Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            JACK MYERS,                   :
 
                                          :        File No. 652153
 
                 Claimant,                :
 
                                          :         P A R T I A L
 
            vs.                           :
 
                                          :     C O M M U T A T I O N
 
            CHAMBERLAIN MANUFACTURING,    :
 
                                          :        D E C I S I O N
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
            
 
                 This is a proceeding involving an application for 
 
            partial commutation filed by claimant against his employer, 
 
            Chamberlain Manufacturing, self-insured employer.  A 
 
            review-reopening decision was filed on June 28, 1989 by 
 
            Deputy Industrial Commissioner Michael G. Trier.  No appeal 
 
            from the review-reopening decision was taken.  The petition 
 
            for partial commutation was filed on January 18, 1990 by 
 
            claimant seeking the sum of $17,418.89 so he could pay 
 
            attorneys' fees.  The matter was set for hearing on May 17, 
 
            1990.  A stipulation of facts was submitted by the parties.
 
            
 
                                      issue
 
            
 
                 The sole issue to be determined is whether it is in 
 
            claimant's best interest to partially commute the order of 
 
            Deputy Michael Trier in the sum of $17,418.89.
 
            
 
                                 findings of fact
 
            
 
                 The deputy, having heard the testimony and considered 
 
            all the evidence adopts and incorporates herein the 
 
            stipulated facts.  Along with the stipulation is the 
 
            affidavit of claimant dated October 16, 1989.  In his 
 
            affidavit claimant stated under oath:
 
            
 
                    I have agreed to pay an attorney fee on the 
 
                 basis of 25 percent of that award and desire to 
 
                 obtain a partial commutation using the last part 
 
                 of the remaining period of my entitlement to 
 
                 compensate my attorneys for their efforts in this 
 
                 matter.
 
            
 
                    I understand that under the terms of the 
 
                 partial commutation that 100 weeks of benefits 
 
                 accruing during the last part of the remaining 
 
                 period of my entitlement will be commuted at its 
 
                 commuted value of 68.1357 weeks at the rate of 
 
                 $255.65 per week totaling $17,418.89.  I further 
 
                 understand that my attorneys are willing to accept 
 
                 the amount of $17,418.89 in full payment of 
 
                 attorneys fees and expenses.
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                    I believe it is in my best interest to obtain a 
 
                 partial commutation since this will eliminate the 
 
                 need to pay the fees out of my weekly payments and 
 
                 this will fully satisfy my obligation to my 
 
                 attorneys.  I further believe that the remaining 
 
                 150 weeks of compensation will be adequate to take 
 
                 care of my financial needs since I will be over 65 
 
                 years of age by the time my entitlement to 
 
                 benefits will cease.  At that time, I can recover 
 
                 social security benefis).  artially commute one hundred 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            (100) weeks of claimant's review-reopening decision at the 
 
            commuted value of sixty-eight point one-three-five-seven 
 
            (68.1357) weeks x two hundred fifty-five and 65/l00 dollars 
 
            ($255.65) per week for a total of seventeen thousand four 
 
            hundred eighteen and 89/l00 dollars ($17,418.89).
 
            
 
                 Costs of this action are assessed to defendant pursuant 
 
            to rule 343 IAC 4.33
 
            
 
                 Defendant shall file a claim activity report as 
 
            requested by this division pursuant to rule 343 IAC 3.1.
 
            
 
            
 
            
 
                 Signed and filed this ____ day of February, 1991.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________               
 
            MICHELLE A. McGOVERN
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Marvin E. Duckworth
 
            Attorney at Law
 
            Terrace Center  STE 111
 
            2700 Grand Ave
 
            Des Moines  IA  50312
 
            
 
            Mr. Jeffrey J. Greenwood
 
            Attorney at Law
 
            528 W 4th St
 
            P O Box 1200
 
            Waterloo  IA  50704
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           3303; 3303.20
 
                           Filed February 21, 1991
 
                           MICHELLE A. McGOVERN
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            JACK MYERS,                   :
 
                                          :        File No. 652153
 
                 Claimant,                :
 
                                          :         P A R T I A L
 
            vs.                           :
 
                                          :     C O M M U T A T I O N
 
            CHAMBERLAIN MANUFACTURING,    :
 
                                          :        D E C I S I O N
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
            
 
            
 
            
 
            3303; 3303.20
 
            Claimant was allowed to partially commute his award of 
 
            weekly benefits.  It was the determination of the 
 
            undersigned that it was in claimant's best interest to 
 
            partially commute 100 weeks of claimant's remaining 
 
            benefits.  To do so would alleviate claimant's obligations 
 
            to his attorney and would give claimant full use of his 
 
            remaining benefits.  An undue financial burden would not be 
 
            placed on claimant since he would receive weekly benefit 
 
            checks until he reached 65 and then he would collect social 
 
            security benefit checks.
 
            
 
 
            
 
 
 
 
 
 
 
                   
 
         
 
                 BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JACK MYERS,
 
         
 
              Claimant,                           File  No. 652153
 
         
 
         vs.                                       R E V I E W -
 
         
 
         CHAMBERLAIN MANUFACTURING               R E 0 P E N I N G
 
         COMPANY,
 
                                                  D E C I S I 0 N
 
              Employer,
 
              Self-Insured,                          F I L E D
 
              Defendant.
 
                                                    JUN 28 1989
 
         
 
                                                INDUSTRIAL SERVICES
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in review-reopening from a memorandum 
 
         of agreement filed December 4, 1980 which has been brought by 
 
         Jack Myers against Chamberlain Manufacturing Company, his former 
 
         employer.  The case was heard and fully submitted at Des Moines, 
 
         Iowa on November 14, 1988.  The record in the proceeding consists 
 
         of testimony from Jack Myers, Elaine Myers and Roger Marquardt. 
 
         The record also contains claimant's exhibits 1 through 13 and 
 
         defendant's exhibits A through F.
 
         
 
                                    ISSUES
 
         
 
              The issues presented for determination are the extent of 
 
         claimant's permanent disability.  Claimant seeks an award of 
 
         permanent total disability and asserts the odd-lot doctrine.  If 
 
         the award is for only permanent partial disability, then the end 
 
         of the healing period must be determined.  Claimant stipulated 
 
         that he has been paid all weekly compensation which has come due 
 
         up to and including the date of hearing.  It was stipulated by 
 
         the parties that claimant sustained an injury which arose out of 
 
         and in the course of his employment on November 4, 1980, that the 
 
         alleged injury is a cause of the disability upon which the claim 
 
         is based, and that the correct rate of compensation is $255.65 
 
         per week.
 
         
 
                            SUMMARY OF EVIDENCE
 
         
 
              The following is a summary of evidence presented in this 
 
         case.  Of all the evidence received at the hearing, only that 
 
         considered most pertinent to this decision is discussed. 
 
         Conclusions about what the evidence showed are inevitable with 
 
         any summarization.  The conclusions in the following summary 
 
                                                
 
                                                         
 
         should be considered to be preliminary findings of fact.
 
         
 
              Jack Myers is a 62-year-old man who was injured on November 
 
         4, 1980 when a stack of steel doors having a total weight of 
 
         approximately 2,000 pounds fell over, knocking him to the floor 
 
         and landing on top of him.  The immediately discernible injuries 
 
         included a severe laceration on the back of claimant's head, an 
 
         undisplaced compression fracture of the first lumbar vertebra and 
 
         contusions.  Claimant's initial care was provided by Don N. 
 
         Orelup, M.n., an Albia physician (defendant's exhibits A and B).
 
         
 
              Claimant attempted unsuccessfully to resume employment in 
 
         February, 1981 and was then referred to Donald D. Berg, M.D., an 
 
         orthopaedic surgeon in Ottumwa, Iowa.  A myelogram was performed 
 
         and interpreted as being normal, although there was some 
 
         indication of a spondylolisthesis at the L4-5-S1 levels 
 
         (claimant's exhibit 9, pages 2 and 4).  On April 14, 1981, Dr. 
 
         Berg indicated that claimant should not have any permanent 
 
         physical impairment and that claimant was released to return to 
 
         work (claimant's exhibit 8, page 6).  Claimant did work, but 
 
         testified that he experienced pain and difficulties in doing so. 
 
         By October, 1981, Dr. Berg had again taken claimant off work, but 
 
         continued to indicate a good prognosis (claimant's exhibit 8, 
 
         pages 3-5).  By June and July of 1982, Dr. Berg had indicated 
 
         that claimant had a ten percent whole body permanent physical 
 
         impairment secondary to degenerative changes in his spine, of 
 
         which five percent was attributable to the November 4, 1980 
 
         injury (claimant's exhibit 8, page 1).
 
         
 
              Claimant continued to work until his employment was 
 
         terminated by the employer in 1983.  In the meantime, claimant's 
 
         symptoms remained present.  On October 20, 1983, John R. Scheibe, 
 
         M.D., indicated that claimant had a 30 percent disability of the 
 
         whole body (claimant's exhibit 7, page 3).
 
         
 
              In early 1984, claimant commenced treatment with E. A. 
 
         Dykstra, M.D., an Iowa City orthopaedic surgeon.  After 
 
         diagnostic tests and consultation with neurologist R. F. Nieman, 
 
         M.D., a laminectomy of L2 with partial laminectomy of L1 was 
 
         performed on March 14, 1984 in order to relieve nerve root 
 
         impingement.  The impingement was indicated as being secondary to 
 
         a compression fracture (claimant's exhibit 5).  On March 11, 
 
         1985, Dr. Nieman had noted that the chances of claimant being 
 
         able to return to his previous employment were doubtful and that 
 
         claimant's advanced age was certainly a factor in that 
 
         consideration (claimant's exhibit 2, page 9).  On July 16, 1984, 
 
         Dr. Nieman indicated that the initial results from surgery 
 
         appeared to be good (claimant's exhibit 4).
 
         
 
              On November 19, 1985, claimant underwent a Gill procedure 
 
         decompression laminectomy at the L5 level in order to remove 
 
         constriction on the L5 nerve root due in part to a 
 
         spondylolisthesis of L5 on S1 (claimant's exhibit 3).
 
         
 
              On December 18, 1985, Dr. Dykstra indicated that claimant 
 
                                                
 
                                                         
 
         was doing reasonably well following the low back surgery 
 
         (claimant's exhibit 2, page 5).  In mid-1986, Dr. Dykstra 
 
         indicated that claimant was still having some back discomfort and 
 
         had a small amount of swelling, but that he was doing much better 
 
         from the standpoint of his legs (claimant's exhibit 2, page 2).  
 
         On February 6, 1987, Dr. Dykstra stated that claimant had reached 
 
         maximum recovery and that the claimant has a total permanent 
 
         impairment rating of 20 percent of his back, of which 12 percent 
 
         was attributable to the injury (claimant's exhibit 2, page 1).
 
         
 
              On November 11, 1986, Thomas A. Carlstrom, M.D., issued a 
 
         report concerning an evaluation of the claimant which he 
 
         performed.  Dr. Carlstrom concluded that claimant was 
 
         experiencing mechanical low back pain and that the symptoms were 
 
         caused by the November, 1980 accident.  He stated that claimant 
 
         has a permanent impairment in the range of 20-25 percent of the 
 
         body as a whole as a result of that incident.  Dr. Carlstrom 
 
         stated that claimant is capable of work which does not require 
 
         lifting of more than 20 or 25 pounds and that he should also 
 
         avoid prolonged sitting or standing, forward bending and working 
 
         in cramped postures.  Dr. Carlstrom stated that claimant had 
 
         reached maximum healing.
 
         
 
              Jack Myers testified that, prior to the November 4, 1980 
 
         injury, he was active and engaged in activities such as 
 
         remodeling his daughter's home, reshingling his own home, 
 
         hunting, fishing, playing softball and bowling.
 
         
 
              Claimant was initially employed by a predecessor of 
 
         Chamberlain Manufacturing in 1956 and remained so employed until 
 
         the employment was terminated in 1983.  During the years, he 
 
         advanced to become a foreman, but still performed physical labor. 
 
         Claimant's prior work included being a tank mechanic and 
 
         infantryman in the United States Army.  He worked as a section 
 
         hand for the railroad and performed auto repair from 1946 until 
 
         1956.
 
         
 
              Since being terminated by Chamberlain, claimant obtained a 
 
         job where he performed limited activities connected with small 
 
         engine repair for several months in 1983.  Claimant stated that 
 
         the job allowed him to work at his own pace, set his own days and 
 
         hours of work and that he was provided assistance whenever it was 
 
         needed.
 
         
 
              Claimant stated that he now experiences pain in his low back 
 
         and hip and has some level of pain constantly.  He has ceased 
 
         bowling and hunting, but has fished with friends on a few 
 
         occasions.
 
         
 
              Claimant testified that he would have worked until age 65 if 
 
         he had not been injured, but now knows of nothing which he could 
 
         do in the way of employment.
 
         
 
              Claimant's spouse, Elaine Myers, corroborated claimant's 
 
         testimony regarding his preinjury and postinjury activities. 
 
                                                
 
                                                         
 
         Elaine stated that claimant had been anxious to return to work 
 
         following his injury and that he loves to work.  She stated that, 
 
         during the periods when he did return to work, he would come home 
 
         in severe pain.
 
         
 
              Roger Marquardt, a qualified vocational consultant, testified 
 
         that claimant has limited transferable skills and that any 
 
         employment for him would require a job where he could stand or sit 
 
         as needed.  Marquardt expressed the opinion that claimant is not 
 
         competitively employable in any well-known branch of the labor 
 
         market.  He stated that there are some positions in the workforce 
 
         which claimant could perform, but that it would be very difficult 
 
         to find those positions as they exist in insignificant numbers.  
 
         He stated that many of them would be only part-time positions. 
 
         Marquardt stated that, within claimant's geographical area, 
 
         unskilled light work is very competitive and that claimant's 
 
         chances of obtaining that type of work would be very slim. 
 
         Marquardt questioned claimant's physical ability to work 
 
         consistently eight hours per day, five days per week.
 
         
 
                       APPLICABLE LAW AND ANALYSIS
 
         
 
              Claimant seeks an award of permanent total disability 
 
         compensation.  Total disability under the workers' compensation 
 
         law is not equivalent to utter helplessness.  The ability to earn 
 
 
 
                 
 
                                                         
 
         some wages creates a presumption that a person has earning 
 
         capacity commensurate with those wages.  2 Larson Workmen's 
 
         Compensation Law, section 52-21(d).  Permanent total disability 
 
         exists when the combination of factors considered in determining 
 
         industrial disability precludes the worker from obtaining regular 
 
         employment in which he can earn a living for himself.  Guyton v. 
 
         Irving Jensen Co., 373 N.W.2d 101, 103 (Iowa 1985); McSpadden v. 
 
         Big Ben Coal Co., 282 N.W.2d 181, 192 (Iowa 1980); Diederich v. 
 
         Tri-City R. Co., 219 Iowa 587, 594, 258 N.W. 899, 902 (1935).
 
         
 
              As 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 'disability' to mean 
 
         'industrial disability' or loss of earning capacity and not a 
 
         mere 'functional disability' to be computed in the terms of 
 
         percentages of the total physical and mental ability of a normal 
 
         man."
 
         
 
              Functional impairment is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         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).
 
         
 
              Industrial disability or loss of earning capacity is a 
 
         concept that is quite similar to impairment of earning capacity, 
 
         an element of damage in a tort case.  Impairment of physical 
 
         capacity creates an inference of lessened earning capacity.  The 
 
         basic element to be determined, however, is the reduction in 
 
         value of the general earning capacity of the person, rather than 
 
         the loss of wages or earnings in a specific occupation.  
 
         Post-injury earnings create a presumption of earning capacity.  
 
         The earnings are not synonymous with earning capacity and the 
 
         presumption may be rebutted by evidence showing the earnings to 
 
         be an unreliable indicator.  Carradus v. Lange, 203 N.W.2d 565 
 
         (Iowa 1973); Holmquist v. Volkswagon of America, Inc., 261 N.W.2d 
 
         516 (Iowa App. 1977) A.L.R.3d 143; Michael v. Harrison County, 
 
         34th Biennial Report, 218 (1979): 2 Larson Workmen's Compensation 
 
         Law, sections 57.21 and 57.31.
 
         
 
              There are few individuals in our society whose earning 
 
         capacity is absolutely zero.  The important consideration, 
 
         however, is whether or not the person has sufficient earning 
 
         capacity to be self-supporting.  It normally requires full-time 
 
         work, (i.e., 40 hours per week) in order for a person to be 
 
         self-supporting.  Part-time work is usually insufficient, 
 
         particularly where the employee is performing unskilled work.  
 
         This agency has previously established the precedent that in 
 
         order to rely upon the odd-lot doctrine, it is necessary that the 
 
         employee make an actual bona fide effort to obtain employment in 
 
         the area of his residence.  Testimony from a vocational 
 
                                                
 
                                                         
 
         consultant has been held to be insufficient.  Collins v. 
 
         Friendship Village, Inc., file number 679258 (App. Decn. October 
 
         31, 1988); Emshoff v. Petroleum Transportation Services/Great 
 
         West Casualty, file number 753723 (App. Decn. March 31, 1987).  
 
         The agency makes no distinction for those cases where it is 
 
         obvious that the type of work which the employee could perform is 
 
         not available.  Dr. Carlstrom has determined that claimant is 
 
         capable of employment.  The other physicians have not 
 
         specifically stated that claimant was not employable.  The only 
 
         other indication was that the prognosis for long-term employment 
 
         was guarded.  One job performing small engine repair work does 
 
         not constitute a reasonable search for employment.  It appears 
 
         that it is the only job for which claimant applied and it appears 
 
         that he was successful in obtaining that job.  Prior to 1983 
 
         claimant was gainfully employed.  Absent an actual search for 
 
         work made by the claimant, the testimony of the vocational 
 
         consultant is insufficient, under existing agency precedent, to 
 
         create a prima facie case of total disability which would in 
 
         turn, under the odd-lot doctrine, cause the burden of proof to 
 
         shift from the claimant to the defendant.
 
         
 
              Compensation benefits are geared to weekly wage loss.  With 
 
         the approach of later years when it can be normally anticipated 
 
         that a worker would be retiring, such fact may be considered when 
 
         determining the extent of loss of earning capacity or industrial 
 
         disability.  Becke v. Turner-Busch, Inc., 34th Biennial Report of 
 
         the Industrial Commissioner 34 (App. Decn. 1979); Cruz v. 
 
         Chevrolet Grey Iron Div. of Gen. Motors, 247 N.W.2d 764, 775 
 
         (Mich. 1976).  When all the appropriate factors of industrial 
 
         disability are considered, it is determined that claimant 
 
         sustained an 80 percent permanent partial disability as a result 
 
         of the accident which occurred on November 4, 1980.
 
         
 
              Since the disability has been determined to be an 80 percent 
 
         permanent partial disability, it is necessary to fix the end of 
 
         the healing period.  Claimant's last surgery was performed on 
 
         November 19, 1985.  Dr. Dykstra had indicated that it would be 
 
         approximately one year before maximum improvement would be 
 
         reached (claimant's exhibit 2, page 3).  On November 11, 1986, 
 
         eight days less than one year, Dr. Carlstrom indicated that 
 
         claimant had reached maximum improvement.  On February 6, 1987, 
 
         Dr. Dykstra indicated that claimant had reached maximum recovery, 
 
         but did not specify the date at which maximum recovery had 
 
         occurred.  It is therefore determined that November 11, 1986 is 
 
         fixed as the last day of claimant's healing period consistent 
 
         with the report from Dr. Carlstrom.  Claimant's entitlement to 
 
         permanent partial disability compensation therefore commences 
 
         November 12, 1986.
 
         
 
                              FINDINGS OF FACT
 
         
 
              1.  Jack Myers and Elaine Myers are fully credible 
 
                                                              witnesses.
 
         
 
              2.  The injuries which claimant sustained on November 4, 
 
                                                
 
                                                         
 
         1980 were a substantial factor in producing the disability which 
 
         now afflicts claimant.
 
         
 
              3.  The assessment of claimant's case as made by Roger 
 
         Marquardt is correct.
 
         
 
              4.  Claimant recovered to the point that it was medically 
 
         indicated that further significant improvement from the injury 
 
         was not anticipated on November 11, 1986.
 
         
 
              5.  Claimant did not make a reasonable good faith effort to 
 
         obtain employment following the termination of his employment by 
 
         Chamberlain Manufacturing Company.
 
         
 
              6.  Claimant is physically capable of unskilled, light-duty 
 
         employment.
 
         
 
              7.  It is unlikely that claimant would be able to 
 
         effectively compete for the limited number of unskilled, 
 
         light-duty jobs which are available in the area of his 
 
         residence.
 
         
 
              8.  Claimant has sustained an 80 percent loss of his earning 
 
         capacity as a result of the injuries he sustained on November 4, 
 
         1980..
 
         
 
                              CONCLUSIONS OF LAW
 
         
 
              1.  This agency has jurisdiction of the subject matter of 
 
         this proceeding and its parties.
 
         
 
              2.  An employee can avail himself of the odd-lot doctrine 
 
         only by making an actual bona fide good faith search for 
 
         employment.  Expert testimony from a qualified vocational 
 
         consultant is not legally sufficient to make a prima facie 
 
         showing of total disability in order to cause the burden of 
 
         persuasion regarding disability to shift from the employee to the 
 
         employer.
 
         
 
              3.  Jack Myers has an 80 percent permanent partial 
 
         disability when the same is evaluated industrially which entitles 
 
         him to receive 400 weeks of compensation for permanent partial 
 
         disability.
 
         
 
              4.  Claimant's healing period ended November 11, 1986 
 
         consistent with the report from Dr. Carlstrom.
 
         
 
                                  ORDER
 
         
 
              IT IS THEREFORE ORDERED that defendant pay claimant four 
 
         hundred (400) weeks of compensation for permanent partial 
 
         disability at the stipulated rate of two hundred fifty-five and 
 
         65/100 dollars ($255.65) per week payable commencing November 12, 
 
         1986.
 
         
 
                                                
 
                                                         
 
              IT IS FURTHER ORDERED that defendant pay any past due, 
 
         accrued amounts in a lump sum together with interest from the 
 
         date each payment came due to the date it is actually paid 
 
         pursuant to Iowa Code section 85.30.
 
         
 
              IT IS FURTHER ORDERED that defendant pay the costs of this 
 
         action pursuant to Division of Industrial Services Rule 
 
         343-4.33.
 
         
 
              IT IS FURTHER ORDERED that defendant file claim activity 
 
         reports as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.
 
         
 
              Signed and filed this 28th day of June, 1989.
 
         
 
         
 
         
 
         
 
         
 
                                            MICHAEL G. TRIER
 
                                            DEPUTY INDUSTRIAL 
 
                                            COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Marvin E. Duckworth
 
         Attorney at Law
 
         Suite 111, Terrace Center
 
         2700 Grand Avenue
 
         Des Moines, Iowa  50312
 
         
 
         Mr. Jeffrey J. Greenwood
 
         Attorney at Law
 
               
 
                                                
 
                                                         
 
         528 West 4th Street
 
         P.O. Box 1200
 
         Waterloo, Iowa  50704
 
         
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 51804, 54100
 
                                                 Filed June 28, 1989
 
                                                 MICHAEL G. TRIER
 
         
 
         BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JACK MYERS,
 
         
 
              Claimant,                               File No. 652153
 
         
 
         vs.                                           R E V I E W -
 
         
 
         CHAMBERLAIN MANUFACTURING                   R E 0 P E N I N G
 
         COMPANY,
 
                                                      D E C I S I 0 N
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         51804, 54100
 
         
 
              Where claimant failed to make an actual search for 
 
         employment, the odd-lot doctrine was not applied.  The medical 
 
         practitioners had indicated that he was capable of employment. 
 
         Expert testimony that claimant had no reasonable likelihood of 
 
         obtaining any of the limited light-duty jobs available in his 
 
         area was held to be insufficient to cause the burden of 
 
         persuasion to shift to the employer.
 
         
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         ROBERT C. NEWLIN,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                                   File Nos. 653365
 
         DRAKE UNIVERSITY,                                   776838
 
         
 
              Employer,                         A R B I T R A T I O N
 
         
 
         and                                       D E C I S I 0 N
 
         
 
         EMPLOYERS MUTUAL COMPANIES,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This decision resolves two proceedings in arbitration 
 
         brought by Robert C. Newlin against Drake University, his former 
 
         employer, and Employers Mutual Casualty Company, its insurance 
 
         carrier.
 
         
 
              The case was heard and fully submitted on September 3, 1987. 
 
          The record in this proceeding consists of testimony from Robert 
 
         C. Newlin, Myrna Blair, John William Brown, Ruth Byers, Roger 
 
         Marquardt, Mary L. Lorey, Viola Oxley, Betty Durden and Katheryn 
 
         Bennett.  The record also contains jointly offered exhibits A 
 
         through T, claimant's exhibits 2 and 3 and defendants' exhibit 1. 
 
         Official notice was taken of the form 2 which was filed December 
 
         15, 1980 and also of Iowa Code section 507B.4.
 
         
 
                                      ISSUES
 
         
 
              Claimant alleges that he sustained injuries on November 3, 
 
         1980 and August 22, 1984 which arose out of and in the course of 
 
         his employment with Drake University.  With regard to each 
 
         injury, he seeks compensation for healing period, permanent 
 
         disability and section 85.27 benefits.  Claimant alleges that he 
 
         is permanently and totally disabled and relies upon the odd-lot 
 
         doctrine.
 
         
 
              Defendants deny both injuries and, as a result thereof, deny 
 
         that claimant is entitled to any weekly compensation or section 
 
         85.27 benefits.  Defendants further urge that the claim based 
 
         upon the alleged injury of November 3, 1980 is barred by the 
 
         proVisions of section 85.26 of the Iowa Code.  Defendants urge 
 
         that the claim based upon the alleged injury of August 22, 1984 
 
         is barred by the provisions of section 85.23 of the Iowa Code.  
 
         Claimant replies that defendants are equitably estopped from 
 
         raising section 85.26 as a defense to the November 3, 1980 
 
         claim.
 
         
 

 
         
 
         
 
         
 
         NEWLIN V. DRAKE UNIVERSITY
 
         Page   2
 
         
 
              Some stipulations were made.  With regard to the claim 
 
         based upon the alleged injury of November 3, 1980, it was 
 
         stipulated that claimant was off work 48 days and that, in the 
 
         event of an award, the proper rate of compensation is $151.57 
 
         per week.  It was stipulated that the fees charged by the 
 
         providers of medical services were fair and reasonable and that 
 
         the services were provided for the condition upon which this 
 
         claim is based.  Lack of authorization and lack of causal 
 
         connection were raised as defenses.
 
         
 
              With regard to the claim based upon the alleged injury of 
 
         August 22, 1984, it was stipulated that claimant was off work 
 
         for a period of nine days for which claim is made and also 
 
         that, in the event of an award, the correct rate of 
 
         compensation is $179.75 per week.  With regard to section 85.27 
 
         benefits, it was stipulated that the fees charged for the 
 
         medical services provided were fair and reasonable and that the 
 
         services were provided to treat the condition upon which this 
 
         claim is based.  Lack of authorization and lack of causal 
 
         connection to the alleged injury were raised as defenses.
 
         
 
              In both claims, it is stipulated that any permanent 
 
         disability should be compensated as an industrial disability to 
 
         the body as a whole.
 
         
 
                            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 necessarily be referred 
 
         to in this decision.
 
         
 
              Robert C. Newlin testified that he is 57 years of age and 
 
         was born on October 27, 1929.  He stated that his highest 
 
         educational achievement is the eighth grade in a special 
 
         education program which he completed at the age of 16.  Claimant 
 
         has been employed primarily as a painter since 1962.  He was 
 
         self-employed for approximately 10 years and began his employment 
 
         with Drake University in 1972.  Prior to that time, he had 
 
         engaged in a number of occupations.  He has cleaned cars on a car 
 
         lot, hauled coal, worked as a helper for a brick layer, performed 
 

 
         
 
         
 
         
 
         NEWLIN V. DRAKE UNIVERSITY
 
         Page   3
 
         
 
         landscaping work, concrete work and general labor and also driven 
 
         a truck (exhibit H, pages 5-11).
 
         
 
              Claimant has had some health problems, but denied having any 
 
         back injuries prior to the ones he alleges occurred during his 
 
         employment at Drake University.
 
         
 
              Claimant testified that, on November 3, 1980, while working 
 
         at the Drake computer center, he bent over to push a drop cloth 
 
         on the floor against a baseboard and experienced a sharp pain in 
 
         his lower back which made him unable to get back up.  Claimant 
 
         testified that he received assistance, went to the office, 
 
         reported the injury to his supervisor, Terry Barnes, and then 
 
         went home.  Barnes confirmed that the report had been made 
 
         (exhibit J, page 6).  A first report of injury was filled out and 
 
         appears in the agency file, having been received on November 13, 
 
         1980.  Betty Durden and Mary Lorey testified that they 
 
         participated in preparing the first report of injury.  On 
 
         December 15, 1980, a form 2 was filed with the industrial 
 
         commissioner's office indicating that compensability of the 
 
         alleged injury of November 3, 1980 was denied.  The name "Mary 
 
         Lorey" is stamped in the signature space of the form 2.
 
         
 
              Following the incident described as having occurred November 
 
         3, 1980, claimant reported to the Emergency Room at Northwest 
 
         Community Hospital.  The diagnosis at that time was of low back 
 
         strain.  He was advised to not work for three days (exhibit T, 
 
         Emergency Room record 11/3/80).
 
         
 
              On November 11, 1980, claimant was admitted to Northwest 
 
         Community Hospital where he remained until November 16, 1980 with 
 
         a diagnosis of low back strain (exhibit S, page 9, lines 9-14).  
 
         Straight leg tests were negative, indicating that he was having 
 
         no nerve root irritation (exhibit S, page 10, lines 3-5).
 
         
 
              On January 17, 1981, claimant was readmitted to Northwest 
 
         Community Hospital stating the present pain was much more severe 
 
         than what he had in November (exhibit T, Northwest Community 
 
         Hospital History and Physical dated 1/18/81).
 
         
 
              An orthopedic consultation was ordered by John C. Tapp, 
 
         D.O., was done by Marshall Flapan, M.D.  The history obtained by 
 
         Dr. Flapan was:
 
         
 
              A 51-year-old married Caucasian male who works as a 
 
              painter for Drake University, awoke about ten days 
 
              earlier with pain in his back, which soon radiated down 
 
              the posterior aspect of his right thigh and into his 
 
              calf. ... He has a past history of being hospitalized 
 
              at Northwest in November of 1980 for back pain, but at 
 
              that time had no radiation.  A lumbar laminectomy was 
 
              carried out on February 2, 1981 and claimant was 
 
              released from the hospital on February 7, 1981. 
 
              (Exhibit T-2, page 1, Admission of 1/17/81).
 
         
 
              Claimant was returned to work by Dr. Flapan on March 
 
              16, 1981 (exhibit T, Clinical Record of Dr. Flapan 
 
              dated 3/13/81).
 
         
 
              Dr. Flapan saw claimant again for a follow-up examination on 
 

 
         
 
         
 
         
 
         NEWLIN V. DRAKE UNIVERSITY
 
         Page   4
 
         
 
         June 15, 1981.  At that time, claimant's right ankle jerk reflex 
 
         remained absent and claimant complained of soreness in his right 
 
         leg following activity.  Claimant did not exhibit any weakness in 
 
         the leg, however.  Claimant was allowed to continue working 
 
         full-time without restriction (exhibit T-2, page 3).
 
         
 
              Claimant testified that, when he returned to work following 
 
         the surgery, his back was still sore and stiff, but that he 
 
         performed his usual job as a painter.  Claimant testified that he 
 
         had been assigned to paint numbers on seats in the stadium in 
 
         preparation for the Drake Relays and that the bending over to do 
 
         so bothered his back.  He testified that, after the surgery, the 
 
         outer part of his right leg and the outside part of his right 
 
         foot went numb, including the two outer toes of the foot.
 
         
 
              Claimant testified that, while he was off work for the 
 
         surgery, he was paid by Drake from his sick leave and vacation 
 
         accounts.  He testified that, when he presented his return to 
 
         work release at the personnel office, he was informed by the 
 
         woman he gave it to that his claim had been turned in to workers' 
 
         compensation.  Claimant testified that the woman told him it was 
 
         insurance through the state of Iowa.  Claimant stated that he did 
 
         not know what workers' compensation was.  Claimant related that, 
 
         subsequently, while at work, he was provided a note with a phone 
 
         number and instructed to call it.  He testified that he did so, 
 
         that a man answered who stated he was from workers' compensation, 
 
         and that the man told claimant that he did not believe claimant's 
 
         injury happened on the job and that he felt claimant was 
 
         ineligible for benefits.  Claimant testified that he believed it 
 
         when he was told he was not eligible and thereafter did nothing 
 
         regarding workers' compensation benefits for the 1980 injury 
 
         (claimant's testimony and exhibit H, pages 23-27).  Claimant 
 
         denied receiving any mail in approximately December, 1980 which 
 
         dealt with workers' compensation.
 
         
 
              The next record of claimant receiving medical treatment for 
 
         his back, which is found in the medical records portion of 
 
         exhibit T at Tab 1, pages 1 and 16, indicates that, on July 11, 
 
         1983, claimant made complaint of numbness that had been present 
 
         in his right leg since the time of the surgery.
 
         
 
              Claimant returned to Dr. Flapan on July 2, 1984 (exhibit 
 
         T-2, page 4).  At that time, claimant made complaint of numbness 
 
         and discomfort in his right foot that had been present since the 
 
         1981 surgery.  The report indicates that claimant related he was 
 
         developing a fear of climbing on ladders.  The examination showed 
 
         claimant's right ankle jerk reflex to be absent.  Claimant also 
 
         exhibited a loss of sensation over the Sl dermatome pattern in 
 
         his right leg, but he exhibited no weakness in the leg.
 
         
 
              In a report dated October 22, 1984 from Dr. Flapan, no 
 
         mention is made of claimant falling (exhibit T-1, page 37).
 
              Dr. Flapan indicated, in a report of November 28, 1984, that 
 
         claimant has a 10% permanent impairment due to back problems 
 
         dating back to the March 16, 1981 return to work and also due to 
 
         current problems (exhibit T-6, page 1).
 
         
 
              Claimant testified that, on August 22, 1984, while still 
 
         employed at Drake, he was assigned to paint window trim on 
 
         Memorial Hall, a three-story building, using a ladder.  Claimant 
 

 
         
 
         
 
         
 
         NEWLIN V. DRAKE UNIVERSITY
 
         Page   5
 
         
 
         testified that, while climbing down the ladder to move it, he 
 
         thought he had his right foot on a rung, but did not, slipped and 
 
         slid down to the ground, striking the other rungs on the way 
 
         down.  Claimant testified that he hit the ground with quite a 
 
         jolt which stung his feet, but which caused no pain elsewhere in 
 
         his body.  He stated that, approximately one-half hour later, he 
 
         reported the incident to his supervisor, Floyd Brandt, and asked 
 
         for assistance in moving the ladders.  Claimant testified that 
 
         Brandt told him he should see a good neurologist.  When claimant 
 
         indicated to Brandt that he did not know any, Brandt stated he 
 
         would ask his wife, a nurse, if she could recommend a good one.  
 
         Claimant stated that a couple of days later, Brandt told him his 
 
         wife could not recommend anyone (exhibit H, page 30 and 31).
 
         
 
              Claimant testified that, on the day he fell, he got into an 
 
         argument with Brandt about taking too long for coffee breaks.  
 
         Claimant testified that, after Brandt left, he went into the 
 
         building where he was painting, had coffee with Helen Richards, a 
 
         housekeeper, and told her that he had fallen and had had a 
 
         disagreement with Brandt.  Claimant testified that he also 
 
         thereafter went to the Administration Building and complained to 
 
         Paul Johnson about the way Brandt had talked to him.  Claimant 
 
         testified that later, while in the paint shop, Brandt told him 
 
         that he would fire him if he ever went over his head again.
 
         
 
              Claimant testified that a few days after slipping on the 
 
         ladder, he began having trouble with his back and sought care 
 
         from Harold Eklund, M.D., his family doctor, who in turn referred 
 
         him to David Friedgood, D.O., a neurologist.
 
         
 
              Claimant saw Dr. Friedgood on August 31, 1984 (exhibit G, 
 
         page 6; exhibit T-3, page 1).  When deposed on March 21, 1985, 
 
         claimant testified that he told Dr. Friedgood about falling off 
 
         the ladder (exhibit H, page 32).  When testifying at hearing, 
 
         claimant testified that he did not tell Dr. Friedgood about 
 
         falling from the ladder when he saw him on the first occasion, 
 
         but that he did when he saw him later in February, 1985.
 
         
 
              Claimant testified that he was then referred to Dr. 
 
         DeGravelles at Iowa Methodist Medical Center where he also saw 
 
         Karen Kienker, M.D.
 
         
 
              Claimant related that he was in Mercy Hospital in October, 
 
         1984 for back troubles and again in December, 1984.
 
         
 
              Claimant testified that he has performed some odd jobs at 
 
         the trailer park where he resides.  He stated that he has not 
 
         looked for regular work since leaving employment at Drake 
 
         University.
 
         
 
              When claimant saw Dr. Friedgood on August 31, 1984, he made 
 
         complaints of numbness in his right foot and problems with 
 
         climbing, but exhibited no weakness.  In his examination, Dr. 
 
         Friedgood found very mild weakness of the right gastrocnemius 
 
         muscle and decreased sensation in the lateral part of claimant's 
 
         right leg and foot.  Dr. Friedgood found claimant's right ankle 
 
         reflex to be absent (exhibit T-3, page 1; exhibit G, pages 6 and 
 
         7).  In a report dated December 18, 1985, Dr. Friedgood relates 
 
         claimant's symptoms to the 1981 injury and states that, when he 
 
         first saw claimant in August, 1984, claimant did not relate any 
 

 
         
 
         
 
         
 
         NEWLIN V. DRAKE UNIVERSITY
 
         Page   6
 
         
 
         incident having occurred on August 22, 1984 (exhibit T-12, page 
 
         1).  A report of February 27, 1985 issued by Dr. Friedgood 
 
         indicates that he is referring claimant to Dr. DeGravelles, but 
 
         makes no mention of claimant reporting falling from a ladder.  In 
 
         a report dated April 22, 1985, Dr. Friedgood makes reference to 
 
         claimant slipping and falling in August, 1984.  In that report, 
 
         Dr. Friedgood relates claimant's injuries to the incidents which 
 
         were described in the history that was given (exhibit T-7, page 
 
         1). When deposed, Dr. Friedgood indicated that, when he first saw 
 
         claimant, the history given was of problems with the leg for the 
 
         last three years (exhibit G, page 6).  Dr. Friedgood indicated 
 
         that the findings he made on August 31, 1984 were similar to 
 
         those Dr. Flapan had found following the 1981 surgery (exhibit G, 
 
         page 11).  Dr. Friedgood indicated that it is not unusual for 
 
         chronic radiculopathies, such as claimant's, to decompensate or 
 
         worsen with the passage of time (exhibit G, page 16).  Dr. 
 
         Friedgood indicated that he felt the damage to claimant's sacral 
 
         nerve was chronic in nature (exhibit G, page 8).  He stated that 
 
         claimant's sensory loss and numbness is compatible with the 1981 
 
         S-1 nerve root injury and surgery (exhibit G, page 13).  He 
 
         indicated that claimant's back problems stem from the 1980 injury 
 
         (exhibit G, page 14).
 
         
 
              On October 2, 1984, claimant was admitted to Mercy Hospital 
 
         Medical Center.  The history given at that time states, "For 
 
         three days prior to admission, the patient developed severe low 
 
         back pain.  He stated that he got out of bed with no history of 
 
         recent injury and could not stand up straight.O (Exhibit T-1, 
 
         page 24).  Another history found at page 43 of the same exhibit 
 
         indicates that claimant's problem began on September 30, 1984 and 
 
         makes no mention of falling from a ladder.  Claimant was released 
 
         on October 11, 1984.
 
         
 
              Claimant was again hospitalized at Mercy on December 19, 
 
         1984.  The history given on that admission states, "This patient 
 
         gives a long history of having recurrent bouts of low back pain 
 
         with radiation down the right lower extremity, and also numbness 
 
         in the right foot.O (Exhibit T-9, page 5).  In the same exhibit 
 
         at pages 6 and 20, it is again indicated that claimant's problem 
 
         has been present since September with no incident of injury being 
 
         reported.
 
         
 
              In exhibit T-10, at page 1, records from Iowa Methodist 
 
         Medical Center dated March 14, 1985 contain reference to a 
 
         September, 1984 incident with a ladder.  The notes indicate that 
 
         Dr. Kienker is the treating physician.
 
         
 
              Dr. Kienker, in a report dated April 23, 1985, indicated 
 
         that she first saw claimant on March 14, 1985.  At that time, 
 
         claimant related a history of falling down a ladder in September, 
 
         1984.  Her physical exam produced results consistent with those 
 
         of the other physicians who have examined claimant (exhibit T-8, 
 
         page 1).
 
         
 
              During the course of events, claimant was also seen by 
 
         William R. Boulden, M.D., while claimant was hospitalized in 
 
         December, 1984.  The history given to Dr. Boulden was that 
 
         claimant had right leg pain since September, but reported no 
 
         incident of injury.  Dr. Boulden indicated that claimant's 
 
         medical problem was likely degenerative disc disease (exhibit 
 

 
         
 
         
 
         
 
         NEWLIN V. DRAKE UNIVERSITY
 
         Page   7
 
         
 
         T-11, page 1; exhibit 0).
 
         
 
              Claimant was examined by Thomas Carlstrom, M.D., on July 16, 
 
         1985.  Dr. Carlstrom made findings similar to those which had 
 
         been found by Dr. Flapan in 1981 and by Dr. Friedgood in 1984 
 
         (exhibit F, pages 9, 11, 12 and 13).  Dr. Carlstrom indicated 
 
         that the sensory disruption that he found could be a result of 
 
         the 1981 surgery (exhibit F, page 10).
 
         
 
              The history given to Dr. Carlstrom indicated that, in 
 
         September, 1984, claimant had fallen down a ladder, that a few 
 
         days later his back started bothering, that he also started to 
 
         have pain in his right hip and leg and that he sought care from 
 
         Dr. Friedgood (exhibit F, page 13; exhibit T-10, pages 1 and 2).
 
         
 
              Exhibit S is the deposition of Harold Eklund, M.D.  Dr. 
 
         Eklund indicates that the history that claimant gave at Mercy 
 
         Hospital on October 2, 1984 was of onset occurring three days 
 
         prior.  Dr. Eklund felt that claimant's present problems stem 
 
         back to the 1981 injury (exhibit S, pages 29-31).  At pages 21 
 
         through 26 of the deposition, Dr. Eklund discusses the numerous 
 
         inconsistencies and inaccuracies which exist in the medical 
 
         records and reports that were issued in 1980.
 
         
 
              Exhibit I is the deposition of Floyd Brandt.  Brandt 
 
         testified that, on August 22, 1984, claimant was working at Been 
 
         Memorial Hall painting windows (exhibit I, pages 5 and 6).  
 
         Brandt did not recall claimant reporting an incident of slipping 
 
         and falling down a ladder (exhibit I, pages 6 and 7).
 
         
 
              Brant testified that, at some time prior to painting at 
 
         Memorial Hall, claimant had complained about having a lack of 
 
         feeling in his foot and Brandt suggested that claimant see a 
 
         neurologist.  Brandt indicated that, when claimant told him he 
 
         did not know an neurologist, Brandt replied that he would ask his 
 
         wife.  When his wife could not recommend any particular 
 
         neurologist, Brandt testified that he told claimant he should 
 
         seek a referral from his former doctor (exhibit I, pages 7 and 
 
         8).
 
         
 
              Brandt testified that, after claimant received a doctor's 
 
         statement that he was not to climb ladders, he assigned claimant 
 
         to paint things that did not require working from a ladder 
 
         (exhibit I, pages 10 and 11).
 
         
 
              Mary L. Lorey testified that, in 1980, she was a claims 
 
         service representative for Employers Mutual Casualty Company.  
 
         Lorey testified that she was assigned to investigate claimant's 
 
         claim.  She stated that she spoke with claimant on November 21, 
 
         1980 and took his statement.  She stated that she also sent out 
 
         forms to his doctors and the emergency room.
 
         
 
              Lorey testified that the doctor's report and statement 
 
         (exhibit 2) appears to be disrupted and that the term "low back 
 
         strain" should be entered in the block near "nature of injury." 
 
         She also indicated that the date of the report should be 
 
         O12-1-80" and that O11-11-80" is the date that a doctor 
 
         determined that claimant had a medical problem.  Lorey testified 
 
         that the word "denied" was written by her supervisor, even though 
 
         she herself had initially felt the event seemed compensable, 
 

 
         
 
         
 
         
 
         NEWLIN V. DRAKE UNIVERSITY
 
         Page   8
 
         
 
         based upon claimant's statement.
 
         
 
              Lorey testified that the claim was denied based upon the 
 
         following evidence:  An x-ray report which showed no evidence of 
 
         recent injury; an emergency room report containing a statement 
 
         "no known injury"; claimant's own report as recorded which did 
 
         not indicate that the incident with the tarp occurred on the job; 
 
         Dr. Tapp's doctor's report and statement which does not indicate 
 
         where the injury occurred or whether claimant's condition was due 
 
         to that accident; and, the appearance of a discrepancy in injury 
 
         dates as to November 3, 1980 and November 11, 1980.  Lorey 
 
         indicated that, on December 12, 1980, she issued a letter to 
 
         claimant indicating that his claim was denied because of an 
 
         inability to find any direct causal connection between the 
 
         condition and his employment.  She indicated that the denial 
 
         letter was not returned to her office so she assumed it was 
 
         received by claimant.  Lorey stated she felt the burden was on 
 
         the claimant to show that his claim was compensable.
 
         
 
              Lorey also testified that claimant's claim was somewhat 
 
         suspect because the injury was reported on a Monday morning.
 
         
 
              Lorey testified that, when the file was reopened in 1984, 
 
         she contacted Drake University and they had no information 
 
         regarding any 1984 injury.  She testified that she informed them 
 
         to use the same incident of injury as had been used in 1980 when 
 
         filing the first report.  Betty Durden, the director of personnel 
 
         at Drake University, testified that Drake's first notice of any 
 
         1984 injury claim was the request from Mary Lorey for a first 
 
         report of injury which was then filled out, according to Lorey's, 
 

 
         
 
         
 
         
 
         NEWLIN V. DRAKE UNIVERSITY
 
         Page   9
 
         
 
         instructions on November 19, 1984.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received an injury on August 22, 1984 which 
 
         arose out of and in the course of his employment.  McDowell v. 
 
         Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. 
 
         Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              There is not a single reference in the record of this case 
 
         which indicates that claimant alleged an injury of August 22, 
 
         1984 resulting from falling from a ladder until a time subsequent 
 
         to November 5, 1984, the date his petition was filed.  The 
 
         original petition alleged that he stooped over to push a drop 
 
         cloth and hurt his lower back.  The petition was later amended.  
 
         All of the medical evidence in the record which was created 
 
         during 1984 indicates an onset of symptoms in September with no 
 
         known injury.  Claimant's appearance and demeanor was observed as 
 
         he testified.  It is found that claimant has failed to establish 
 
         sufficient credibility to carry the burden of proving that he 
 
         sustained any injury falling from a ladder on August 22, 1984.  
 
         In 1980, claimant made a prompt report of the incident of injury 
 
         to his physicians.  It is extremely unlikely that he would not 
 
         have provided a history of falling when seeking medical treatment 
 
         for his condition until several months had passed and his 
 
         petition with this agency was already on file.
 
         
 
              With regard to the November 3, 1980 injury, the claim is 
 
         clearly barred by Code section 85.26 unless equitable estoppel is 
 
         applied.  Even though claimant's intellectual ability may only be 
 
         consistent with his formal educational achievement, it is clear 
 
         that, by the time he returned to work following back surgery, he 
 
         should have realized his back injury was serious and 
 
         work-related.  His petition was filed on February 5, 1985. it is 
 
         clearly found that claimant knew the nature, seriousness and 
 
         probable compensable character of his alleged 1980 back injury 
 
         long before February 5, 1983.  Robinson v. Department of Transp., 
 
         296 N.W.2d 809 (Iowa 1980).
 
         
 
              Claimant urges that defendants are equitably estopped from 
 
         relying upon section 85.26 to bar the 1980 claim.  The elements 
 
         of equitable estoppel were specified in the case Paveglio v. 
 
         Firestone Tire and Rubber Company, 167 N.W.2d 636, 638 (Iowa 
 
         1969).  Those four elements are: (1) false representation or 
 
         concealment of material facts; (2) lack of knowledge of the true 
 
         facts on the part of the person to whom the representation or 
 
         concealment is made; (3) intent of the party making the 
 
         representation that the party to whom it is made shall rely 
 
         thereon; and, (4) reliance on such fraudulent statement or 
 
         concealment by the party to whom it was made, resulting in his 
 
         prejudice.
 
         
 
              In Dierking v. Bellas Hess Superstore, 258 N.W.2d 312 (Iowa 
 
         1977) the Iowa Supreme Court defined the term "false 
 
         representation":
 
         
 
              In its generic sense, a false representation is 
 
              anything short of a warranty which provides upon the 
 
              mind a false impression condusive to action.  
 

 
         
 
         
 
         
 
         NEWLIN V. DRAKE UNIVERSITY
 
         Page  10
 
         
 
              Ordinarily however, representation must be definite, 
 
              and mere vague, general or indefinite statements are 
 
              insufficient because they should, as a general rule, 
 
              put the hearer upon inquiry, and there is no right to 
 
              rely upon such statements.
 
         
 
              A party alleging equitable estoppel must be excusably 
 
         ignorant of the true facts.  S & M Finance Company of Fort Dodge 
 
         v. Iowa State Tax Commission, 162 N.W.2d 505, 510 (Iowa 1968).  
 
         Thus, the party alleging this theory must establish either his 
 
         lack of knowledge or means of knowledge of the real facts. 
 
         Dierking, 258 N.W.2d 312 (Iowa 1977).
 
         
 
              Equitable estoppel requires a showing of prejudicial 
 
         reliance by the party asserting the theory.  This requires that 
 
         the party prove either a substantial benefit against the party to 
 
         whom it is asserted or a substantial detriment to himself as a 
 
         result of having been misled or induced to act or fail to act.  
 
         State v. Raymond, 254 Iowa 828, 119 N.W.2d 135 (Iowa 1963).  The 
 
         reliance, however, must be reasonable.  Dierking, 258 N.W.2d 312, 
 
         317 (Iowa 1977).
 
         
 
              A party asserting estoppel has the burden to establish all 
 
         essential elements thereof by clear, convincing and satisfactory 
 
         proof.  Holden v. Construction Machinery Co., 202 N.W.2d 335, 355 
 
         (Iowa 1972).
 
         
 
              The gist of the representation made by Mary Lorey or 
 
         possibly other representatives of Employers Mutual Casualty 
 
         Company or Drake University is that claimant's claim for workers' 
 
         compensation benefits was denied.  It appears to have been 
 
         indicated to claimant that the reason for the denial was that it 
 
         was felt there was not a causal relationship between claimant's 
 
         back problems and his employment or that it was felt claimant 
 
         would not be able to prove the existence of such a causal 
 
         relationship.
 
         
 
              Tho law does impose that burden of proof upon a claimant. 
 
         Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  
 
         Although claimant's injury of 1980 appears to have been reported 
 
         promptly, it was in fact reported on a Monday morning.  The 
 
         incident which was alleged to have caused the injury was not 
 
         witnessed by anyone other than claimant.  The activity to which 
 
         claimant attributed the injury is not the type of thing which 
 
         normally can be expected to produce serious injury.  It could 
 
         reasonably be urged that the activity in which claimant was 
 
         engaged was no more stressful or strenuous than the activities of 
 
         normal non-employment life and that his back problem was 
 
         therefore an idiopathic condition and not the result of any 
 
         injury which arose out of and in the course of employment.  The 
 
         medical reports issued at the time, as indicated by Dr. Eklund in 
 
         his deposition, provided a number of inconsistencies and 
 
         irregularities which would certainly make the claim suspect.  
 
         When a case involving an unwitnessed injury goes to litigation, 
 
         the claimant's credibility can be the difference in determining 
 
         whether or not an award is made.  Having observed claimant's 
 
         appearance and demeanor and made findings regarding his 
 
         credibility in this case, it cannot be said with absolute 
 
         certainty that claimant would have recovered, even if he had 
 
         commenced an action within two years of November 3, 1980.
 

 
         
 
         
 
         
 
         NEWLIN V. DRAKE UNIVERSITY
 
         Page  11
 
         
 
         
 
              With regard to the first element of equitable estoppel, it 
 
         is important to note that there is a difference between a 
 
         representation of fact and a statement of opinion.  A denial of a 
 
         claim by an insurance adjustor is not necessarily a 
 
         misrepresentation of fact even though it is later proven that the 
 
         denial was erroneous.  It is therefore found that, while there 
 
         may have been an erroneous denial of claimant's claim, the act of 
 
         denying a claim and giving the reason for denial is not a 
 
         misrepresentation of fact, provided that some rational basis 
 
         exists for denying the claim.  It is found that, in this case, 
 
         there were sufficient indications that the claim may not have 
 
         been compensable in order to justify the denial of the claim.  
 
         Claimant has not established the first element of equitable 
 
         estoppel.
 
         
 
              With regard to the second element of equitable estoppel, 
 
         lack of knowledge of the true facts on the part of the claimant, 
 
         it must be assumed that claimant himself had always felt there 
 
         was some relationship between the alleged incident of November 3, 
 
         1980 and his back problems.  He provided that relationship in his 
 
         medical history when he sought treatment in 1980.  In his 
 
         testimony he denied having any back problems prior to that 
 
         incident.  Claimant clearly had knowledge of the true facts of 
 
         what happened regarding his back.  There is nothing in the record 
 
         to indicate that he could not have asked his treating physicians 
 
         about the existence of any causal connection between his back 
 
         condition and his employment at the times in 1980 and 1981 when 
 
         he was receiving medical treatment.  It is therefore found that 
 
         claimant has failed to establish that he lacked knowledge of the 
 
         true facts dealing with the 1980 incident.
 
         
 
              The third element of equitable estoppel is intent by the 
 
         party making the representation that it be relied upon by the 
 
         person to whom the representation is made.  It would, of course, 
 
         be assumed that, when an insurance adjustor denies a claim, the 
 
         adjustor hopes and intends that the person making the claim will 
 
         not pursue it further.  Claimant has established the third 
 
         element of estoppel.
 
         
 
              The fourth element of equitable estoppel is reasonable 
 
         reliance upon the false representation.  From the evidence in the 
 
         case, it appears that no one in the world would have had more 
 
         accurate knowledge regarding the onset of claimant's back 
 
         problems than claimant himself.  It is not reasonable for 
 
         claimant to have relied upon someone who told him something which 
 
         was contrary to what claimant knew to be the actual fact of the 
 
         matter.  The record further indicates that claimant in this case 
 
         was paid for all the time he was off work.  It appears that group 
 
         medical insurance may have paid all or a substantial part of the 
 
         medical expenses.  Claimant did return to work without any 
 
         apparent loss in his rate of earnings.  It is not entirely 
 
         impossible that claimant may have felt that he had little to gain 
 
         by pursuing litigation over the denial of his workers' 
 
         compensation claim.  Although it is not a majority view, there 
 
         are some who support the theory that, where disability is 
 
         evaluated industrially, no industrial disability should be 
 
         awarded in those cases where the person does return to the same 
 
         job without any loss of earnings.  In this case, claimant was 
 
         probably unaware of the intricacies of, and the full extent of 
 

 
         
 
         
 
         
 
         NEWLIN V. DRAKE UNIVERSITY
 
         Page  12
 
         
 
         benefits provided by, the workers' compensation system.  
 
         Ignorance of the law is not an excuse.  In any event, it was not 
 
         reasonable that he rely upon the denial of the claim as a reason 
 
         for failing to pursue the claim in a timely manner.  Claimant has 
 
         therefore failed to establish the fourth element of equitable 
 
         estoppel.
 
         
 
              It is therefore concluded that claimant has failed to 
 
         present evidence to support his claim for relief on the basis of 
 
         equitable estoppel.  Claimant has not established that any 
 
         unreasonable or unlawful claim practices were employed by the 
 
         defendants in this case in violation of Iowa Code section 507B.4.  
 
         Claimant's claim based upon an alleged injury of November 3, 1980 
 
         is therefore determined to be barred by the provisions of section 
 
         85.26.
 
         
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Claimant has not established that he is a fully credible 
 
         witness.
 
         
 
              2.  Floyd Brandt is a credible witness.
 
         
 
              3.  Mary Lorey is a credible witness.
 
         
 
              4.  It was not unreasonable for Employers Mutual Casualty 
 
         Company to deny claimant's 1980 injury claim based upon the 
 
         information which they had at the time the denial was made.
 
         
 
              5.  Claimant had actual knowledge of the true facts 
 
         surrounding the manner in which his back condition arose in 
 
         1980.
 
         
 
              6.  Nothing prevented claimant from seeing an attorney or 
 
         asking his treating physicians about the cause of his back 
 
         problem in 1980 or 1981 while he was under treatment.
 
         
 
              7.  It was not reasonable for claimant to rely upon the 
 
         denial of the claim as a reason for not pursuing the claim 
 
         further, for he himself knew the actual facts of how his back 
 
         problems developed and had full access to his treating 
 
         physicians.
 
         
 
              8.  The evidence in the case does not establish, by a 
 
         preponderance of the evidence, that claimant fell down a ladder 
 
         on August 22, 1984 as was alleged in his petition.
 
         
 
              9.  The most likely cause of claimant's current physical 
 
         ailments affecting his low back and legs is whatever incident 
 
         produced the need for the surgery which was performed in 1981.
 
         
 
             10. Claimant's petition alleging an injury of November 3, 
 
         1980 was filed February 5, 1985.
 
         
 
             11. Claimant's petition alleging an injury of August 22, 1984 
 
         was filed on November 5, 1984.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 

 
         
 
         
 
         
 
         NEWLIN V. DRAKE UNIVERSITY
 
         Page  13
 
         
 
              1.  This agency has jurisdiction of the subject matter of 
 
         this proceeding and its parties.
 
         
 
              2.  Claimant has failed to introduce sufficient evidence to 
 
         prove the elements of equitable estoppel as it relates to the 
 
         alleged November 3, 1980 injury.
 
         
 
              3.  Claimant's claim arising from the alleged November 3, 
 
         1980 injury is barred by the provisions of section 85.26 of the 
 
         Iowa Code.
 
         
 
              4.  Claimant has failed to prove, by a preponderance of the 
 
         evidence, that he sustained any injury on August 22, 1984 which 
 
         arose out of and in the course of his employment with Drake 
 
         University.
 
         
 
              5.  The reasonable denial of an insurance claim does not 
 
         constitute a misrepresentation of fact which can provide a basis 
 
         for seeking relief from the application of a valid statute of 
 
         limitations under a theory of equitable estoppel.
 
         
 
                                      ORDER
 
         
 
              IT IS THEREFORE ORDERED that claimant take nothing from this 
 
         proceeding.
 
         
 
              IT IS FURTHER ORDERED that the costs of this proceeding are 
 
         assessed against claimant pursuant to Division of Industrial 
 
         Services Rule 343-4.33.
 
         
 
         
 
              Signed and filed this 29th day of February, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                         MICHAEL G.TRIER
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Frank Watson, Jr.
 
         Attorney at Law
 
         410 Hubbell Building
 
         Ninth & Walnut
 
         Des Moines, Iowa 50309
 
         
 
         Mr. Frank T. Harrison
 
         Attorney at Law
 
         Suite 111, Terrace Center
 
         2700 Grand Avenue
 
         Des Moines, Iowa 50312
 
         
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                1402.30, 2101, 2402
 
                                                Filed February 29, 1988
 
                                                MICHAEL G. TRIER
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         ROBERT C. NEWLIN,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                                  File  Nos. 653365
 
         DRAKE UNIVERSITY,                                   776838
 
         
 
              Employer,                         A R B I T R A T I 0 N
 
         
 
         and                                       D E C I S I 0 N
 
         
 
         EMPLOYERS MUTUAL COMPANIES,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         1402.30, 2101, 2402
 
              
 
              This decision covered an alleged injury of August 22, 1984 
 
         and also an alleged injury of November 3, 1980.
 
         
 
              With regard to the alleged injury of 1984, the claimant did 
 
         not give the history of injury which he provided at hearing to 
 
         any of his treating physicians until a date subsequent to the 
 
         time that his petition was filed.  Prior to that time, all the 
 
         medical histories indicated no incident of injury and an onset of 
 
         approximately one month later than the injury date alleged in the 
 
         petition.  It was found that claimant failed to carry the burden 
 
         of proving that he sustained an injury which arose out of and in 
 
         the course of employment.
 
         
 
              With regard to the 1980 injury, the statute of limitations 
 
         of section 85.26 was raised as a defense and claimant sought to 
 
         avoid it through a claim of equitable estoppel.  Claimant urged 
 
         that the insurance adjustor had denied the claim on the basis 
 
         that there did not appear to be a causal connection between the 
 
         complaints and the alleged injury.  There were a number of 
 
         inconsistencies in the medical reports dealing with that incident 
 
         and a number of other factors which made the claim suspect.  It 
 
         was held to not be unreasonable to have denied the claim based 
 
         upon the information which was then known to the insurance 
 
         carrier.  The mere reasonable denial of a claim was held to not 
 
         constitute a false representation which can be the basis for 
 
         applying equitable estoppel to avoid a statute of limitations.
 
         
 
              Both claims were therefore denied.
 
         
 
         
 
                                                         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         SUZANNE BLUME f/k/a SUZANNE
 
         LENZ f/k/a SUZANNE LITTLE,
 
                                              FILE NOS. 653710 & 719256
 
              Claimant,
 
                                                A R B I T R A T I 0 N
 
         VS.
 
                                                        A N D
 
         FARMLAND FOODS, INC.,
 
                                                    R E V I E W -
 
              Employer,
 
                                                 R E 0 P E N I N G
 
         and
 
                                                  D E C I S I 0 N
 
         AETNA CASUALTY & SURETY
 
         COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a combined proceeding both in arbitration and 
 
         review-reopening brought by Suzanne Blume, f/k/a Suzanne Lenz and 
 
         Suzanne Little (these name changes are due to a divorce and 
 
         remarriage during the pendency of these proceedings), claimant, 
 
         against Farmland Foods, Inc., employer (hereinafter referred to 
 
         as Farmland), and Aetna Casualty & Surety Company, insurance 
 
         carrier, for workers' compensation benefits as a result of 
 
         alleged injuries on November 1, 1980 and October 12, 1982.  A 
 
         memorandum of agreement for the November 1, 1980 injury was filed 
 
         on November 24, 1980.  On July 7, 1987, a hearing was held on 
 
         claimant's petition and the matter was considered fully submitted 
 
         at the close of this hearing.
 
         
 
              The parties have submitted a prehearing 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.  Oral testimony was received during the hearing from 
 
         claimant.  The exhibits received into the evidence at hearing 
 
         are listed in the prehearing report.  All of the evidence 
 
         received at the hearing was considered in arriving at this 
 
         decision.
 
         
 
              The prehearing report contains the following 
 

 
         
 
         
 
         
 
         BLUME V. FARMLAND FOODS, INC.
 
         Page   2
 
         
 
         
 
         stipulations:
 
         
 
              1.  On November 1, 1980 and October 12, 1982 claimant 
 
         received injuries which arose out of and in the course of her 
 
         employment with Farmland;
 
              
 
              2.  Claimant is not seeking additional temporary total 
 
         disability or healing period benefits in this proceeding;
 
         
 
              3.  Claimant's rate of compensation in the event of an 
 
         award of weekly benefits from this proceeding shall be $217.37 
 
         per week for the November 1, 1980 injury and $225.78 for the 
 
         October 12, 1982 injury; and,
 
         
 
              4.  The fees charged for an evaluation by Horst G. Blume, 
 
         M.D., for which claimant seeks reimbursement in this proceeding 
 
         is fair and reasonable and causally connected to the work 
 
         injury.
 
         
 
              The prehearing report submits the following issues for 
 
         determination in this decision:
 
         
 
              I.  Whether there is a causal relationship between the 
 
         work injuries and the claimed disabilities;
 
         
 
             II.  The extent of claimant's entitlement to weekly 
 
         benefits for permanent disability; and,
 
         
 
            III.  The extent of claimant's entitlement to medical 
 
         benefits under Iowa Code section 85.39.
 
         
 
                             FINDINGS OF FACT
 
         
 
              1.  Claimant was a credible witness.
 
         
 
              From her demeanor while testifying, claimant appeared to be 
 
         truthful.  Claimant's testimony was consistent with histories 
 

 
         
 
         
 
         
 
         BLUME V. FARMLAND FOODS, INC.
 
         Page   3
 
         
 
         
 
         provided to physicians during treatment and evaluation of her 
 
         injuries.
 
         
 
              2.  Claimant has been employed by Farmland since 1977 and 
 
         continues to work for Farmland at the present time.
 
         
 
              There was little dispute among the parties as to the nature 
 
         of claimant's employment with Farmland.  Claimant testified that 
 
         her duties consisted of general meat packing work.  Claimant has 
 
         worked on the bacon line, belly table and in butt skinning.  
 
         Claimant regularly used a wizard knife, an electrically powered 
 
         circular knife, during her Farmland employment in 1980 and 1981. 
 
          Throughout claimant's employment at Farmland, she has used her 
 
         hands, arms and shoulders on a repetitive basis.
 
         
 
              3.  Between September 1980 and continuing at the present 
 
         time, claimant has suffered and continues to suffer gradual and 
 
         accumulative traumas to her right hand, wrist, arm and shoulder 
 
         which arises out of and in the course of her employment at 
 
         Farmland.
 
         
 
              In September, 1980, claimant sought treatment from the 
 
         company doctor, James Flood, M.D., for tendinitis of the right 
 
         upper forearm and she was placed on light duty for one week.  As 
 
         stipulated, on November 16, 1980, claimant left work and sought 
 
         treatment from Dr. Flood because her ring finger of her right 
 
         hand became locked.  She was referred by Dr. Flood at that time 
 
         to an orthopedic surgeon, Timothy C. Fitzgibbons, M.D.  Dr. 
 
         Fitzgibbons diagnosed stenosing tenosynovitis and performed 
 
         surgery to release the ring finger.  Claimant's pain complaints 
 
         after the surgery also involved the right shoulder and swelling 
 
         and numbness of the right hand.  Despite a negative EMG test, 
 
         claimant had a positive TinelOs sign and numbness of the hand and 
 
         wrist indicating a nerve entrapment according to the records of 
 
         Dr. Fitzgibbons.  Dr. Fitzgibbons continued to prescribe physical 
 
         therapy and medication.  Claimant improved after this treatment 
 
         and was released for light duty on January 26, 1981.  In 
 
         February, 1981, she was discharged by Dr. Fitzgibbons who noted 
 
         that if symptoms persist, claimant should consider alternative 
 
         work and vocational rehabilitation.  In May, 1981, claimant 
 
         returned to Dr. Fitzgibbons with complaints of continued pain in 
 
         the right hand, wrist and forearm when using the wizard knife 
 
         during her employment at Farmland.  Dr. Fitzgibbons took claimant 
 
         off work especially the wizard knife job for a couple of weeks 
 
         and prescribed physical therapy and medication.  Again Dr. 
 
         Fitzgibbons noted that if claimant's difficulties persist, she 
 
         should be taken off a packinghouse type of job.
 
         
 
              In August, 1981, claimant again returned to Dr. Fitzgibbons 
 
         with a recurrence of symptoms and Dr. Fitzgibbons diagnosed right 
 
         deQuervain's tenosynovitis.  At this time, Dr. Fitzgibbons took 
 
         claimant off work and tried to relieve claimant's hand, wrist and 
 
         arm symptoms with steroid injections.  This treatment proved 
 
         ineffective and he performed another release surgery in August, 
 
         1981.  This surgery did not help alleviate claimant's symptoms of 
 
         Vain and numbness in the right wrist and hand.  Dr. Fitzgibbons 
 
         indicated in October, 1981, that there was nothing else he could 
 
         do and released claimant to return to light duty work on November 
 
         2, 1981 for six weeks and regular work after that.  In December, 
 

 
         
 
         
 
         
 
         BLUME V. FARMLAND FOODS, INC.
 
         Page   4
 
         
 
         
 
         1981, Dr. Fitzgibbons again stated that there was nothing he 
 
         could offer and referred claimant to Richard Murphy, M.D., a hand 
 
         surgeon.  There is little evidence in the record of Dr. Murphy's 
 
         treatment at that time.
 
         
 
              In October, 1982, claimant experienced right shoulder pain 
 
         and discomfort which was treated by Dr. Flood, Clifford M. 
 
         Danneel, M.D., and William R. Hamsa, Jr., M.D., who all diagnosed 
 
         that claimant had right shoulder bursitis but no particular form 
 
         of treatment was recommended.  According to claimant, she was 
 
         placed on light duty for approximately a month following this 
 
         bursitis pain.
 
         
 
              On March 8, 1983, claimant left work again and returned to 
 
         Dr. Fitzgibbons who noted claimant's persistent complaints of 
 
         discomfort up and down the forearm and wrist on the right side, 
 
         referred symptoms into the right shoulder and some shoulder these 
 
         bursitis.  Dr. Fitzgibbons opined at that time that all of 
 
         symptoms were exacerbations of claimant's previous problems.  He 
 
         again stated that claimant will continue to experience difficulty 
 
         doing the type of work she has done in the past.  Dr. Fitzgibbons 
 
         returned claimant to light duty work on March 27, 1983 and 
 
         continued treatment through April.
 
         
 
              Claimant began treating with another physician, Thomas P. 
 
         Ferlic, M.D., in June, 1983.  Dr. Ferlic felt that claimant was 
 
         suffering from scarring of the radial nerve and that she was in 
 
         need of further release of various tendons and nerves in the 
 
         right hand.  Dr. Ferlic like Dr. Fitzgibbons initially tried 
 
         injections of medication but eventually performed exploratory 
 
         surgery in August of 1983.  It is unclear in the reports 
 
         submitted into the evidence what exactly Dr. Ferlic did in this 
 
         third surgery but Dr. Ferlic felt that claimant would be able to 
 
         return to full duty after recovery from the surgery.  Dr. 
 
         Ferlic's diagnosis was the same as Dr. Fitzgibbons, stenosing 
 
         tenosynovitis, right wrist.
 
         
 
              Although there are varying complaints extending from the 
 
         fingers to the right shoulder, the views of Dr. Fitzgibbons, who 
 
         appears to be the primary treating physician, are the most 
 
         convincing.  He believes that claimant is suffering from a series 
 
         of exacerbations of a single injury process arising from overuse 
 
         of her hands, arms and shoulders during her work at Farmland.  
 
         The greater weight of evidence demonstrates that this injury 
 
         process was continuous over a period of time and is probably 
 
         continuing at the present time.  Furthermore, there are several 
 
         dates of injury as claimant has been compelled by her pain to be 
 
         temporarily absent from work to receive treatment of her 
 
         condition on several occasions: November 16, 1980; May 5, 1981; 
 
         August 31, 1981; November 17, 1982; March 8, 1983 and August 29, 
 
         1983.  These dates of injury coincide with the first day of each 
 
         extended absence from work (as stipulated in the prehearing 
 
         report) as a result of her right hand, wrist and arm condition.
 
         
 
              4.  The work injury of August 31, 1981 to claimant's right 
 
         hand, arm and shoulder was a cause of a seven percent permanent 
 
         partial impairment to claimant's right upper extremity.
 
         
 
              It is rather clear that early on in the gradual injury 
 

 
         
 
         
 
         
 
         BLUME V. FARMLAND FOODS, INC.
 
         Page   5
 
         
 
         
 
         process, Dr. Fitzgibbons felt that claimant's condition was 
 
         permanent and that her persistent difficulties would only be 
 
         corrected by a change in jobs.  On November 5, 1981, Dr. 
 
         Fitzgibbons stated in a report to Farmland's insurance carrier 
 
         that although he could not give an exact rating, he was sure 
 
         "there will be some permanency."
 
         
 
              Claimant stated that she had no previous medical history of 
 
         any right hand, arm or shoulder problems and no prior functional 
 
         impairment or disability due to such problems before working at 
 
         Farmland.  This testimony is uncontroverted by any other 
 
         testimony or evidence.
 
         
 
              In a report submitted into the evidence, claimant's primary 
 
         treating physician, Dr. Fitzgibbons opined in March, 1983, that 
 
         claimant is suffering from a seven percent permanent partial 
 
         impairment to her right upper extremity as a result of her work 
 
         injuries at Farmland.
 
         
 
              Dr. Ferlic's views are somewhat confusing.  He stated in 
 
         September, 1983, that he did not feel that claimant would suffer 
 
         permanent disability after she reaches maximum healing from the 
 
         third surgery but stated that it was too early to give such an 
 
         opinion at that time.  A month later he stated that claimant had 
 
         Oreturned to her preoperative status."  He also stated that as 
 
         far as he knows, "no permanent disability should result as a 
 
         result of the surgery."  One can reasonably interpret these 
 
         statements as indicating that claimant's surgery had little or no 
 
         influence on claimant's condition.  If she had permanency before 
 
         she would have permanency after the surgery.  In May, 1987, 
 
         claimant was examined by a neurosurgeon, Horst Blume, M.D., who 
 
         opines that claimant suffers from a 13 percent permanent partial 
 
         impairment to the right hand.  Dr. Blume was not shown in the 
 
         record to possess such extensive experience with orthopedic 
 
         problems with the hand to warrant giving his views greater weight 
 
         over those of the primary treating physician, Dr. Fitzgibbons.
 
         
 
              As claimant has chosen to endure the pain and not to 
 
         permanently leave her employment at Farmland, the injury date of 
 
         August 31, 1981 was chosen as the injury date for permanency 
 
         purposes for reasons that will be discussed in the conclusions of 
 
         law section of this decision.  This injury date is the most 
 
         recent injury date that bore a relationship to the time Dr. 
 
         Fitzgibbons finally concluded that claimant's condition was 
 
         permanent.
 
         
 
              It is also concluded from the evidence that claimant's 
 
         permanent impairment does not extend into the shoulder or to the 
 
         body as a whole.  It would appear from the medical records that 
 
         only soft tissues of the arm have had continuing problems.  Dr. 
 
         Fitzgibbons in his rating did not believe that the injury 
 
         extended beyond the arm but definitely extended beyond the right 
 
         hand.
 
         
 
              6.  After receiving a disability evaluation by an employer 
 
         authorized and paid physicians namely, Dr. Fitzgibbons and Dr. 
 
         Ferlic, claimant secured an evaluation of her right sided 
 
         disability in May, 1987, from Horst Blume, M.D., and paid the sum 
 
         of $200 for this evaluation.
 

 
         
 
         
 
         
 
         BLUME V. FARMLAND FOODS, INC.
 
         Page   6
 
         
 
         
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              I.  Claimant has the burden of proving by a preponderance of 
 
         the evidence that claimant received an injury which arose out of 
 
         and in the course of employment.  The words "out of" refer to the 
 
         cause or source of the injury.  The words "in the course of" 
 
         refer to the time and place and circumstances of the injury.  See 
 
         Cedar Rapids Community Sch. v. Cady, 278 N.W.2d 298 (Iowa 1979); 
 
         Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 
 
         (1955).  An employer takes an employee subject to any active of 
 
         dormant health impairments, and a work connected,injury which 
 
         more than slightly aggravates the condition is considered to be a 
 
         personal injury.  Ziegler v. United States Gypsum Co., 252 Iowa 
 
         613, 620, 106 N.W.2d 591 (1960) and cases cited therein.
 
         
 
              It is not necessary that claimant prove that her disability 
 
         results from a sudden, unexpected traumatic event.  It is 
 
         sufficient to show that the disability developed gradually or 
 
         progressively from work activity over a period of time.  
 
         McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985).
 
         
 
              The McKeever court also held that the date of injury in 
 
         gradual injury cases is the time when pain prevents the employee 
 
         from continuing to work.  In McKeever the injury date coincided 
 
         with the time claimant was finally compelled to give up his job.  
 
         This date was then utilized in determining the rate of 
 
         compensation.  By adopting this rule, Iowa joins the majority of 
 
         other states by placing full liability upon an insurance carrier 
 
         or employer covering the risk at the time of the most recent 
 
         injury that bares a causal relationship to the disability.
 
         
 
              In the case sub judice, the rule concerning the injury date 
 
         in McKeever could not be strictly applied as claimant has not 
 
         permanently left her employment.  However, it is found that 
 
         claimant's pain has caused claimant to temporary leave work on 
 
         several occasions for treatment of her injuries.  The undersigned 
 
         believes that the logic of the McKeever rule requires that each 
 
         temporary absence from work has its own precipitating injury date 
 
         which coincides with the time claimant was compelled by her pain 
 
         to leave work and seek treatment of her condition.
 
         
 
              II.  The claimant has the burden of proving by a 
 
         preponderance of the evidence that the work injury is a cause of 
 
         the claimed disability.  A disability may be either temporary or 
 
         permanent.  In the case of a claim for temporary disability, the 
 
         claimant must establish that the work injury was a cause of 
 
         absence from work and lost earnings during a period of recovery 
 
         from the injury.  Generally, a claim of permanent disability 
 
         invokes an initial determination of whether the work injury was a 
 
         cause of permanent physical impairment or permanent limitation in 
 
         work activity.  However, in some instances, such as a job 
 
         transfer caused by a work injury, permanent disability benefits 
 
         can be awarded without a showing of a causal connection to a 
 
         physical change of condition.  Blacksmith v. All-American, Inc., 
 
         290 N.W.2d 348, 354 (Iowa 1980); McSpadden v. Big Ben Coal Co., 
 
         288 N.W.2d 181 (Iowa 1980).
 
         
 
              The question of causal connection is essentially within the 
 

 
         
 
         
 
         
 
         BLUME V. FARMLAND FOODS, INC.
 
         Page   7
 
         
 
         
 
         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, and that may be 
 
         affected by the completeness of the premise given the expert and 
 
         other surrounding circumstances.  Bodish v. Fischer, Inc., 257 
 
         Iowa 516, 133 N.W.2d 867 (1965).
 
         
 
              Furthermore, if the available expert testimony is 
 
         insufficient alone to support a finding of causal connection, 
 
         such testimony may be coupled with nonexpert 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, 290 N.W.2d 348, 354.  In the case of a 
 
         preexisting condition, an employee is not entitled to recover for 
 
         the results of a preexisting injury or disease but can recover 
 
         for an aggravation thereof which resulted in the disability found 
 
         to exist.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 
 
         N.W.2d 251 (1963).
 
         
 
              In the case sub judice, a finding was made causally 
 

 
         
 
         
 
         
 
         BLUME V. FARMLAND FOODS, INC.
 
         Page   8
 
         
 
         
 
         connecting a work injury of August 31, 1981 to claimant's 
 
         permanent functional impairment to her arm.  This injury date was 
 
         chosen from among almost limitless alternatives in the continuous 
 
         injury process.  As discussed above, the rule in McKeever could 
 
         not be strictly applied as claimant has chosen to Otough it out" 
 
         at least at the present time and has not permanently left her 
 
         employment despite the existence of permanent impairment.  The 
 
         above particular injury date was chosen because it was the most 
 
         recent injury date prior to the time claimant's condition first 
 
         became permanent, in the opinion of Dr. Fitzgibbons.  Dr. 
 
         Fitzgibbons first found permanency in November, 1981, when she 
 
         completed her third extended period of absence from work to 
 
         recover from her cumulative injuries.
 
         
 
              III.  Claimant must establish by a preponderance of the 
 
         evidence the extent of weekly benefits for permanent disability 
 
         to which claimant is entitled.  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, 997 (Iowa 1983).  
 
         When the result of an injury is loss to a scheduled member, the 
 
         compensation payable is limited to that set forth in the 
 
         appropriate subdivision of Code section 85.34(2).  Barton v. 
 
         Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (1961).  "Loss 
 
         of useO of a member is equivalent to "loss" of the member.  Moses 
 
         v. National Union C.M. Co., 194 Iowa 819, 184 N.W. 746 (1922).  
 
         Pursuant to Code section 85.34(2)(u) the industrial commissioner 
 
         may equitably prorate compensation payable in those cases wherein 
 
         the loss is something less than that provided for in the 
 
         schedule.  Blizek v.Eagle Signal Company, 164 N.W.2d 84 (Iowa 
 
         1969).
 
         
 
              Based upon a finding of a seven percent loss of use to the 
 
         upper extremity, claimant is entitled as a matter of law to a 
 
         17.5 weeks of permanent partial disability benefits under Iowa 
 
         Code section 85.34(2)(m) which is seven percent of the 250 weeks 
 
         allowable for an injury to the arm in that subsection.  These 
 
         permanent partial disability payments were due when she completed 
 
         the healing period following the August 31, 1981 injury date and 
 
         returned to work on November 2, 1981.  This was also the time 
 
         that the defendants were first informed that there would be some 
 
         permanency from her condition.  Therefore, permanent partial 
 
         disability benefits shall be ordered from November 2, 1981.
 
         
 
              Unfortunately, the parties never stipulated as to a rate of 
 
         compensation for the injury date found in this case that caused 
 
         the permanent partial disability to occur and no evidence was 
 
         offered to determine the rate for such an injury date.  It is 
 
         rather clear that claimant is entitled to at least the rate for 
 
         the 1980 alleged injury and due to the fact that claimant has the 
 
         burden of proof, she must suffer the consequences of any 
 
         difficiency in the evidence.  Therefore, only the stipulated rate 
 
         for the early injury on November 1, 1980 in the amount of $217.37 
 
         will be used in awarding permanent partial disability benefits in 
 
         this decision.
 
         
 

 
         
 
         
 
         
 
         BLUME V. FARMLAND FOODS, INC.
 
         Page   9
 
         
 
         
 
              The parties stipulated that all of the healing period 
 
         benefits requested by claimant have been paid.
 
         
 
              IV.  Employers are obligated to furnish an independent 
 
         disability evaluation of a work injury subsequent to an adverse 
 
         evaluation by an employer retained physician under Iowa Code 
 
         section 85.39.
 
         
 
              Given the findings in this case, claimant is entitled under 
 
         law to reimbursement for the evaluation by Dr. Blume and such 
 
         will be ordered herein.
 
         
 
                                      ORDER
 
         
 
              1.  Defendants shall pay to claimant seventeen point five 
 
         (17.5) weeks of permanent partial disability benefits at a rate 
 
         of two hundred seventeen and 37/100 dollars ($217.37) per week 
 
         from November 2, 1981.
 
         
 
              2.  Defendants shall pay claimant the total sum of two 
 
         hundred and no/100 dollars ($200.00) as reimbursement for the 
 
         evaluation by Dr. Blume. .
 
         
 
              3.  Defendants shall pay accrued weekly benefits in a lump 
 
         sum.
 
         
 
              4.  Defendants shall pay interest on benefits awarded herein 
 
         from November 2, 1981.
 
         
 
              5.  Defendants shall pay the costs of this action pursuant 
 
         to Division of Industrial Services Rule 343-4.33.
 
         
 
              6.  Defendants shall file an activity report upon payment of 
 
         this award as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
         
 
         
 
              Signed and filed this 9th day of September, 1987.
 
         
 
         
 
         
 
         
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Harry H. Smith
 
         Attorney at Law
 
         632-640 Badgerow Bldg.
 
         P. 0. Box 1194
 
         Sioux City, Iowa  51102
 
         
 
         Mr. Thomas M. Plaza
 
         Attorney at Law
 
         200 Home Federal Bldg.
 
         P. 0. Box 386
 
         Sioux City, Iowa 51102
 
 
 
 
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                  2209
 
                                                  Filed September 9, 1987
 
                                                  LARRY P. WALSHIRE
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         SUZANNE BLUME f/k/a SUZANNE
 
         LENZ f/k/a SUZANNE LITTLE,
 
                                              FILE NOS. 653710 & 719256
 
              Claimant,
 
                                                A R B I T R A T I 0 N
 
         VS.
 
                                                       A N D
 
         FARMLAND FOODS, INC.,
 
                                                    R E V I E W -
 
             Employer,
 
                                                 R E 0 P E N I N G
 
         and
 
                                                  D E C I S I 0 N
 
         AETNA CASUALTY & SURETY COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         2209
 
         
 
              Two alleged injury dates were found to be a part of the same 
 
         cumulative injury process from which claimant has suffered a 
 
         compensable permanent disability.  However, none of these alleged 
 
         injury dates were used to award benefits.  Claimant has not 
 
         permanently left her employment and the rule in McKeever could 
 
         not be strictly applied.  Therefore, the injury date utilized was 
 
         the most recent injury date which precipitated a temporary 
 
         absence from work which bore a relationship to the time when 
 
         claimant's primary physician first concluded that claimant has 
 
         permanent disability.
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         MARTIN WILLIAMS,      
 
                     
 
              Claimant,   
 
                     
 
         vs.         
 
                                            File No. 655174
 
         SKKI,       
 
                                            A P P E A L
 
              Employer,   
 
                                          D E C I S I O N
 
         and         
 
                     
 
         STATE FARM FIRE & CASUALTY      
 
         COMPANY,    
 
                     
 
              Insurance Carrier,    
 
              Defendants.      
 
         _________________________________________________________________
 
         The record, including the transcript of the hearing before the 
 
         deputy and all exhibits admitted into the record, has been 
 
         reviewed de novo on appeal.  The decision of the deputy filed 
 
         December 23, 1991 is affirmed and is adopted as the final agency 
 
         action in this case.
 
         
 
         Claimant shall pay the costs of the appeal, including the 
 
         preparation of the hearing transcript.
 
         Signed and filed this ____ day of October, 1992.
 
         
 
         
 
         
 
         
 
                                   ________________________________
 
                                          BYRON K. ORTON
 
                                     INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Michael L. Jankins
 
         Attorney at Law
 
         2323 Grand Ave.
 
         Des Moines, Iowa 50312
 
         
 
         Ms. Iris J. Post
 
         Mr. Thomas E. Leahy
 
         Attorneys at Law
 
         P.O. Box 10434
 
         Des Moines, Iowa 50306
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               9998
 
                                               Filed October 29, 1992
 
                                               Byron K. Orton
 
            
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                        
 
            MARTIN WILLIAMS,      
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                              File No. 655174
 
            SKKI,       
 
                                               A P P E A L
 
                 Employer,   
 
                                             D E C I S I O N
 
            and         
 
                        
 
            STATE FARM FIRE & CASUALTY      
 
            COMPANY,    
 
                        
 
                 Insurance Carrier,    
 
                 Defendants.      
 
            ____________________________________________________________
 
            
 
            9998
 
            
 
                 Summary affirmance of deputy's decision filed December 
 
            23, 1991.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            MARTIN WILLIAMS,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :         File No. 655174
 
                                          :
 
            SKKI,                         :          R E V I E W -
 
                                          :
 
                 Employer,                :        R E O P E N I N G
 
                                          :
 
            and                           :         D E C I S I O N
 
                                          :
 
            STATE FARM FIRE & CASUALTY    :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in review-reopening from an 
 
            agreement for settlement.  Martin Williams seeks additional 
 
            healing period and permanent partial disability based upon 
 
            an injury that occurred on October 29, 1980.  With regard to 
 
            the healing period issue, it was stipulated that additional 
 
            compensation was due but the dates of entitlement were 
 
            disputed.  It was further agreed by the parties that there 
 
            had been sufficient events to warrant review-reopening and 
 
            reconsideration of the degree of permanent partial 
 
            disability, but there was a dispute with regard to whether 
 
            or not additional permanent disability compensation is 
 
            payable.  Claimant seeks compensation for permanent total 
 
            disability and relies upon the odd-lot doctrine.
 
            
 
                 The case was heard at Des Moines, Iowa, on October 16, 
 
            1991.  The record in the case consists of exhibits 1 through 
 
            6 and 8 through 11.  Official notice was taken of the 
 
            pleadings and agreement for settlement which are contained 
 
            in the agency file.  The record also contains testimony from 
 
            Martin Williams, Linda Williams, Roger Marquardt and James 
 
            Coyle.
 
            
 
                     
 
            
 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            findings of fact
 
            
 
                 Having considered all the evidence received, together 
 
            with the appearance and demeanor of the witnesses, the 
 
            following findings of fact are made.
 
            
 
                 Martin Williams is a 39-year-old man who lives at 
 
            Clarinda, Iowa.  He is a 1971 high school graduate.  
 
            Following his graduation from high school, Martin worked 
 
            primarily in the telephone industry as a lineman and 
 
            installer.  The work involved climbing and carrying.  He 
 
            worked with telephone cable and switchboards.  He had worked 
 
            for SKKI for approximately one year at the time he was 
 
            injured.  The company installed cable television.  The work 
 
            involved climbing ladders, digging and handling 50 to 75 
 
            pound reels of cable.  Martin's injuries occurred when he 
 
            fell off a ladder in the process of installing cable TV 
 
            service to a customer.
 
            
 
                 Martin sustained severe injuries in the fall including 
 
            an injury to his left knee, a fracture of his left femur and 
 
            an injury to his left shoulder.  He has undergone surgical 
 
            procedures on all three of those parts of his body.  He 
 
            continues to complain of restrictions in his ability to use 
 
            his left shoulder.  He stated that his left knee will 
 
            occasionally go out and that he is restricted in his ability 
 
            to perform squatting and activities such as getting up and 
 
            down from kneeling or squatting.  He is unable to kneel on 
 
            his left knee without pain.
 
            
 
                 The fracture of Martin's left femur was surgically 
 
            repaired in a manner which included placing a metal nail in 
 
            his hip.  The hip became painful and, in 1987, the nail was 
 
            removed (exhibit 1, page 11).  The course of medical 
 
            treatment which led to the nail being surgically removed had 
 
            commenced on July 13, 1987 (exhibit 1, page 7).  Following 
 
            removal of the nail, it was estimated that recuperation from 
 
            the surgery would take nine months to a year.  On November 
 
            9, 1988, Ronald K. Miller, M.D., who has been claimant's 
 
            primary treating orthopaedic surgeon, authorized him to 
 
            perform some type of sitting work (exhibit 1, pages 14 and 
 
            15).  In a report dated March 24, 1989, Dr. Miller confirmed 
 
            that claimant's medical improvement had probably stabilized.
 
            
 
                 Several months later, on October 23, 1989, Martin 
 
            reentered into a course of treatment with Dr. Miller which 
 
            culminated in total hip replacement surgery being performed 
 
            on November 28, 1989 (exhibit 1, pages 17 and 21; exhibit 2, 
 
            page 12).  On March 24, 1990, Dr. Miller again released 
 
            claimant to perform sedentary work (exhibit 1, page 22).
 
            
 
                 Martin characterized his hip replacement surgery as 
 
            being excellent.  He stated that he no longer limps as much 
 
            as he did previously, though his level of pain is 
 
            essentially unchanged.
 
            
 
                 Martin stated that he still has trouble walking on 
 
            account of his hip.  He can tolerate walking five or six 
 
            blocks and then has to stop for five or ten minutes in order 
 
            to continue.  He complained of pain with squatting.  Martin 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            also related that his neck goes with certain movements and 
 
            he is unable to turn it from side to side without pain.  He 
 
            stated that his low back is also sore.  Martin attributed 
 
            his neck complaints to the 1980 accident.  Martin also 
 
            stated that he was unable to sit for more than one-half hour 
 
            to forty-five minutes or stand for a similar length of time 
 
            without needing to change positions.  He stated that he is 
 
            limited in his ability to go up and down stairs and that 
 
            jolts are a particular problem.  Climbing poles or ladders 
 
            bothers his hip.  He complained of difficulty dropping 
 
            things with his left hand.
 
            
 
                 Since being last released by Dr. Miller, Martin has 
 
            applied for work with Heritage Cablevision in Red Oak, Iowa, 
 
            but has not been hired.  He has been offered work operating 
 
            a backhoe and Ditch Witch for another company but has 
 
            declined to accept the employment.  He has other job leads 
 
            which have been provided to him through representatives of 
 
            Crawford & Company and the Iowa Department of Job Service, 
 
            but he has not followed up with those leads or gone to 
 
            interviews which were scheduled (exhibit 10).  Martin has 
 
            made inquiries about jobs with other companies in the 
 
            telephone and communications industry.
 
            
 
                 Martin prefers work in the telephone industry.  He does 
 
            not want to perform factory work or other work which is done 
 
            totally indoors.  He prefers to stay around the Clarinda, 
 
            Iowa, vicinity.
 
            
 
                 Martin has had a problem with drinking as well as 
 
            drinking and driving.  His driver's license has been 
 
            suspended on two occasions, one resulting from an October 
 
            18, 1989, accident and the other from an August 24, 1990, 
 
            arrest.  He currently has no valid driver's license.  In 
 
            December of 1990, he spent approximately 32 days in an 
 
            alcohol abuse program.  He continues to use alcohol on a 
 
            regular basis.
 
            
 
                 In the early 1980's, after initially recuperating from 
 
            his injuries, Martin attempted self-employment selling, 
 
            repairing and installing telephones.  He was not financially 
 
            successful.
 
            
 
                 In 1987, he was employed by Henkel & McCoy in the state 
 
            of Pennsylvania installing telephones in residential areas.  
 
            The job had lasted approximately six or eight months when 
 
            Martin was involved in a motor vehicle accident and 
 
            sustained a serious head injury.  CT scans showed a left 
 
            frontal cerebral hematoma (exhibit 5, pages 6 and 7).  He 
 
            was assessed as having a brain injury with right 
 
            hemiparesis.  He takes Dilantin to prevent seizures (exhibit 
 
            5, page 20).
 
            
 
                 Since undergoing hip replacement surgery, Martin worked 
 
            briefly in a switch room.  He stated that he was bumped out 
 
            of the position because he was slow and another person had 
 
            greater seniority.
 
            
 
                 Diagnostic testing has shown Martin to have 
 
            spondylolysis and a C5-6 disc herniation.  Neither condition 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            can be attributed, however, to the original 1980 injury 
 
            (exhibit 4, page 4).
 
            
 
                 In 1985, an evaluator from Crawford & Company found 
 
            Martin to be employable and capable of earning a salary in 
 
            the range of $5.68 to $13.80 per hour.  That assessment was 
 
            based upon activity restrictions including the ability to 
 
            lift 50 pounds and limited ability regarding overhead 
 
            lifting, pushing, pulling, climbing and carrying (exhibit 
 
            6).
 
            
 
                 Since recuperating from the hip replacement surgery, a 
 
            functional capacity evaluation was performed in early 1991 
 
            which showed Martin to be capable of performing medium work 
 
            (exhibit 10, last six pages).
 
            
 
                 Roger Marquardt, a qualified vocational consultant, 
 
            felt that claimant was employable only in a very select 
 
            number of positions, very few of which exist.  He had not 
 
            been able to actually locate any such position (transcript, 
 
            pages 18-24).  Marquardt felt that, with the closed head 
 
            injury residuals being considered, Martin was clearly 
 
            unemployable.  In making his assessment, Marquardt relied 
 
            upon Martin's physical capabilities as being limited to very 
 
            light or sedentary work in accordance with the statement 
 
            from Dr. Miller (transcript, pages 16 and 17).  Marquardt 
 
            attributed claimant's lack of motivation in seeking 
 
            employment to his closed head injury (transcript, pages 28 
 
            and 29).
 
            
 
                 It is found that Martin Williams does have significant 
 
            impairment and disability resulting from the October 29, 
 
            1980, injury when he fell from a ladder.  Those impairments 
 
            affect his left shoulder, left knee and left hip.  The 
 
            evidence does not show any of the problems in Martin's head, 
 
            neck or low back to be attributable, to any degree, to that 
 
            1980 injury.
 
            
 
                 The assessment of Martin's vocational capacity made by 
 
            Marquardt is not fully adopted since it is based upon a 
 
            statement from Dr. Miller which requires claimant to be 
 
            absolutely sedentary.  In his own testimony, Williams 
 
            acknowledged greater physical capacity than that indicated 
 
            by Dr. Miller.  Further, the functional capacity assessment 
 
            performed by Midwest Sports and Industrial Rehabilitation 
 
            Company in early 1991 objectively shows Williams to have the 
 
            ability to perform medium work.  From Martin's own 
 
            testimony, it appears as though the hip replacement surgery 
 
            has left him little, if any, more impaired than he was in 
 
            1985 when comparing his ability to engage in activities.  If 
 
            the head injury is considered, Williams is likely 
 
            unemployable in regular competitive employment.  If his 
 
            degree of disability is assessed assuming the head injury 
 
            had not occurred, then he would clearly be employable as 
 
            indicated in the 1985 vocational evaluation performed by 
 
            Crawford & Company (exhibit 6).
 
            
 
                 Under any reasonable scenario which has been presented, 
 
            it is apparent that Martin cannot resume the regular work of 
 
            a lineman which had been his career prior to the injury.  
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            When this case was originally settled, it was not known that 
 
            Martin would require surgery to remove the nail which was in 
 
            his femur or that he would eventually require total hip 
 
            replacement surgery.  When this case was settled, his left 
 
            hip was in fact in better condition than it is in currently.  
 
            While it might have been known that there was a risk of a 
 
            need for the surgeries which have now been performed, such 
 
            was not a certainty.  When all things are considered, the 
 
            artificial hip is not as useable as a hip in the condition 
 
            that Martin's hip was in during 1985.  It is pertinent to 
 
            note that he was able to resume work installing telephones 
 
            and lines in the state of Pennsylvania.
 
            
 
                 While the 65 percent permanent impairment rating 
 
            arrived at by Dr. Miller appears to exceed that which would 
 
            be determined under most objective rating plans (exhibit 1, 
 
            pages 24 and 25), Martin nevertheless is more impaired now 
 
            than he was in 1985 when he was rated as being 20 percent 
 
            impaired (exhibit 1, pages 4-6).  Bernard L. Kratochvil, 
 
            M.D., found Martin to currently be 28 percent impaired 
 
            (exhibit 9).  It is therefore determined that Martin 
 
            Williams has experienced a 50 percent reduction in his 
 
            earning capacity as a result of the October 29, 1980, 
 
            injury.
 
            
 
                                conclusions of law
 
            
 
                 Since the parties agreed that there had been sufficient 
 
            change of condition to warrant review-reopening and 
 
            reassessment of the degree of disability, that issue need 
 
            not be determined, though the stipulation certainly appears 
 
            correct from the evidence in the record.  There is no need 
 
            to show any particular change of condition in order to award 
 
            additional healing period compensation, other than the 
 
            occurrence of an event of disability which provides a basis 
 
            for payment of healing period compensation.  In this case, 
 
            claimant, under the agreement for settlement, was paid 
 
            permanent partial disability compensation ending June 28, 
 
            1986.  Nothing was therefore payable to him until the 
 
            healing period resumed on July 13, 1987.  That initial 
 
            healing period ran through November 9, 1988, a span of 69 
 
            and 3/7 weeks.  The healing period entitlement then resumed 
 
            commencing October 23, 1989, and ran through March 24, 1990, 
 
            a span of 21 and 6/7 weeks.
 
            
 
                 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.2d 899, 902 (1935) as follows: 
 
            "It is therefore plain that the legislature intended the 
 
            term `disability' to mean `industrial disability' or loss of 
 
            earning capacity and not a mere `functional disability' to 
 
            be computed in the terms of percentages of the total 
 
            physical and mental ability of a normal man."
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            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 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            he is fitted.  Olson v. Goodyear Service Stores, 255 Iowa 
 
            1112, 1121, 125 N.W.2d 251, 257 (1963).
 
            
 
                 Industrial disability or loss of earning capacity is a 
 
            concept tision since this is a proceeding in review-reopening 
 
            from a prior settlement.  Bousfield v. Sisters of Mercy, 249 
 
            Iowa 64, 86 N.W.2d 109 (1957).
 
            
 
                 The healing period and permanent partial disability 
 
            provided by this decision totals 166 and 2/7 weeks.  
 
            According to exhibit 8, defendants have previously paid 214 
 
            weeks of compensation benefits to the claimant commencing 
 
            September 9, 1987.  There is an overpayment in the amount of 
 
            47 and 5/7 weeks.  Claimant is therefore not entitled to any 
 
            additional recovery in this proceeding.
 
            
 
                                      order
 
            
 
                 IT IS THEREFORE ORDERED that claimant take nothing from 
 
            this proceeding as his entire entitlement has been 
 
            previously voluntarily paid by the employer and its 
 
            insurance carrier.
 
            
 
                 IT IS FURTHER ORDERED that the costs of this proceeding 
 
            are assessed against the claimant pursuant to rule 343 IAC 
 
            4.33.
 
            
 
                 Signed and filed this ______ day of ____________, 1991.
 
            
 
                 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Michael L. Jankins
 
            Attorney at Law
 
            2323 Grand Avenue
 
            Des Moines, Iowa  50312
 
            
 
            Mr. Thomas Leahy
 
            Attorney at Law
 
            2222 Grand Avenue
 
            P.O. Box 10434
 
            Des Moines, Iowa  50306
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               5-2905
 
                                               Filed December 23, 1991
 
                                               MICHAEL G. TRIER
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            MARTIN WILLIAMS,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :         File No. 655174
 
                                          :
 
            SKKI,                         :          R E V I E W -
 
                                          :
 
                 Employer,                :        R E O P E N I N G
 
                                          :
 
            and                           :         D E C I S I O N
 
                                          :
 
            STATE FARM FIRE & CASUALTY    :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
            5-2905
 
            Claimant's additional healing period and permanent partial 
 
            disability determined to be a lesser amount than that which 
 
            had been voluntarily paid by the employer and its insurance 
 
            carrier.  No additional recovery awarded.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         LEWIS E. JONES,
 
         
 
              Claimant,
 
                                                    File No. 655193
 
         VS.
 
         
 
         R. M. BOGGS COMPANY, INC.,                  A P P E A L
 
         
 
              Employer,                            D E C I S I 0 N
 
         
 
         and
 
         
 
         NORTHWESTERN NATIONAL
 
         INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Defendants appeal and claimant cross-appeals from a 
 
         review-reopening decision in which claimant was awarded permanent 
 
         total disability benefits.  The record on appeal consists of the 
 
         stipulations in the prehearing report; the transcript of the 
 
         review-reopening proceeding; and exhibits 1, 2, 3 (except pages 
 
         numbered 180-182), 4E, 4G, 5, 7, A through W, Y, Z and AA through 
 
         DD, GG, MM, NN, and 00.  Both parties filed briefs on appeal.  
 
         The deputy properly excluded exhibits 3 (pages number 180-182), 
 
         4(A), 4(B), 4(C), 4(D), 4(F), X, KK, and LL and they are not 
 
         considered upon appeal.
 
         
 
                                   ISSUES
 
         
 
              Defendants state the following issues on appeal:
 
         
 
              1.  The deputy erred in finding a causal connection between 
 
         claimant's injury and his current condition.
 
         
 
              2.  Claimant's industrial disability rating of 100 percent 
 
         is unsupported by the record evidence.
 
         
 
              3.  The deputy's rate calculation was in error.
 
         
 
              4.  The deputy erred in not allowing credit for past 
 
         payment.
 
         
 
              Claimant states the following issues on cross-appeal:
 
         
 
              1.  The deputy erred in excluding claimant's exhibit 3 
 
         regarding rate.
 
         
 
              2.  The deputy's rate calculation was in error.
 
         
 

 
         
 
         
 
         
 
         JONES V. R. M. BOGGS COMPANY, INC.
 
         Page   2
 
         
 
         
 
              3.  The deputy failed to award mileage.
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              The review-reopening decision adequately and accurately 
 
         reflects the pertinent evidence and it will not be fully set 
 
         forth herein.
 
         
 
              On November 13, 1980, while installing an air conditioning 
 
         coil in a furnace, claimant suddenly became dizzy and disoriented 
 
         and heard a loud roaring noise in his left ear.  Claimant sought 
 
         medical attention from the Department of Otolaryngology at the 
 
         University of Iowa Hospital and Clinics.  In December 1980, he 
 
         underwent surgery to correct a perilymph fistula in the left ear.  
 
         After a few weeks of recovery he returned to work.  He continued 
 
         to have periodic mild episodes of vertigo between 1981 and 1983.  
 
         After experiencing severe spinning, dysequilibrium, dizziness, 
 
         profuse sweating and vomiting in June 1983, he returned to 
 
         University Hospitals in July 1983.  A second surgery on a fistual 
 
         in the left ear followed.  He failed to improve and further 
 
         surgery for the destruction of the portion of the left inner ear 
 
         which controls balance was performed in December 1983.  The 
 
         vertigo spells subsided after the last surgery.  He has no 
 
         hearing in his left ear and residual dysequilibrium and poor 
 
         balance which do not enable him to move around very much without 
 
         tending to fall to the left side.  He becomes disoriented with a 
 
         startle reaction.  Roger A. Simpson, M.D., Bruce Haughey, M.D., 
 
         and Paul D. Nosal, M.D., have opined that the residual 
 
         dysequilibrium and hearing loss are probably related to the 
 
         events of November 13, 1980.  Dr. Nosal rates claimant's whole 
 
         person impairment at 56 percent of the body as a whole.  A 
 
         vocational rehabilitation specialist found claimant to be 90 to 
 
         100 percent vocationally impaired.
 
         
 
              Claimant worked forty or more hours for nine weeks out of a 
 
         forty-five week period prior to the work injury.  He worked 
 
         thirty-seven or more hours for thirteen weeks in the time period 
 
         May 28, 1980 through October 29, 1980.  The hourly rate for this 
 
         period of time was $14.25.  He was not paid for time off taken 
 
         due to illness, holidays, or vacations.  Employees of defendant 
 
         would usually work 40 hours per week.
 
         
 
              At time of the hearing claimant was 53 years of age and had 
 
         a ninth grade education but had recently received his GED.  In 
 
         the 1960's he successfully completed a correspondent course in 
 
         heating and air conditioning, and refrigeration repair and 
 
         maintenance.  He is also a licensed journeyman electrician and 
 
         plumber.  Prior to his heating and air conditioning work, he held 
 
         various unskilled and semi-skilled jobs such as a garage 
 
         mechanic, truck driver, door-to-door salesman, house mover, farm 
 
         helper, and military policeman.  Most of the jobs he held prior 
 
         to the work injury in this case required heavy lifting and 
 
         extensive standing or walking.
 
         
 
                                  APPLICABLE LAW
 
         
 
              The citations of law in the review-reopening decision are 
 
         appropriate to the issues and evidence except as they relate to 
 
         the issue of rate in this matter.
 

 
         
 
         
 
         
 
         JONES V. R. M. BOGGS COMPANY, INC.
 
         Page   3
 
         
 
         
 
         
 
              Briefs by the parties indicate agreement that rate is to be 
 
         calculated pursuant to Iowa Code subsection 85.36(6).  That 
 
         subsection provides a method to calculate the basis of 
 
         compensation for employees who are paid on an hourly basis and 
 
         have been employed for more than thirteen weeks at the time of 
 
         the injury.
 
         
 
              Iowa Code section 85.27 provides in part, that "the 
 
         employer, for all injuries compensable under this chapter or 
 
         chapter 85A, shall furnish reasonable surgical, medical, dental, 
 
         osteopathic, chiropractic, podiatrial, physical rehabilitation, 
 
         nursing, ambulance and hospital services and supplies therefor 
 
         and shall allow reasonable necessary transportation expenses 
 
         incurred for such services."
 
                                     ANALYSIS
 
         
 
              The filing of a memorandum of agreement conclusively 
 
         establishes the occurrence of an injury arising out of and in the 
 
         course of employment.  While some language in the 
 
         review-reopening decision might appear to indicate that the 
 
         memorandum of agreement also establishes a causal connection 
 
         between the injury and claimant's disability, the memorandum of 
 
         agreement does not establish the causal connection.  Claimant 
 
         must prove by a preponderance of the evidence a causal connection 
 
         between the work injury and his disability.  The physicians are 
 
         unanimous in their opinion that there is a direct link between 
 
         claimant's disability and the November 1980 injury.  Claimant has 
 
         clearly established by a preponderance of the evidence that he 
 
         suffered a permanent impairment to his body as a whole from the 
 
         injury.
 
         
 
              Claimant's primary treating physician at University of Iowa 
 
         Hospitals has given claimant an impairment rating of 56 percent 
 
         and has described a condition that prevents claimant from doing 
 
         anything other than sedentary work in an isolated environment.  
 
         He has no significant training for such work and successful 
 
         vocational rehabilitation is unlikely.  Permanent disability 
 
         benefits should begin as of June 28, 1983, the day after his last 
 
         day he worked for defendant or anyone else.  Because it is 
 
         determined that claimant has suffered a 100 percent loss in 
 
         earning capacity without the necessity of of changing the burden 
 
         of proof, it is unnecessary in this case to determine if he is an 
 
         odd-lot employee.
 
         
 
              The rate for hourly employees such as claimant is computed 
 
         under Iowa Code subsection 85.36(6) using representative weeks.  
 
         Overtime work is included but only at the normal hourly rate.  
 
         Representative weeks are weeks in which there was no use of sick 
 
         leave or vacation time.  Representative weeks in this case must 
 
         mean weeks where there was no substantial use of sick leave or 
 
         vacation time.  There were only approximately nine weeks out of a 
 
         forty-five weeks period prior to the work injury in which 
 
         claimant did not use some sick leave or vacation time.  
 
         Therefore, those thirteen weeks which claimant worked 
 
         thirty-seven or more hours would be the proper representative 
 
         weeks.
 
         
 
              One other matter should be noted.  In the review-reopening 
 

 
         
 
         
 
         
 
         JONES V. R. M. BOGGS COMPANY, INC.
 
         Page   4
 
         
 
         
 
         decision it was ordered that defendants pay for both a report 
 
         from and expert witness fee for Marion Jacobs.  Cost may be taxed 
 
         either for either the report or the expert witness fee but not 
 
         both because to tax both as costs would be taxing for cumulative 
 
         evidence.  In this case the cost to be taxed will be $150 for the 
 
         expert witness fee.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Claimant is a credible witness.
 
         
 
              2.  Claimant was in the employ of defendant at all times 
 
         material herein.
 
         
 
              3.  Claimant's job on November 13, 1980 consisted of the 
 
         installation, maintenance, and repair of heating and air 
 
         conditioning equipment along with necessary plumbing and 
 
         electrician work.
 
         
 
              4.  On November 13, 1980, while performing his work for 
 
         defendant, claimant injured his left ear which resulted in 
 
         immediate hearing loss, tinnitus, and vertigo.
 
         
 
              5.  As a result of the work injury, claimant underwent a 
 
         surgical operation in December 1980 to plug the fistula hole with 
 
         fat material.
 
         
 
              6.  Subsequent to the December 1980 surgery, claimant 
 
         returned to work in January 1981 and except for his hearing loss 
 
         his vertigo symptoms diminished.
 
         
 
              7.  Between January 1981 and June 1983, claimant had 
 
         recurrent episodes of mild dizziness which lasted several 
 
         minutes.
 
         
 
              8.  Beginning in June 1983, claimant began to develop severe 
 
         episodes of vertigo and nausea from a recurrence of the November 
 
         1980 fistula.
 
         
 
              9.  In July 1983, another surgery was performed on 
 
         claimant's left ear to patch the recurrent fistula with more fat 
 
         material but claimant's symptoms did not subside after this 
 
         procedure.
 
         
 
             10. As a result of the recurrent fistula in September 1983, 
 
         claimant underwent a surgical procedure termed a destructive 
 
         labyrinthectomy which permanently destroyed parts of the left 
 
         inner ear and resulted in a total hearing loss in that ear.
 
         
 
             11  The September 1983 surgery ended the spontaneous episodes 
 
         of vertigo but claimant still has permanent residual 
 
         dysequilibrium as a result of the 1980 work injury.
 
         
 
             12. As a result of the November 1980 work injury and residual 
 
         dysequilibrium, claimant is unable to walk or stand without 
 
         grasping a firm object and becomes disoriented upon movement of 
 
         objects around him and after being startled with sudden noises.
 
         
 
             13. Claimant had no episodes of vertigo, dizziness, hearing 
 

 
         
 
         
 
         
 
         JONES V. R. M. BOGGS COMPANY, INC.
 
         Page   5
 
         
 
         
 
         loss, or disorientation caused by sudden noises before the work 
 
         injury of November 13, 1980.
 
         
 
             14. Prior to November 1980, claimant had numerous physical 
 
         problems including high blood pressure, obesity, and back pain.
 
         
 
             15. After the work injury, claimant was diagnosed as diabetic 
 
         and suffering from a peripheral neuropathy unrelated to the work 
 
         injury herein.
 
         
 
             16. Prior to the work injury, claimant had no physical 
 
         impairments or ascertainable disabilities.
 
         
 
             17. Prior to the work injury, claimant was able to fully 
 
         perform his work at defendant.
 
         
 
             18. As a result of the work injury, claimant is unable to 
 
         perform strenuous work, extensive climbing, or heavy lifting.
 
         
 
             19. As a result of the work injury herein, claimant is unable 
 
         to return to heating and air condition work or any other work for 
 
         which claimant is best suited given his past experience and 
 
         training.
 
         
 
             20. As a result of the work injury herein, claimant is unable 
 
         to move about freely and is confined to a wheelchair.
 
         
 
              21. Claimant is able to drive an automobile at the present 
 
         time but such driving is unsafe given his tendency to have 
 
         episodes of vertigo from movement of vehicles around him.
 
         
 
              22. Claimant's work history consists of regular gainful 
 
         employment in the type of work he can no longer perform.
 
         
 
              23. Claimant has suffered a loss in actual earnings from 
 
         employment due to his work injury.
 
         
 
              24. Claimant is motivated to find suitable alternative 
 
         employment but it is unlikely that claimant will ever find such 
 
         employment.
 
         
 
              25. Claimant was born August 28, 1932 and was 53 years of 
 
         age at the time of the review-reopening hearing.  Claimant has a 
 
         GED.
 
         
 
              26. Claimant has above average intelligence.
 
         
 
              27. Claimant has very low potential for successful 
 
         vocational rehabilitation.
 
         
 
              28. As a result of the work injury, claimant has suffered a 
 
         total loss of earning capacity.
 
         
 
              29. Claimant has not been employed in any capacity since 
 
         June 27, 1983 due to his work injury herein.
 
         
 
              30. According to the parties' stipulation, at the time of 
 
         the work injury herein, claimant was married and entitled to five 
 
         exemptions.
 

 
         
 
         
 
         
 
         JONES V. R. M. BOGGS COMPANY, INC.
 
         Page   6
 
         
 
         
 
         
 
              31. Claimant worked the following representative weeks and 
 
         his gross earnings corresponding to those weeks are:
 
         
 
              Payroll Period       Number of       Amount of
 
              Ending (1980)          Hours          Earnings
 
         
 
                10-29                38.5          $  548.63
 
                10-22                37.5             534.38
 
                10-08                39.5             562.88
 
                09-24                41.0             584.25
 
                09-17                41.0             584.25
 
                09-10                40.0             570.00
 
                08-13                37.0             527.25
 
                08-06                41.0             584.25
 
                07-30                40.0             570.00
 
                07-16                37.0             527.25
 
                07-02                41.5             591.38
 
                06-11                40.5             577.13
 
                06-04                43.0             612.74
 
         
 
         
 
              32. Claimant was earning $14.25 per hour during this period 
 
         of time.
 
         
 
              33. Claimant's gross weekly earnings at the time of the work 
 
         injury were $567.26 per week.
 
         
 

 
         
 
         
 
         
 
         JONES V. R. M. BOGGS COMPANY, INC.
 
         Page   7
 
         
 
         
 
              34. Claimant's rate of weekly compensation is $325.30.
 
         
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant has established by a preponderance of the evidence 
 
         that the injury of November 13, 1980 is a cause of permanent 
 
         disability.
 
         
 
              Claimant has established by a preponderance of the evidence 
 
         entitlement to permanent total disability benefits from June 28, 
 
         1983 at the rate of three hundred twenty-five and 30/100 dollars 
 
         ($325.30) per week.
 
         
 
              Claimant is entitled to mileage expenses.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed in part 
 
         and modified in part.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That defendants shall pay to claimant permanent partial 
 
         disability benefits during the period of his disability at the 
 
         rate of three hundred twenty-five and 30/100 dollars ($325.30) 
 
         per week from June 28, 1983.
 
         
 
              That defendants shall pay accrued weekly benefits in a lump 
 
         sum and shall receive credit against this award for all weekly 
 
         benefits paid after the date of June 28, 1983 and benefits 
 
         previously paid for permanent partial disability.
 
         
 
              That defendants shall pay mileage expenses of one hundred 
 
         eight dollars ($108).
 
         
 
              That defendants shall pay interest on all benefits awarded 
 
         herein as set forth in Iowa Code section 85.30.
 
         
 
              That defendants shall pay the costs of this action including 
 
         the costs of the transcription of the review-reopening hearing 
 
         pursuant to Division of Industrial Services Rule 343-4.33. 
 
         Specifically, the following costs are taxed against defendants.
 
         
 
               Reporter and transcript for the
 
                  deposition of R.M. Boggs                $ 55.00
 
         
 
               Paul Nosal, M.D., report                    150.00
 
         
 
               Expert witness fee for Marion Jacobs        150.00
 
         
 
              That defendants shall file activity reports as requested by 
 
         this agency pursuant to Division of Industrial Services Rule 
 
         343-3.1.
 
         
 
              That the matter shall be set back into assignment for a 
 
         prehearing and hearing on claimant's application for penalty 
 
         benefits under Iowa Code section 86.13.
 
         
 

 
         
 
         
 
         
 
         JONES V. R. M. BOGGS COMPANY, INC.
 
         Page   8
 
         
 
         
 
         
 
              Signed and filed this 29th day of June, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                                 DAVID E. LINQUIST
 
                                                 INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. John Broz
 
         Attorney at  Law
 
         630 Higley Bldg.
 
         Cedar Rapids, Iowa 52401
 
         
 
         Mr. Roger L. Ferris
 
         Attorney at  Law
 
         1900 Hub Tower
 
         699 Walnut
 
         Des Moines, Iowa 50309
 
         
 
         Mr. Richard C. Garberson
 
         Attorney at  Law
 
         500 MNB Building
 
         P.O. Box 2107
 
         Cedar Rapids, Iowa 52406
 
         
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                    1804-2907-3001
 
                                                    Filed June 29, 1988
 
                                                    DAVID E. LINQUIST
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         LEWIS E. JONES,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                                   File No. 655193
 
         R. M. BOGGS COMPANY, INC.,
 
                                                     A P P E A L
 
              Employer,
 
                                                   D E C I S I 0 N
 
         and
 
         
 
         NORTHWESTERN NATIONAL
 
         INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         1804
 
         
 
              Claimant awarded permanent total disability for an injury
 
         to his left ear which caused severe vertigo.  Following a 
 
         surgical procedure which destroyed parts of the left inner ear 
 
         the spontaneous episodes of vertigo ended but claimant had 
 
         permanent residual disequilibrium.  Claimant is unable to walk or 
 
         stand without grasping a firm object and becomes disoriented upon 
 
         movement of objects around him and after being startled with 
 
         sudden noises, claimant is unable to return to prior work or any 
 
         other work for which he is best suited.  Claimant was determined 
 
         to be permanently and totally disabled and it was unnecessary to 
 
         consider whether claimant was an odd-lot employee.
 
         
 
         2907
 
         
 
              Either a practitioner's report or testimony of the 
 
         practitioner but not both can be taxed as costs.  In this case 
 
         the  $150 for the expert witness fees were the only costs 
 
         relating to the practitioner that were taxed as costs.
 
         
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         LEWIS E. JONES,
 
         
 
              Claimant,
 
                                                     File No. 655193
 
         VS.
 
                                                        0 R D E R
 
         R. M. BOGGS COMPANY, INC.,
 
                                                         N U N C
 
              Employer,
 
                                                          P R 0
 
         and
 
                                                         T U N C
 
         
 
         NORTHWESTERN NATIONAL
 
         INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         
 
              The appeal decision filed June 29, 1988 contains certain 
 
         errors that claimant has requested be corrected in his 
 
         application for rehearing filed July 14, 1988.  The errors are 
 
         corrected by me and of this order and the application for 
 
         rehearing is accordingly herein denied.  Findings of Fact numbers 
 
         10 and 11 are corrected to read:
 
         
 
                 10.  As a result of the recurrent fistula in 
 
              December 1983, claimant underwent a surgical procedure 
 
              termed a destructive labyrinthectomy which permanently 
 
              destroyed parts of the left inner ear and resulted in a 
 
              total hearing loss in that ear.
 
         
 
                 11.  The December 1983 surgery ended the spontaneous 
 
              episodes of vertigo but claimant still has permanent 
 
              residual dysequilibrium as a result of the 1980 work 
 
              injury.
 
         
 
              The first paragraph of the order is corrected to read:
 
         
 
                 That defendants shall pay to claimant permanent total 
 
              disability benefits during the period of his disability at 
 
              the rate of three hundred twenty-five and 30/100 dollars 
 
              ($325.30) per week from June 28, 1983.
 
         
 
             
 
               Signed and filed this 20th day of July, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                                  DAVID E. LINQUIST
 

 
                                                  INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         Copies To:
 
         
 
         Mr. John Broz
 
         Attorney at Law
 
         630 Higley Bldg.
 
         Cedar Rapids, Iowa 52401
 
         
 
         Mr. Roger L. Ferris
 
         Attorney at Law
 
         1900 Hub Tower
 
         699 Walnut
 
         Des Moines, Iowa 50309
 
         
 
         Mr. Richard C. Garberson
 
         Attorney at Law
 
         500 MNB Building
 
         P.O. Box 2107
 
         Cedar Rapids, Iowa 52406
 
         
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            GLEN GRIMM,                   :
 
                                          :         File No. 655540
 
                 Claimant,                :
 
                                          :          R E V I E W -
 
            vs.                           :
 
                                          :        R E O P E N I N G
 
            WEYERHAEUSER COMPANY,         :
 
                                          :         D E C I S I O N
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in review-reopening from a 
 
            memorandum of agreement brought by Glen Grimm against 
 
            Weyerhaeuser Company, his former employer, based upon an 
 
            injury that occurred on October 21, 1980.  Claimant seeks 
 
            compensation for permanent total disability.  In the event 
 
            he is awarded permanent partial disability, he seeks healing 
 
            period compensation running until December 15, 1983 with 
 
            permanent partial disability compensation to follow the 
 
            healing period.
 
            
 
                 The primary issues to be determined are claimant's 
 
            entitlement to compensation for healing period, permanent 
 
            partial or permanent total disability.  The employer 
 
            contends that it has overpaid healing period and seeks 
 
            credit for the overpayment as well as credit for the excess 
 
            of $5.22 per week which was erroneously paid when benefits 
 
            were paid to claimant.
 
            
 
                 The case was heard and fully submitted at Cedar Rapids, 
 
            Iowa on April 5, 1990.  The record in the proceeding 
 
            consists of jointly offered exhibits 1 through 40, 
 
            claimant's exhibits 41, 42 and 43, and testimony from Glen 
 
            R. Grimm, Bettyjoy Ranard and Carma Mitchell.
 
            
 
                                 findings of fact
 
            
 
                 Having considered all the evidence received, together 
 
            with the appearance and demeanor of the witnesses, the 
 
            following findings of fact are made.
 
            
 
                 Glen R. Grimm is not a credible witness.  His 
 
            description of his symptoms, complaints, abilities and 
 
            limitations is not reliable.  Bettyjoy Ranard holds a great 
 
            deal of animosity towards Glen R. Grimm.  Her testimony is 
 
            likewise unreliable.  There are some matters in which they 
 
            seem to agree and, where they are in agreement, that portion 
 
            of their testimony is found to be accurate.  Photographs 1 
 
            through 6 which show claimant carrying a wooden cupboard 
 
            type of furniture were taken after their divorce in 1985.  
 
            Claimant did travel to Florida in 1984.  Claimant did, 
 
            subsequent to his third surgery, travel about with his 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            brother who is an over-the-road truck driver.  Claimant has 
 
            a chauffeur's license, yet in a statement dated October 8, 
 
            1985, he represented that he had never driven a truck in his 
 
            life (exhibit 34).  Claimant's denial of having even gone to 
 
            Florida subsequent to 1980 seriously damages his credibility 
 
            (exhibit 41, pages 45-47).  His testimony of inability to 
 
            drive for more than a few minutes in a vehicle is 
 
            irreconcilable with the fact of making the trip in 1984 and 
 
            making a subsequent trip to Georgia and part of Florida in 
 
            1990, shortly prior to the date of hearing.  Claimant's 
 
            travel with his brother over the road in a semi is likewise 
 
            irreconcilable with his testimony regarding his lack of 
 
            ability to drive in a vehicle.  Claimant demonstrated an 
 
            ability to sit, to move about, to twist to remove his wallet 
 
            from his rear pants pocket and to bend over to open the gate 
 
            in a railing which separates different parts of the 
 
            courtroom, all without any indication of physical 
 
            restriction, limitation or discomfort.  Bettyjoy's animosity 
 
            is clearly evidenced by her conduct in reporting his alleged 
 
            truck driving activities to Social Security, reporting his 
 
            divorce settlement to the child support recovery unit, 
 
            photographing his actions in moving the cupboard following 
 
            their divorce, and providing evidence voluntarily in this 
 
            case.  While these things do not necessarily make her 
 
            testimony untruthful, they do indicate a very high degree of 
 
            animosity which detracts somewhat from the credibility of 
 
            the evidence.
 
            
 
                 While claimant cannot be relied upon when describing 
 
            his symptoms, complaints and limitations, that lack of 
 
            trustworthiness does not mean that he cannot be disabled or 
 
            have a bona fide physical affliction.  Many of the facts as 
 
            set out in claimant's brief are well supported by the 
 
            evidence and are included in the findings made herein.
 
            
 
                 The claimant, Glen Grimm, is now 53 years old.  He was 
 
            44 years of age on October 21, 1980, when he injured his 
 
            back when employed as a forklift driver for the Weyerhaeuser 
 
            Company.  He made $7.35 per hour when he last worked in 1980 
 
            (exhibit 31, page 222).  After his back injury, William John 
 
            Robb, M.D., of Cedar Rapids, Iowa, performed back surgeries 
 
            on him in 1981, 1982 and again in 1983.  His healing period 
 
            lasted more than three years.  He has been through three 
 
            operations, physical therapy and the Pain Clinic at Mercy 
 
            Hospital in Des Moines, Iowa.  His employer refused to allow 
 
            him to return to work.  He has been receiving Social 
 
            Security disability benefits for about six years.
 
            
 
                 Glen Grimm grew up on a farm in the What Cheer area of 
 
            Iowa.  He claims that he graduated from high school, but 
 
            only completed the tenth grade [as established by his mother 
 
            (exhibit 42, page 20)].
 
            
 
                 Claimant did farm work for a number of years and then 
 
            went to Cedar Rapids, Iowa and worked at Dearborn Brass for 
 
            11 years as a forklift driver.  That plant closed and he was 
 
            able to secure employment at the Weyerhaeuser Company.  It 
 
            was while he was working as a forklift driver for the 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            Weyerhaeuser Company on October 21, 1980 that he suffered 
 
            the back injury that is the subject of this claim.  He had 
 
            some prior problems with his back, both lower back, mid-back 
 
            and the neck area, in the late 1960's and again in 1972 and 
 
            1975.  However, after each of those spells he was able to 
 
            return to work.  When he was hired by the Weyerhaeuser 
 
            Company in 1979, he was given a physical examination and was 
 
            found to have no restrictions (physical examination record 
 
            dated October 9, 1979).
 
            
 
                 After claimant suffered his injury on October 21, 1980 
 
            as a result of lifting and twisting with 25-pound boxes, he 
 
            came under the care of Dr. Robb.  Dr. Robb first tried 
 
            conservative treatment.  Claimant was hospitalized at 
 
            bed-rest and was given traction and injections (exhibit 29, 
 
            page 105).  A lumbar myelogram was performed on January 15, 
 
            1981 (exhibit 29, page 41).  A CT scan was also performed 
 
            (exhibit 29, page 96).  On April 13, 1981, Dr. Robb 
 
            performed the first surgery on claimant's lower back 
 
            (exhibit 29, pages 98, 100-101, 162-163 and 262-264; exhibit 
 
            24, page 4).  Dr. Robb performed a laminectomy for 
 
            instability of the posterior arch at the back of the 
 
            vertebra at L-5.  He removed the loose portion of the 
 
            vertebra and inserted a bone graft, which came from the back 
 
            of claimant's pelvis, from L4 to S1, in order to provide 
 
            stability for the spine (exhibit 24, pages 4-5).
 
            
 
                 Claimant did not improve after his first surgery.  
 
            Eventually, a tomogram was done on January 6, 1982 and a 
 
            repeat CT scan was performed on February 4, 1982.  As it 
 
            turned out, there had not been a solid fusion of the bone in 
 
            his lower spine and that created instability and pain.  A 
 
            decision was made to reoperate (exhibit 29, page 181; 
 
            exhibit 24, pages 5-6).
 
            
 
                 Claimant's second back surgery was performed on 
 
            February 15, 1982 (exhibit 29, pages 198-199 and 259-261; 
 
            exhibit 24, page 5).
 
            
 
                 In the second back surgery, Dr. Robb exposed the 
 
            previous operative site, explored the graft and found that 
 
            it was not solid (exhibit 24, page 5).  This occurs 20 
 
            percent of the time when a two-level fusion is attempted 
 
            (exhibit 24, pages 6-7).  He then obtained more bone from 
 
            the donor site as before for the new graft (exhibit 24, 
 
            pages 5-7).
 
            
 
                 Dr. Robb also used an orthofuse during the second 
 
            surgery to accelerate the union of the grafts (exhibit 31, 
 
            page 127; exhibit 24, pages 6 and 8).
 
            
 
                 After his second back surgery, claimant continued to 
 
            have difficulty.  In August of 1982, x-rays were done which 
 
            showed that the graft was healing, but that it was not yet 
 
            solid (exhibit 29, page 258).  Another CT scan performed in 
 
            November of 1982 showed postoperative changes, a bulging 
 
            L5-S1 disc, an intact bony fusion with some non-union of 
 
            segments of the two grafts to each other and scar tissue 
 
            (exhibit 29, page 254).  Dr. Robb thought he might need to 
 
            do a third fusion (exhibit 29, pages 259 and 313).
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
                 Claimant's third back operation was performed on 
 
            January 24, 1983 (exhibit 29, pages 313 and 318).  In his 
 
            deposition, Dr. Robb testified that the surgery simply 
 
            involved removal of the orthofuse.  In fact, Dr. Robb did 
 
            more.  He also removed some additional bone in the spine 
 
            (exhibit 24, page 9).
 
            
 
                 During that third surgery, Dr. Robb observed that there 
 
            was quite a bit of scar tissue present over the bone on top 
 
            of the fusion.  He explained that the amount of scar tissue 
 
            depends upon the amount of muscle damaged or removed and the 
 
            number of surgical procedures that are done (exhibit 24, 
 
            pages 9-10).  A person who has had three procedures is more 
 
            likely to have more scar tissue than one who has had one or 
 
            two (exhibit 24, pages 10-11).  In a letter to the lawyer 
 
            for the company dated April 5, 1983, Dr. Robb wrote the 
 
            following:  "There was a great deal of scar tissue, a 
 
            substantial portion of which had replaced normal 
 
            musculature.  This in turn would explain some of the lack of 
 
            mobility of his spine and also the soreness in attempted 
 
            mobility."  (Exhibit 31, page 166)
 
            
 
                 Dr. Robb was repeatedly adamant in his opinion that 
 
            claimant demonstrated no impairment prior to his October 21, 
 
            1980 injury and that the three surgeries were caused by the 
 
            injury on that date, which was an aggravation of his 
 
            preexisting non-symptomatic spondylolysis (exhibit 29, page 
 
            42; exhibit 31, pages 79, 81, 87, 137, 157 and 166; exhibit 
 
            24, pages 13 and 24).
 
            
 
                 Between surgeries and continuing after his third 
 
            surgery, claimant had physical therapy because he continued 
 
            to experience pain and lack of mobility (exhibit 31, pages 
 
            101-106).  In his letter of December 16, 1983, Dr. Robb 
 
            reported that he had seen claimant the previous day and he 
 
            felt he had reached his maximum improvement (exhibit 31, 
 
            pages 169-198).  The doctor noted that claimant would be 
 
            restricted to work that did not require him to stand or sit 
 
            for more than an hour and a half.  Dr. Robb restricted 
 
            claimant from doing any work which required stooping, 
 
            bending or lifting of more than 20 pounds.  The doctor 
 
            stated claimant would not be able to return to his previous 
 
            occupation, suggested he seek reeducation and rated him as 
 
            having a 35 percent impairment of his back.
 
            
 
                 The adjusting company for the employer had notified Dr. 
 
            Robb that "[m]ost of the jobs at Weyerhaeuser entale [sic] a 
 
            certain amount of bending and stooping with lifting in the 
 
            area of 50 pounds and up."  (Exhibit 31, page 115)  
 
            Weyerhaeuser never offered claimant another job.
 
            
 
                 It was then recommended that claimant attend a 
 
            four-week program at the Pain Clinic at Mercy Hospital in 
 
            Des Moines.  The Pain Clinic schedule included four weeks of 
 
            water exercises, stretching exercise, bike and treadmill 
 
            work, physical therapy and classes in nutrition, relaxation 
 
            techniques and stress management (exhibit 29, page 333).  
 
            Claimant attended the Pain Clinic from March 19 until April 
 
            6, 1984 (exhibit 29, page 345).  James L. Blessman, M.D., 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            director of the Pain Clinic, noted that claimant had 
 
            multiple symptoms of depression, specifically sleep and 
 
            sexual dysfunction (exhibit 29, page 392).  He thought the 
 
            sexual dysfunction was most likely secondary to depression 
 
            and his chronic pain (exhibit 29, page 399).
 
            
 
                 While at the Pain Clinic, Dr. Blessman asked for a 
 
            vocational consultation by Pat Weigel.  Weigel reported that 
 
            claimant seemed to have made an attitudinal turnaround 
 
            during his time at the Pain Clinic and had become enthused 
 
            and optimistic (exhibit 29, page 374).  She reported that 
 
            claimant did want to return to work, but in her opinion, he 
 
            was in need of vocational and job seeking skills training 
 
            (exhibit 29, page 374).
 
            
 
                 In his discharge summary from the Pain Clinic, Dr. 
 
            Blessman noted that he had prescribed Elavil for claimant's 
 
            depression and stated, "At his advanced age of 47 and 
 
            multiple surgeries on his back, it is going to be very 
 
            difficult to return him to work."  (Exhibit 29, pages 392 
 
            and 393).  Dr. Blessman completed a functional capacities 
 
            form on June 4, 1984 and gave his opinion that claimant was 
 
            unable to work at that time (exhibit 29, pages 400 and 401).
 
            
 
                 At about that time, claimant applied for and was 
 
            awarded Social Security disability benefits (exhibit 34).  
 
            He has continued to receive Social Security disability 
 
            benefits since that time.  Claimant has not worked since 
 
            1980.  He testified that he has constant pain and that he 
 
            limits his activities these days to little more than 
 
            watching television.
 
            
 
                 Dr. Robb subsequently reduced his impairment rating 
 
            from 35 percent to 5 percent.  He justified the reduction by 
 
            stating that he had relied heavily on claimant's complaints 
 
            and statements when making the initial rating (exhibit 32; 
 
            exhibit 24, page 12).  On June 31, 1989, Dr. Robb assigned a 
 
            10 percent permanent impairment rating (exhibit 39).  When 
 
            deposed prior to hearing, Dr. Robb stated that claimant 
 
            could lift 75-100 pounds a few times each hour and could 
 
            lift 50 pounds repetitively.  He felt that claimant had an 
 
            excellent result from his surgical procedure (exhibit 24, 
 
            pages 12, 18 and 19).
 
            
 
                 James W. Turner, M.D., examined claimant on February 3, 
 
            1988.  He rated claimant as having a 20 percent permanent 
 
            impairment and indicated that he would have significant 
 
            limitations in bending, lifting, prolonged standing or 
 
            sitting (exhibit 31, pages 205 and 206).
 
            
 
                 Warren Verdeck, M.D., prepared an estimated functional 
 
            capacity assessment of the claimant.  It shows very 
 
            substantial limitations (exhibit 31, pages 211-213).  Thomas 
 
            B. Summers, M.D., diagnosed claimant as having failed lumbar 
 
            laminectomy syndrome.  He assigned a 15-20 percent permanent 
 
            impairment rating (exhibit 31, pages 242-246).  Anne Voigts, 
 
            M.D., indicated in 1983 that claimant would have a problem 
 
            with moderate to vigorous physical activities and increased 
 
            discomfort with even mild physical activity (exhibit 31, 
 
            pages 249-251).
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
                 Claimant was evaluated by clinical psychologist Van C. 
 
            Owens.  Owens found claimant to have a passive dependent 
 
            underlying personality with hypochondriacal tendencies.  He 
 
            stated that claimant was a person who did not deal well with 
 
            stress, would try to avoid the stress of working, is not 
 
            motivated to return to work and actively misrepresented in 
 
            order to avoid returning to work (exhibit 25, pages 27-33, 
 
            50-53, 59 and 60; exhibit 31, pages 220-226).  Owens 
 
            reported that there was only a slight chance of returning 
 
            claimant to work.  He evaluated claimant as testing in the 
 
            low average range for intellectual functioning (exhibit 25, 
 
            pages 20 and 47-49).
 
            
 
                 The fact of claimant's injury and fusion surgery is 
 
            well documented in the evidence and is not affected by his 
 
            lack of credibility.  It is only his description of his 
 
            symptoms that is compromised.  In view of claimant's lack of 
 
            credibility, the result from his surgeries is deemed to be 
 
            an average or normal result, rather than the extremely 
 
            unsuccessful result which would be indicated by claimant's 
 
            testimony regarding his condition.  It is found that 
 
            claimant's actual physical capacities are such that he is 
 
            probably capable of lifting 50 pounds a few times each hour 
 
            or of lifting lesser weights frequently.  The range of 
 
            motion of his back is restricted.  He likely experiences 
 
            discomfort which increases in proportion to increased 
 
            physical activities.  He quite possibly has a chronic low 
 
            level of discomfort regardless of his activity level.  
 
            Claimant is also not well suited for intellectual pursuits.  
 
            His employment opportunities are limited to light to medium 
 
            work which is semi-skilled or unskilled.
 
            
 
                 Claimant has not made any efforts to seek employment.
 
            
 
                 Claimant's ability to carry the cupboard, as depicted 
 
            in exhibits 1 through 6, does not strongly indicate the 
 
            ability to be gainfully employed.  The cupboard could weigh 
 
            as little as 50 pounds or as much as 100 pounds.  Claimant's 
 
            share of the weight would accordingly be as little as 25 
 
            pounds or as much as 50 pounds.  The record shows a one-time 
 
            event, not an ongoing course of conduct.  While the activity 
 
            shows claimant's capabilities to exceed what he has 
 
            personally described, they do not necessarily establish the 
 
            ability to be gainfully employed.
 
            
 
                 It is found that, when considering all the pertinent 
 
            factors of claimant's age, education, work experience, 
 
            actual physical condition and general qualifications for 
 
            employment, he experienced a 50 percent reduction in his 
 
            earning capacity as a result of the October 21, 1980 injury.
 
            
 
                 While there is evidence in the record to indicate that 
 
            claimant might have recovered sooner, the indication from 
 
            Dr. Robb of December 16, 1983 is the earliest medical 
 
            evidence showing that further recuperation was not 
 
            anticipated.
 
            
 
                    
 
            
 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            conclusions of law
 
            
 
                 There is no requirement to show a change of condition 
 
            when reopening from a memorandum of agreement.  Caterpillar 
 
            Tractor Co. v. Mejorado, 410 N.W.2d 675 (Iowa 1987).  Since 
 
            claimant's degree of disability has never been established 
 
            by a prior award or an agreement for settlement, there is no 
 
            change of condition requirement to be met in this case.
 
            
 
                 The injured employee is entitled to recover healing 
 
            period compensation until the earlier of his return to work, 
 
            recuperation to the extent that he is physically capable of 
 
            resuming the type of work in which he was engaged at the 
 
            time of injury, or when it is medically indicated that 
 
            further significant improvement from the injury is not 
 
            anticipated.  [Iowa Code section 85.34(1)]  The evidence 
 
            from Dr. Robb indicates that December 15, 1983 is the date 
 
            when it was medically indicated that further improvement was 
 
            not anticipated.  December 15, 1983 is therefore the end of 
 
            the healing period.  Thomas v. William Knudson & Son, Inc., 
 
            394 N.W.2d 124, 126 (Iowa App. 1984).  The correct legal 
 
            standard is that the healing period ends at the time the 
 
            physician determines that further improvement is not 
 
            anticipated.  It is not determined through hindsight by 
 
            looking back to the time at which improvement ceased.  This 
 
            entitles him to receive 155 and 6/7 weeks of healing period 
 
            compensation.
 
            
 
                 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.2d 899, 902 (1935) as follows: 
 
            "It is therefore plain that the legislature intended the 
 
            term `disability' to mean `industrial disability' or loss of 
 
            earning capacity and not a mere `functional disability' to 
 
            be computed in the terms of percentages of the total 
 
            physical and mental ability of a normal man."
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            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).
 
            
 
                 Industrial disability or loss of earning capacity is a 
 
            concept that is quite similar to impairment of earning 
 
            capacity, an element of damage in a tort case.  Impairment 
 
            of physical capacity creates an inference of lessened 
 
            earning capacity.  The basic element to be determined, 
 
            however, is the reduction in value of the general earning 
 
            capacity of the person, rather than the loss of wages or 
 
            earnings in a specific occupation.  Post-injury earnings 
 
            create a presumption of earning capacity.  The earnings are 
 
            not synonymous with earning capacity and the presumption may 
 
            be rebutted by evidence showing the earnings to be an 
 
            unreliable indicator.  Carradus v. Lange, 203 N.W.2d 565 
 
            (Iowa 1973); Holmquist v. Volkswagon of America, Inc., 261 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            N.W.2d 516 (Iowa App. 1977) A.L.R.3d 143; Michael v. 
 
            Harrison County, 34th Biennial Report, 218 (1979); 2 Larson 
 
            Workmen's Compensation Law, sections 57.21 and 57.31.
 
            
 
                 The most remarkable of the material factors in this 
 
            case are that claimant has been determined to have an 
 
            average or typical recovery and result from his surgeries, 
 
            that he lacks motivation to resume employment and is not 
 
            well suited to intellectual pursuits.  He is not a high 
 
            school graduate and his entire work history consists 
 
            primarily of unskilled or semi-skilled labor.  When all the 
 
            material factors of industrial disability are considered, it 
 
            is determined that Glen Grimm has a 50 percent permanent 
 
            partial disability which was proximately caused by the 
 
            October 21, 1980 injury.  This entitles him to recover 250 
 
            weeks of compensation for permanent partial disability 
 
            payable commencing December 16, 1983.  
 
            
 
                 The employer is entitled to credit for the $5.22 per 
 
            week of weekly compensation that was paid in excess of the 
 
            correct rate.
 
            
 
                 For computation purposes, claimant has been paid 269 
 
            and 1/7 weeks at the incorrect rate of $186.54 per week.  
 
            This totals $50,205.94.  The amount of payments reported on 
 
            the form 2A filed with this agency is slightly less, namely 
 
            $50,179.26.  It is that amount which is accepted as being 
 
            correct.  When divided by the correct rate of compensation, 
 
            it amounts to 276.744 weeks of compensation.  Claimant's 
 
            entitlement under this decision is 405.857 weeks.  The 
 
            difference which is therefore due to claimant is 129.113 
 
            weeks.
 
            
 
                                      order
 
            
 
                 IT IS THEREFORE ORDERED that Weyerhaeuser Company pay 
 
            Glen Grimm one hundred fifty-five and six-sevenths (155 6/7) 
 
            weeks of compensation for healing period at the rate of one 
 
            hundred eighty-one and 32/100 dollars ($181.32) per week 
 
            payable commencing October 22, 1980 and running through 
 
            December 15, 1983, except for the dates of from November 1, 
 
            1980 through November 13, 1980 and November 15, 1980 through 
 
            December 31, 1980.
 
            
 
                 IT IS FURTHER ORDERED that Weyerhaeuser Company pay 
 
            Glen Grimm two hundred fifty (250) weeks of compensation for 
 
            permanent partial disability at the rate of one hundred 
 
            eighty-one and 32/100 dollars ($181.32) per week payable 
 
            commencing December 16, 1983.
 
            
 
                 IT IS FURTHER ORDERED that the employer receive credit 
 
            for the amounts of weekly compensation previously paid which 
 
            is equivalent to two hundred seventy-six point seven four 
 
            four (276.744) weeks.  The remaining unpaid balance of the 
 
            award made in this case is accrued, past due and owing and 
 
            shall be paid to claimant in a lump sum together with 
 
            interest computed at the rate of ten percent (10%) per annum 
 
            from the date each payment came due until the date of actual 
 
            payment pursuant to Iowa Code section 85.30.
 
            
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
                 IT IS FURTHER ORDERED that the employer pay the costs 
 
            of this action pursuant to Division of Industrial Services 
 
            Rule 343-4.33.
 
            
 
                 IT IS FURTHER ORDERED that the employer file claim 
 
            activity reports as requested by this agency pursuant to 
 
            Division of Industrial Services Rule 343-3.1.
 
            
 
                 Signed and filed this ______ day of ____________, 1990.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Phillip Vonderhaar
 
            Attorney at Law
 
            840 Fifth Avenue
 
            Des Moines, Iowa  50309
 
            
 
            Mr. Richard C. Garberson
 
            Attorney at Law
 
            500 MNB Building
 
            P.O. Box 2107
 
            Cedar Rapids, Iowa  52406-2107
 
            
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               1402.40, 1802, 1803
 
                                               Filed August 27, 1990
 
                                               MICHAEL G. TRIER
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            GLEN GRIMM,                   :
 
                                          :         File No. 655540
 
                 Claimant,                :
 
                                          :          R E V I E W -
 
            vs.                           :
 
                                          :        R E O P E N I N G
 
            WEYERHAEUSER COMPANY,         :
 
                                          :         D E C I S I O N
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ____________________________________________________________
 
            
 
            1402.40, 1803
 
            Claimant, whose credibility was effectively destroyed, was 
 
            evaluated for disability as though he had a typical recovery 
 
            from his injury and surgery.  Claimant awarded 50 percent 
 
            permanent partial disability for two-level fusion back 
 
            surgery.
 
            
 
            1802
 
            Healing period ended at the time the physician stated that 
 
            further recovery was not anticipated, not at the time when 
 
            hindsight showed recovery to have ceased.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         CHARLES C. FULLERTON,
 
         
 
              Claimant,                               File No. 655819
 
         
 
                                                       R E V I E W -
 
         VS.
 
                                                     R E 0 P E N I N G
 
         CATERPILLAR TRACTOR COMPANY,
 
                                                      D E C I S I 0 N
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in review-reopening filed by 
 
         Caterpillar Tractor company, employer, against Charles C. 
 
         Fullerton, claimant, seeking a determination of whether claimant 
 
         established a change of condition in accordance with a district 
 
         court ruling dated December 19, 1984.
 
         
 
              The record consists of defendant's exhibits 1 and 2; 
 
         official notice of the appeal decision of Robert C. Landess, 
 
         industrial commissioner, dated March 21, 1984; and, the ruling of 
 
         the district court dated December 19, 1984.
 
         
 
                                      ISSUE
 
         
 
              The issue in this case is whether claimant needs to or has 
 
         shown a change of condition to support the appeal decision of 
 
         December 19, 1984.
 
         
 
                                EVIDENCE PRESENTED
 
         
 
              The evidence in exhibits 1 and 2 is the same as that 
 
         reviewed in the appeal decision of March 21, 1984.  That decision 
 
         is incorporated herein and relied upon for review of this 
 
         evidence.
 
         
 
              A review of the appeal decision discloses that the 
 
         commissioner found claimant to be thirty-seven and one-half 
 
         percent industrially disabled.  He further found that claimant 
 
         had been unable to continue the duties of his previous job and 
 
         that he had been laid off at work.
 
         
 
              The district court ruling deals primarily with the 
 
         construction of relevant statutes and analysis of case law 
 
         thereunder.  The district court affirmed the decision of the 
 
         industrial commissioner.
 
                           
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              The issue in this case is perhaps not understood by this 
 
         deputy.  It would appear, however, that defendant seeks a 
 
         redetermination of the legal issue of whether a change of 
 
         condition is necessary under the facts of this case; and, if so, 
 

 
         
 
         
 
         
 
         FULLERTON V. CATERPILLAR TRACTOR COMPANY
 
         Page   2
 
         
 
         
 
         whether the facts support such a change.  It is not clear just 
 
         how the district court resolved these issues.  It did, however, 
 
         affirm the industrial commissioner and it did so without any 
 
         remand for a specific finding on the issue of a change of 
 
         condition.  It is thus fair to assume that the court was 
 
         satisfied with the agency decision as written.  The issues, 
 
         whatever they may be, are res judicata.
 
         
 
              Defendant has not presented evidence to show a change of 
 
         condition since March 21, 1984;and accordingly, no diminishment 
 
         of the award would be appropriate.
 
         
 
                                 FINDING OF FACT
 
         
 
              1.  The claimant has not experienced a substantial change of 
 
         condition since March 21, 1984.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Defendant has failed to prove claimant has had a change of 
 
         condition since March 21, 1984.
 
         
 
              All other issues raised by defendant are res judicata.
 
         
 
                                      ORDER
 
         
 
              IT IS THEREFORE ORDERED that this matter be dismissed with 
 
         costs taxed to defendant.
 
         
 
              Signed and filed this 30th day of January, 1987.
 
         
 
         
 
         
 
         
 
                                         STEVEN E. ORT
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Roger P. Owens
 
         Mr. Mark T. Hedberg
 
         Attorneys at Law
 
         840 Fifth Avenue
 
         Des Moines, Iowa 50309
 
         
 
         
 
         Mr. Larry L. Shepler
 
         Attorney at Law
 
         111 E. Third Street
 
         600 Union Arcade Bldg.
 
         Davenport, Iowa 52801
 
         
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 No Headnote number
 
                                                 Filed:  January 30, 1987
 
                                                 STEVEN E. ORT
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         CHARLES C. FULLERTON,
 
         
 
              Claimant,                             File No. 655819
 
         
 
         VS.                                         R E V I E W -
 
         
 
         CATERPILLAR TRACTOR COMPANY,              R E 0 P E N I N G
 
         
 
                                                    D E C I S I 0 N
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         
 
         
 
              There is no headnote which describes this proceeding.  In 
 
         essence, defendants sought to relitigate issues that had been 
 
         affirmed on appeal to the district court.  The invitation to do 
 
         so was declined.