BEFORE THE IOWA INDUSTRIAL COMMISSIONER 
 
       _________________________________________________________________
 
               
 
       WESLEY R. JOHNSON,    
 
       
 
          Claimant,                         File No. 478162
 
               
 
       vs.                                 REVIEW-REOPENING
 
                
 
       CHICAGO BRIDGE AND IRON CO.,            DECISION
 
        
 
          Employer, 
 
          Self-Insured,   
 
          Defendants.    
 
       ________________________________________________________________
 
                        STATEMENT OF THE CASE
 
          
 
          This is a proceeding in review-reopening brought by 
 
       Wesley R. Johnson, claimant, against Chicago Bridge and Iron 
 
       Co., employer, a self-insured defendant, for the recovery of 
 
       further workers' compensation benefits as the result of an 
 
       injury on October 7, 1977.  Two prior final review-reopening 
 
       decisions were filed on November 30, 1981 and May 31, 1985.  
 
       There was also a prior agreement for settlement filed on 
 
       August 31, 1989 which only extended the time period within 
 
       which claimant was allowed to commence another review-
 
       reopening proceeding.  On June 14, 1994, a hearing was held 
 
       on claimant's latest petition for review-reopening and the 
 
       matter was considered fully submitted at the close of this 
 
       hearing. 
 
       
 
          The parties have submitted a hearing report of 
 
       contested issues and stipulations which was approved and 
 
       accepted as a part of the record of this case at the time of 
 
       hearing.  The oral testimony and written exhibits received 
 
       during the hearing are set forth in the hearing transcript.  
 
          
 
          According to the hearing report, the parties have 
 
       stipulated to the following matters:
 
       
 
          1.  Claimant is not seeking temporary total or healing 
 
       period benefits in this proceeding.
 
       
 
          2. If permanent partial disability benefits are 
 
       awarded, they shall begin as of June 14, 1994.
 
       
 
          3.  Claimant's weekly rate of compensation remains at 
 
       $228.00 for permanent partial disability benefits.
 
       
 
          4. The medical bills submitted by claimant at the 
 
       hearing are fair and reasonable and causally connected to 
 
       the back and leg condition upon which the claim herein is 
 
       based but that the issue of their causal 
 
       connection to the original work injury remains an issue to 
 
       be decided herein.                                        
 
       
 

 
 
 
 
 
 
 
 
 
 
 
 
 
                             ISSUES
 
       
 
          The parties submitted the following issues for 
 
       determination in this proceeding:
 
       
 
          I. The extent of claimant's entitlement to permanent 
 
       disability benefits.
 
       
 
          II. The extent of claimant's entitlement to medical 
 
       benefits.
 
       
 
                                            
 
       
 
                         FINDINGS OF FACT
 
          
 
            
 
            Having heard the testimony and considered all of the 
 
       evidence, the deputy industrial commissioner finds as follows:
 
       
 
          Claimant, Wesley Johnson, age 39, is a union 
 
       boilermaker.  At the time of the injury, he was working for 
 
       Chicago Bridge.  Both before and after the injury, Wesley's 
 
       work was limited to welding and for the last few years in 
 
       specialized robotic welding for which he has been specially 
 
       trained.  Wesley continues to work as a boilermaker/welder 
 
       today working for various employers out of the union hall.     
 
       
 
          The injury on October 7, 1977 occurred when Wesley was 
 
       21 years of age.  Wesley suffered two compression fractures 
 
       in the lumbar (low) back at spinal levels L1 and L3 when he 
 
       fell from a scaffold onto a concrete floor. He has had 
 
       chronic low back and right leg pain ever since.
 
       
 
          The first review-reopening decision of this agency was 
 
       filed on November 30, 1981.  In that decision, Wesley was 
 
       found to have suffered a 27 percent industrial disability or 
 
       loss of earning capacity as a result of the injury and 
 
       permanent partial disability benefits were awarded 
 
       accordingly. A second review-reopening proceeding was 
 
       commenced a few years later and in a final agency appeal 
 
       decision filed May 31, 1985 it was found that claimant also 
 
       suffered a herniated disc at the L5/S1 spinal level and that 
 
       his condition had deteriorated since the last proceeding as 
 
       a result of the injury.  Wesley's industrial disability at 
 
       that time was found to have increased by 8 percent and an 
 
       additional 40 weeks of benefits were awarded.
 
       
 
          At hearing, Wesley stated that he believes his 
 
       condition has deteriorated further. He stated that his 
 
       symptoms of low back and right leg pain were the same but 
 
       have worsened.  Wesley's primary care physician over the 
 
       years for this injury has been Ronald O. Schwab, M.D., a 
 
       board certified orthopedic surgeon.  Dr. Schwab's records 
 
       show a steady pattern of similar complaints of chronic 
 
       radicular back pain with various attempts over the years to 
 
       try 
 
       different treatment modalities of medications, physical 
 
       therapy and steroid injections. Prior to the last 
 
       proceeding, chymopapain therapy had been attempted at the 
 
       L5/S1 level with little success.  
 
       
 
          In his report of September 3, 1992, Dr. Schwab notes 
 
       additional degenerative changes in the discs at new levels 
 
       in claimant's lower spine such as L3/4 and L4/5 along with 
 
       L5/S1.  He stated at that time that these new problems may 
 
       be the source of his symptoms at that time. Also, surgery 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
       was discussed at that time with claimant but nothing 
 
       definite was decided.  At hearing,  Wesley stated that he 
 
       believes that eventually he will require surgery but this 
 
       has not been done at the present time. Dr. Schwab's 
 
       diagnoses since 1984 have remained essentially unchanged; 
 
       that being chronic radicular syndrome.  He prescribed a 
 
       newer model back brace.  In a January 9, 1989 report, Dr. 
 
       Schwab opined that claimant had a 20 percent whole body 
 
       impairment from the prior compression fractures and 
 
       treatment at the L5-S1 level but noted a slightly 
 
       progressive increase in symptoms.   In March 3, 1993, he 
 
       lowered this to 15 percent of the whole person due to 
 
       persistent symptomatology.    His last examination note for 
 
       June 1, 1994  indicated that the exam was unchanged from 
 
       previous exams and his impression was as follows:  "DJD of 
 
       the lumbar spine, history of prior chemonucleolysis L5/S1 
 
       level and possible mild disc herniation L4/L5 level." (Ex. 
 
       1, p. 73).
 
       
 
          Dr. Schwab stated that  claimant would require 
 
       continuing treatment but gave no opinion  as to the causal  
 
       connection of the problems he found at spinal levels other 
 
       than those found work-related in the prior proceedings.
 
            
 
          Apparently, in July 1993, he suffered an aggravation of 
 
       his back and was off work for a few days while working for a 
 
       different employer.  However, there appears no real change 
 
       in Wesley's overall condition as a result of this injury and 
 
       after his return to work he returned to his prior chronic 
 
       back pain symptomatology.
 
       
 
          Another physician, Alan H. Fruin, M.D., from the 
 
       Creighton University School of Medicine in Omaha, Nebraska 
 
       also has evaluated Wesley.   In a written report in June 
 
       1993, he opined that Wesley required no further diagnostic 
 
       studies but that treatment in the future should consist of 
 
       medications for occasional symptoms.  Dr. Fruin also stated 
 
       at that time that he did not believe there was additional 
 
       permanent disability since 1985.  In a report one year later 
 
       in June 1994, Dr Fruin states that claimant's back is 
 
       continuing to deteriorate.  This deterioration involves both 
 
       the initial 1977 problem and from normal wear and tear of 
 
       other structures in the spine aggravated by claimant's 
 
       continued heavy work as a welder.
 
       
 
          Wesley testified that since the last hearing he has 
 
       continued to work as a boilermaker/welder.  Also, since that 
 
       time, his work has become somewhat lighter as he is now 
 
       trained as a robotics welder which uses a robot to perform 
 
       the actual welding operations.  Wesley states that such jobs 
 
       are usually shorter in duration but require longer hours.  
 
       He continues to work full time and takes all of the overtime 
 
       offered.  Although Wesley testified that he accepts only 
 
       lighter duty jobs from the union hall,  he admitted he has 
 
       not suffered any loss in income since the last hearing.  
 
       Although Wesley's income is sporadic, it is normal for 
 
       boilermakers working out of a union hall.  His annual income 
 
       has increased on average since the last hearing.
 
       
 
          From the evidence presented, it could not be found that 
 
       claimant suffered a significant change in his physical or 
 
       economic condition since that last review-reopening 
 
       proceeding.  No change in physician impairment ratings were 
 
       shown.  If anything, the ratings today are lower than found 
 
       in the last proceeding.  Wesley admitted at hearing there 
 
       was no change in work restrictions.  His view that his work-
 

 
 
 
 
 
 
 
 
 
 
 
 
 
       related condition has worsened is not supported by the 
 
       medical evidence.  He watches what he does but this is no 
 
       different that at the time of the last hearing. Also, 
 
       nothing has been offered to show causal connection of the 
 
       new problems at other levels of the spine to the original 
 
       work injury of 1977.
 
       
 
          Furthermore, even if there had been a slight change in 
 
       physical condition, Wesley has not suffered any further loss 
 
       of earning capacity or industrial  disability. Wesley 
 
       continues to work in his chosen occupation. He is still 
 
       relatively young. He has no additional work activity 
 
       restrictions.  He earns today the normal wage for a union 
 
       boilermaker.  He has worked when work was available. The 
 
       brief loss of work in the summer of 1993 was an aggravation 
 
       injury from work for another employer but it did not appear 
 
       to materially change his condition.
 
       
 
          However, it is found that the entire back condition 
 
       treated by Dr. Schwab since the last review-reopening 
 
       proceeding and the requested medical expenses are causally 
 
       connected to the 1977 work injury.   Defendant has failed to 
 
       demonstrate a rational basis to apportion-out treatment of 
 
       non-work related conditions from the requested medical 
 
       expenses.  Dr. Schwab has found problems at other levels of 
 
       the lower spine but treatment of those problems occurred in 
 
       conjunction with on-going treatment of the original 1977 
 
       chronic problems found work-related in the last review-
 
       reopening decision. The therapies and medications were 
 
       prescribed for claimant's total condition. 
 
       
 
          It is also found that defendant has totally abandoned 
 
       responsibility for treating claimant and that future 
 
       treatment of the 1977 injury is needed, including a 
 
       probability of eventual surgery. The most appropriate 
 
       physician to treat claimant in the future is Dr. Schwab or 
 
       physicians and therapists referred to claimant by Dr. Schwab  
 
       given the doctor's extensive past involvement in claimant's 
 
       case.  
 
       
 
                       CONCLUSIONS OF LAW
 
          
 
          I.  In a review-reopening proceeding, claimant has the 
 
       burden of establishing by a preponderance of the evidence 
 
       that he suffered a change of condition or a failure to 
 
       improve as medically anticipated as a proximate result of 
 
       his original injury, subsequent to the date of the 
 
       award or agreement for compensation under review, which 
 
       entitles him to additional compensation.  Deaver v. 
 
       Armstrong Rubber Co., 170 N.W. 2d 455 (Iowa 1969).  
 
       Meyers v Holiday Inn of Cedar Falls, 272 N.W. 2d 24 (Iowa 
 
       Ct. App. 1978).  Such a change of condition is not limited 
 
       to a physical change of condition.  A change in earning 
 
       capacity subsequent to the original award which is 
 
       proximately caused by the original injury also constitutes a 
 
       change in condition under Iowa Code section 85.26(2) and 
 
       86.14(2).  See McSpadden v Big Ben Coal Co., 288 N.W. 2d 
 
       181, (Iowa 1980); Blacksmith v All-American, Inc., 290 
 
       N.W. 2d 348 (Iowa 1980). If claimant shows  a slight change 
 
       in his physical condition but if this slight change does not 
 
       result in any new restrictions on claimant's employment, 
 
       such a change of condition is insufficient to support an 
 
       award of additional industrial disability.  Doyle v Land 
 
       O'Lakes, Inc., Appeal Decision Filed 11/30/87.
 
       
 
          The question of causal connection is essentially within 
 
       the domain of expert medical opinion. Bradshaw v. Iowa 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
       Methodist Hospital, 251 Iowa 375, 101 N.W. 2d 167 (1960).   
 
       The opinion of experts need not be couched in definite, 
 
       positive or unequivocal language and the expert opinion may 
 
       be accepted or rejected, in whole or in part, by the trier 
 
       of fact.  Sondag v. Ferris Hardware, 220 N.W. 2d 903 
 
       (Iowa 1974).  The weight to be given to such an opinion is 
 
       for the finder of fact to determine from the completeness of 
 
       the premise given the expert or other surrounding 
 
       circumstances.  Bodish v. Fischer, Inc.,  257 Iowa 516, 
 
       133 N.W. 2d 867 (1965).
 
       
 
          Industrial disability is not measured solely by the 
 
       extent of a functional impairment or loss of use of a body 
 
       member. A disability to the body as a whole or an 
 
       "industrial disability" is a loss of earning capacity 
 
       resulting  from the work injury. Diederich v Tri-City 
 
       Railway Co., 219 Iowa 587, 593, 258 N.W. 899 (1935). A 
 
       physical impairment  or  restriction on work activity may or 
 
       may not result in such a loss of earning capacity.  
 
       Examination of several factors determines the extent to 
 
       which a work injury and a resulting medical condition caused 
 
       an industrial disability. These factors include the 
 
       employee's medical condition prior to the injury, 
 
       immediately after the injury and presently; the situs of the 
 
       injury, its severity and the length of healing period; the 
 
       work experience of the employee prior to the injury, after 
 
       the injury and potential for rehabilitation; the employee's 
 
       qualifications intellectually, emotionally and physically; 
 
       earnings prior and subsequent to the injury; age; education; 
 
       motivation; functional impairment as a result of the injury; 
 
       and inability because of the injury to engage in employment 
 
       for which the employee is fitted.  Loss of earnings caused 
 
       by a job transfer for reasons related to the injury is also 
 
       relevant.  See Peterson v Truck Haven Cafe, Inc. vol. 1, 
 
       no. 3 Iowa Industrial Commissioner Decisions 654,  658  
 
       (Appeal Decision, Feb. 28, 1985).
 
       
 
          In the case under consideration,  claimant failed to 
 
       show a change of condition and cannot prevail on the issue 
 
       of entitlement to additional weekly benefits.
 
       
 
          II.  Pursuant to Iowa Code section 85.27, claimant is 
 
       entitled to payment of  reasonable medical expenses incurred 
 
       for treatment of a 
 
       work injury.  Claimant is entitled to an order of 
 
       reimbursement if he/she has paid those expenses.  Otherwise, 
 
       claimant is entitled only to an order directing the 
 
       responsible defendants to make such payments directly to the 
 
       provider.  See Krohn v. State, 420 N.W. 2d 463  (Iowa 
 
       1988)   
 
       
 
          After establishing causal connection, the claimant 
 
       does not have the burden to show that apportionment should 
 
       not occur due to possible non-work related conditions.  
 
       There is no agency precedent as to this precise point of 
 
       law.  Drawing from the general law of torts, the undersigned 
 
       believes that the correct law is that claimant has no such 
 
       additional burden after establishing a prima facie case for 
 
       causation.  The plaintiff in a personal injury case is not 
 
       normally charged with a burden of proof as to the actual 
 
       apportionment of damages.  Any burden of that nature must be 
 
       assumed by the defendant, since the defendant is the party 
 
       standing to gain by litigating the apportionment issue. 2 
 
       Damages in Tort Actions, section 15.34(1)(a); Wonder Life 
 
       Company v. Liddy, 207 N.W. 2d 27 (Iowa 1973). If no 
 
       apportionment can be made the defendant is responsible for 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
       the entire damage.  Becker v. D & E Distributing Co., 247 
 
       N.W. 2d 727, 731 (Iowa 1976).
 
       
 
          In the case under consideration,  causal connection of 
 
       the requested medical expenses was found. Although other 
 
       conditions possibly non-work related were treated at the 
 
       same time, defendant, as the party standing to benefit from 
 
       raising the apportionment issue, failed to present any 
 
       evidence to provide a means of apportionment. From the 
 
       evidence presented, there was no method the undersigned 
 
       could use to separate work and non-work related treatment 
 
       rendered to claimant at the same time for his entire back 
 
       condition.  Therefore, since a significant portion of the 
 
       treatment is the result of the 1977 work injury, all of the 
 
       expenses will be awarded.
 
       
 
          Also, given the need for future treatment, defendant 
 
       will be directed to provide care at their cost as 
 
       recommended and provided by Dr Schwab or medical providers 
 
       referred to claimant by Dr. Schwab.
 
          
 
                               ORDER
 
       
 
          1.  Claimant's claim for weekly permanent disability 
 
       benefits is dismissed with prejudice.
 
       
 
          2. Defendant shall pay the medical expenses listed in 
 
       exhibit 1, page 85, in the amount of four thousand nine 
 
       hundred ninety-two and 51/100 dollars ($4,992.51) 
 
       (Transcript, page 6).  Defendant shall also provide all 
 
       medical care without cost to claimant as recommended and 
 
       provided by Ronald Schwab, M.D. or those medical providers 
 
       referred to claimant by Dr. Schwab.
 
       
 
          3. Defendant shall pay the costs of this action 
 
       pursuant to rule 343 IAC 4.33, including reimbursement to 
 
       claimant for any filing fee paid in this matter.
 
       
 
          4.  Defendant shall file activity reports on the 
 
       payment of this award as requested by this agency pursuant 
 
       to rule 343 IAC 3.1.
 
       
 
            
 
            Signed and filed this ____ day of June, 1995.
 
       
 
       
 
                                   ______________________________
 
                                   WALTER R. McMANUS, JR.
 
                                   DEPUTY INDUSTRIAL COMMISSIONER    
 
       
 
       Copies to:
 
       
 
       Mr. Dennis L. Hanssen
 
       Attorney at Law
 
       2700 Grand Ave., Ste. 111
 
       Des Moines, IA  50312
 
       
 
       Ms. Helen C. Adams
 
       Mr. F. Richard Lyford
 
       Attorneys at Law
 
       1600 Hubb Tower
 
       699 Walnut St.
 
       Des Moines, IA  50309-3986
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         
 
         SHARON K. MANNING,
 
         
 
              Claimant,
 
                                               File Nos. 481989/726458
 
         VS.
 
                                                   A P P E A L
 
         RALSTON PURINA COMPANY,
 
                                                 D E C I S I 0 N
 
              Employer,
 
         
 
         and
 
         
 
         LIBERTY MUTUAL INSURANCE CO.,
 
         and AETNA LIFE AND CASUALTY
 
         
 
              Insurance Carriers,
 
              Defendants.
 
         _________________________________________________________________
 
         _
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Claimant appeals from a proposed consolidated 
 
         review-reopening and arbitration decision in which she was denied 
 
         further benefits as a result of a job-related injury of November 
 
         15, 1977 but was awarded temporary total disability for 107 4/7 
 
         weeks as a result of an injury on December 10, 1982.
 
         
 
              The record on appeal consists of the filings in both files 
 
         of the parties and the transcript of the hearing proceedings 
 
         together with claimant's exhibit 1. All parties filed briefs on 
 
         appeal.
 
         
 
                                   ISSUES
 
         
 
              Claimant contests the exclusion of claimant's testimony 
 
         regarding causal relationship between her employment termination 
 
         and her injury of December 10, 1982 as it relates to her 
 
         disability.
 
         
 
              Claimant further contests the finding of no additional 
 
         permanent partial disability.as a result of her injuries.
 
         
 
              Claimant further contests the findings regarding her 
 
         credibility, lack of symptoms, lack of change of condition, lack 
 
         of motivation and insignificant loss of earnings related to her 
 
         1982 injury.
 
         
 
                           REVIEW OF THE EVIDENCE
 
         
 
              The proposed decision adequately and accurately reflects the 
 
         pertinent evidence and it will not be reiterated herein.
 
         
 
              Briefly stated, claimant received an injury to her back on 
 
         November 15, 1977 for which she ultimately received an award on 
 
         May 17, 1984 of 26 percent permanent partial disability of the 
 

 
         body as a whole.  On December 10, 1982 claimant sustained another 
 
         injury to her back resulting in lost time and treatment.  
 
         Following the December 1982 injury claimant's employment with 
 
         defendant-employer Ralston Purina was terminated.
 
         
 
              The May 17, 1984 review-reopening decision reflects the 
 
         following finding of fact concerning claimant's termination: 
 
         "Claimant was terminated by her employer as a result of excessive 
 
         absenteeism.  A number of her absences result from her work 
 
         injury. others resulted from unrelated personal problems of 
 
         claimant." Additionally, defendant-Liberty Mutual's hearsay 
 
         objections to conversations between claimant and her supervisors 
 
         concerning her termination were sustained in the May 17, 1984 
 
         decision.
 
         
 
              However, at the August 27, 1985 hearing, claimant once again 
 
         testified concerning a conversation with her supervisors 
 
         concerning her termination.  Defendant-Liberty Mutual and 
 
         defendant-Aetna who did not participate in the earlier hearing 
 
         objected to that testimony on the grounds that the reason for 
 
         claimant's termination had already been determined by the May 17, 
 
         1984 decision.  Those objections were sustained by the deputy in 
 
         his proposed review-reopening and arbitration decision filed 
 
         October 15, 1985.
 
         
 
                               APPLICABLE LAW
 
         
 
              The citations of law in the proposed review-reopening and 
 
         arbitration decision are appropriate to the issues and evidence.  
 
         They are adopted herein.
 
         
 
                                 ANALYSIS
 
         
 
              Claimant contends on appeal that the deputy improperly 
 
         excluded evidence concerning the causal relationship between her 
 
         employment termination and her injury of December 10, 1982.  The 
 
         deputy excluded that evidence on the grounds that the issue of 
 
         claimant's termination was res judicata because a finding of fact 
 
         was made in the review-reopening decision filed May 17, 1984 
 
         concerning claimant's employment termination.  However, further 
 
         review of the May 17, 1984 review-reopening decision lends 
 
         support to claimant's contention that the issue of her employment 
 
         termination is not res judicata with respect to her injury of 
 
         December 10, 1982.  Although its occurrence was acknowledged and 
 
         considered as a factor in the determination of disability as a 
 
         result of the 1977 injury, no award for disability related to the 
 
         December 10, 1982 injury was made in the May 17, 1984 decision.  
 
         Additionally, at the beginning of the Applicable Law and Analysis 
 
         section of the May 17, 1984 decision the following appears:
 
         
 
                   We first must decide whether a causal relationship 
 
              exists between claimant's injury of November 15, 1977 
 
              and her current disability.  At the outset, it is noted 
 
              that we are concerned with claimant's December 10, 1982 
 
              injury only in so far as the issue of a causal 
 
              relationship between the original injury and the 
 
              subsequent injury has been raised.
 
         
 
              Further reading of that section of the May 17, 1984 decision 
 
         reveals that claimant's employment termination was only 
 
         considered to the extent it was caused by her 1977 injury.  
 
         Therefore, the issue of the causal relationship between 
 
         claimant's December 10, 1982 injury and her employment 
 
         termination as it relates to her disability is not res judicata.
 

 
         
 
         
 
         
 
         MANNING V. RALSTON PURINA COMPANY
 
         Page   3
 
         
 
         
 
         
 
              Claimant also contests on appeal the deputy's finding of no 
 
         further permanent disability as a result of her 1977 injury or 
 
         her 1982 injury.  With respect to the 1977 injury the deputy's 
 
         analysis that claimant has not shown a change of condition is 
 
         adequate and accurate and is adopted herein.  However, no 
 
         determination will be made here concerning claimant's disability 
 
         as a result of the 1982 injury as further consideration of the 
 
         causal relationship, if any, between claimant's December 10, 1982 
 
         injury and her employment termination is necessary.
 
         
 
              Finally, claimant contests on appeal the deputy's findings 
 
         regarding her credibility, motivation, lack of symptoms, lack of 
 
         change of condition and loss of earnings.  The last two findings 
 
         have already been considered here.  With regard to the first 
 
         three, review of the record reveals no reason to disturb the 
 
         deputy's findings concerning claimant's lack of credibility, 
 
         motivation, and symptoms insofar as they apply to the issue of 
 
         change of condition since the May 17, 1984 decision and 
 
         claimant's symptoms and motivation following the December 1982 
 
         injury.
 
         
 
                              FINDINGS OF FACT
 
         
 
              1.  Liberty Mutual was the insurance carrier for Purina on 
 
         November 15, 1977 and Aetna was the insurance carrier for Purina 
 
         on December 10, 1982.
 
         
 
              2.  Claimant's job on December 10, 1982 consisted of 
 
         cartoner/operator requiring some lifting of cartons and operation 
 
         of machine.
 
         
 
              3.  As a result of the work injury, claimant underwent a 
 
         surgical operation to correct a spinal leakage condition caused 
 
         by the December 10, 1982 work injury.
 
         
 
              4.  The spinal fluid leakage condition was very severe 
 
         resulting in severe headaches, nausea, vomiting, vertigo, and 
 
         blurred vision.
 
         
 
              5.  The spinal leakage condition has been corrected and 
 
         claimant's symptoms have now ended.
 
         
 
              6.  Prior to the work injury of 1982, claimant had a 
 
         permanent disability and was not able to perform strenuous work 
 
         and heavy lifting.
 
         
 
              7.  Since 1982 claimant has remained unmotivated to secure 
 
         alternative suitable employment outside her home.
 
         
 
              8.  As a result of the 1982 work injury, claimant was absent 
 
         from work for treatment of her condition from December 10, 1982 
 
         through December 31, 1984 for a total of 107 4/7 weeks (there was 
 
         an extra day for the leap year of 1984) and during this time it 
 
         was medically indicated that her condition would significantly 
 
         improve.
 
         
 
              9.  Pursuant to the parties' stipulation, claimant's rate of 
 
         compensation for the disability caused by the 1982 injury is 
 

 
         
 
         
 
         
 
         MANNING V. RALSTON PURINA COMPANY
 
         Page   4
 
         
 
         
 
         $232.36 per week.
 
         
 
              10.  Whether or not there is a relationship between 
 
         claimant's 1982 injury and her termination has not been 
 
         established.
 
         
 
                            CONCLUSIONS OF LAW
 
         
 
              Claimant has established by a preponderance of the evidence 
 
         that the work injury of December 10, 1982 was a cause of 
 
         temporary total disability.  Claimant has not established by a 
 
         preponderance of the evidence that the work injury on November 
 
         15, 1977 is a cause of a change of condition in her earning 
 
         capacity or permanent disability since the date of the last 
 
         hearing on February 24, 1984 which determined the extent of her 
 
         permanent disability, at that time.
 
         
 
              Claimant has established by the preponderance of the 
 
         evidence entitlement to temporary total disability benefits for 
 
         107 4/7 weeks from defendant Aetna.
 
         
 
              Claimant is not precluded on the issue of the relationship, 
 
         if any, between her 1982 injury and her termination.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed as to File 
 
         No. 481989 and remanded as to File No. 726458.
 
         
 
                                  ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That defendant, Aetna, shall pay to claimant one hundred 
 
         seven and four-sevenths (107 4/7) weeks of temporary total 
 
         disability benefits from December 10, 1982 through December 31, 
 
         1984,at the rate of two hundred thirty-two and 36/100 dollars 
 
         ($232.36) per week.
 
         
 
              That defendant, Aetna, shall pay accrued weekly benefits in 
 
         a lump sum and shall receive a credit against this award for all 
 
         benefits previously paid.
 
         
 
              That defendant, Aetna, shall receive credit for previous 
 
         payments of benefits under a nonoccupational group insurance 
 
         plan, if applicable and appropriate, under Iowa Code section 
 
         85.38(2).
 
         
 
              That defendant, Aetna, shall pay interest on benefits 
 
         awarded as set forth in Iowa Code section 85.30.
 
         
 
              That claimant shall pay the costs of the review-reopening 
 
         proceeding, File No. 481989, and defendant, Aetna, shall pay the 
 
         costs of the arbitration proceeding, File No. 726458, pursuant to 
 
         Division of Industrial Services Rule 343-4.33, formerly 
 
         Industrial Commissioner Rule 500-4.33.
 
         
 
              That defendant, Aetna, shall file an activity report on the 
 
         payment of this award as requested by this agency pursuant to 
 
         Division of Industrial Services Rule 343-3.1, formerly Industrial 
 
         Commissioner Rule 500-3.1.
 

 
         
 
         
 
         
 
         MANNING V. RALSTON PURINA COMPANY
 
         Page   5
 
         
 
         
 
         
 
              That the case is remanded to take testimony on the causal 
 
         relationship, if any, between claimant's termination and her 
 
         injury of December 10, 1982 as it may relate to any industrial 
 
         disability.
 
         
 
         
 
              Signed and filed this 20th day of January, 1987.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                                 ROBERT C. LANDESS
 
                                                 INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Arthur C. Hedberg, Jr.
 
         Attorney at Law
 
         840 Fifth Avenue
 
         Des Moines, Iowa 50309
 
         
 
         Mr. Thomas N. Kamp
 
         Attorney at Law
 
         700 Davenport Bank Bldg.
 
         Davenport, Iowa 52801
 
         
 
         Mr. Larry L. Shepler
 
         Attorney at Law
 
         600 Union Arcade Bldg.
 
         Davenport, Iowa 52801
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            1402.40 - 1801 - 1803
 
                                            Filed January 20, 1987
 
                                            ROBERT C. LANDESS
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         
 
         SHARON K. MANNING,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                              File Nos. 481989/726458
 
         RALSTON PURINA COMPANY,
 
                                                   A P P E A L
 
              Employer,
 
                                                 D E C I S I 0 N
 
         and
 
         
 
         LIBERTY MUTUAL INSURANCE CO.,
 
         and AETNA LIFE AND CASUALTY,
 
         
 
              Insurance Carriers,
 
              Defendants.
 
         _________________________________________________________________
 
         
 
         
 
         1402.40 - 1801 - 1803
 
         
 
              Claimant did not establish a change of condition which would 
 
         entitle her to further compensation for file No. 481989.  
 
         Affirmed.  However, the file No. 726458 is remanded for 
 
         determination of the relationship, if any, between her 1982 
 
         injury and her employment termination.
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         
 
         SHARON K. MANNING,
 
         
 
              Claimant,
 
                                                 File Nos. 481989/726458
 
         VS.
 
                                                A M E N D E D   0 R D E R
 
         RALSTON PURINA COMPANY,
 
                                                    0 N   R E M A N D
 
              Employer,
 
         and
 
         
 
         LIBERTY MUTUAL INSURANCE CO.,
 
         and AETNA LIFE AND CASUALTY,
 
         
 
              Insurance Carriers,
 
              Defendants.
 
         _________________________________________________________________
 
         
 
         
 
              The last unnumbered paragraph of the Appeal Decision filed 
 
         January 20, 1987 pertaining to instructions on remand is amended 
 
         by striking the paragraph in its entirety and adding the 
 
         following in lieu thereof:
 
         
 
              That the case is remanded to take testimony and make 
 
         appropriate findings on the causal relationship, if any, between 
 
         claimant's termination and her injury of December 10, 1982.  
 
         Should such a causal relationship be found, the deputy shall then 
 
         determine the extent of permanent disability, if any, caused by 
 
         claimant's termination and award benefits accordingly.
 
                                        
 
         
 
                 Signed and filed this 28th day of January, 1987.
 
         
 
         
 
                                           ROBERT C. LANDESS
 
                                           INDUSTRIAL COMMISSIONER
 
         Copies To:
 
         
 
         Mr. Arthur C. Hedberg, Jr.
 
         Attorney at Law
 
         840 Fifth Avenue
 
         Des Moines, Iowa 50309
 
         
 
         Mr. Thomas N. Kamp
 
         Attorney at Law
 
         700 Davenport Bank Bldg.
 
         Davenport, Iowa 52801
 
         
 
         Mr. Larry L. Shepler
 
         Attorney at Law
 
         600 Union Arcade Bldg.
 
         Davenport, Iowa 52801
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                     5-1803, 5-2905, 2700
 
                                     Filed June 30, 1995
 
                                     Walter R. McManus, Jr.
 
         
 
                 BEFORE THE IOWA INDUSTRIAL COMMISSIONER 
 
         ____________________________________________________________
 
         WESLEY R. JOHNSON,  
 
               
 
          Claimant,                          File No. 478162
 
               
 
         vs.                                 REVIEW-REOPENING
 
                
 
         CHICAGO BRIDGE AND IRON CO.,            DECISION
 
                
 
          Employer, 
 
          Self-Insured,  
 
          Defendant.     
 
         ____________________________________________________________
 
         
 
         5-1803, 5-2905
 
           
 
           In review-reopening claimant failed to show a change in 
 
         either physical or economic condition and failed to prove an 
 
         increase in industrial disability.
 
          
 
          2700 
 
           
 
           Employer had burden to show a rational basis for 
 
         apportionment of medical expenses when treatment of work and 
 
         non-work related conditions was the same and occurred at the 
 
         same time for both conditions. As defendant did not carry 
 
         its burden, all of the expenses were awarded. 
 
          
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            VINCENT M. KOBLISKA,          :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File Nos. 629402
 
            SHEPHERD COMPONENTS, INC.,    :                491816
 
                                          :
 
                 Employer,                :        R E V I E W -
 
                                          :
 
            and                           :     R E O P E N I N G
 
                                          :
 
            IOWA INSURANCE GUARANTY       :      D E C I S I O N
 
            ASSOCIATION on behalf of      :
 
            IOWA NATIONAL MUTUAL          :
 
            INSURANCE COMPANY,            :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                 
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in review-reopening brought by 
 
            Vincent Kobliska, claimant, against Shepherd Components, 
 
            Inc., employer, and Iowa Insurance Guaranty Association on 
 
            behalf of Iowa National Mutual Insurance Company (in 
 
            insolvency), as defendants.  The hearing was held on January 
 
            14, 1991 at Waterloo, Iowa.  The case was considered fully 
 
            submitted at the close of the hearing.  The evidence 
 
            consists of joint exhibits 1 through 20; and testimony from 
 
            claimant; David Wade; and Rodney Kobliska.
 
            
 
                 In accordance with the hearing assignment order and the 
 
            prehearing report, the following issues were presented for 
 
            resolution:
 
            
 
                 1.  Whether there is a causal relationship between the 
 
            injury and the disabilities;
 
            
 
                 2.  Whether claimant is entitled to temporary total or 
 
            healing period benefits, or permanent partial or permanent 
 
            total disability benefits; and,
 
            
 
                 3.  Whether claimant is entitled to medical benefits 
 
            pursuant to Iowa Code section 85.27.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy, having reviewed all the 
 
            evidence finds the following facts:
 
            
 
                 Vincent Kobliska, claimant, originally sustained an 
 
            injury to his low back in 1978 while working for defendant, 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            Shepherd Components, Inc.  He required prolonged and 
 
            extensive medical treatment.  He reinjured his lower back 
 
            while working for defendant Shepherd in 1980.  During his 
 
            tenure with this employer, claimant held various 
 
            laborer-type positions, although after the second injury in 
 
            1980, he began to work as a foreman, which did not require 
 
            him to perform as extensive lifting as was required before 
 
            the injury.
 
            
 
                 In 1982, claimant underwent back surgery because he 
 
            could no longer manage the pain and prescription pills were 
 
            not effective in treating the pain.  He also underwent knee 
 
            surgery, which was also work-related, and was eventually 
 
            laid off from his employment with defendant Shepherd.
 
            
 
                 Claimant underwent a second back surgery in 1985 
 
            wherein Keene rods were implanted in his lower lumbar spine 
 
            area to stabilize his back condition.
 
            
 
                 Claimant eventually agreed to settle his workers' 
 
            compensation claim against the defendants, and was assessed 
 
            a 51 percent industrial disability and was paid accordingly.  
 
            The settlement was approved in 1983 by the industrial 
 
            commissioner under Iowa Code section 86.13.  Pursuant to 
 
            said agreement, claimant is entitled to reasonable and 
 
            necessary medical care and treatment related to the injuries 
 
            of March 23, 1978 and February 25, 1980 which arise out of 
 
            claimant's low back injuries.  (Joint Exhibit 13, Page 3).
 
            
 
                 Claimant's petition for this proceeding is based on the 
 
            injury of February 25, 1980.
 
            
 
                 Claimant tried to perform other types of employment 
 
            after he was released from Shepherd Components.  Most 
 
            positions he has held since 1982 involved job duties lighter 
 
            than those he performed at Shepherd, and include woodworking 
 
            and some light construction work.  Claimant's work history 
 
            prior to the first injury at Shepherd's in 1978 includes 
 
            working at a grain elevator and driving a grain truck.
 
            
 
                 In 1983, claimant began painting the exteriors and 
 
            interiors of houses.  Although his back still bothered him, 
 
            claimant felt that as a sole practitioner, he could limit 
 
            the amount and type of work he was required to perform.  
 
            
 
                 All of the issues in the case revolve around the Keene 
 
            rods which were implanted in 1985.  
 
            
 
                 In November 1986, claimant underwent his third back 
 
            surgery to remove the Keene rods. 
 
            
 
                 Claimant was involved in an automobile accident on June 
 
            20, 1986.  Defendants argue that due to the motor vehicle 
 
            accident, the rods became loose and necessitated the surgery 
 
            for removal of the rods.  Claimant's position is that the 
 
            rods began to loosen in 1985, and the surgery performed to 
 
            remove the rods should be paid by the defendants.
 
            
 
                         analysis and conclusions of law
 
            
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                 Pursuant to Iowa Code section 86.14(2), in a proceeding 
 
            to reopen an award for payments, inquiry is to be made into 
 
            whether or not the condition of the employee warrants an end 
 
            to, diminishment of, or increase of compensation previously 
 
            awarded.  A change in condition must be shown to justify 
 
            changing the original award.  Henderson v. Iles, 250 Iowa 
 
            787, 96 N.W.2d 321 (1959).  It is not proper to merely 
 
            redetermine the condition of the employee as adjudicated by 
 
            the former award.  Stice v. Consol. Indus. Coal Co., 228 
 
            Iowa 1031, 291 N.W.2d 452 (1940).
 
            
 
                 A mere difference of opinion of experts or competent 
 
            observers as to the degree of disability arising from the 
 
            original injury is insufficient to justify a different 
 
            determination on a petition for review-reopening; there must 
 
            be substantial evidence of a worsening of the condition not 
 
            contemplated at the time of the first award.  Bousfield v. 
 
            Sisters of Mercy, 249 Iowa 64, 86 N.W.2d 109 (1957).  Or, a 
 
            change in condition may be found where claimant has failed 
 
            to improve to the extent initially anticipated, Meyers v. 
 
            Holiday Inn of Cedar Falls, Iowa, 272 N.W.2d 24 (Iowa App. 
 
            1978).  Additionally, in cases not involving scheduled 
 
            members, a change in earning capacity subsequent to the 
 
            original award which is proximately caused by the original 
 
            injury may constitute a change in condition.  Blacksmith v. 
 
            All-American, Inc., 290 N.W.2d 348 (Iowa 1980).
 
            
 
                 The first issue to be addressed is whether there is a 
 
            causal connection between claimant's work-related injury and 
 
            his present disability.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of February 
 
            25, 1980 is causally related to the disability on which he 
 
            now bases his claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 
 
            133 N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 
 
            296, 18 N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903 (Iowa 1974).  However, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Id. at 907.  Further, the weight to be given to such 
 
            an opinion is for the finder of fact, and that may be 
 
            affected by the completeness of the premise given the expert 
 
            and other surrounding circumstances.  Bodish, 257 Iowa 516, 
 
            133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
            Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
            
 
                 Furthermore, if the available expert testimony is 
 
            insufficient alone to support a finding of causal 
 
            connection, such testimony may be coupled with nonexpert 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            testimony to show causation and be sufficient to sustain an 
 
            award.  Giere v. Aase Haugen Homes, Inc., 259 Iowa 1065, 146 
 
            N.W.2d 911, 915 (1966).  Such evidence does not, however, 
 
            compel an award as a matter of law.  Anderson v. Oscar Mayer 
 
            & Co., 217 N.W.2d 531, 536 (Iowa 1974).  To establish 
 
            compensability, the injury need only be a significant 
 
            factor, not be the only factor causing the claimed 
 
            disability.  Blacksmith v. All-American, Inc., 290 N.W.2d 
 
            348, 354 (Iowa 1980).
 
            
 
                 Claimant's surgery for the implantation of the Keene 
 
            rods was performed on March 5, 1985.  (Jt. Ex. 9, PP. 
 
            39-40).  He was released from the hospital on March 13, 1985 
 
            and continued to receive follow-up care.  The evidence shows 
 
            that claimant frequently complained of pain, and called the 
 
            hospital for various prescriptions to relieve the pain.  
 
            (Jt. Ex. 9, PP. 33-35).  
 
            
 
                 Claimant's next appointment was on April 24, 1985.  At 
 
            that time, he was experiencing difficulty with pain in his 
 
            right hip, which radiated into his right lower extremity.  
 
            He also complained of numbness.  (Jt. Ex. 9, P. 32).
 
            
 
                 Claimant returned to the hospital for follow-up care on 
 
            July 10, 1985.  The notes indicate that claimant "continues 
 
            to have pain similar to [that] which he experienced 
 
            pre-operatively, that is, pain in the right hip radiating 
 
            into his posterior aspect of his right lower extremity and 
 
            occasionally associated with numbness."  (Jt. Ex. 9, P. 31).
 
            
 
                 Claimant was encouraged to continue with his 
 
            rehabilitation program, and it was recommended that he 
 
            undertake a bicycling or swimming program to increase his 
 
            exercise activities.  (Jt. Ex. 9, P. 31).  X-rays were also 
 
            taken, and indicated no change in the posterior fusion.  
 
            (Jt. Ex. 9, P. 30).
 
            
 
                 Another set of x-rays was taken on October 3, 1985, and 
 
            revealed:
 
            
 
                 Both rods appear to be unchanged in position since 
 
                 7/10/85.  There is slight posterior displacement 
 
                 of vertebral body of L5 on S1 in extension which 
 
                 measures approximately 4 MM on the film.  This 
 
                 space appears increased to approximately 7 MM on 
 
                 the flexion view but there is no evidence of 
 
                 disruption of the posterior fusion or either of 
 
                 the metallic rods and this change between flexion 
 
                 and extension is most likely secondary to a slight 
 
                 change in position of the patient between the 2 
 
                 films.  There [is] no definite evidence of 
 
                 disruption of the posterior fusion.
 
            
 
            (Jt. Ex. 9, P. 28).
 
            
 
                 The medical records also indicate that on October 3, 
 
            1985, claimant complained of a "recent episode starting 
 
            about 2-3 weeks ago where he started developing a clicking 
 
            sensation in his left ischial area associated with a ache in 
 
            his entire left posterior thigh and calf and with symptoms 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            similar to those he had on his right side."  (Jt. Ex. 9, P. 
 
            25).  He was examined by Thomas R. Lehmann, M.D., who stated 
 
            that his impression was a possible loose rod.  He notes on 
 
            that date indicate "[W]e need to continue to follow the 
 
            patient should the loose rod be thought to causing symptoms 
 
            over a long period of time.  We may have to remove the 
 
            rods."  (Jt. 9, P. 25). 
 
            
 
                 A further review of the medical records submitted at 
 
            the hearing shows that claimant continued to receive 
 
            treatment at the University of Iowa Hospitals and Clinics, 
 
            and was treated by numerous physicians.  On July 18, 1986, 
 
            claimant was seen by Dr. Shaffer, whose notes indicate: 
 
            
 
                 He states he attempted to go back to work at his 
 
                 painting contractor firm in early June but was 
 
                 unable to stay with it because of pain.  After 
 
                 that he felt he was improving until he was 
 
                 involved in a one-vehicle accident about 2Æ weeks 
 
                 ago.  He states that he took a hard "jolt" and for 
 
                 a week after that had severe pain in his low back 
 
                 which radiated down the posterior lateral aspect 
 
                 of his leg to his ankle.  He feels it is slowly 
 
                 improved in the week and a half since that 
 
                 accident.  He states that he cannot remain in any 
 
                 one position for more than a few minutes.  He 
 
                 complains of
 
            
 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            a tingling or numbness on the posterior lateral 
 
            aspect of his right leg.
 
            
 
                    ....
 
            
 
                 The patient was seen and examined with Dr. 
 
                 Shaffer.  We feel that he reinjured his lumbar 
 
                 spine in the MVA.  But, as noted above, see no 
 
                 evidence of further rod displacement.  At this 
 
                 point we see no evidence of worsening 
 
                 pseudo-arthrosis. 
 
            
 
            (Emphasis added.)
 
            
 
                 On August 15, 1986, claimant returned to the clinic, 
 
            and was again seen by Dr. Shaffer:
 
            
 
                 Mr. Kobliska is a 31 year old white male who is 
 
                 status post L4-S2 Keen distraction rod fusion on 
 
                 L5-S1 retrolisthesis.  He had been doing well 
 
                 until approximately 6 weeks ago when he was 
 
                 involved in a motor vehicle accident.  He then 
 
                 experienced exacerbation of his symptoms, back 
 
                 pain with radiation to the right leg. . . . The 
 
                 pain is worse when remaining in sitting position, 
 
                 however, it does not limit his activity.
 
            
 
                 On September 26, 1986, the clinic records indicate:
 
            
 
                 Patient is a 30-year-old who underwent L4-S2 Keene 
 
                 distraction fusion in March, 1985, and had been 
 
                 doing relatively well until 12 weeks ago when he 
 
                 suffered a motor vehicle accident and had 
 
                 increasing low sacral discomfort.  I saw him in 
 
                 July of this year and didn't see any obvious 
 
                 motion of the hooks or fused segments.
 
            
 
                    ....
 
            
 
                 Patient was seen with Dr. Lehmann.  We feel that 
 
                 he may have some loosening of his rods.  He will 
 
                 be scheduled for rod removal and possible 
 
                 augmentation of his fusion of 11-04.  He is to be 
 
                 admitted on 11-03-86.
 
            
 
                 On March 10, 1987, a Dr. Kabins made the following 
 
            notation:
 
            
 
                 Mr. Kobliska is indeed a patient of Dr. Lehmann's 
 
                 and has been seen multiple times.  The most recent 
 
                 on January 7, 1987.  He has been temporarily 
 
                 totally disabled from 11-3-86 to 1-12-87.  The 
 
                 patient had an original injury in 1978 when he was 
 
                 lifting a truss.  His foot was planted and his 
 
                 back cracked. . . . He continued to have back and 
 
                 leg pain but returned to work.  He re-injured his 
 
                 back in 1980 when he was doing construction.  He 
 
                 was loading lumbar [sic] and had his foot planted 
 
                 and twisted with the re-injury to his back.  He 
 
                 had increased pain in the back and increased pain 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
                 in the leg at that time.  The patient has most 
 
                 recently undergone a rod removal (Keene rod) in 
 
                 addition to a fusion in March of 1985.  The rods 
 
                 had loosened and the patient underwent removal of 
 
                 those rods in November of 1986.  He has 
 
                 subsequently been doing moderately well.  On 
 
                 January 7, 1987 it was felt that his healing 
 
                 period was over and that no further surgery or 
 
                 diagnostic study was advised.  The patient was 
 
                 allowed to return to work.  We however, cannot 
 
                 determine which if any injury is responsible for 
 
                 the back pain.  He has had additional pain and 
 
                 changes in pattern of pain following his many 
 
                 injuries and the pain has not resolved since his 
 
                 original injury back in 1978.
 
            
 
                 The undersigned feels that the greater weight of the 
 
            medical evidence indicates that the rods had become loose 
 
            prior to the motor vehicle accident in July of 1986.  As 
 
            early as October 3, 1985, the medical evidence contemplates 
 
            a loose rod and possible removal of the rods.  Of particular 
 
            note is the indication on July 18, 1986 that the examination 
 
            showed "no evidence of further rod displacement."  And, 
 
            claimant's complaints following the motor vehicle accident 
 
            seemed to concentrate more on the right side of his lower 
 
            back and his right legs, whereas prior to the accident, his 
 
            complaints centered around the left lower extremity and left 
 
            leg.
 
            
 
                 Claimant has experienced a change in condition since 
 
            the earlier agreement for settlement, and is entitled to 
 
            additional benefits.
 
            
 
                 It is found that the surgery performed to remove the 
 
            rods is causally related to claimant's work related injuries 
 
            in 1980 which allows claimant to be compensated at a rate of 
 
            $158.47 per week.  Therefore, there is a causal relationship 
 
            between claimant's injuries and the disability.  And, to 
 
            address the medical benefits issue summarily, defendants 
 
            shall pay for the costs of the surgery to remove the Keene 
 
            rods.
 
            
 
                 The next issue to be addressed is whether claimant is 
 
            entitled to temporary total or healing period benefits, or 
 
            permanent partial or permanent total disability benefits.
 
            
 
     
 
            
 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            One physician with the University of Iowa Hospitals and 
 
            Clinics rendered an opinion regarding permanency:
 
            3-16-88
 
            I feel that the patient's healing period has ended for his 
 
            low back problem and that he does have a permanent partial 
 
            disability of 15%.
 
            
 
                 A review of all of the evidence submitted does not 
 
            indicate that claimant's condition following the removal of 
 
            the Keene rods has deteriorated, and thereby adding to his 
 
            permanent disability as determined in 1983.  Claimant 
 
            continues to build his painting business, and is able to 
 
            perform some light duty work in addition to his management 
 
            responsibilities.  Therefore, no further permanent 
 
            disability benefits are awarded, however claimant is 
 
            entitled to temporary total benefits for the time he was off 
 
            work and recovering from the Keene rod removal surgery.
 
            
 
                 Claimant also argues that he is entitled to benefits 
 
            from February 1, 1989 to March 21, 1989.  Although claimant 
 
            testified that his back became worse during this time 
 
            period, there is no medical evidence which shows claimant 
 
            was required to be off of work for any reason during these 
 
            six weeks.  His claim for benefits during this time period 
 
            is denied.
 
            
 
                 Claimant contends his on-going medical treatment is 
 
            related to the 1980 injury, which would allow him to be 
 
            compensated at a higher worker's compensation rate. 
 
            ($158.47/week).  Defendants argue that if the latest surgery 
 
            is causally connected to the prior injuries, it was 
 
            necessitated by the first injury in 1978, which would allow 
 
            claimant to be compensated at a lower rate.  ($109.20/week).
 
            
 
                 At the time of his first injury, surgery was not 
 
            contemplated, and claimant was given conservative treatment 
 
            in the form of traction and an exercise program.  He was off 
 
            work for approximately six months, and returned in a light 
 
            duty capacity in October of 1978.  Claimant's condition 
 
            appeared to have stabilized until February of 1980, when he 
 
            again hurt his back in a lifting episode.  It was after this 
 
            episode that claimant's physical condition required 
 
            prolonged medical attention.
 
            
 
                 The undersigned finds that claimant's Keene rod removal 
 
            surgery was causally related to the 1980 accident, and he 
 
            should be compensated at the higher rate.
 
            
 
                           
 
            
 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 That claimant is awarded medical benefits for treatment 
 
            of his work-related injury, including mileage to travel to 
 
            and from Iowa City, Iowa at the rate of $.21/mile.
 
            
 
                 That claimant is awarded the costs of medications 
 
            necessary to treat his low back condition.
 
            
 
                 That claimant is awarded temporary total disability 
 
            benefits for time off of work from March 5, 1985 to January 
 
            12, 1987.
 
            
 
                 That defendants shall pay the accrued weekly benefits 
 
            in a lump sum, and are awarded credit against benefits 
 
            previously paid.
 
            
 
                 That defendants shall pay interest on benefits awarded 
 
            herein as set forth in Iowa Code section 85.30.
 
            
 
                 That defendants shall pay the costs of this action 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 That defendants shall file an activity report upon 
 
            payment of this award as required by this agency pursuant to 
 
            rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of April, 1991.
 
            
 
            
 
            
 
            
 
                                          
 
            ________________________________
 
                                          PATRICIA J. LANTZ
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr Gary Papenheim
 
            Attorney at Law
 
            234 3rd Street
 
            Box P
 
            Parkersburg Iowa 50665
 
            
 
            Mr William L Dawe
 
            Attorney at Law
 
            801 Grand Ave, Ste. 3700
 
            Des Moines Iowa 50309
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      2904
 
                      Filed April 11, 1991
 
                      PATRICIA J. LANTZ
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            VINCENT M. KOBLISKA,     :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :      File Nos. 629402
 
            SHEPHERD COMPONENTS, INC.,    :                491816
 
                      :
 
                 Employer, :       R E V I E W -
 
                      :
 
            and       :     R E O P E N I N G
 
                      :
 
            IOWA INSURANCE GUARANTY  :      D E C I S I O N
 
            ASSOCIATION on behalf of :
 
            IOWA NATIONAL MUTUAL     :
 
            INSURANCE COMPANY,  :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            2904
 
            Review-reopening proceeding, where evidence showed 
 
            claimant's surgery was causally related to a work-related 
 
            injury; claimant awarded medical benefits and temporary 
 
            total disability.  No showing of increased industrial 
 
            disability.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         HARRY BRANT, JR.,
 
                                                 FILE NO. 492024
 
              Claimant,
 
                                                   R E V I E W -
 
         VS.
 
                                                 R E 0 P E N I N G
 
         
 
         IOWA POWER AND LIGHT COMPANY,            D E C I S I O N
 
         
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in review-reopening brought by Harry 
 
         Brant, Jr., against Iowa Power and Light Company, his 
 
         self-insured employer.  Claimant seeks further benefits based 
 
         upon the injury that occurred on December 15, 1976.  
 
         Compensability of the injury was established by the memorandum of 
 
         agreement filed March 17, 1978.
 
         
 
              It was stipulated that claimant has been paid all healing 
 
         period to which he is entitled and that he has been paid 87 1/2 
 
         weeks of permanent partial disability at the correct rate of 
 
         $160.00 per week.  The primary issues in the case deal with 
 
         claimant's entitlement to compensation for permanent partial 
 
         disability and whether that compensation should be determined as 
 
         a scheduled member disability to the arm or as an industrial 
 
         disability to the body as a whole.
 
         
 
              The case was heard at Council Bluffs, Iowa on December 15, 
 
         1986 and was fully submitted upon conclusion of the hearing.  The 
 
         record in the proceeding consists of testimony from Harry Brant, 
 
         Jr., Mary Nelson, Rodney Radford, and Randy Williams.  The 
 
         evidence includes joint exhibits 1 through 10.
 
         
 
                               SUMMARY OF EVIDENCE
 
         
 
              The following is only a brief summary of pertinent evidence. 
 
          All evidence received at the hearing was considered when 
 
         deciding the case even though it may not be specifically referred 
 
         to in this decision.
 
         
 
              Harry Brant, Jr., is a 52 year old married high school 
 
         graduate who resides at Glenwood, Iowa.  The greater part of his 
 
         working life has been spent in the employment of Iowa Power and 
 
         Light Company where he has been employed almost continuously
 
         since 1953.  The only employment interruptions shown in the 
 
         record were two years of military service in 1954 through 1956, 
 
         one year when Brant worked for Coors Brewery in Denver, Colorado 
 
         in 1962, and a three month strike in 1964.  He has worked as a 
 
         laborer, ground man, truck driver, lineman, working line crew 
 
         foreman and has been an electric serviceman since October 10, 
 
         1985 (Exhibit 6).
 
         
 
              Brant's injury of December 15, 1976 occurred when a truck, 
 

 
         
 
         
 
         
 
         BRANT V. IOWA POWER AND LIGHT COMPANY
 
         Page   2
 
         
 
         
 
         in which he was riding with two co-employees, overturned.  
 
         Claimant testified that he could not move his right arm 
 
         following the accident.  The initial examination concluded that 
 
         the shoulder had been bruised.  After a period of therapy 
 
         claimant returned to work but later was hospitalized due to 
 
         internal bleeding.  Ronald K. Miller, M.D., became involved in 
 
         claimant's case at that time to treat his shoulder complaints.  
 
         Dr. Miller found claimant to have evidence of a mild chronic 
 
         rotator cuff impingement and suspected that he had sustained a 
 
         partial rotator cuff tear (Ex. 4, page 1).  After a period of 
 
         approximately one year of conservative treatment consisting 
 
         primarily of therapy and exercises, Dr. Miller concluded that 
 
         claimant had a rotator cuff tear and assigned a physical 
 
         impairment rating of 35 percent of the arm.  He indicated that 
 
         claimant would have problems with prolonged heavy overhead 
 
         lifting, weakness and catching in the shoulder and inability to 
 
         fully and forcefully abduct, elevate and externally rotate his 
 
         arm (Ex. 4, p. 4).
 
         
 
              At the time of the accident Brant was employed working as 
 
         a lineman out of the Logan, Iowa facility but the majority of 
 
         his work had been in Council Bluffs, Iowa.  After the 
 
         hospitalization in early 1977 he returned to work as a lineman.  
 
         He described the duties of a lineman as setting poles and 
 
         running wire.  He stated that the work involves shoveling a lot 
 
         of dirt, hanging transformers and in general doing everything 
 
         necessary to provide power to a house or building.  Brant 
 
         stated that a line crew normally involves three persons, a 
 
         truck driver, a lineman and a working line crew foreman.  In 
 
         August of 1978, claimant was made a working line crew foreman.
 
         
 

 
         
 
         
 
         
 
         BRANT V. IOWA POWER AND LIGHT COMPANY
 
         Page   3
 
         
 
         
 
              Brant testified that he had worked in Glenwood until the 
 
         time he was transferred to Council Bluffs in 1967.  He stated 
 
         that he preferred to work in Glenwood but that the first 
 
         opportunity to transfer back to Glenwood occurred in 1981.  In 
 
         making the transfer he gave up the line crew foreman job in 
 
         Council Bluffs to work as a lineman at Glenwood.  He stated 
 
         that while the foreman and lineman actually do much the same 
 
         work, the work in Glenwood was easier because the wires and 
 
         cables used in Glenwood were smaller than those used in the 
 
         metropolitan area of Council Bluffs.  Due to an early 
 
         retirement offering made by the company in 1985, a serviceman 
 
         position became open and claimant bid into the job because he 
 
         considered it to be easier and lighter work than that of a 
 
         lineman.  Claimant testified that as a serviceman he receives 
 
         the same rate of pay, $15.31 per hour, that he would earn as a 
 
         lineman, and that occasionally he fills in as a lineman when 
 
         the regular person is absent.  Brant stated that when he 
 
         transferred from the foreman job in Council Bluffs to the 
 
         lineman job in Glenwood he sustained a reduction in pay in the 
 
         amount of $320 per month but that he also reduced his commuting 
 
         expenses.
 
         
 
              Claimant continued to work until eventually seeking 
 
         further medical care in 1982.  During the intervening time he 
 
         described a number of incidents where the shoulder caused 
 
         problems.  He sustained two other injuries which were 
 
         apparently of minimal severity since they did not result in any 
 
         lost time from work (Ex. 8 & 9).  Claimant testified that he 
 
         learned to perform many activities with his left hand rather 
 
         than the right, which had been his dominant hand.  He stated 
 
         that on several occasions he had considered surgery but was 
 
         reluctant to have it.  Brant denied having any problems with 
 
         his right shoulder prior to the December 15, 1976 accident and 
 

 
         
 
         
 
         
 
         BRANT V. IOWA POWER AND LIGHT COMPANY
 
         Page   4
 
         
 
         
 
         he denied any further substantial trauma to the arm or shoulder 
 
         subsequent thereto.  The problems which Brant described as 
 
         occurring between 1976 and 1982 seem consistent with the 
 
         problems that Dr. Miller had anticipated in his report of March 
 
         10, 1978 (Ex. 4, p. 4).
 
         
 
              Brant testified that he experienced severe pain while 
 
         throwing a rope underhanded in 1982 and that he subsequently 
 
         returned to see Dr. Miller.  On October 29, 1982, Dr. Miller 
 
         performed surgery in the nature of an arthrotomy of the right 
 
         shoulder with resection of the anterior distal clavicle, 
 
         acromionectomy and biceps tenodesis.  The rotator cuff, 
 
         however, was found to be intact (Ex. 4, pp. 7 & 8).  After a 
 
         period of recuperation Brant returned to employment as a 
 
         lineman.
 
         
 
              Brant testified that prior to the 1982 surgery he 
 
         experienced constant pain in his shoulder and frequently used 
 
         Ben-Gay, muscle relaxers or heat.  On occasion he had Cortisone 
 
         shots.  He also experienced weakness in the shoulder.  Brant 
 
         stated that the surgery improved his shoulder, that the 
 
         constant pain is now gone and that he has recovered 
 
         approximately 75 percent of his strength in the arm and 
 
         shoulder.  He complained of stiffness in cold, wet weather and 
 
         some restriction in his range of motion.  He stated that he 
 
         occasionally experiences a sharp pain if he performs certain 
 
         movements and that the shoulder bothers if he does a lot of 
 
         shoveling.  He stated that he currently does little overhead 
 
         work and that his job as a serviceman requires less strength 
 
         than that required of a lineman.
 
         
 
              Brant testified that he enjoys his present job and expects 
 
         to continue in it until he retires.  He indicated that he 
 

 
         
 
         
 
         
 
         BRANT V. IOWA POWER AND LIGHT COMPANY
 
         Page   5
 
         
 
         
 
         expects to retire at age 62 or possibly sooner.  He feels that 
 
         his job is secure.  He stated that when others retired through 
 
         the early retirement program he had his choice of jobs 
 
         including foreman and he felt that he could have done any of 
 
         the jobs available.
 
         
 
              Dr. Miller's deposition is part of the record as exhibit 
 
         2. At page 11, Dr. Miller expressed the opinion that the 1976 
 
         truck accident was a very substantial factor in claimant's 
 
         shoulder complaints which ultimately necessitated the surgery 
 
         that was performed in 1982.  Dr. Miller went on to relate that 
 
         claimant's problem is mainly an upper extremity problem (p. 27) 
 
         but that it does effect the shoulder (pp. 40 & 41).  He rated 
 
         claimant's functional impairment as 30 to 35 percent of the 
 
         upper extremity (p. 42) which he felt was equivalent to a 15 to 
 
         20 percent impairment of the body as a whole (p. 49).
 
         
 
              Mary Nelson, the manager of Compensation Services for Iowa 
 
         Power and Light and former administrator of labor relations and 
 
         benefits, testified that the difference in pay between a 
 
         foreman and a lineman is $1.82 per hour or $312 per month.
 
         
 
              Rodney Radford, claimant's former foreman, testified that 
 
         he has known Brant for approximately 30 years.  He stated that 
 
         claimant was always able to do his work and that he felt 
 
         claimant was capable of working as a foreman, lineman, or 
 
         serviceman.  Radford confirmed that a serviceman's work is 
 
         lighter in nature than lineman's work.  He confirmed that prior 
 
         to the time of surgery Brant had complained regarding his 
 
         shoulder.  Radford further testified that Brant would have 
 
         approximately broken even economically when he transferred from 
 
         the Council Bluffs foreman position to the Glenwood lineman 
 
         position due to a reduction in commuting expenses.
 

 
         
 
         
 
         
 
         BRANT V. IOWA POWER AND LIGHT COMPANY
 
         Page   6
 
         
 
         
 
         
 
              Randy Williams, the supervisor of the Iowa Power and Light 
 
         Glenwood Service Center, testified that he has known claimant 
 
         since 1963.  He related that there had been no openings in the 
 
         Glenwood facility until 1981 and that claimant had told him 
 
         that working out of the Glenwood facility provided less 
 
         commuting expense and the opportunity for more overtime work.  
 
         Williams confirmed that more overtime was available at Glenwood 
 
         than at Council Bluffs.  Williams also confirmed that in 1985 
 
         claimant had his choice of the line foreman or serviceman 
 
         position and selected the serviceman position.  Williams 
 
         related that claimant had indicated to him that he did not want 
 
         the responsibility of being foreman and also liked the 
 
         independence of working alone as a serviceman.  Williams 
 
         confirmed that the serviceman job is easier physically than the 
 
         lineman position but that claimant has filled in as line crew 
 
         foreman on occasion since 1985.
 
         
 
                          APPLICABLE LAW AND ANALYSIS
 
         
 
              The first issue to deal with is whether claimant's 
 
         disability is to be evaluated industrially or as a scheduled 
 
         member disability.
 
              Permanent partial disabilities are classified as either 
 
         scheduled or unscheduled.  A specific scheduled disability is 
 
         evaluated by the functional method; the industrial method is used 
 
         to evaluate an unscheduled disability.  Martin v. Skelly Oil Co., 
 
         252 Iowa 128, 133, 106 N.W.2d 95, 98 (1960); Graves v. Eagle 
 
         Iron Works, 331 N.W.2d 116 (Iowa 1983); Simbro v. DeLong's 
 
         Sportswear, 332 N.W.2d 886, 887 (Iowa 1983).
 
         
 
              The governing authorities are Lauhoff Grain Company v. 
 
         McIntosh, 395 N.W.2d 834 (Iowa 1986); Kellogg v. Shute & Lewis 
 
         Coal Co., 256 Iowa 1257, 130 N.W.2d 667 (1964); Alm v. Morris 
 
         Barick Cattle Co., 240 Iowa 1174, 38 N.W.2d 161 (1949); and 
 
         Dailey v. Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 569 (1943).  
 
         These cases demonstrate that for an injury to extend into the 
 
         body as a whole it is necessary that there be some objectively 
 
         determinable physical impairment and disability that exists other 
 
         than in a scheduled member.  In this case the claimant's 
 
         disabilities are manifested in his ability to use his arm.  The 
 
         actual functional disability, however, does not lie within the 
 
         arm other than for that which results from the biceps tenodesis 
 
         in which the attachment of the biceps muscle was relocated.  All 
 
         of the remaining surgical procedures dealt with parts of 
 
         claimant's shoulder other than the arm itself.  Most of the 
 
         problems with the range of motion of claimant's arm result from 
 
         the injury that exists within the shoulder rather than that which 
 

 
         
 
         
 
         
 
         BRANT V. IOWA POWER AND LIGHT COMPANY
 
         Page   7
 
         
 
         
 
         exists in the arm.  It is therefore found and concluded that 
 
         claimant's disability is a disability to the body as a whole 
 
         which is to be evaluated industrially under the provisions of 
 
         section 85.34(2)(u) rather than as the scheduled member of an arm 
 
         which would be compensable under section 85.34(2)(m).
 
         
 
              A considerable amount of time elapsed between the 1976 
 
         accident and the 1982 surgery.  There is, however, no evidence of 
 
         substantial intervening trauma.  Dr. Miller expressed his 
 
         professional opinion that a causal connection existed between the 
 
         1976 accident and the surgical procedure.  A cause is proximate 
 
         if it is a substantial factor in bringing about the results; it 
 
         need not be the only cause.  Blacksmith v. All-American, Inc., 
 
         290 N.W.2d 348, 354 (Iowa 1980).  It is therefore found and 
 
         concluded that the December 15, 1976 truck accident is a 
 
         proximate cause of the surgery performed in 1982 and the 
 
         disability which claimant now experiences in his right shoulder.
 
         
 
              If claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
         593, 258 N.W. 899, 902 (1935) as follows:  "It is therefore plain 
 
         that the legislature intended the term OdisabilityO to mean 
 
         'industrial disability' or loss of earning capacity and not a 
 
         mere 'functional disability' to be computed in the terms of 
 
         percentages of the total physical and mental ability of a normal 
 
         man."
 
         
 
              Functional impairment is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 
 
         257 (1963).
 
         
 
              Dr. Miller had rated claimant's functional impairment at 35 
 
         percent of the arm in 1978.  After the surgery he again rated the 
 
         functional impairment and placed it at the same figure of 35 
 
         percent of the upper extremity.  Surgery did not increase 
 
         claimant's impairment.  From his own testimony it appears that it 
 
         improved his condition and, if anything, reduced the extent of 
 
         his functional impairment.  This is certainly what one would 
 
         expect to result from the performance of a successful surgical 
 
         procedure.
 
         
 
              Harry Brant, Jr., has not suffered any actual loss of 
 
         earnings directly due to his injury.  The only reduction of 
 
         earnings that he has experienced arose from his decision to 
 
         transfer from Council Bluffs back to Glenwood which is the place 
 
         at which he resides.  From an economic standpoint the reduction 
 
         of commuting expenses and the opportunity for additional overtime 
 
         appears to have been a factor that Brant considered when deciding 
 
         to transfer.  An additional factor is also the fact that the work 
 
         at Glenwood was lighter than the work in the Council Bluffs area.  
 
         Four years later, in 1985, Brant bid into the serviceman position 
 
         which he currently holds.  This again was without any loss of 
 
         income from the lineman position.  Brant could have become the 
 
         line crew foreman had he desired.  Brant agreed that he would be 
 

 
         
 
         
 
         
 
         BRANT V. IOWA POWER AND LIGHT COMPANY
 
         Page   8
 
         
 
         
 
         capable of performing the work of the line crew foreman at the 
 
         Glenwood plant but he choose to work as the serviceman.  The 
 
         evidence in this case has failed to show that Harry Brant, Jr., 
 
         has suffered any loss of actual earnings or opportunity for 
 
         advancement due to the injury.  It does not appear that it was 
 
         necessary for the employer to make accommodations or to modify 
 
         his job in order to permit him to continue in his employment.  
 
         There appears from the record no reason to believe that his job 
 
         is in any manner insecure.  From all indications it appears that 
 
         claimant is appropriately employed in a position which he is able 
 
         to perform when the factors of his age, education, 
 
         qualifications, experience and physical impairment is considered.  
 
         He has, nevertheless, suffered an impairment of his ability to 
 
         compete for employment and to engage in certain types of 
 
         employment.  It has not been necessary, however, for him to 
 
         actually compete for jobs or seek other employment as a result of 
 
         the injury.  When all the appropriate factors of industrial 
 
         disability are considered, it is found and concluded that 
 
         claimantOs disability is a 15 percent permanent partial 
 
         disability.  This entitles him to receive 75 weeks of 
 
         compensation for permanent partial disability.  The 87 1/2 weeks 
 
         previously paid is in excess of the amount of this award and no 
 
         additional amounts are owing to claimant from the employer.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Harry Brant, Jr., was a resident of the State of Iowa 
 
         employed by Iowa Power and Light Company within the State of Iowa 
 
         on December 15, 1976.
 
         
 
              2.  Harry Brant, Jr., injured his right shoulder on December 
 
         15, 1976 when the truck in which he was riding overturned.
 
         
 
              3.  At the time of the injury Brant was employed as a 
 
         lineman working for Iowa Power and Light Company.
 
         
 
              4.  Harry Brant, Jr., is 52 years of age, married and a high 
 
         school graduate.
 
         
 
              5.  Claimant has been employed during nearly all of his 
 
         working life by Iowa Power and Light Company.
 
         
 
              6.  Ever since the injury claimant has continued to be 
 
         employed by Iowa Power and Light Company without any actual loss 
 
         of earnings or opportunity for career advancement due to the 
 
         injury.
 
         
 
              7.  Claimant's transfer from a foreman position in Council 
 
         Bluffs to a lineman position in Glenwood was induced in part by 
 
         claimant's desire to reduce the amount of time and expense 
 
         involved in commuting to and from work, in part, by greater 
 
         opportunity for overtime work at Glenwood and, in part, due to 
 
         the lighter nature of the work at Glenwood.
 
         
 
              8.  In transferring from a foreman position in Council 
 
         Bluffs to a lineman position in Glenwood, claimant sustained a 
 
         loss of earnings in the amount of $1.82 per hour but the loss in 
 
         gross earnings was offset to some degree by reduced commuting 
 
         expenses and increased opportunities for overtime work.
 

 
         
 
         
 
         
 
         BRANT V. IOWA POWER AND LIGHT COMPANY
 
         Page   9
 
         
 
         
 
         
 
              9.  Claimant has a 35 percent permanent functional 
 
         impairment of his right upper extremity, an amount of impairment 
 
         that is equal to that which initially resulted from the 1976 
 
         injury.
 
         
 
             10.  A 35 percent functional impairment of the arm is roughly 
 
         equivalent to a 15 to 20 percent impairment of the body as a 
 
         whole.
 
         
 
             11.  Claimant's actual functional impairment and physical 
 
         disability is not limited to his arm but extends into the 
 
         shoulder and into the body as a whole.
 
         
 
             12.  Claimant is presently employed by Iowa Power and Light 
 
         Company in a position that is appropriate to his abilities and 
 
         limitations and he appears secure in that employment.
 
         
 
             13.  When all applicable factors are considered, claimant has 
 
         a 15 percent loss of earning capacity.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              1.  This agency has jurisdiction of the subject matter of 
 
         this proceeding and its parties.
 
         
 
              2.  The injury of December 15, 1976 is a proximate cause of 
 
         the disability which Harry Brant, Jr., now experiences in his 
 
         right shoulder.
 
         
 
              3.  The disability is a 15 percent permanent partial 
 
         disability of the body as a whole when the same is evaluated 
 
         industrially which entitles claimant to receive 75 weeks of 
 
         compensation at the stipulated rate of $160.00 per week under the 
 
         provisions of section 85.34(2)(u) of the Code.
 
         
 
              4.  Claimant's entitlement has been overpaid due to the 87 
 
         1/2 weeks of compensation previously paid by the employer but the 
 
         workers' compensation law makes no provision for requiring 
 
         repayment of benefits which have been overpaid.
 
         
 
                                      ORDER
 
         
 
              IT IS THEREFORE ORDERED that claimant take nothing from this 
 
         proceeding as his entire entitlement has been previously paid by 
 
         the employer.
 
         
 
              IT IS FURTHER ORDERED that claimant pay the costs of this 
 
         action pursuant to Division of Industrial Services Rule 
 
         343-4.33.
 
         
 
              IT IS FURTHER ORDERED that defendants file a final report as 
 
         requested by the agency pursuant to Division of Industrial 
 
         Services Rule 343-3.1.
 
         
 
              Signed and filed this 9th day of April, 1987.
 
         
 
         
 
         
 

 
         
 
         
 
         
 
         BRANT V. IOWA POWER AND LIGHT COMPANY
 
         Page  10
 
         
 
         
 
         
 
         
 
         
 
                                         MICHAEL G. TRIER
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Phillip Vonderhaar
 
         Attorney at Law
 
         840 Fifth Ave.
 
         Des Moines, Iowa 50309
 
         
 
         Mr. Cecil L. Goettsch
 
         Attorney at Law
 
         1100 Des Moines Bldg.
 
         Des Moines, Iowa 50307
 
         
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                   1108; 1402.40; 1703
 
                                                   1803; 1803.1
 
                                                   Filed April 9, 1987
 
                                                   MICHAEL G. TRIER
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         HARRY BRANT, JR.,
 
                                                    FILE NO. 492024
 
              Claimant,
 
                                                     R E V I E W -
 
         VS.
 
                                                   R E 0 P E N I N G
 
         IOWA POWER AND LIGHT COMPANY,
 
                                                    D E C I S I 0 N
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         1108; 1402.40; 1703; 1803; 1803.1
 
         
 
              Claimant, 52 years of age and a high school graduate at the 
 
         time of hearing, had been employed by the employer throughout 
 
         nearly his entire working life.  He injured his shoulder when a 
 
         truck overturned in 1976.  In 1982 the shoulder became 
 
         sufficiently troublesome that he resorted to surgical repair.  
 
         There was no evidence of any other trauma to the shoulder and the 
 
         only expert medical opinion in the record related the need for 
 
         surgery to the truck accident.  The accident was found to be a 
 
         proximate cause of the need for surgery and resulting 
 
         disability.
 
         
 
              The surgical procedure involved removal of a part of the 
 
         clavical, part of the acromion and transpositioning of the 
 
         proximal end of the bicep tendon.  While the functional 
 
         impairment was measured in respect to motion of the arm the 
 
         actual abnormality that caused the reduction of motion and 
 
         disability was based in the body, rather than in the arm.  
 
         Claimant's disability was therefore evaluated industrially.  His 
 
         functional impairment had been rated at 35 percent of the arm but 
 
         his industrial disability was found to be limited to 15 percent 
 
         of the body as a whole in view of the fact that he had not 
 
         suffered any actual loss of earnings, any loss of opportunity for 
 
         career progression and was securely employed in a position 
 
         appropriate for his abilities and limitations.