992.  Dr. Evans reviewed the other medical 
 
            evidence and performed his own physical examination and 
 
            formed this diagnostic impression which also contains a 
 
            causal connection statement, 
 
            
 
                    In my opinion, Mr. Reeves as a result of 
 
                 cumulative work related trauma, occurring last in 
 
                 3/91, and in the absence of significant subsequent 
 
                 trauma, has sustained moderate chronic sprain of 
 
                 the lumbosacral spine.  This has materially 
 
                 aggravated a pre-existing spondylolisthesis at L5.  
 
                 Disc degeneration is present.  Left leg sciatic 
 
                 pain is present (Ex. 18, p. 5).
 
            
 
                 Dr. Evans continued,
 
            
 
                    The patient has low back pain, with occasional 
 
                 leg pain.  Range of motion is disturbed by 
 
                 myospasm.  All this is due to destabilization of a 
 
                 spondylolisthesis at L5-S1 with marked signs of 
 
                 L5-S1 disc degenerating [sic].  The ratable 
 
                 entities are the destabilized L5-S1 
 
                 spondylolisthesis and the left leg pain (Ex. 18, 
 
                 p. 6).
 
            
 
                 Dr Evans concluded, "The rating assigned for this 
 
            patient, in whole person terms is 10% wp." (Ex. 18, p. 6).  
 
            The doctor added that claimant was not likely to improve 
 
            with surgical intervention or other acts of medical 
 
            treatment (Ex. 18, pp. 6 & 7).  
 
            
 
                 Dr. Evans clarified by a separate letter dated April 
 
            26, 1993 that "the cumulative work trauma exposure came from 
 
            duties as a delivery man for Pepsi-Cola." (Ex. 28).  Dr. 
 
            Evans further clarified that "destabilization of the L5 
 
            spondylolisthesis arose from the cumulative work trauma 
 
            exposure.  The spondylolisthesis did not occur at work, but 
 
            was harmed by it." (Ex. 28).
 
            
 
                 It is noteworthy that Dr. Evans did not mention that 
 
            any permanent restrictions should be imposed upon claimant's 
 
            future work (Ex. 18 & 28).
 
            
 
                 In summary, then, it is determined that Dr. Boulden, 
 
            the treating orthopedic surgeon and Mr. Bower, the 
 
            evaluating physical therapist, determined that claimant had 
 
            sustained an 8 percent permanent impairment based primarily 
 
            upon the spondylolisthesis which had become symptomatic from 
 
            claimant's work for employer.  They felt a portion of the 
 
            impairment was attributable to claimant's preexisting 
 
            condition.  They said they normally allocated 50 percent to 
 
            the preexisting condition, but in this case refused to make 
 
            a numerical allocation because they were not able to prove 
 
            it.
 
            
 
                 Dr. McGuire assessed an 8 percent permanent impairment, 
 
            75 percent of which he attributed to the preexisting 
 
            condition, which leaves 2 to 3 percent which he attributed 
 
            to this injury in this case.  
 
            
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
                 Dr. Evans assessed a 10 percent permanent impairment.
 
            
 
                 With respect to permanent restrictions, Dr, Evans' 
 
            letter is silent (Ex. 18).  Dr. McGuire specifically stated 
 
            "no real permanent life-long restrictions." (Ex. C, p. 6).  
 
            
 
                 Dr. Boulden did not impose any permanent restrictions 
 
            on claimant, as such, but felt that he was foreclosed from 
 
            performing his work for employer because of the bending and 
 
            twisting of his back and the prolonged sitting in this job 
 
            (Ex. 8, p. 3).  Mr. Bower, thought it was doubtful that 
 
            claimant would be able to handle the repetition that was 
 
            required in setting up displays and supplying his route 
 
            customers (Ex. 11, p. 1).  
 
            
 
                 Thus, on the one hand claimant has not sustained a 
 
            serious permanent injury in terms of his impairment ratings 
 
            and restrictions.  Furthermore, no surgery was performed or 
 
            recommended.  The recommended treatment has been exercises 
 
            and inflammatory medications if needed.  Furthermore, one of 
 
            the chief factors in claimant's recovery is his 
 
            responsibility to change his poor body mechanics and lifting 
 
            techniques.  Claimant admitted that he has not been faithful 
 
            in performing his exercises, he admitted he has not been 
 
            able to change his body mechanics or lifting techniques and 
 
            he is not attempting to do so.  
 
            
 
                 Thus, on the one hand the work injury is basically a 
 
            low back pain which aggravated and made symptomatic one or 
 
            more of the several preexisting conditions of claimant's 
 
            back.  (1) Claimant has degenerative discs at L1-2, L2-3, 
 
            L4-5 and L5-S1 (the degeneration has also affected the facet 
 
            joints).  (2) There is evidence of a preexisting bulge at 
 
            L5-S1 which the radiologist opined was caused by the 
 
            spondylolisthesis.  (3) Claimant has a preexisting 
 
            spondylosis with associated spondylolisthesis which was 
 
            either congenital or developed at approximately age 4 or 5.  
 
            However, it is commonly known that an employer takes an 
 
            employee in "as is" condition subject to any active or 
 
            inactive health impairments.  Hanson v. Dickinson, 188 Iowa 
 
            728, 732, 176 N.W. 823, 24, (1920). 
 
            
 
                 On the other hand this injury has caused claimant to be 
 
            foreclosed from his work for this employer in which he was 
 
            earning $50,000 to $55,000 per year, based on the testimony 
 
            of the treating orthopedic surgeon Dr. Boulden.  Michael v. 
 
            Harrison County, Thirty-fourth Biennial Report of the 
 
            Industrial Commissioner 218, 220 (App. Dec. January 30, 
 
            1979);  Rohrberg v. Griffin Pipe Products Co., I Iowa 
 
            Industrial Commissioner Report 282 (1984).  An employer is 
 
            liable to the extent a preexisting condition is aggravated, 
 
            accelerated, worsened or lighted up.  Yeager v. Firestone 
 
            Tire and Rubber Co., 253 Iowa 369, 373-74, 112 N.W.2d 299, 
 
            301 (1961)
 
            
 
                 Claimant's industrial disability is diminished by the 
 
            fact of his young age in his early thirties because he is 
 
            still capable of learning new pursuits either through 
 
            academic training or through on-the-job training.  Claimant 
 
            testified that his grades in school were approximately B 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            grades.  Claimant was highly successful in his job as a 
 
            route salesman for employer.  For these reasons academic 
 
            retraining or on-the-job training is a distinct possibility 
 
            for claimant.  Conrad v. Marquette School, Inc., IV Iowa 
 
            Industrial Commissioner Report 74, 89 (1984).  
 
            
 
                 Vocational rehabilitation is possible through the State 
 
            of Iowa Vocational Rehabilitation Services but claimant has 
 
            not pursued such vocational rehabilitation training.  Nor 
 
            did employer endeavor to provide claimant with any 
 
            vocational rehabilitation training when it was apparent to 
 
            them that claimant could no longer return to his job as a 
 
            route salesman with employer.  Claimant testified that his 
 
            understanding of vocational rehabilitation, when it was 
 
            suggested to him by Dr. Boulden, was as follows, "They'll 
 
            retrain you, teach you another trade and get you a job." 
 
            (Tran. p. 91).  Claimant testified that he told the 
 
            rehabilitation person hired by defendants that he wanted to 
 
            go to engineering school (Tran. p. 151).  
 
            
 
                 Claimant's high school education should not be a 
 
            detriment to his future employment.  A high school education 
 
            is the basic educational requirement for most employments 
 
            and claimant has that.  Thus, claimant's industrial 
 
            disability is not increased because of a lack of formal 
 
            education.
 
            
 
                 Brenda Reeves, claimant's wife of ten years and the 
 
            mother of his three children, testified that claimant had no 
 
            prior back problems that interfered with his ability to 
 
            work.  Claimant's wife testified that initially claimant was 
 
            working full-time for employer and it was their intention 
 
            that she and the elder Mr. Reeves would perform the milking 
 
            and run the dairy operation.  She corroborated claimant's 
 
            testimony that he worked 80 to 100 hours per week and as 
 
            many as six or seven days a week.  She testified that she 
 
            wanted him to have his route cut down because he was not 
 
            coming home until 10, 11 or midnight every night and then he 
 
            would leave again in the morning at 5:30 a.m. or 6:00 a.m.  
 
            She said the route was changed just one week prior to this 
 
            injury (Tran. pp. 179 & 183).
 
            
 
                 Mrs. Reeves testified that her husband's activities 
 
            were limited since the injury.  She testified, "He doesn't 
 
            do as much as he used to.  He doesn't pick things up, he has 
 
            trouble if he wants to even carry groceries in." (Tran. p. 
 
            183).
 
            
 
                 David Reeves testified that he is the brother of 
 
            claimant and that their father is Sam Reeves.  He 
 
            characterized claimant's work with employer as "extremely 
 
            hard" (Tran. p. 49).  He said claimant was very limited on 
 
            what he could do since the injury.  He said that claimant 
 
            has gained weight and just lays around (Tran. pp. 50-55).  
 
            
 
                 David Reeves testified that their father handles the 
 
            heavy work on the farm or else they wait until he can come 
 
            down and do it (Tran. p. 56).  He testified that his father 
 
            owns the farm and claimant lives in a mobile home on the 
 
            farm (Tran. p. 57).  He also stated that claimant paid for 
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            the dairy building, but it is located on his father's 
 
            property (Tran. p. 61).  David Reeves testified that his 
 
            brother did drive a tractor a little bit, and may on 
 
            occasion load the manure spreader, but his dad usually did 
 
            that (Tran. pp. 53, 62,& 64).  The witness described the 
 
            milking operation and stated that his brother did perform 
 
            those tasks (Tran. pp. 67 & 68).  
 
            
 
                 Samuel Reeves, claimant's father, testified by 
 
            deposition on January 11, 1993, that he owns the land but 
 
            claimant and his wife own the milk cows and get the money 
 
            from the milk.  The elder Mr. Reeves testified that claimant 
 
            did very little work on the premises.  He testified, "Well, 
 
            maybe he will help me ten or 15 minutes at a time, different 
 
            times.  He will help milk and he has to quit, and he watches 
 
            the gate for me when I haul in feed and baby-sits most of 
 
            the time and that's about the size of it." (Ex. M, p. 8).
 
            
 
                 When asked if claimant ever drove a tractor the witness 
 
            responded, "Very little.  Maybe ten minutes at a time and 
 
            then he has to get out." (Ex. M, p. 9).
 
            
 
                 Mr. Reeves denied several times in his deposition that 
 
            claimant ever assisted him in spreading manure on the fields 
 
            and said that he had always done that himself (Ex. M, pp. 
 
            12, 16, 17, 19, & 22).  Mr. Reeves testified several times 
 
            that claimant had not taken the pickup and obtained fuel in 
 
            the white plastic containers at the filling station (Ex. M, 
 
            pp. 13, 15 & 19-21).  He said that claimant had done "very 
 
            little" around the farm; and that he had never driven the 
 
            tractors for more than ten minutes at a time; and that he 
 
            had never spread manure (Ex. M, pp. 18 & 19).  Mr. Reeves 
 
            indicated that during an average day claimant baby-sits his 
 
            children most of the time (Ex. M, p. 21).
 
            
 
                 John Babyar, a private investigator, performed 
 
            surveillance on claimant on March 8, 1992 (Ex. N, pp. 2-9).  
 
            He testified that he observed claimant driving a tractor on 
 
            the road that day pulling a manure spreader to another tract 
 
            of land that had a metal building on it (Ex. N, pp. 9-18).  
 
            Babyar further testified that later in the day he observed 
 
            claimant load the manure spreader with a different tractor.  
 
            He said he ran the bucket and picked up manure and dumped it 
 
            on the spreader (Ex. N, pp. 19-21).
 
            
 
                 Babyar further testified that later that day he 
 
            observed claimant fill a pickup truck with gasoline and at 
 
            that time he also filled up several large white plastic 
 
            gasoline containers in the back of the pickup truck.  He 
 
            stated that he video taped most of this (Ex. N, pp. 22 & 
 
            23).  
 
            
 
                 Babyar testified that later at the farm he observed 
 
            claimant drive a red tractor and a green tractor (Ex. N, p. 
 
            24).  The private investigator said he saw claimant crouched 
 
            or bent over pushing a box that appeared to be an air 
 
            compressor (Ex. N, p. 25).  He said he further observed 
 
            claimant pushing a four-wheel motorcycle rocking it back and 
 
            forth and driving it around the yard (Ex. N, p. 25).
 
            
 

 
            
 
            Page  13
 
            
 
            
 
            
 
            
 
                 Babyar testified that he surveilled claimant again on 
 
            May 19, 1992 and saw claimant mount a green tractor and 
 
            later a red tractor and drive them out of a shed.  He moved 
 
            a box-like air compressor again and moved it across the yard 
 
            with his left arm approximately 50 to 75 feet (Ex. N, pp. 23 
 
            & 37).  He said he then observed claimant manually rock the 
 
            four-wheel drive back and forth again without difficulty 
 
            (Ex. N, p. 37).  He said he saw and video taped these tasks 
 
            from approximately 150 to 200 yards away.  He related that 
 
            he observed no obvious impairment or difficulties in 
 
            performing these tasks (Ex. N, pp. 38 & 39).  
 
            
 
                 Babyar said he saw claimant mount the motorcycle by 
 
            putting his right leg on it and swung his left leg over the 
 
            cycle and sat down (Ex. N, p. 40).  Next he saw claimant 
 
            driving on a hill south of the house with the cows in front 
 
            of him coming down the hill and claimant was riding the 
 
            cycle (Ex. N, p. 42).  Babyar also filed a detailed written 
 
            report of these observations (Ex. F).  
 
            
 
                 David Miller, another private investigator, testified 
 
            by deposition on June 14, 1993 that he observed claimant on 
 
            February 4, 1993 drive a red mini-van and follow his father, 
 
            who was driving a tractor, to an implement dealer in 
 
            Knoxville approximately 20 miles away and return home.  He 
 
            said he saw claimant get on and off of a tractor without 
 
            difficulty on two occasions using both arms to grab and pull 
 
            himself up (Ex. O, pp. 17-26).  
 
            
 
                 Miller testified that he also observed claimant in the 
 
            first part of June, 1993.  On June 3, 1993 Miller's written 
 
            report states, 
 
            
 
                    1:23 PM  Arrived.  Observed the subject's 
 
                 father in the truck bed handing bales of hay to 
 
                 the subject, who was at the rear of the pickup.  
 
                 The subject would pick up the bales of hay and 
 
                 would carry them with ease into the barn.  The 
 
                 subject would place the bales of hay in an orderly 
 
                 stack.  The subject lifted and carried each bale 
 
                 with ease an with no sign of impediments (Ex. F, 
 
                 p. 11).
 
            
 
                 Claimant admitted at the hearing that when he gave his 
 
            deposition he denied that he was doing farm work.  At the 
 
            hearing, however, he did admit that he was doing some farm 
 
            work (Tran. p. 147).  
 
            
 
                 Claimant admitted that he unloaded 40 square bales of 
 
            hay that weigh 50 or 60 pounds apiece.  He said, "... I 
 
            picked them up waist high and I stacked them chest high." 
 
            (Tran. p. 105).  He admitted that he also did another load 
 
            of 33 bales (Tran. p. 105).  Claimant further testified that 
 
            afterwards his back hurt for a day or so (Tran. p. 106).  
 
            
 
                 Claimant admitted that he spread manure a few times 
 
            (Tran. p. 107).  He said he loaded about 80 loads of manure 
 
            with the skid loader but his dad hauled about 70 of them to 
 
            the field (Tran. p. 108).
 
            
 

 
            
 
            Page  14
 
            
 
            
 
            
 
            
 
                 Thus, claimant's testimony and the testimony of his 
 
            wife, brother and father was definitively impeached.
 
            
 
                 Claimant described the milking process as being highly 
 
            automated and within his capabilities (Tran. pp. 117-122).  
 
            Claimant admitted that he has driven the tractors and has 
 
            unloaded hay with a hay fork attached to the tractor (Tran. 
 
            pp. 103 & 104).  
 
            
 
                 Defendants contend that when employer realigned the 
 
            routes and claimant was transferred to a lesser paying route 
 
            without one of his two big stores that he developed a back 
 
            injury in retaliation for the route change.  
 
            
 
                 On the other hand, claimant and his wife contend that 
 
            because of the long hours that claimant was working and his 
 
            increasing back pain in the latter part of 1990 and early 
 
            part of 1991, that claimant had requested a route change.  
 
            Claimant denied that the back injury was contrived in 
 
            retaliation for the route change.
 
            
 
                 Claimant said he was looking forward to having his 
 
            route cut because even though he would earn less money he 
 
            would be able to do his job in 50 to 60 hours per week 
 
            (Tran. p. 92).  Claimant testified that he lobbied hard to 
 
            get the Food Saver store added to his route in mid-1990 so 
 
            he could make more money (Tran. p. 159).  However, by 
 
            December, he was asking to have it removed from his route 
 
            and that he admitted to Berg that he had made a mistake 
 
            (Tran. pp. 159 & 160).  Claimant said that if the Food Saver 
 
            store was taken off of his route that he would have his 
 
            income back up within a year (Tran. pp. 160 & 161).  
 
            
 
                 Dan Berg testified that he is a 21-year employee of 
 
            employer.  He stated he became sales manager about January 
 
            1, 1991.  He testified that claimant was a good salesman; 
 
            that claimant could do whatever he wanted to do; and that he 
 
            was always in a hurry.  He agreed that claimant's job was 
 
            physically demanding and that is why they demand a 
 
            pre-employment physical examination with a back x-ray (Ex. 
 
            K, pp. 3-20).  Berg testified that the average earnings for 
 
            a route salesman at the time of this injury would be 
 
            approximately $35,000 to $40,000.  He said all the routes 
 
            are different some are bigger than others.  A smaller route 
 
            might earn $25,000 whereas a good route might earn $40,000 
 
            (Ex. K, p. 20).  
 
            
 
                 Defendants thought that the manner in which claimant 
 
            told Berg about his injury was unusual.  Berg testified that 
 
            he first learned of this injury when claimant followed him 
 
            home from work one night and pulled up in his driveway 
 
            behind his car when Berg arrived home.  Berg related that 
 
            claimant got out of his car and told him that claimant had 
 
            hurt his back and that he was going to the doctor (Ex. K, 
 
            pp. 22, 23 & 25).  
 
            
 
                 Defendants contended that another unusual aspect of 
 
            this injury was as follows.  Berg further testified that he 
 
            ran into claimant at the Iowa State Fair in August of 1991 
 
            at one of the beer tents at which time claimant stated to 
 

 
            
 
            Page  15
 
            
 
            
 
            
 
            
 
            Berg, 
 
            
 
                    Well, you guys really didn't leave me much 
 
                 choice.  I was making all that money with the big 
 
                 route and the two stores, and I find out you're 
 
                 going to cut my route and take one store away, you 
 
                 really didn't leave me much choice but to be off 
 
                 with a bad back." (Ex. K, pp. 28 & 29).
 
            
 
                 Claimant testified that his conversation with Berg at 
 
            the fair was about the size of the routes being too large 
 
            and the men not wanting to give up the money if they are cut 
 
            down (Tran. pp. 123, 161 & 162).  Claimant denied that his 
 
            back injury was in retaliation for changing the size of his 
 
            route (Tran. p. 125). 
 
            
 
                 Berg said employer had planned to remove one large 
 
            store from claimant's route and replace it with several 
 
            convenience stores or smaller stops (Ex. K, p. 30).  Berg 
 
            maintained that claimant's larger route was too big for him 
 
            and that he was constantly calling for help (Ex. K, pp. 32 & 
 
            33).  Berg related that claimant was informed of the change 
 
            in route sometime in February of 1991 (Ex. K, p. 33).  The 
 
            sales manager acknowledged that claimant would have earned 
 
            considerably less money on the new route (Ex. K, p. 36).
 
            
 
                 Berg was also allowed to testify at the hearing in 
 
            person as a rebuttal witness.  In his rebuttal testimony 
 
            Berg related that when he came on as sales manager in 
 
            December of 1990 that he felt that claimant's route was too 
 
            big.  Berg said that Jerry Dennis, claimant's supervisor, 
 
            agreed, but claimant did not.  Berg testified, "... Mike's 
 
            comment was that the route wasn't too big." (Tran. pp. 193 & 
 
            194).  Berg said that claimant subsequently agreed with the 
 
            route change and the change took place on March 11, 1991 
 
            (Tran. pp. 194 & 195).
 
            
 
                 Robert Morris, human resources manager for employer for 
 
            the last six years, and a 37-year company employee, 
 
            testified by deposition on May 26, 1993.  Morris agreed that 
 
            claimant performed a very physically demanding job.  He said 
 
            that is why the company requires a preemployment physical 
 
            examination and a back x-ray.  Morris related that a case of 
 
            16 ounce bottles weighs 56 pounds.  A case of 12 ounce cans 
 
            weighs 40 pounds and a case of two liter plastic bottles 
 
            weighs 45 pounds.  The witness estimated that claimant 
 
            delivered about 85,000 cases of pop a year on what he 
 
            described as a heavy or large route (Ex. J, pp. 1-11).  
 
            Morris agreed that claimant was good at this job and earned 
 
            a lot of money (Ex. J, pp. 14-20).
 
            
 
                 Morris testified that he filled out the personnel 
 
            change authorization form when claimant resigned on October 
 
            23, 1991.  The form shows that claimant resigned for the 
 
            reason of a workers' compensation injury and medical 
 
            restrictions (Ex. 25).  The form shows claimant resigned and 
 
            was not terminated.  
 
            
 
                 Claimant acknowledged that he resigned from employer in 
 
            October of 1991.  Claimant averred that he resigned on the 
 

 
            
 
            Page  16
 
            
 
            
 
            
 
            
 
            advice of his attorney so that he could draw unemployment 
 
            compensation.  Claimant said that Morris told him that 
 
            employer could not use him because of his 57-pound weight 
 
            restriction and the fact that claimant could not perform 
 
            repetitive work (Tran. p. 139).  Claimant's resignation may 
 
            also have been influenced by the fact that Morris testified 
 
            that claimant was not an actual candidate for promotion to a 
 
            higher position within the company (Ex. J, p. 51).
 
            
 
                 Morris submitted that he attempted to give claimant a 
 
            light duty job of putting adhesive back stickers on a 
 
            banner.  The human resources manager related, "Mike was only 
 
            in there for a half hour to forty-five minutes, and he said 
 
            he just could not do it; he was in such pain that he could 
 
            not even lean over the table, put these on there 
 
            (indicating), and he left....  He didn't care what, and he 
 
            just left." (Ex. J, pp. 26 & 27).  Morris contended that he 
 
            did not get a chance to talk to claimant about it, "He was 
 
            just gone." (Ex. J, p. 27).
 
            
 
                 Claimant's testimony on this point is as follows, "I 
 
            told him my back hurt and then he said, well, why don't you 
 
            go on home then, and that's when I did." (Tran. p. 96 & 
 
            177).
 
            
 
                 Whatever happened at this light duty episode is 
 
            immaterial.  Berg testified that the company had no light 
 
            duty position on a full-time or long-term basis (Ex. K, p. 
 
            24).  Morris verified that employer had no light duty work 
 
            that would fit claimant's restrictions on a long-term basis 
 
            (Ex. J, pp. 30 & 31).  
 
            
 
                 Dr. McGuire testified that claimant confided in him 
 
            that he knew in December of 1990 that he would be unable to 
 
            continue to work (Ex. L, p. 15).
 
            
 
                 Morris related that when routes get so big that they 
 
            fail to show growth that they are realigned.  This usually 
 
            results in an initial loss of income for the driver but that 
 
            the growth has always come back.  The witness said 
 
            claimant's route had reached the saturation point.  He also 
 
            confirmed that the proposed route change occurred shortly 
 
            before this injury and would have cost claimant several 
 
            thousands dollars initially (Ex. J, pp. 40-45).  Claimant 
 
            also granted that if the Food Saver store was taken off of 
 
            his route that he would lose income but that he would have 
 
            had his income back up within a year (Tran. pp. 160 & 161).  
 
            
 
                 It is the opinion of this deputy that there is an 
 
            element of truth in both the contention of the defendants 
 
            and claimant.  Claimant and his wife gave convincing 
 
            evidence that the long hours of heavy work were too 
 
            physically demanding for claimant and that he truly needed a 
 
            reduction in the amount of work that he was performing.  At 
 
            the same time, defendants have given convincing evidence 
 
            that none of the route drivers, including claimant, welcome 
 
            the initial loss of income, even though there was an eight 
 
            week period of adjusted income after a route change took 
 
            effect which paid the drivers an average commission on the 
 
            four weeks of income prior to the route change.  
 

 
            
 
            Page  17
 
            
 
            
 
            
 
            
 
            
 
                 It is understandable that claimant's motivation to work 
 
            would be affected by continuing to work at a physically 
 
            demanding job for substantially less income.  It is not 
 
            possible to determine from the evidence submitted that 
 
            claimant did in fact contrive this injury in retaliation for 
 
            the route change and reduction in his income.  On claimant's 
 
            behalf, it should be noted that the medical evidence clearly 
 
            indicates that claimant has some multiple very serious lower 
 
            back problems.  Claimant's testimony established that he was 
 
            fearful of his continued ability to work because of what the 
 
            doctors told him about his back.  Furthermore, the facts 
 
            speak for themselves that lifting and handling over 400 
 
            cases of pop a day would almost certainly aggravate the 
 
            various conditions that Dr. Boulden found in claimant's 
 
            back.  
 
            
 
                 Claimant was provided with a rehabilitation specialist 
 
            for approximately a year from May of 1991 to August of 1992 
 
            (Tran. p. 137).  Susan White, vocational consultant, 
 
            determined that claimant had many transferable skills (Ex.1, 
 
            p. 13).  White testified that claimant could possibility 
 
            obtain jobs that paid $5, $7 or $8 per hour as entry level 
 
            positions (Ex. 1, p. 21).  The specialist assisted claimant 
 
            in preparing a resume, cover letters, schooled claimant in 
 
            job interview techniques and provided claimant several job 
 
            leads every week (Tran. pp. 125 & 126).  White enumerated 
 
            some of the jobs that claimant could qualify for in a letter 
 
            dated August 15, 1991 (Ex. 16, p. 4).
 
            
 
                 White testified that claimant was not well motivated to 
 
            find work (Ex. 1, p. 57).
 
            
 
                 Claimant submitted a list of 569 jobs that he inquired 
 
            about without finding any employment (Ex. 20).  He also 
 
            introduced 36 rejection letters in evidence.  The rejection 
 
            letters are quite general and there is no indication that 
 
            claimant was rejected because of this injury (Ex. 23).  
 
            Claimant contended that he generated most of these job leads 
 
            himself (Tran. pp. 126-130, 153 & 176).
 
            
 
                 Defendants did introduce a report of one prospective 
 
            employer that was contacted by claimant and this individual 
 
            stated that he did offer Mr. Reeves a position in marketing 
 
            but Mr. Reeves declined it (Ex. D, p. 2). 
 
            
 
                 White testified that sometimes claimant wrote down 
 
            employers which, in fact, he had not actually contacted (Ex. 
 
            1, p. 29 & 34)
 
            
 
                 The rehabilitation specialist alleged that claimant 
 
            discouraged prospective employers by telling them that he 
 
            injured his back while working at his last job and that he 
 
            was disabled from that injury.  Claimant denied that he 
 
            volunteered this information but said that he could not lie 
 
            when employers asked about it (Tran. p. 131).
 
            
 
                 White said claimant told employers that he had a 
 
            57-pound weight lifting restriction when applying for work 
 
            (Ex. 1, p. 42).
 

 
            
 
            Page  18
 
            
 
            
 
            
 
            
 
            
 
                 The rehabilitation specialist also contended that 
 
            claimant discouraged prospective employers by telling them 
 
            that he was earning $50,000 in his last job whereas the jobs 
 
            that he was applying for probably did not pay half that 
 
            much.  Claimant maintained that he only supplied this 
 
            information when it was requested and furthermore he thought 
 
            that it proved his worth to be able to say that he earned 
 
            this kind of money in the past (Tran. pp. 131, 132 & 139).  
 
            Claimant further explained that when employers asked how 
 
            much he expected to earn in the job he was applying for that 
 
            he endeavored to give a realistic figure as a good judgment 
 
            call (Tran. p. 175).
 
            
 
                 White said claimant went to job interviews including a 
 
            sales job wearing blue jeans (Ex. 1, p. 110).
 
            
 
                 It is the opinion of this deputy that claimant did not 
 
            sincerely try to obtain a job while making all or most of 
 
            these inquiries.  Claimant has demonstrated by his 13 years 
 
            of employment with employer that he is intelligent, 
 
            productive, industrious, and effective.  His powers of 
 
            persuasion were quite good with the stores he called on to 
 
            sell employer's products.  
 
            
 
                 In addition to that claimant has demonstrated that he 
 
            is capable of running a dairy farm and a milking operation.  
 
            Claimant admitted that his tax return shows him as a 
 
            propitiator of the dairy operation (Tran. p. 165).  Claimant 
 
            testified that the dairy herd has consisted of anywhere 
 
            between 22 and 36 head of dairy cattle over the years (Tran. 
 
            p. 141).  Claimant admitted that he grossed $41,000 from 
 
            farming in 1991 and that it would be about the same in 1992 
 
            (Tran. p. 155).  He further elaborated that even though the 
 
            net shown on the business return was only $10,000 or $11,000 
 
            much of that was book loss (Tran. p. 174).  
 
            
 
                 Claimant further granted that he drew unemployment 
 
            compensation benefits and that for a period of approximately 
 
            seven or eight months he drew workers' compensation benefits 
 
            at the same time (Tran. pp. 164 & 165).  In addition, 
 
            claimant's wife either worked or was able to work during his 
 
            period of disability.  Thus, claimant had little incentive 
 
            to truly try to obtain a job in the competitive labor market 
 
            when he was operating a dairy farm and milking operation, as 
 
            well as doing the farming related to it at home.
 
            
 
                 Thus, claimant has demonstrated that he is capable of 
 
            full-time or near full-time employment of his own choosing 
 
            when he chooses to do so.  
 
            
 
                 Claimant further demonstrated on the first functional 
 
            capacity examination on May 6, 1991 that he was capable of 
 
            lifting 105 pounds maximum from floor to waist with frequent 
 
            lifts of 72 pounds and repetitive lifts of 52 pounds (Ex. 
 
            11, p. 1).  Claimant also explained that even though he 
 
            could lift heavy weight, it hurt his back when he did so 
 
            (Tran. p. 97).  If he rests a couple of days the back pain 
 
            will go away (Tran. p. 98).
 
            
 

 
            
 
            Page  19
 
            
 
            
 
            
 
            
 
                 Claimant's second functional (lift trak analysis) 
 
            capacity examination caused Mr. Bower to recommend that 
 
            claimant not lift more than 57 pounds, otherwise the back 
 
            compression forces will reproduce increased symptoms (Ex. 
 
            12, p. 3).  However, Mr. Bower was forced to make this newer 
 
            reduced limitation for the reason that claimant had not 
 
            faithfully performed the exercises that were recommended and 
 
            primarily because of his poor lifting techniques which 
 
            claimant did not correct.  
 
            
 
                 Thus, this reduced lifting restriction is self-imposed 
 
            by claimant himself.  Furthermore, claimant admitted that he 
 
            lifted 40 bales of hay and another 33 bales of hay which 
 
            weighed 50 or 60 pounds.  Therefore, claimant is capable of 
 
            performing heavy lifting on a somewhat sustained basis when 
 
            he chooses to do so and the conditions are right for it.  
 
            
 
                 Dr. McGuire pointed out and tried to convince claimant 
 
            that simply because he felt pain was no indication that he 
 
            was injuring his back.  At the same time, it is the opinion 
 
            of this deputy that no reasonable doctor would recommend 
 
            that claimant continue with the physically strenuous work 
 
            that he was performing for employer with the multiple 
 
            congenital, developmental and degenerative conditions in 
 
            claimant's lower back.  Thus, as a practical matter claimant 
 

 
            
 
            Page  20
 
            
 
            
 
            
 
            
 
            should avoid heavy lifting, particularly on a repetitive 
 
            basis.  This limits his employment opportunities and 
 
            increases his industrial disability.  
 
            
 
                 Claimant testified that he can only stand about 15 
 
            minutes (Tran. p. 98).  He testified that his sitting, 
 
            walking and carrying is limited (Tran. p. 99).  Claimant 
 
            stated that his pain was activity related (Tran. pp. 100, 
 
            143 & 156).  However, none of the doctors, in particular Dr. 
 
            Boulden, Dr. McGuire or Dr. Evans corroborated claimant's 
 
            testimony on this point.  Claimant's testimony may be true 
 
            but it is not supported by any  supporting medical evidence.  
 
            
 
                 The testimony of claimant's wife, father and brother 
 
            has suffered impaired credibility in view of the findings of 
 
            the private surveillance investigators and claimant's 
 
            admission at the hearing that he did perform the normal work 
 
            of a dairy farmer who operates a milking operation and in 
 
            addition assists his father with field work.
 
            
 
                 Claimant described his pain as usually between 4 to 6 
 
            on a scale of 10 (Tran. p. 143).  
 
            
 
                 There is no question that claimant earned a lot of 
 
            money in this position as a route salesman for employer at 
 
            the time of his injury.  The parties stipulated that 
 
            claimant's gross earnings at the time of the injury were 
 
            $1,146.13 per week.  If claimant could maintain his weekly 
 
            wage it would mean a gross annual income of $59,598.76.  At 
 
            the same time, the evidence shows that the route salesman 
 
            worked on commission and that their income fluctuated.  
 
            According to Berg a route salesman could make anywhere 
 
            between $25,000 and $40,000 per year.  He said a good route 
 
            like claimant had would normally earn $35,000 to $40,000 per 
 
            year.  Morris indicated that around $45,000 would be the 
 
            average earnings for a good route salesman in the top 5 or 
 
            10 percent and that claimant was in that group (Ex. J, p. 
 
            17).  Claimant's 1988 income tax returns show gross earnings 
 
            of $38,627.  Claimant's income tax returns for 1989 show 
 
            gross earnings of $39,126.  The income tax returns for the 
 
            year 1990 show gross earnings of $48,744.44 from claimant's 
 
            earnings that year (Ex. Q).  
 
            
 
                 Using White's figures of five dollars ($5.00) per hour 
 
            would produce a gross annual income of $10,400 and eight 
 
            dollars per hour would produce an income of $16,640 per 
 
            year.  However, it should be noted that this was based upon 
 
            a 40 hour week whereas claimant was typically working an 80 
 
            hour week or more for employer.  Theoretically, if claimant 
 
            had a second job and earned the same amount of money again 
 
            his earnings would be $20,800 or $33,280.  
 
            
 
                 Furthermore, it must be considered that claimant is 
 
            grossing $40,000 in farming income.  The true net income 
 
            from farming is not available because claimant acknowledged 
 
            that a lot of his tax write-offs are book losses, or 
 
            non-cash expenditure deductions, and that his actual net 
 
            income is considerably more than $10,000 or $11,000.  
 
            
 
                 Based on the foregoing numbers it can be seen that it 
 

 
            
 
            Page  21
 
            
 
            
 
            
 
            
 
            is not possible to make a straight line simple calculation 
 
            of claimant's actual loss of earnings.  
 
            
 
                 Nevertheless, industrial disability is based upon loss 
 
            of earnings capacity.  It is the determination of this 
 
            deputy that claimant has sustained a 35 percent industrial 
 
            disability or loss of earnings capacity based primarily upon 
 
            the fact that he is foreclosed from his former employment 
 
            with employer and other similar types of work which require 
 
            repetitive heavy lifting, bending and twisting and prolonged 
 
            sitting.  This determination is based upon the factors 
 
            discussed above, coupled with agency expertise [Iowa 
 
            Administrative Procedure Act 17A.14(5)] and all of 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).  
 
            
 
                                   WITNESS FEES
 
            
 
                 It is determined that defendants are not entitled to be 
 
            reimbursed by claimant for the amounts defendants paid the 
 
            private investigators and surveillance witnesses for 
 
            deposition testimony at the request of claimant's counsel.  
 
            The charges of the private investigators are shown in 
 
            exhibits G and H.
 
            
 
                 First of all, the deputy can find no statutory 
 
            authority for defendants' proposition and defendants have 
 
            not offered any.  Defendants purport to make an analogy 
 
            between the deposition testimony of private surveillance 
 
            investigators and expert witnesses citing Iowa Rules of 
 
            Civil Procedure 125 e. and f.  This contention is without 
 
            merit for the reason that private investigator surveillance 
 
            witnesses are not expert witnesses.  
 
            
 
                 Rule 702 of the Iowa Rules of Evidence defines the 
 
            testimony of experts as follows,
 
            
 
                    Rule 702.  Testimony by experts.  If 
 
                 scientific, technical, or other specialized 
 
                 knowledge will assist the trier of fact to 
 
                 understand the evidence or to determine a fact in 
 
                 issue, a witness qualified as an expert by 
 
                 knowledge, skill, experience, training, or 
 
                 education may testify thereto in the form of an 
 
                 opinion or otherwise. 
 
            
 
                 Babyar and Miller did not supply any scientific, 
 
            technical, or other specialized knowledge in this case.  Nor 
 
            did they render an opinion, for the most part, other than 
 
            the fact that based upon what they saw with their own eyes 
 
            claimant did not appear to be impaired.  Thus, it is 
 
            determined that the testimony of these private investigator 
 
            surveillance individuals was not expert testimony and 
 
            therefore Iowa Rules of Civil Procedure 125 e. and f. would 
 
            have no application to their testimony.
 
            
 

 
            
 
            Page  22
 
            
 
            
 
            
 
            
 
                 It should be noted that the private investigator 
 
            surveillance persons were injected into the case by 
 
            defendants, even though they claim it was necessitated by 
 
            claimant's dishonesty in contending that he could not 
 
            perform any work on the farm.  Therefore, the cost of these 
 
            witnesses are trial preparation expenses properly chargeable 
 
            to defendants.  The investigators themselves either know, or 
 
            should know, that once they become involved in a case, they 
 
            can be subpoenaed to testify as a witness by any party to 
 
            the case.  The only obligation on the part of claimant would 
 
            have been to obtain a subpoena and attach the witness fee 
 
            and mileage fee provided for in Iowa Code section 622.69, 
 
            622.104 and section 70A.9.  The private investigators, 
 
            knowing this, probably have a clause in their contract which 
 
            requires the person who hires them to pay them if they are 
 
            called upon to testify at a deposition or at a hearing or in 
 
            court.  Private investigators, being business persons, have 
 
            most likely covered this contingency when they were hired in 
 
            the first place.  
 
            
 
                 Moreover, claimant's counsel, in his brief, points out 
 
            that exhibit H, the bill of Charles Miller in the amount of 
 
            $207.33 is not for deposition testimony, but rather for four 
 
            and one-half hours of surveillance/investigation and travel 
 
            of 39 miles at 35 cents per mile.  
 
            
 
                 Claimant's counsel likewise points out that exhibit G, 
 
            the bill of John Babyar is a charge for one-half a day of 
 
            service in the amount of $152 and mileage in the amount of 
 
            $12.25 with no itemization of how the mileage is calculated.  
 
            His total bill is $164.25.  Claimant's counsel points out 
 
            that Mr. Babyar's deposition testimony only lasted from 9:25 
 
            a.m. to 10:35 a.m., one hour and ten minutes, and did not 
 
            require a half of day of his services.  
 
            
 
                 Therefore, these surveillance witnesses who were 
 
            checking on the honesty of claimant, were either not honest 
 
            themselves in their billing practices, or else someone has 
 
            made a gross mistake in presenting exhibits G and H for 
 
            payment by claimant for the deposition testimony which these 
 
            men actually gave (Def. Brief, pp. 15 & 16).  
 
            
 
                 Wherefore, it is determined that the charges of the 
 
            private investigators in exhibits G and H, which total 
 
            $371.58, are not the responsibility of claimant for the 
 
            reasons stated above.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 Wherefore, based upon the foregoing and following 
 
            principles of law, these conclusions of law are made:
 
            
 
                 That claimant sustained the burden of proof by a 
 
            preponderance of the evidence that the injury of March 14, 
 
            1991, was the cause of permanent disability because it 
 
            aggravated and made symptomatic claimant's preexisting 
 
            degenerative disc disease, bulging L4-L5 disc and bilateral 
 
            spondylolisthesis based upon the testimony of Dr. Boulden, 
 
            the board certified treating physician and Dr. Evans, 
 
            claimant's independent evaluator.  Bodish v. Fischer, Inc., 
 

 
            
 
            Page  23
 
            
 
            
 
            
 
            
 
            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 has sustained the burden of proof by a 
 
            preponderance of the evidence that he has sustained a 35 
 
            percent industrial disability to the body as a whole and is 
 
            entitled to 175 weeks of permanent partial disability 
 
            benefits.  Iowa Code section 85.34(2)(u).  Diederich v. 
 
            Tri-City Railway Co., 219 Iowa 587, 258 N.W. 899 (1935); 
 
            Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 
 
            251 (1963).
 
            
 
                 That defendants did not sustain the burden of proof by 
 
            a preponderance of the evidence that claimant is obligated 
 
            to pay them for the charges of two private surveillance 
 
            investigators hired by defendants who gave deposition 
 
            testimony at the request of claimant's counsel and presented 
 
            charges to defendants purportedly for the time involved in 
 
            giving the depositions.  Rule 343 IAC 4.33; Iowa Code 
 
            section 86.18(2), 86.40, 622.69, 622.104 and 70A.9; Rules of 
 
            Civil Procedure 125 e. and f.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 That defendants pay to claimant one hundred 
 
            seventy-five (175) weeks of permanent partial disability 
 
            benefits at the stipulated rate of six hundred fifty-seven 
 
            and 77/100 dollars ($657.77) per week in the total amount of 
 
            (one hundred fifteen thousand one hundred nine and 75/100 
 
            dollars ($115,109.75) commencing on June 12, 1991, as 
 
            stipulated to by the parties.
 
            
 
                 That defendants are entitled to a credit for sixty-two 
 
            point seven one four (62.714) weeks of workers' compensation 
 
            benefits paid to claimant at the rate of five hundred 
 
            twenty-one and 11/100 dollars ($521.11) per week in the 
 
            total amount of thirty-two thousand six hundred eighty and 
 
            89/100 dollars ($32,680.89) provided that all of these 
 
            payments were for permanent disability and exclusive of the 
 
            twelve point eight five seven (12.857) weeks of temporary 
 
            disability benefits that the parties agreed that claimant 
 
            was entitled to at the time of the hearing.
 
            
 
                 That all accrued benefits are to be paid in a lump sum.
 
            
 
                 That interest will accrue pursuant to Iowa Code section 
 
            85.30. 
 
            
 
                 That the costs of this action, including the cost of 
 
            the attendance of the court reporter at hearing and the cost 
 
            of the  transcript, are charged to defendants pursuant to 
 
            rule 343 IAC 4.33 and Iowa Code sections 86.19(1) and 86.40.
 
            
 
                 Furthermore, claimant is specifically awarded the costs 
 
            attached to the hearing report for the filing fee with the 
 
            industrial commissioner's office in the amount of sixty-five 
 
            dollars ($65), the cost of the medical report of Dr. Evans 
 
            in the amount of one hundred dollars ($100) and the cost of 
 

 
            
 
            Page  24
 
            
 
            
 
            
 
            
 
            the medical report from Dr. Boulden in the amount of 
 
            twenty-five dollars ($25), which latter costs all total one 
 
            hundred ninety dollars ($190).  
 
            
 
                 That defendants file claim activity reports pursuant to 
 
            rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of February, 1994.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          WALTER R. McMANUS, JR.
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Jerry L. Schnurr III
 
            Attorney at Law
 
            PO Box 952
 
            409 Snell Building
 
            Fort Dodge, IA  50501
 
            
 
            Mr. Timothy W. Wegman
 
            Mr. Stephen W. Spencer
 
            Attorneys at Law
 
            218 Sixth Ave., Ste 300
 
            PO Box 9130
 
            Des Moines, IA  50306-9130
 
            
 
 
            
 
            
 
            
 
                                   2901, 2906,1108.50, 1401, 1402.40,           
 
                                   1803, 2206, 2209, 2906, 2907, 3701
 
                                   Filed February 28, 1994
 
                                   Walter R. McManus, Jr.
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            MICHAEL REEVES,     
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                             File No. 979818
 
            PEPSI COLA GENERAL BOTTLERS,  
 
                                           A R B I T R A T I O N
 
                 Employer, 
 
                                             D E C I S I O N
 
            and       
 
                      
 
            NATIONAL UNION FIRE 
 
            INSURANCE COMPANY,  
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            2901, 2906
 
            Even after the parties substantially reduced the number of 
 
            proposed exhibits at the request of the deputy at the time 
 
            of the hearing, nevertheless, after examining all of the 
 
            exhibits for the decision it was determined that a 
 
            significant number of the remaining exhibits were not 
 
            relevant, material, essential or helpful in the 
 
            determination of the issues in this case.
 
            
 
            1108.50, 1401, 1402.40, 1803, 2206, 2209, 3701
 
            
 
                 Claimant had several preexisting back problems (1) 
 
            degenerative disc disease of L1-2, L2-3, L4-5, and L5-S1, 
 
            (2) bulging disc at L5-S1 and (3) spondylolisthesis.  The 
 
            treating orthopedic surgeon and claimant's evaluator said 
 
            they were made symptomatic and aggravated by this injury.
 
            
 
                 Impairment ratings were 2-3 percent, 8 percent and 10 
 
            percent.  Claimant's back problems were not operable and no 
 
            surgery was performed.  None of the doctors gave claimant 
 
            any permanent restrictions, except the treating orthopedic 
 
            surgeon did say claimant was foreclosed from his current job 
 
            as a Pepsi-Cola route salesman and that he should not bend, 
 
            twist or sit for a long time.
 
            
 
                 Claimant, claimant's wife, claimant's brother, and 
 
            claimant's father testified that there was very little that 
 
            he could do on account of this injury.  Claimant denied in a 
 
            deposition that he was performing or could perform farm 
 
            work.  Several private surveillance investigators observed 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            and videotaped claimant engaging in farming activities.  At 
 
            the hearing claimant admitted that he was running a dairy 
 
            farm and milking operation and some other related farm 
 
            activities.
 
            
 
                 Claimant was awarded 35 percent industrial disability 
 
            primarily on the basis that he was foreclosed from his 
 
            previous job in which he earned between $50,000 and $55,000 
 
            per year.
 
            
 
                 Claimant's award was large because his gross earnings 
 
            were $1,146.13 and his rate was $657.77.
 
            
 
                 Claimant's motivation was questioned by employer and 
 
            the rehabilitation specialist on several points which 
 
            claimant disputed and findings were made on these conflicts.
 
            
 
            2906, 2907
 
            
 
                 It was determined that claimant did not owe defendants 
 
            the witness charges of two private surveillance 
 
            investigators who gave a deposition at claimant's request.  
 
            Rule 343 IAC 4.33; Iowa Code sections 86.18, 86.40, 622.69, 
 
            622.104, and 70A.9; Iowa Rules of Civil Procedure 125 e. and 
 
            f.
 
            
 
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            ROBERT BIEGHLER,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 979887
 
            SENECA CORPORATION,           :
 
                                              A R B I T R A T I O N
 
                 Employer,                :
 
                                                 D E C I S I O N
 
            and                           :
 
                                          :
 
            FARMLAND INSURANCE COMPANIES, :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a contested case proceeding upon the petition 
 
            in arbitration of claimant Robert Bieghler against his 
 
            former employer, Seneca Corporation, and its insurance 
 
            carrier, Farmland Insurance Companies.  Mr. Bieghler 
 
            suffered a crush injury to the right lower extremity on 
 
            March 27, 1991, and now seeks benefits under the Iowa 
 
            Workers' Compensation Act.
 
            
 
                 A hearing was accordingly held in Des Moines, Iowa on 
 
            February 7, 1994.  The record consists of claimant's 
 
            testimony and joint exhibits A, B and C.
 
            
 
                                      ISSUES
 
            
 
                 The parties have stipulated to the following:
 
            
 
                    1.  Claimant sustained injury arising out of 
 
                    and in the course of employment on March 27, 
 
                    1991;
 
            
 
                    2.  The injury caused both temporary and 
 
                    permanent disability;
 
            
 
                    3.  Permanent disability should be 
 
                    compensated as a scheduled member disability 
 
                    to the right leg;
 
            
 
                    4.  At the time of the injury, claimant was 
 
                    single and entitled to four exemptions;
 
            
 
                    5.  Entitlement to medical benefits is no 
 
                    longer in dispute;
 
            
 
                    6.  Defendants voluntarily paid 104.143 
 
                    weeks of compensation (20 weeks of which 
 
                    were paid on the day of hearing) at the rate 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                    of $309.25 per week; and,
 
            
 
                    7.  Defendants are entitled to credit for 
 
                    payment of sick pay/disability benefits 
 
                    under Iowa Code section 85.38(2).
 
            
 
                 Issues presented for resolution include:
 
            
 
                    1.  The extent of temporary 
 
                    disability/healing period;
 
            
 
                    2.  The extent and commencement date of 
 
                    permanent disability; and,
 
            
 
                    3.  The appropriate rate of compensation.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The undersigned deputy industrial commissioner finds:
 
            
 
                 On March 27, 1991, Robert Bieghler was employed as a 
 
            working foreman for Seneca Corporation.  Seneca's business 
 
            includes installation of underground petroleum tanks.  
 
            Claimant was engaged in the installation of such a tank when 
 
            he suffered a crush injury to the right ankle area while 
 
            operating a Bobcat front end loader.  Mr. Bieghler's leg was 
 
            caught between the bucket and the frame of this earth moving 
 
            machine.
 
            
 
                 Initial treatment with several physicians was generally 
 
            conservative, including casting, physical therapy, 
 
            injections and medications.  Diagnoses included soft tissue 
 
            injury, synovitis and {by radiographic evidence} bony 
 
            fragments at the tip of the medial malleolus.  The malleolus 
 
            is a part of the leg, not the foot.
 
            
 
                 Claimant's recovery proved to be very slow.  He was 
 
            eventually referred to an orthopedic surgeon, Bryan Den 
 
            Hartog, M.D., who reported in June 1992 that claimant would 
 
            have difficulty performing many of the essential functions 
 
            of his previous position.  As a result, claimant was 
 
            discharged on July 1, 1992.  At about the same time, Dr. Den 
 
            Hartog recommended further treatment, including an 
 
            arthroscopy procedure, but defendants refused to authorize 
 
            treatment.  Indeed, claimant's healing period benefits were 
 
            converted to permanency benefits by the insurance carrier.
 
            
 
                 Dr. Den Hartog continued to treat claimant, especially 
 
            with steroid injections, and was eventually granted 
 
            permission to perform surgery.  This included an 
 
            arthroscopic procedure of the right ankle and subtalar 
 
            joints, and a right tarsal tunnel release.
 
            
 
                 Fortunately, the procedure greatly improved claimant's 
 
            pain and function.  On October 20, 1993, Dr. Den Hartog 
 
            estimated impairment at five percent of the right leg based 
 
            on residual pain and slight stiffness in the subtalar joint.  
 
            He also imposed activity restrictions of no more than four 
 
            hours standing in any given eight-hour shift and a weight 
 
            lifting restriction of 50 pounds.  Claimant was released on 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            a p.r.n. (return as needed) basis.
 
            
 
                 During the 13 weeks prior to injury (weeks ending 
 
            December 30, 1990 through March 24, 1991), claimant was paid 
 
            an hourly wage of $11.05.  He worked 510.5 hours of 
 
            "regular" time and 68.5 hours of overtime, totalling 579 
 
            hours.  Claimant asserts that the week ending January 13, 
 
            1991 was atypical or non-representative, since he worked 
 
            only 32 hours straight time and 2 hours overtime.  However, 
 
            the evidence does not disclose why claimant worked only 32 
 
            hours of straight time that week.  He may have taken a 
 
            personal day, or work may not have been available.  The week 
 
            is not shown to be nonrepresentative.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 Section 85.34(1) provides that healing period benefits 
 
            are payable to an injured worker who has suffered permanent 
 
            partial disability until (1) the worker has returned to 
 
            work; (2) the worker is medically capable of returning to 
 
            substantially similar employment; or (3) the worker has 
 
            achieved maximum medical recovery.  The healing period can 
 
            be considered the period during which there is a reasonable 
 
            expectation of improvement of the disabling condition.  See 
 
            Armstrong Tire & Rubber Co. v. Kubli, 312 N.W.2d 60 (Iowa 
 
            Ct. App. 1981).  Healing period benefits can be interrupted 
 
            or intermittent.  Teel v. McCord, 394 N.W.2d 405 (Iowa 
 
            1986).
 
            
 
                 Prior to October 1993, claimant did not return to work 
 
            and was never medically capable of returning to 
 
            substantially similar employment.  A brief attempt at 
 
            returning to work with defendants, in the nature of a trial, 
 
            proved unsuccessful.  Claimant also tended bar for a few 
 
            hours.  Neither constituted any significant return to work 
 
            within the meaning of section 85.34(1).  The surgery 
 
            performed by Dr. Den Hartog clearly improved claimant's 
 
            condition, as evidenced by the early impairment rating 
 
            issued April 8, 1992 by Dr. Kessler and physical therapist 
 
            Thomas Bower: 15 percent.  Claimant reached maximum medical 
 
            improvement on October 20, 1993, when rated and released by 
 
            Dr. Den Hartog with restrictions.  Benefits were paid until 
 
            April 7, 1992, and are not in dispute.
 
            
 
                 Although Dr. Den Hartog rated impairment at only five 
 
            percent of the leg, the associated restrictions show that 
 
            claimant's actual impairment is greater.  Claimant was 
 
            previously able to be on his feet longer than four hours in 
 
            a eight hour shift.  Claimant shall be compensated for a 15 
 
            percent loss of the leg, 33 weeks.  The loss of the leg is 
 
            compensated during 220 weeks under Iowa Code section 
 
            85.34(2)(o).
 
            
 
                 Under Iowa Code section 85.36(6), the weekly earnings 
 
            of an employee paid on an hourly basis is calculated by 
 
            dividing by 13 the total earnings (not including overtime or 
 
            premium pay) in the last completed period of 13 consecutive 
 
            calendar weeks immediately preceding the injury.  Under 343 
 
            IAC 8.2, overtime hours are included in determining gross 
 
            weekly wages, but at the straight time rate, not a premium 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            rate.  
 
            
 
                 Since claimant worked 579 hours at a wage of $11.05 in 
 
            the preceding 13 weeks, the proper calculation is (579 x 
 
            11.05) î 13 = $492.15.  The rate tables published by the 
 
            commissioner show that a single individual with four 
 
            exemptions and an average weekly wage of $492.15 is entitled 
 
            to a compensation rate of $309.25.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Defendants shall pay additional healing period benefits 
 
            from April 8, 1992 through October 20, 1993 (80.143 weeks) 
 
            at the rate of three hundred nine and 25/100 dollars 
 
            ($309.25) per week.
 
            
 
                 Defendants shall pay thirty-three (33) weeks of 
 
            permanent partial disability benefits at the rate of three 
 
            hundred nine and 25/100 dollars ($309.25) commencing October 
 
            21, 1993.
 
            
 
                 All accrued weekly benefits shall be paid in a lump sum 
 
            together with statutory interest.
 
            
 
                 Defendants shall have dollar for dollar credit for all 
 
            benefits previously paid.
 
            
 
                 Defendants shall have credit under Iowa Code section 
 
            85.38(2) for net long-term disability/sick pay benefits paid 
 
            during any week in which such benefits were paid and 
 
            workers' compensation benefits were not paid.
 
            
 
                 Costs are assessed to defendants.
 
            
 
                 Signed and filed this ____ day of February, 1994.
 
            
 
            
 
            
 
            
 
                                          
 
                                      ________________________________
 
                                          DAVID R. RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            Mr Harry W Dahl III
 
            Attorney at Law
 
            974 73rd Street
 
            Suite 16
 
            Des Moines Iowa 50312
 
            
 
            Mr Matthew A Grotnes
 
            Attorney at Law
 
            Terrace Center Ste 111
 
            2700 Grand Avenue
 
            Des Moines Iowa 50312
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            1803
 
                                            Filed February 8, 1994
 
                                            DAVID R. RASEY
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            ROBERT BIEGHLER,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 979887
 
            SENECA CORPORATION,           :
 
                                              A R B I T R A T I O N
 
                 Employer,                :
 
                                                 D E C I S I O N
 
            and                           :
 
                                          :
 
            FARMLAND INSURANCE COMPANIES, :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            1803
 
            Although surgeon rated impairment at only five percent of 
 
            the leg, restrictions imposed (only 4 hours standing in 8 
 
            hour shift; 50 pound lifting) indicated impairment of 15 
 
            percent of the leg.  Award was for 15 percent.