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                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                        
 
            GARY DEAN BARTZ,      
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                               File No. 673627
 
            W. HODGMAN & SONS, INC.,   
 
                                                 A P P E A L
 
                 Employer,   
 
                                               D E C I S I O N
 
            and         
 
                        
 
            UNITED STATES FIDELITY &   
 
            GUARANTY 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.
 
            
 
                                       ISSUES
 
            
 
            The issues on appeal are:  Whether the claimant has proved 
 
            that there is a causal connection between his work injury on 
 
            June 24, 1991 and his alleged disability; the nature and 
 
            extent of claimant's disability; and the credit for 
 
            previously paid benefits.
 
            
 
                                FINDINGS OF FACT
 
            
 
            The findings of fact contained in the proposed agency 
 
            decision filed November 26, 1991 are adopted as set forth 
 
            below.  Segments designated by asterisks (*****) indicate 
 
            portions of the language from the proposed agency decision 
 
            that have been intentionally deleted and do not form a part 
 
            of this final agency decision.  Segments designated by 
 
            brackets ([ ]) indicate language that is in addition to the 
 
            language of the proposed agency decision.
 
            
 
            Claimant is a 47-year-old high school graduate who has no 
 
            other formal education.  Claimant related his work history 
 
            prior to beginning work for defendant employer in June of 
 
            1980.  This prior history involved claimant working  in 
 
            construction as a carpenter, a self-employed farmer for nine 
 
            years and working less than a year at a feed store.
 
            Claimant worked the 1980 construction season for defendant 
 
            employer and then again in 1981 for the same employer.  
 
            Claimant's work was in the construction of roads and his 
 
            duties were various odds and ends that included greasing the 
 
            hot mix plant, gear boxes and chains; and unloading fuel and 
 

 
            
 
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            fixing leaks.  The seasonal work usually began in May and 
 
            went through October.  Claimant would draw unemployment in 
 
            the off season.
 
            
 
            It is undisputed that claimant incurred an injury on June 
 
            24, 1981.  Defendants described his injury which resulted in 
 
            a broken right lower leg.  Claimant was taken to the 
 
            hospital and J. W. Follows, M.D., performed surgery.  
 
            Claimant returned to work again the first of June 1982.
 
            Claimant said he had five more surgeries to his right leg as 
 
            it was growing crooked and was not healing properly.  
 
            Claimant described his problems and treatment.
 
            *****
 
            Claimant indicated he has never returned to work for 
 
            defendant employer after his October 1985 surgery [on his 
 
            back].  Claimant said that as a result of his surgeries, his 
 
            shoes needed to be built up.
 
            
 
                 Lauren Gablinske has worked for defendant employer 
 
            since 1985, except for two years (1972-1974).  He eventually 
 
            became a supervisor upon his return in 1974.  He said he has 
 
            known claimant since 1978 when they were both in alcoholic 
 
            treatment together.  He appears to have been responsible for 
 
            claimant being hired by defendant employer in 1980.  
 
            Gablinske described how claimant got hurt, which 
 
            corroborated claimant's testimony.  Gablinske said claimant 
 
            returned to work in June 1982.
 
            
 
                 *****
 
            
 
                 Gablinske testified claimant exhibited no physical 
 
            problems out of the ordinary when he returned to work in 
 
            1982.  He indicated claimant did a good job and had no 
 
            trouble operating machinery while working.  He related 
 
            claimant was a good hard worker.  He said claimant never 
 
            complained of back problems and never noticed claimant 
 
            limping.  He said he never saw claimant having problems 
 
            driving an auto or any equipment.
 
            
 
                 *****
 
            
 
                 Gablinske related that claimant worked for defendant 
 
            employer from 1982 to September 1985.  He said that claimant 
 
            never told him of any injury except that his leg was sore.  
 
            He emphasized that if claimant said he was injured, he would 
 
            have made a report.  He knew of no restrictions claimant had 
 
            nor was he aware of the efforts the rehabilitation people 
 
            were making.  He wasn't aware of claimant's back injury, but 
 
            knew claimant's right leg was shorter than his left and that 
 
            claimant had a built-up shoe.
 
            
 
                 *****
 
            
 
                 [J.W. Follows, M.D., performed surgery on claimant on 
 
            June 24, 1981, the date of the injury.  On that date an open 
 
            reduction and fixation of the tibia was performed on 
 
            claimant's compound fracture of the right tibia and fibula.  
 
            Dr. Follows' notes indicate that claimant returned to work 
 
            on June 25, 1982 but claimant may have broken loose the 
 
            fracture site where it wasn't full strength on August 11, 
 
            1982.  On October 7, 1982 Dr. Follows performed a second 
 

 
            
 
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            surgery on claimant's right leg for malunion of the right 
 
            tibia and fibula.  In a note dated April 15, 1983 Dr. 
 
            Follows wrote that claimant had a 30mm shortening of the 
 
            right leg.  Also on that date] ***** Dr. Follows opined 
 
            claimant had a 27 percent loss of function to his right 
 
            lower extremity, 15 percent of which is from the shortening 
 
            of the leg and the other 12 from loss of motion in 
 
            claimant's foot and ankle (Joint Exhibit A).  *****  [In 
 
            November 1984 Dr. Follows planned removal of hardware placed 
 
            in claimant's right leg.  This surgery was also apparently 
 
            done.]
 
            
 
                 [Dr. Follows noted in December 1984 and January 1985 
 
            that claimant had a tender right hip.  On September 19, 1985 
 
            he noted that claimant had a 5-1 [sic] disc and that he 
 
            could not tell for sure whether this was workers' 
 
            compensation or not.  Dr. Follows performed an L-5, S-1 
 
            discectomy and right hemilaminectomy and foraminotomy on 
 
            October 7, 1985.]
 
            
 
                 On September 24, 1985, Dr. Follows was ***** treating 
 
            claimant for a herniated disc with right leg symptoms.  The 
 
            doctor didn't think this was associated with claimant's 
 
            fractured tibia (1981 injury).  On April 17, 1986, Dr. 
 
            Follows diagnosed claimant as having a degenerative disc 
 
            disease with lumbar spondylosis, status, post-L-5, S-1 
 
            discectomy, resulting in a 10 percent disability 
 
            (impairment).  He recommended that the claimant regularly do 
 
            exercises and stay in good condition, stay slender and avoid 
 
            real heavy or strenuous work.  He then indicated that 
 
            claimant could return to work at any time that a suitable 
 
            job description is reached.  On September 18, 1985, the 
 
            Center For Diagnostic Imaging took a CT scan of claimant's 
 
            lumbar spine, which showed a large herniated disc and 
 
            compression of the right S-1 nerve root.
 
            
 
                 Dr. Follows commented in his notes on November 1, 1989, 
 
            to the question:  "Was claimant's back problem related to 
 
            the claimant's 1981 conveyor belt injury?"   The doctor was 
 
            unable to connect it and commented that claimant did not 
 
            really have any back complaints until February 1984, and he 
 
            did not see claimant for these complaints until November 
 
            1984.  He deferred to a Dr. Gislason in case Dr. Follows 
 
            forgot some of claimant's history (Jt. Ex. A).  *****
 
            
 
                 Joint exhibit B contains the information [from the 
 
            Sister Kenny Institute] on claimant's back surgeries and 
 
            these records show claimant has had back surgeries in May 
 
            1986, August 1986, November 1986, February 1988 and January 
 
            1989.  [Charles D. Ray, M.D., wrote on May 9, 1986 that he 
 
            expected the preponderant cause of his problem (90 percent 
 
            low back pain) was either due to hypersensitivity of his 
 
            facet joints or possibly segmental instability with 
 
            discogenic pain.  (Jt. Ex C)  On May 29, 1986 Dr. Ray noted 
 
            that claimant's preoperative and postoperative diagnosis was 
 
            multiple failed back surgery syndrome with mechanical low 
 
            back pain syndrome, probable segmental instability.  Dr. Ray 
 
            performed a multilevel discography, L3-4 and L4-5 on July 3, 
 
            1986 and noted that there was considerable uncertainty as to 
 

 
            
 
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            the meaning of the symptoms claimant had.  On August 27, 
 
            1986 Dr. Ray noted that claimant dated his original back 
 
            problem to 1981 after a work-related injury.  On December 
 
            18, 1987 Dr. Ray transferred claimant to the care of Dr. 
 
            Salib.]
 
            
 
                 Joint exhibit C is the Institute For Low Back Care, 
 
            Sister Kenny Institute, in Minneapolis, Minnesota.  On more 
 
            than one occasion, the records show that they either ask Dr. 
 
            Follows to do claimant's impairment rating as he was more 
 
            familiar with the Iowa law (May 1988) or claimant was to see 
 
            a doctor of his choice in Iowa for a disability rating.  
 
            *****
 
            
 
                 *****
 
            
 
                 Joint exhibit D contains considerable medical prior to 
 
            June 1981 that has no significance in this case.  The first 
 
            four pages of this exhibit do refer to medical around 
 
            September 1981 to January 1989.  Although the pages are not 
 
            numbered, the third page of said exhibit refers to 
 
            claimant's severe pain in the posterior right upper buttocks 
 
            which hurts when he walks, but the Fairmont Medical Clinic's 
 
            notes (June 11, 1984) indicate that there does not appear to 
 
            be a nerve root type of compression and that claimant has no 
 
            back pain.
 
            
 
                 The medical clinic's notes on July 5, 1985, reflect a 
 
            note that indicates that "three weeks ago yesterday this 
 
            gentleman was cleaning a machine at work and since then he 
 
            has had left shoulder pain.  On the third page from the end 
 
            of said joint exhibit E, there is an x-ray consultation 
 
            report of the Fairmont Community Hospital in which a right 
 
            shoulder, two views, and right clavicle was done on December 
 
            31, 1989, with the findings being "negative right shoulder 
 
            and right clavicle."  There appears to be at least minimal 
 
            anterior wedging of several mid-thoracic vertebral bodies to 
 
            the extent visualized.  This was signed by D. Mulholland, 
 
            M.D., a radiologist.  [Joint exhibit E indicates that 
 
            claimant sought treatment for a back ache on March 22, 1980 
 
            at the Fairmont Community Hospital.  The history taken at 
 
            that time said that claimant had back trouble about 15 years 
 
            earlier.  The history also stated that the pain was between 
 
            the shoulder blades.]
 
            
 
                 *****
 
            
 
                 On May 10, 1988, Richard M. Salib, M.D, director of 
 
            orthopedics at the Institute For Low Back Care, which is 
 
            associated with the Sister Kenny Institute, in Minneapolis, 
 
            Minnesota, wrote a report to Dr. Follows, which indicated in 
 
            part that he did not expect the claimant to reach maximum 
 
            medical improvement until about one year following the 
 
            surgical procedure claimant had on February 2, 1988, in 
 
            which he had an anterior interbody fusion at L2-4 and L4-5 
 
            and L5-S1 combined with a lateral fusion from L3-S1 with 
 
            steffe plates.  The doctor further indicated that claimant 
 
            was asking some questions about what to expect as to his 
 
            permanent disability rating.
 
            
 

 
            
 
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                 Dr. Salib indicated that he told the claimant that 
 
            since Dr. Follows was more familiar with the laws of the 
 
            state of Iowa, that possibly he would be in a better 
 
            position to make this determination after the claimant 
 
            reaches maximum medical improvement.  He also indicated that 
 
            an eventual functional capacity evaluation will have to be 
 
            done, but he would not be looking at that for approximately 
 
            one year postoperative, i.e., not until around February of 
 
            1989.  He indicated claimant was still disabled from 
 
            employment at his previous job and further indicated that he 
 
            doubted if claimant would ever be able to return to the 
 
            heavy physical work he did in the construction industry (Jt. 
 
            Ex. G).
 
            
 
                 On January 12, 1989, claimant underwent successful back 
 
            surgery again wherein plates and screws were removed from 
 
            his low back at three levels.  It appeared in a 
 
            rehabilitation consultant's letter of January 30, 1989, that 
 
            the time was getting close to consultant's discussion with 
 
            Dr. Salib as to his recommendations concerning claimant's 
 
            return to work (Jt. Ex. G).  On February 28, 1989, the same 
 
            rehabilitation consultant, James W. Reinhardt, M.S.C.R.C., 
 
            from CRS Care Corporation, wrote to defendant insurance 
 
            carrier that claimant was changing rehabilitation 
 
            consultants in February 1989, and that claimant also stated 
 
            he would be returning to work at an unnamed employer 
 
            beginning April 1, 1989, but that claimant refused to 
 
            discuss anything further concerning his return to work.
 
            
 
                 *****
 
            
 
                 Joint exhibit J reflects a report of Paul H. Gislason, 
 
            M.D., from the Orthopaedic and Fracture Clinic, Mankato, 
 
            Minnesota [dated October 20, 1989].  He reviewed claimant's 
 
            medical history of his multiple surgeries to his right lower 
 
            extremity and his back and indicted he talked with Dr. 
 
            Follows, who told him that claimant complained about his 
 
            back for the first time in November 1984.  Dr. Gislason 
 
            stated he found it very difficult to state that claimant's 
 
            back difficulty is directly attributable to the accident 
 
            that claimant had in June of 1981, but that there was no 
 
            history of any other injury.  He did indicate that it was 
 
            disturbing to him that claimant had degenerative disease in 
 
            his lower back and that this certainly could have been an 
 
            aggravating factor as far as claimant's back is concerned.  
 
            He also stated that the pain claimant complained about and 
 
            the discomfort he had originally in the leg was in the 
 
            anterior thigh.  He said this area is innervated by the L-
 
            2,L3 nerve roots.  He said this type of discomfort would not 
 
            be consistent with an L5-S1 disc herniation, as was noted in 
 
            the right operative procedure.  This doctor opined claimant 
 
            had a 27 percent disability of the lower extremity on the 
 
            right due to a fracture of the right tibia.  This would be 
 
            inclusive with limitation of motion in the ankle as well as 
 
            a shortening that is present as a result of claimant's 
 
            injury.
 
            
 
                 The doctor further opined that based on the AMA Guides 
 
            to Permanent Impairment, third edition, claimant had a 20 
 

 
            
 
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            percent disability of the whole body as a result of his back 
 
            problem.  The doctor then used the combined charts and 
 
            opined claimant has a combined impairment of 29 percent.  
 
            The doctor used the word "disability" but the undersigned 
 
            believes that whenever the doctor used the word "disability" 
 
            he meant, in fact, impairment.  The doctor further opined 
 
            that only 10 percent of the back disability is due to the 
 
            injury in question and 90 percent of the back disability is 
 
            due to the preexisting degenerative disc disease that was 
 
            present.  He did relate that claimant does have a one and 
 
            one-half inch shortening of the right leg.
 
            
 
                 Claimant was sent to Dr. Walker for evaluation, the 
 
            first one being May 8, 1989 (Jt. Ex. K).  On June 25, 1991, 
 
            Dr. Walker did a second evaluation of claimant (Jt. Ex. K).  
 
            Dr. Walker's latest evaluation in June of 1991, reflects an 
 
            opinion that Dr. Walker is the first one, it appears, to 
 
            have mentioned in any report that claimant had an apparent 
 
            compression fracture of the body of T-7 and T-8, 
 
            asymptomatic at this time (Jt. Ex. K).  Dr. Walker's June 
 
            25, 1991 report opined claimant had 28 percent permanent 
 
            partial impairment of his right lower extremity and a 30 
 
            percent permanent partial impairment based on claimant's 
 
            thoracolumbar spine.  His May report had a spine impairment 
 
            at 32 percent.  Dr. Walker causally connected claimant's 
 
            surgeries and impairments to claimant's June 24, 1981 work 
 
            injury [noting that there was no preexisting condition as 
 
            far as either the leg or the back was concerned].
 
            
 
                 Joint exhibit M reflects the payments that have been 
 
            made to claimant for medical treatment, evaluation and 
 
            permanent partial and temporary disability benefits as of 
 
            September 30, 1991.  [This exhibit shows that claimant has 
 
            been paid 311.4 weeks of "weekly" benefits and 59.4 weeks of 
 
            permanent partial disability benefits for a 27 percent 
 
            disability to the right leg.]
 
            
 
                 *****
 
            
 
                 The records indicate claimant has a degenerative disc 
 
            disease.  ***** There is no evidence of any preexisting 
 
            degenerative disc disease prior to June 24, 1981, and at 
 
            least no evidence that claimant was suffering from any 
 
            effects of any degenerative disc disease or any preexisting 
 
            condition. 
 
            
 
                 *****
 
                              CONCLUSIONS OF LAW
 
            
 
            The conclusions of law contained in the proposed agency 
 
            decision filed November 26, 1991 are adopted as set forth 
 
            below.  Segments designated by asterisks (*****) indicate 
 
            portions of the language from the proposed agency decision 
 
            that have been intentionally deleted and do not form a part 
 
            of this final agency decision.  Segments designated by 
 
            brackets ([ ]) indicate language that is in addition to the 
 
            language of the proposed agency decision.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of June 24, 
 
            1981, is causally related to the disability on which he now 
 

 
            
 
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            bases his claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
            N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 296, 18 
 
            N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903 (Iowa 1974).  However, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Id. at 907.  Further, the weight to be given to such 
 
            an opinion is for the finder of fact, and that may be 
 
            affected by the completeness of the premise given the expert 
 
            and other surrounding circumstances.  Bodish, 257 Iowa 516, 
 
            133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
            Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
            
 
                 While a claimant is not entitled to compensation for 
 
            the results of a preexisting injury or disease, the mere 
 
            existence at the time of a subsequent injury is not a 
 
            defense.  Rose v. John Deere Ottumwa Works, 247 Iowa 900, 
 
            908, 76 N.W.2d 756, 760-61 (1956).  If the claimant had a 
 
            preexisting condition or disability that is aggravated, 
 
            accelerated, worsened or lighted up so that it results in 
 
            disability, claimant is entitled to recover.  Nicks v. 
 
            Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, 815 
 
            (1962).
 
            
 
                 Our supreme court has stated many times that a claimant 
 
            may recover for a work connected aggravation of a 
 
            preexisting condition.  Almquist v. Shenandoah Nurseries, 
 
            218 Iowa 724, 254 N.W. 35 (1934).  See also Auxier v. 
 
            Woodward State Hosp. Sch., 266 N.W.2d 139 (Iowa 1978); Gosek 
 
            v. Garmer and Stiles Co., 158 N.W.2d 731 (Iowa 1968); Barz 
 
            v. Oler, 257 Iowa 508, 133 N.W.2d 704 (1965); Olson v. 
 
            Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 
 
            (1963); Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 
 
            112 N.W.2d 299 (1961); Ziegler v. United States Gypsum Co., 
 
            252 Iowa 613, 106 N.W.2d 591 (1960).
 
            
 
                 An employer takes an employee subject to any active or 
 
            dormant health impairments, and a work connected injury 
 
            which more than slightly aggravates the condition is 
 
            considered to be a personal injury.  Ziegler, 252 Iowa 613, 
 
            620, 106 N.W.2d 591, and cases cited.
 
            
 
                 An injury to a scheduled member may, because of after 
 
            effects (or compensatory change), result in permanent 
 
            impairment of the body as a whole.  Such impairment may in 
 
            turn form the basis for a rating of industrial disability.  
 
            Dailey v. Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 569 
 
            (1943).  Soukup v. Shores Co., 222 Iowa 272, 268 N.W. 598 
 
            (1936).
 

 
            
 
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                 *****
 
            
 
                 [The first issue to be resolved is whether claimant has 
 
            met his burden of proving that there is a causal connection 
 
            between his June 24, 1981 injury and his alleged disability.  
 
            Claimant suffered a traumatic injury to his right leg on 
 
            June 24, 1981 when he experienced a broken leg.  Claimant 
 
            has clearly met his burden of proving that the disability to 
 
            his right leg resulted from that injury.  Claimant's leg was 
 
            broken and several surgeries wee performed to treat that 
 
            injury and resulting problems.  Dr. Follows, claimant's 
 
            treating doctor, gave claimant a 27 percent impairment 
 
            rating of the leg based upon shortening of the leg and loss 
 
            of motion in his foot and ankle.  That rating was 
 
            corroborated by Dr. Gislason.  Dr. Walker, an evaluating 
 
            doctor, gave claimant a 28 percent impairment of the leg.  
 
            Dr. Follows' opinion will be accepted.  He was the treating 
 
            physician who had extensive contact with claimant, he 
 
            explained his impairment rating, and his rating was 
 
            corroborated by Dr. Gislason.
 
            
 
                 Claimant also alleges that his back problems and 
 
            resulting disabilities were caused by his June 24, 1981 
 
            injury.  Claimant's traumatic injury and subsequent 
 
            immediate treatment was to his leg and he did not seek 
 
            treatment for his lower back until November 1984.  It is 
 
            clear that claimant did not injure his back in the incident 
 
            on June 24, 1981.  Claimant must prove that his injury and 
 
            low back problems are causally connected to his work injury.  
 
            This question is essentially within the domain of expert 
 
            testimony.  Claimant must prove that his back condition was 
 
            the proximate result of his original injury.  Oldham v. 
 
            Schofield & Welch, 222 Iowa 764, 266 N.W. 480 (1936).  While 
 
            a broken leg and a possible resulting change in gait may 
 
            cause other disabilities, claimant must prove in fact that 
 
            he has the disability he alleges.  
 
            
 
                 Dr. Follows, who treated claimant extensively for his 
 
            broken leg, was the first doctor to treat claimant for his 
 
            back problems after the June 24, 1981 leg injury.  He began 
 
            treating claimant for his back problems in November 1984.  
 
            In September 1985 he noted that he could not tell whether 
 
            the back problems were workers' compensation or not.  He 
 
            performed the first surgery on claimant's back at L5-S1 in 
 
            October 1985.  The preoperative and postoperative diagnosis 
 
            was L-5, S-1, disc and formainal impingement of the L-5 
 
            nerve root.  When asked in November 1989 he indicated that 
 
            there was no connection between claimant's back problem and 
 
            the 1981 injury.  He deferred to Dr. Gislason.
 
            
 
                 Claimant was also treated by Drs. Ray and Salib and had 
 
            multiple surgeries on his lower back.  Neither of these 
 
            doctors appear to have given an opinion on causal 
 
            connection.  Dr. Ray noted in May 1986 that his diagnosis 
 
            was multiple failed back surgery syndrome with mechanical 
 
            low back pain syndrome, probable segmental instability.
 
            
 
                 Claimant was evaluated by both Dr. Gislason (October 
 
            1989) and Dr. Walker (May 1989 and June 1991).  Dr. Gislason 
 

 
            
 
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            indicated that there was no connection between claimant's 
 
            back problems and his work injury.  He explained that 
 
            claimant's original complaints of leg pain would not be 
 
            consistent with an L5-S1 disc herniation, the site of 
 
            claimant's October 1985 surgery.  Dr. Walker causally 
 
            connected claimant's surgeries and impairments to claimant's 
 
            June 24, 1981 work injury.
 
            
 
                 Dr. Follows and Dr. Gislason's opinions will be relied 
 
            upon.  Dr. Follows had extensive contact with claimant and 
 
            was the first to treat claimant's low back problems.  He was 
 
            unsure of a causal connection in 1985 and in 1989 indicated 
 
            that there was no causal connection and deferred to Dr. 
 
            Gislason.  Dr. Gislason explained the lack of causal 
 
            connection.  Dr. Gislason consulted Dr. Follows, a treating 
 
            physician, in forming his opinion.  Dr. Walker's opinion 
 
            will be given little weight.  He was an evaluator who only 
 
            performed the evaluation at claimant's attorney's request.  
 
            He did not offer an opinion on causal connection until July 
 
            1991 and explained the causal connection only on the basis 
 
            of no preexisting condition.  He did not acknowledge 
 
            claimant's back complaints prior to the work injury.  It 
 
            should be noted that these back complaints were for upper 
 
            back problems, however.  Importantly, he indicated that he 
 
            did not review the records of the Institute for Low Back 
 
            Care which had treated claimant extensively for his back 
 
            problems.
 
            
 
                 Based on all the evidence, particularly the opinions of 
 
            Drs. Follows and Gislason, claimant has not met his burden 
 
            of proving that his back problems were causally connected to 
 
            his June 24, 1981 injury.  Claimant has not proved that his 
 
            back condition was the proximate result of his original 
 
            injury.  Claimant's disability causally connected to his 
 
            work injury was to his leg only.
 
            
 
                 Iowa Code section 85.34(1) provides that if an employee 
 
            has suffered a personal injury causing permanent partial 
 
            disability, the employer shall pay compensation for a 
 
            healing period from the day of the injury until (1) the 
 
            employee returns to work; or (2) it is medically indicated 
 
            that significant improvement from the injury is not 
 
            anticipated; or (3) until the employee is medically capable 
 
            of returning to substantially similar employment.
 
            
 
                 The last matter to be discussed is claimant's 
 
            entitlement to weekly benefits and the defendants' credit 
 
            for previously paid benefits.  Claimant's inability to work 
 
            after October 1985 was related to his back problems and 
 
            resulting surgeries.  Because it has been found that 
 
            claimant's back problems were not work related, claimant is 
 
            not entitled to weekly workers' compensation benefits after 
 
            October 1985 (when claimant had his first back surgery).  
 
            The parties apparently agree that claimant was in a healing 
 
            period from his right leg injury from June 24, 1981 to June 
 
            4, 1982; from October 2, 1982 to April 10, 1983; and from 
 
            November 17, 1984 to January 18, 1985 (total 83.543 weeks).  
 
            Claimant is entitled to 59.4 weeks of permanent partial 
 

 
            
 
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            disability for a 27 percent disability to his right leg.  
 
            Claimant has been paid 370.8 weeks of benefits and his 
 
            entitlement is 142.943 weeks.  Claimant is entitled to no 
 
            further benefits from this proceeding.  It should be noted 
 
            that voluntary payment of benefits do not constitute an 
 
            admission of liability.  See Iowa Code section 86.13.]
 
            WHEREFORE, the decision of the deputy is affirmed in part 
 
            and reversed in part.
 
            
 
                                      ORDER
 
            
 
            THEREFORE, it is ordered:
 
            
 
            That claimant shall take nothing from these proceedings.
 
            
 
            That defendants shall pay the costs of this matter including 
 
            the transcription of the hearing.  
 
            
 
            Signed and filed this ____ day of March, 1993.
 
            
 
            
 
            
 
            
 
                                    ________________________________
 
                                            BYRON K. ORTON
 
                                      INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Joseph L. Fitzgibbons
 
            Attorney at Law
 
            P.O. Box 496
 
            Estherville, Iowa 51334
 
            
 
            Mr. Thomas E. Leahy
 
            Ms. Iris Post
 
            Attorneys at Law
 
            P.O. Box 10434
 
            Des Moines, Iowa 50306
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                5-1402.40; 5-1803.1
 
                                                Filed March 31, 1993
 
                                                Byron K. Orton
 
                                                BJO
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            
 
                        
 
            GARY DEAN BARTZ,      
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                                File No. 673627
 
            W. HODGMAN & SONS, INC.,   
 
                                                 A P P E A L
 
                 Employer,   
 
                                                D E C I S I O N
 
            and         
 
                        
 
            UNITED STATES FIDELITY &   
 
            GUARANTY COMPANY,     
 
                        
 
                 Insurance Carrier,    
 
                 Defendants.      
 
            ____________________________________________________________
 
           
 
            
 
            5-1402.40; 5-1803.1
 
            Claimant did not meet his burden of proving that his 
 
            original injury was the proximate cause of his back 
 
            conditions.  Claimant's original injury was a broken leg 
 
            which necessitated multiple surgeries and eventually 
 
            resulted in claimant's right leg being shorter than the 
 
            left.  Claimant's back condition was first treated more than 
 
            four years after his work accident.  The doctor who treated 
 
            claimant for his broken leg, performed the surgeries on his 
 
            leg, and performed the first in a series of back surgeries 
 
            could not make a causal connection between the original 
 
            surgery and the back problems.  One evaluating doctor could 
 
            not make the causal connection and a second evaluating 
 
            doctor did make the causal connection.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            GARY DEAN BARTZ,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 673627
 
            W. HODGMAN & SONS, INC.,      :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            UNITED STATES FIDELITY &,     :
 
            GUARANTY COMPANY,             :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This case came on for hearing on September 30, 1991, in 
 
            Des Moines, Iowa.  This is a proceeding in arbitration 
 
            wherein claimant seeks compensation for permanent partial 
 
            disability benefits as a result of an alleged injury 
 
            occurring on June 24, 1981.  The record in the proceeding 
 
            consists of the testimony of the claimant and Lauren 
 
            Gablinske; and joint exhibits A through M.
 
            
 
                                      issues
 
            
 
                 The issues for resolution are:
 
            
 
                 1.  Whether there is causal connection to claimant's 
 
            alleged permanent disability;
 
            
 
                 2.  The nature and extent of claimant's permanent 
 
            disability; and,
 
            
 
                 3.  Claimant's entitlement to disability benefits, 
 
            defendants contending at the most a scheduled member injury 
 
            to claimant's right lower extremity and the claimant 
 
            contending it is a body as a whole disability.
 
            
 
                     
 
            
 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            findings of fact
 
            
 
                 The undersigned deputy, having heard the testimony and 
 
            considered all the evidence, finds that:
 
            
 
                 Claimant is a 47-year-old high school graduate who has 
 
            no other formal education.  Claimant related his work 
 
            history prior to beginning work for defendant employer in 
 
            June of 1980.  This prior history involved claimant working  
 
            in construction as a carpenter, a self-employed farmer for 
 
            nine years and working less than a year at a feed store.
 
            
 
                 Claimant worked the 1980 construction season for 
 
            defendant employer and then again in 1981 for the same 
 
            employer.  Claimant's work was in the construction of roads 
 
            and his duties were various odds and ends that included 
 
            greasing the hot mix plant, gear boxes and chains; and 
 
            unloading fuel and fixing leaks.  The seasonal work usually 
 
            began in May and went through October.  Claimant would draw 
 
            unemployment in the off season.
 
            
 
                 It is undisputed that claimant incurred an injury on 
 
            June 24, 1981.  Defendants described his injury which 
 
            resulted in a broken right lower leg.  Claimant was taken to 
 
            the hospital and J. W. Follows, M.D., performed surgery.  
 
            Claimant returned to work again the first of June 1982.
 
            
 
                 Claimant said he had five more surgeries to his right 
 
            leg as it was growing crooked and was not healing properly.  
 
            Claimant described his problems and treatment.
 
            
 
                 Claimant appeared to have first experienced back 
 
            problems in 1984.
 
            
 
                 On September 15, 1985, after having a CT scan, claimant 
 
            said Dr. Follows discovered a herniated disc which 
 
            apparently was causing claimant's pain in the upper part of 
 
            his leg.  Charles D. Ray, M.D., of the Low Back Institute,  
 
            upon referral from Dr. Follows,  performed a discectomy in 
 
            October of 1985.  Claimant indicated he had a second back 
 
            surgery at another level by Dr. Ray in October 1986.  
 
            Claimant described what he understood the doctor did in 
 
            treating him, which included a fusion.  Claimant said he had 
 
            several back surgeries.  Any further particulars in this 
 
            regard will be referred in any particular medical evidence 
 
            or exhibits that might be applicable to this decision 
 
            hereafter.
 
            
 
                 Claimant indicated he has never returned to work for 
 
            defendant employer after his October 1985 surgery.  Claimant 
 
            said that as a result of his surgeries, his shoes needed to 
 
            be built up.
 
            
 
                 On April 1, 1990, claimant began working for a Mr. 
 
            Olson, a friend, on a farm as an errand boy and did not do 
 
            any heavy lifting.  On cross-examination, claimant said he 
 
            began April 1, 1989.
 
            
 
                 Claimant said he was not to work before April 1, 1989.  
 
            He indicated he was at the Sister Kenny Institute in 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            Minnesota up to approximately April 1989.  Claimant related 
 
            the jobs he has had since April 1, 1989.  Claimant has been 
 
            working at Friendship Village, a federal housing complex 
 
            with 125 apartments, since May 1, 1990, to the present.  
 
            Claimant understood his restrictions are no lifting over 20-
 
            25 pounds off the floor.  Claimant is one of three 
 
            maintenance people at this housing complex.   The work 
 
            involves general maintenance, lawn mowing, replacing 
 
            switches and bulbs, setting up chairs and tables, and 
 
            cleaning.  He is earning $9 per hour under the government 
 
            subsidy program for the elderly and handicapped.  Claimant 
 
            said he is qualified to do the job and his knowledge of 
 
            plumbing, heating and carpentry helps, but he can't do any 
 
            lifting.
 
            
 
                 Claimant was asked why he did not have a Dr. Salib's 
 
            rate his impairment rather than going to John Walker, M.D., 
 
            in Waterloo.  Claimant testified the insurance company 
 
            wanted a rating based on Iowa law by an Iowa doctor and Dr. 
 
            Salib agreed he was not familiar with the Iowa statutes.  He 
 
            said the insurance company told him to get an Iowa doctor 
 
            and they paid his bill.
 
            
 
                 Claimant said he did very little to find a job.  He 
 
            emphasized he never had to look for a job before his injury.  
 
            Claimant indicated he is helped by Amy Rhinehart, vocational 
 
            rehabilitation expert by receiving a list of places.
 
            
 
                 Claimant wanted to go to a community college, but 
 
            defendant insurance company would not pay for any vocational 
 
            rehabilitation training through schooling.
 
            
 
                 Unlike prior to 1981, claimant indicated he does very 
 
            little deer hunting now.
 
            
 
                 Claimant said he has never had any other trauma or 
 
            injury to his back since June 1981.
 
            
 
                 Claimant acknowledged he built a pre-fab house for his 
 
            former wife in the winter of 1983 and later built a deck, 
 
            but did not know the year, but he had had his second surgery 
 
            already.  Claimant remodeled his present home himself and 
 
            built a garage except for pouring the concrete and 
 
            reshingling, this past spring and summer.  Claimant started 
 
            the project in October 1990.  Claimant indicated his garage 
 
            was built with a grease work pit that is 36 inches width, 11 
 
            1/2 feet long and 66 inches deep.
 
            
 
                 Claimant indicated he does maintenance on vehicles and 
 
            his son races cars.  Claimant said he works on his own car 
 
            and on occasion works on his friend's car, but has never 
 
            received payment for it.  Claimant acknowledged he has 
 
            rebuilt his wife's 1988 Oldsmobile and several others, but 
 
            not his own.  He has done this since 1985.  Claimant said he 
 
            used his new garage when he rebuilt his wife's car.  
 
            Claimant related he has had many favors done for him due to 
 
            his injury and his way of repaying these favors is to work 
 
            on their cars.
 
            
 
                 Through extensive cross-examination, claimant admitted 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            he has worked on cars at Peterson Auto Repair, which is 
 
            approximately one block from claimant's premises.  He has 
 
            also built small trailers.  It is obvious claimant has been 
 
            doing these repair jobs since 1985.
 
            
 
                 Lauren Gablinske has worked for defendant employer 
 
            since 1985, except for two years (1972-1974).  He eventually 
 
            became a supervisor upon his return in 1974.  He said he has 
 
            known claimant since 1978 when they were both in alcoholic 
 
            treatment together.  He appears to have been responsible for 
 
            claimant being hired by defendant employer in 1980.  Mr. 
 
            Gablinske described how claimant got hurt, which 
 
            corroborated claimant's testimony.  Gablinske said claimant 
 
            returned to work in June 1982.
 
            
 
                 Gablinske related how claimant helped him remodel his 
 
            kitchen in the winter of 1982 for compensation.  He saw 
 
            examples of claimant's work as claimant showed him the house 
 
            he had rebuilt.  Claimant used a small ladder and Mr. 
 
            Gablinske recalled claimant had no back or other complaints.
 
            
 
                 Gablinske testified claimant exhibited no physical 
 
            problems out of the ordinary when he returned to work in 
 
            1982.  He indicated claimant did a good job and had no 
 
            trouble operating machinery while working.  He related 
 
            claimant was a good hard worker.  He said claimant never 
 
            complained of back problems and never noticed claimant 
 
            limping.  He said he never saw claimant having problems 
 
            driving an auto or any equipment.
 
            
 
                 Gablinske related a conversation he had with claimant 
 
            in the spring of 1991, in which claimant put together a 
 
            front end of a Bronco and had rebuilt one for claimant's son 
 
            and his former wife.  Gablinske related he stood and talked 
 
            with claimant for one-half hour in June of 1991, when they 
 
            were attending the same event.  He disclosed that in the 
 
            fall of 1990, while doing highway work for defendant 
 
            employer, he saw claimant plowing for a farmer, Mr. Olson.
 
            
 
                 Mr. Gablinske related that claimant worked for 
 
            defendant employer from 1982 to September 1985.  He said 
 
            that claimant never told him of any injury except that his 
 
            leg was sore.  He emphasized that if claimant said he was 
 
            injured, he would have made a report.  He knew of no 
 
            restrictions claimant had nor was he aware of the efforts 
 
            the rehabilitation people were making.  He wasn't aware of 
 
            claimant's back injury, but knew claimant's right leg was 
 
            shorter than his left and that claimant had a built-up shoe.
 
            
 
                 There is no dispute that claimant incurred an injury on 
 
            June 24, 1981.  The arguments are basically the extent of 
 
            permanency and whether the permanency is to his right lower 
 
            extremity or his back, also, thereby resulting in a body as 
 
            a whole injury versus a scheduled member injury only.  
 
            Approximately six weeks of healing period is disputed.  
 
            There is considerable medical testimony that need not be 
 
            discussed because of the nature of the issues herein.
 
            
 
                 Claimant had several surgeries to his right lower 
 
            extremity. 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
                 On April 15, 1983, Dr. Follows opined claimant had a 27 
 
            percent loss of function to his right lower extremity, 15 
 
            percent of which is from the shortening of the leg and the 
 
            other 12 from loss of motion in claimant's foot and ankle 
 
            (Joint Exhibit A).  Claimant's right lower extremity is one 
 
            inch shorter than his left (Jt. Ex. A).  Dr. Gislason 
 
            indicated a one and one-half inch difference (Jt. Ex. J).
 
            
 
                 On September 24, 1985, Dr. Follows was already treating 
 
            claimant for a herniated disc with right leg symptoms.  The 
 
            doctor didn't think this was associated with claimant's 
 
            fractured tibia (1981 injury).  On April 17, 1986, Dr. 
 
            Follows diagnosed claimant as having a degenerative disc 
 
            disease with lumbar spondylosis, status, post-L-5,S1 
 
            discectomy, resulting in a 10 percent disability 
 
            (impairment).  He recommended that the claimant regularly do 
 
            exercises and stay in good condition, stay slender and avoid 
 
            real heavy or strenuous work.  He then indicated that 
 
            claimant could return to work at any time that a suitable 
 
            job description is reached.  On September 18, 1985, the 
 
            Center For Diagnostic Imaging took a CT scan of claimant's 
 
            lumbar spine, which showed a large herniated disc and 
 
            compression of the right S-1 nerve root.
 
            
 
                 Dr. Follows commented in his notes on November 1, 1989, 
 
            to the question:  "Was claimant's back problem related to 
 
            the claimant's 1981 conveyor belt injury?"   The doctor was 
 
            unable to connect it and commented that claimant did not 
 
            really have any back complaints until February 1984, and he 
 
            did not see claimant for these complaints until November 
 
            1984.  He deferred to a Dr. Gislason in case Dr. Follows 
 
            forgot some of claimant's history (Jt. Ex. A).  The 
 
            undersigned notices that a lot of these lettered exhibits 
 
            are quite large and are not numerically numbered within each 
 
            exhibit.  This prevents a specific reference within a large 
 
            exhibit and prevents the undersigned and anyone else looking 
 
            at the exhibits from being able to seek readily the exhibit 
 
            page and number.  The parties hereafter should consecutively 
 
            number their exhibits, and have a better chronological 
 
            system, particularly within each exhibit as to the pages.
 
            
 
                 Joint exhibit B contains the information on claimant's 
 
            back surgeries and these records show claimant has had back 
 
            surgeries in April 1985, August 1986, November 1986, 
 
            February 1988 and January 1989.
 
            
 
                 Joint exhibit C is the Institute For Low Back Care, 
 
            Sister Kenny Institute, in Minneapolis, Minnesota.  On more 
 
            than one occasion, the records show that they either ask Dr. 
 
            Follows to do claimant's impairment rating as he was more 
 
            familiar with the Iowa law (May 1988) or claimant was to see 
 
            a doctor of his choice in Iowa for a disability rating.  The 
 
            undersigned believes they mean an impairment rating under 
 
            Iowa laws rather than a disability rating.  Dr. Salib, who 
 
            is with the institute, acknowledges he was less familiar 
 
            with the Iowa laws (February 28, 1989).  The undersigned 
 
            notes that Dr. Salib sent claimant back to work on April 10, 
 
            1989.
 
            
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
                 Joint exhibit D is the records of Lyle F. Frink, M.D.  
 
            The undersigned sees no necessity of setting out in the 
 
            record any of that exhibit.  There is no dispute that 
 
            claimant incurred an injury in June of 1981, and it is 
 
            obvious that Dr. Frink attended to claimant.
 
            
 
                 Joint exhibit D contains considerable medical prior to 
 
            June 1981 that has no significance in this case.  The first 
 
            four pages of this exhibit do refer to medical around 
 
            September 1981 to January 1989.  Although the pages are not 
 
            numbered, the third page of said exhibit refers to 
 
            claimant's severe pain in the posterior right upper buttocks 
 
            which hurts when he walks, but the Fairmont Medical Clinic's 
 
            notes (June 11, 1984) indicate that there does not appear to 
 
            be a nerve root type of compression and that claimant has no 
 
            back pain.
 
            
 
                 The medical clinic's notes on July 5, 1985, reflect a 
 
            note that indicates that "three weeks ago yesterday this 
 
            gentleman was cleaning a machine at work and since then he 
 
            has had left shoulder pain.  On the third page from the end 
 
            of said joint exhibit E, there is an x-ray consultation 
 
            report of the Fairmont Community Hospital in which a right 
 
            shoulder, two views, and right clavicle was done on December 
 
            31, 1989, with the findings being "negative right shoulder 
 
            and right clavicle."  There appears to be at least minimal 
 
            anterior wedging of several mid-thoracic vertebral bodies to 
 
            the extent visualized.  This was signed by D. Mulholland, 
 
            M.D., a radiologist.
 
            
 
                 Joint exhibit F is further records of the Fairmont 
 
            Hospital.
 
            
 
                 Joint exhibit G is the records of the Comprehensive 
 
            Rehabilitation Services.  This is a very large exhibit, 
 
            encompassing a multitude of pages.  Unfortunately, the 
 
            parties have not numbered the pages within the exhibit, so 
 
            it makes it more difficult when reference is made to the 
 
            exhibit to more particularly identify the pages.  In the 
 
            future, counsel should consecutively number the pages, 
 
            particularly within each exhibit.  Counsel should take note 
 
            of the hearing assignment order.
 
            
 
                 On May 10, 1988, Richard M. Salib, M.D, director of 
 
            orthopedics at the Institute For Low Back Care, which is 
 
            associated with the Sister Kenny Institute, in Minneapolis, 
 
            Minnesota, wrote a report to Dr. Follows, which indicated in 
 
            part that he did not expect the claimant to reach maximum 
 
            medical improvement until about one year following the 
 
            surgical procedure claimant had on February 2, 1988, in 
 
            which he had an anterior interbody fusion at L2-4 and L4-5 
 
            and L5-S1 combined with a lateral fusion from L3-S1 with 
 
            steffe plates.  The doctor further indicated that claimant 
 
            was asking some questions about what to expect as to his 
 
            permanent disability rating.
 
            
 
                 Dr. Salib indicated that he told the claimant that 
 
            since Dr. Follows was more familiar with the laws of the 
 
            state of Iowa, that possibly he would be in a better 
 
            position to make this determination after the claimant 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            reaches maximum medical improvement.  He also indicated that 
 
            an eventual functional capacity evaluation will have to be 
 
            done, but he would not be looking at that for approximately 
 
            one year postoperative, i.e., not until around February of 
 
            1989.  He indicated claimant was still disabled from 
 
            employment at his previous job and further indicated that he 
 
            doubted if claimant would ever be able to return to the 
 
            heavy physical work he did in the construction industry (Jt. 
 
            Ex. G).
 
            
 
                 On January 12, 1989, claimant underwent successful back 
 
            surgery again wherein plates and screws were removed from 
 
            his low back at three levels.  It appeared in a 
 
            rehabilitation consultant's letter of January 30, 1989, that 
 
            the time was getting close to consultant's discussion with 
 
            Dr. Salib as to his recommendations concerning claimant's 
 
            return to work (Jt. Ex. G).  On February 28, 1989, the same 
 
            rehabilitation consultant, James W. Reinhardt, M.S.C.R.C., 
 
            from CRS Care Corporation, wrote to defendant insurance 
 
            carrier that claimant was changing rehabilitation 
 
            consultants in February 1989, and that claimant also stated 
 
            he would be returning to work at an unnamed employer 
 
            beginning April 1, 1989, but that claimant refused to 
 
            discuss anything further concerning his return to work.
 
            
 
                 Joint exhibit H is the exhibit reflecting the change to 
 
            a new rehabilitation consultant.  It appears this was 
 
            effective around February 28, 1989.  The undersigned could 
 
            not determine any reason to switch consultants, but it was 
 
            obvious from the record that a considerable amount of money 
 
            has been spent in this area.
 
            
 
                 Joint exhibit I is the records from the United States 
 
            Department of Health and Human Services, Social Security 
 
            Administration, disability files.  The records indicate that 
 
            on March 2, 1988, claimant was considered disabled for 
 
            social security purposes, subject to review approximately 
 
            one year later.  Said exhibit shows that on November 16, 
 
            1989, upon review of claimant's case, a social security 
 
            administrative law judge determined that claimant was able 
 
            to work for social security purposes and that his disability 
 
            ended in November 1989.
 
            
 
                 Joint exhibit J reflects a report of Paul H. Gislason, 
 
            M.D., from the Orthopaedic and Fracture Clinic, Mankato, 
 
            Minnesota.  He reviewed claimant's medical history of his 
 
            multiple surgeries to his right lower extremity and his back 
 
            and indicted he talked with Dr. Follows, who told him that 
 
            claimant complained about his back for the first time in 
 
            November 1984.  Dr. Gislason stated he found it very 
 
            difficult to state that claimant's back difficulty is 
 
            directly attributable to the accident that claimant had in 
 
            June of 1989, but that there was no history of any other 
 
            injury.  He did indicate that it was disturbing to him that 
 
            claimant had degenerative disease in his lower back and that 
 
            this certainly could have been an aggravating factor as far 
 
            as claimant's back is concerned.  He also stated that the 
 
            pain claimant complained about and the discomfort he had 
 
            originally in the leg was in the anterior thigh.  He said 
 
            this area is innervated by the L-2,L3 nerve roots.  He said 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            this type of discomfort would not be consistent with an L5-
 
            S1 disc herniation, as was noted in the right operative 
 
            procedure.  This doctor opined claimant had a 27 percent 
 
            disability of the lower extremity on the right due to a 
 
            fracture of the right tibia.  This would be inclusive with 
 
            limitation of motion in the ankle as well as a shortening 
 
            that is present as a result of claimant's injury.
 
            
 
                 The doctor further opined that based on the AMA Guides 
 
            to Permanent Impairment, third edition, claimant had a 20 
 
            percent disability of the whole body as a result of his back 
 
            problem.  The doctor then used the combined charts and 
 
            opined claimant has a combined impairment of 29 percent.  
 
            The doctor used the word "disability" but the undersigned 
 
            believes that whenever the doctor used the word "disability" 
 
            he meant, in fact, impairment.  The doctor further opined 
 
            that only 10 percent of the back disability is due to the 
 
            injury in question and 90 percent of the back disability is 
 
            due to the preexisting degenerative disc disease that was 
 
            present.  He did relate that claimant does have a one and 
 
            one-half inch shortening of the right leg.
 
            
 
                 Claimant was sent to Dr. Walker for evaluation, the 
 
            first one being May 8, 1989 (Jt. Ex. K).  On June 25, 1991, 
 
            Dr. Walker did a second evaluation of claimant (Jt. Ex. K).  
 
            Dr. Walker's latest evaluation in June of 1991, reflects an 
 
            opinion that Dr. Walker is the first one, it appears, to 
 
            have mentioned in any report that claimant had an apparent 
 
            compression fracture of the body of T-7 and T-8, 
 
            asymptomatic at this time (Jt. Ex. K).  Dr. Walker's June 
 
            25, 1991 report opined claimant had 28 percent permanent 
 
            partial impairment of his right lower extremity and a 30 
 
            percent permanent partial impairment based on claimant's 
 
            thoracolumbar spine.  His May report had a spine impairment 
 
            at 32 percent.  Dr. Walker causally connected claimant's 
 
            surgeries and impairments to claimant's June 24, 1981 work 
 
            injury.
 
            
 
                 Joint exhibit M reflects the payments that have been 
 
            made to claimant for medical treatment, evaluation and 
 
            permanent partial and temporary disability benefits as of 
 
            September 30, 1991.
 
            
 
                 Joint exhibit L contains tax returns and W2's of 
 
            claimant for the years 1980 through 1990.
 
            
 
                 There is no dispute that claimant incurred an injury 
 
            that arose out of and in the course of his employment.  
 
            Defendants have raised the issue as to whether there is any 
 
            causal connection between claimant's permanent disability 
 
            and his June 24, 1981 injury.  Particularly, defendants are 
 
            questioning any permanent disability that is causally 
 
            connected to claimant's back injury.  It would appear that 
 
            defendants agree there is a causal connection to a permanent 
 
            disability to claimant's right lower extremity.  Defendants 
 
            contend there is no industrial disability.
 
            
 
                 There is considerable medical testimony that claimant 
 
            has had numerous surgeries to his back and to his right 
 
            lower extremity.
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            
 
                 It is undisputed that claimant's right lower extremity 
 
            is shorter than his left and that this is the result of his 
 
            June 24, 1981 injury and the ultimate surgeries claimant has 
 
            had.  There is also reference in the record that claimant 
 
            exhibited pain in his thigh and hip areas.  It is 
 
            understandable that when an individual has a shortness of 
 
            one leg over the other, this is likely to cause a disruption 
 
            in other parts of the body including the spine.  There is 
 
            evidence that claimant has built-up shoes.  It is not 
 
            absolutely clear when he first obtained these shoes but it 
 
            would appear that when taking the evidence as a whole, 
 
            claimant's leg injury and the multiple surgeries have 
 
            resulted in disruption to claimant's body as a whole and a 
 
            shortening of his right leg and that this lower extremity 
 
            injury has resulted in further injury to claimant's body as 
 
            a whole.
 
            
 
                 The records indicate claimant has a degenerative disc 
 
            disease.  It appears claimant's first indication of back 
 
            problems was in 1984.  There is no evidence of any 
 
            preexisting degenerative disc disease prior to June 24, 
 
            1981, and at least no evidence that claimant was suffering 
 
            from any effects of any degenerative disc disease or any 
 
            preexisting condition. 
 
            
 
                 The undersigned finds that because of claimant's June 
 
            24, 1981 injury, the multiples surgeries and the problems 
 
            the injury to the right lower extremity caused to claimant's 
 
            body as a whole and his ability to walk, this substantially 
 
            and materially affected claimant's lumbar spine and that any 
 
            degeneration of the spine that was inactive was materially 
 
            and substantially aggravated, accelerated and worsened or 
 
            lighted up so that claimant incurred an increased impairment 
 
            and disability.  
 
            
 
                 There is considerable involvement of rehabilitation 
 
            consultants.  claimant had more than one functional capacity 
 
            test.  It is obvious from the evidence that claimant has 
 
            restrictions and that he has limitations as to the extent of 
 
            work he can do.  There is evidence that claimant is doing 
 
            certain work now in relation to repairing cars, working for 
 
            a farmer as a gofer.  He has also done certain remodeling 
 
            work.  There is no evidence that claimant has made a 
 
            concerted effort to find any other work, but it is also 
 
            understandable that with claimant who has had numerous right 
 
            leg and back surgeries, if he is honest on any application 
 
            for employment, it would be hard to believe that he would be 
 
            easily hireable.  It is obvious there is certain work 
 
            claimant could do that someone might not hire him for pay to 
 
            do, particularly on a full-time basis because of claimant's 
 
            medical history, impairments and disability.
 
            
 
                 The undersigned finds the greater weight of medical 
 
            evidence shows that there is causal connection between 
 
            claimant's June 24, 1981 injury and his need for the 
 
            surgeries he has had both to his right lower extremity and 
 
            his back and to his current disability.  
 
            
 
                 Dr. Gislason opined a 27 percent and 20 percent 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            permanent impairment, respectively, to claimant's lower 
 
            right extremity and his back.  Dr. Walker, in his last 
 
            evaluation in 1991, opined a 28 percent and 30 percent 
 
            permanent partial disability, respectively, to claimant's 
 
            right lower extremity and his back.  Dr. Walker referred 
 
            also to the thoracic area to which no one else referred.  It 
 
            is obvious Dr. Gislason only related claimant's body as a 
 
            whole impairment regarding his back to the lumbar area.  The 
 
            undersigned finds that claimant does have a substantial 
 
            permanent impairment to his body as a whole as a result of 
 
            the combined effects of his right lower extremity injury and 
 
            back injury, which the undersigned has found has been caused 
 
            by his June 24, 1981 injury.
 
            
 
                 It is undisputed that claimant has had an extensive 
 
            healing period.  The dispute is whether claimant's healing 
 
            period ended on February 22, 1989 or April 1, 1989.  
 
            Although there is evidence in the record that it was 
 
            anticipated claimant would be released to return to work in 
 
            February 1989, it seems undisputed that he actually returned 
 
            to work April 1, 1989.  Claimant had surgery on January 12, 
 
            in which screws and plates were removed from three levels of 
 
            his back.  The undersigned finds that claimant's healing 
 
            period actually ended on his return to work and that 
 
            claimant's healing period ended through March 31, 1989.  The 
 
            parties agreed that there has been substantial excessive 
 
            healing period benefits paid and that claimant contends that 
 
            the healing period benefits paid from and including April 1, 
 
            1989 to February 1, 1990, are excess and defendants contend 
 
            that the healing period benefits that were paid from 
 
            February 22, 1989, up to February 1, 1990 are excess.  With 
 
            the above finding, the undersigned finds that any healing 
 
            period benefits paid from and including April 1, 1989 to 
 
            February 1, 1990 are excess and that those amounts would be 
 
            credited toward any permanent partial disability benefits 
 
            that would be owed by defendants under this decision.
 
            
 
                 Claimant is 47 years old and is a high school graduate.  
 
            He has no other formal education.  His transferable skills 
 
            are in the construction or general labor area.  Claimant is 
 
            currently working for a farmer, his work basically entails 
 
            errand work for the farmer whom he apparently has known over 
 
            the years.  It appears that this farmer is more or less 
 
            helping this claimant so that claimant would have some type 
 
            of employment but it appears to be limited.  Claimant has 
 
            not sought much work in the last year.  It appears he is 
 
            able to do some types of work, but with his medical history 
 
            it is questionable as to the extent to which claimant could 
 
            obtain a full-time job which, if obtainable, most likely 
 
            would be close to a minimum wage.
 
            
 
                 The remaining question is the extent of claimant's 
 
            industrial disability.  Taking into consideration claimant's 
 
            age; education; prior and post-injury work and injury 
 
            history; his current condition; the extent of his healing 
 
            period, which the parties have stipulated would be in excess 
 
            of 250 weeks; claimant's intelligence; emotional and 
 
            physical qualifications; his inability to engage in 
 
            employment for which he is suited as a result of the injury; 
 
            the location of his injury; the severity of his injury; the 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            fact that he has had multiple surgeries to his right lower 
 
            extremity and back; claimant's motivation; his functional 
 
            impairment, which is substantial; and his loss of income and 
 
            restrictions, the claimant has incurred a substantial indus
 
            trial disability.  Defendants employer has obviously not re
 
            quested claimant to come back to work nor has any 
 
            rehabilitation consultant tried or recommended or has anyone 
 
            felt that claimant would be able to return to such work as 
 
            he did in the past.  Claimant has had surgery at three 
 
            levels in his lumbar area, including a fusion.  The 
 
            extensive medical record, bills incurred and the extent of 
 
            medical treatment and rehabilitation efforts indicate the 
 
            severity of claimant's condition.  The undersigned finds 
 
            that claimant has incurred a 75 percent industrial disabil
 
            ity, and the permanent disability benefits should begin 
 
            April 1, 1989.
 
            
 
                                conclusions of law
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of June 24, 
 
            1981, is causally related to the disability on which he now 
 
            bases his claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
            N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 296, 18 
 
            N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903 (Iowa 1974).  However, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Id. at 907.  Further, the weight to be given to such 
 
            an opinion is for the finder of fact, and that may be 
 
            affected by the completeness of the premise given the expert 
 
            and other surrounding circumstances.  Bodish, 257 Iowa 516, 
 
            133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
            Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
            
 
                 While a claimant is not entitled to compensation for 
 
            the results of a preexisting injury or disease, the mere 
 
            existence at the time of a subsequent injury is not a 
 
            defense.  Rose v. John Deere Ottumwa Works, 247 Iowa 900, 
 
            908, 76 N.W.2d 756, 760-61 (1956).  If the claimant had a 
 
            preexisting condition or disability that is aggravated, 
 
            accelerated, worsened or lighted up so that it results in 
 
            disability, claimant is entitled to recover.  Nicks v. 
 
            Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, 815 
 
            (1962).
 
            
 
                 Our supreme court has stated many times that a claimant 
 
            may recover for a work connected aggravation of a 
 
            preexisting condition.  Almquist v. Shenandoah Nurseries, 
 
            218 Iowa 724, 254 N.W. 35 (1934).  See also Auxier v. 
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            Woodward State Hosp. Sch., 266 N.W.2d 139 (Iowa 1978); Gosek 
 
            v. Garmer and Stiles Co., 158 N.W.2d 731 (Iowa 1968); Barz 
 
            v. Oler, 257 Iowa 508, 133 N.W.2d 704 (1965); Olson v. 
 
            Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 
 
            (1963); Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 
 
            112 N.W.2d 299 (1961); Ziegler v. United States Gypsum Co., 
 
            252 Iowa 613, 106 N.W.2d 591 (1960).
 
            
 
                 An employer takes an employee subject to any active or 
 
            dormant health impairments, and a work connected injury 
 
            which more than slightly aggravates the condition is 
 
            considered to be a personal injury.  Ziegler, 252 Iowa 613, 
 
            620, 106 N.W.2d 591, and cases cited.
 
            
 
                 An injury to a scheduled member may, because of after 
 
            effects (or compensatory change), result in permanent 
 
            impairment of the body as a whole.  Such impairment may in 
 
            turn form the basis for a rating of industrial disability.  
 
            Dailey v. Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 569 
 
            (1943).  Soukup v. Shores Co., 222 Iowa 272, 268 N.W. 598 
 
            (1936).
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, expe
 
            rience and inability to engage in employment for which he is 
 
            fitted.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 
            125 N.W.2d 251 (1963).  Barton v. Nevada Poultry, 253 Iowa 
 
            285, 110 N.W.2d 660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial disabil
 
            ity.  This is so as impairment and disability are not syn
 
            onymous.  Degree of industrial disability can in fact be 
 
            much different than the degree of impairment because in the 
 
            first instance reference is to loss of earning capacity and 
 
            in the latter to anatomical or functional abnormality or 
 
            loss.  Although loss of function is to be considered and 
 
            disability can rarely be found without it, it is not so that 
 
            a degree of industrial disability is proportionally related 
 
            to a degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  These are matters which the 
 
            finder of fact considers collectively in arriving at the 
 
            determination of the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 

 
            
 
            Page  13
 
            
 
            
 
            
 
            
 
            each of the factors are to be considered.  There are no 
 
            guidelines which give, for example, age a weighted value of 
 
            ten percent of the total value, education a value of fifteen 
 
            percent of total, motivation - five percent; work experience 
 
            - thirty percent, etc.  Neither does a rating of functional 
 
            impairment directly correlate to a degree of industrial 
 
            disability to the body as a whole.  In other words, there 
 
            are no formulae which can be applied and then added up to 
 
            determine the degree of industrial disability.  It therefore 
 
            becomes necessary for the deputy or commissioner to draw 
 
            upon prior experience, general and specialized knowledge to 
 
            make the finding with regard to degree of industrial dis
 
            ability.  See Peterson v. Truck Haven Cafe, Inc., (Appeal 
 
            Decision, February 28, 1985); Christensen v. Hagen, Inc., 
 
            (Appeal Decision, March 26, l985).
 
            
 
                 Iowa Code section 85.34(1) provides that if an employee 
 
            has suffered a personal injury causing permanent partial 
 
            disability, the employer shall pay compensation for a 
 
            healing period from the day of the injury until (1) the 
 
            employee returns to work; or (2) it is medically indicated 
 
            that significant improvement from the injury is not 
 
            anticipated; or (3) until the employee is medically capable 
 
            of returning to substantially similar employment.
 
            
 
                 Iowa Code section 85.34, kneeling and lifting limits, 
 

 
            
 
            Page  14
 
            
 
            
 
            
 
            
 
            including an occasional 15 pound limit to and from the floor 
 
            and never lifting over 25 pounds.
 
            
 
                 Claimant incurred a healing period that ended to and 
 
            including March 31, 1989.
 
            
 
                 Claimant's June 24, 1981 work injury caused claimant to 
 
            incur a 75 percent industrial disability.
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That claimant's healing period ended through March 31, 
 
            1989, and not February 22, 1989, as contended by defendants.
 
            
 
                 That defendants shall pay unto claimant three hundred 
 
            seventy-five (375) weeks of permanent partial disability 
 
            benefits at the rate of three hundred fourteen and 14/100 
 
            dollars ($314.14), beginning April 1, 1989.
 
            
 
                 That defendants shall pay the accrued weekly benefits 
 
            in a lump sum and shall receive credit against the award for 
 
            weekly benefits previously paid.  The parties stipulated 
 
            that defendants have paid three hundred eleven point seven 
 
            five one (311.751) weeks at the rate of three hundred sixty 
 
            dollars ($360.00) and fifty-nine point five seven one 
 
            (59.571) weeks at three hundred fifty-three dollars 
 
            ($353.00).
 
            
 
                 That defendants shall pay interest on benefits awarded 
 
            herein as set forth in Iowa Code section 85.30.
 
            
 
                 That defendants shall pay the costs of this action, 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 That defendants shall file an activity report upon 
 
            payment of this award as required by this agency, pursuant 
 
            to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of November, 1991.
 
            
 
            
 
            
 
                                          ______________________________
 
                                          BERNARD J. O'MALLEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies to:
 
            
 
            Mr Joseph L Fitzgibbons
 
            Attorney at Law
 
            108 North 7th St
 
            P O Box 496
 
            Estherville IA 51334
 
            
 
            Mr Thomas E Leahy
 
            Attorney at Law
 
            2222 Grand Ave
 
            P O Box 10434
 

 
            
 
            Page  15
 
            
 
            
 
            
 
            
 
            Des Moines IA 50306
 
            
 
            
 
                 
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      5-1108; 5-1803
 
                      5-1803.1; 5-1802
 
                      Filed November 26, 1991
 
                      Bernard J. O'Malley
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            GARY DEAN BARTZ,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 673627
 
            W. HODGMAN & SONS, INC.,      :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            UNITED STATES FIDELITY &,     :
 
            GUARANTY COMPANY,             :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-1108; 5-1803
 
            Found claimant's work injury caused claimant to incur 
 
            approximately 10 surgeries to his lower right extremity and 
 
            low back causing substantial impairment to claimant's body 
 
            as a whole, substantial restrictions and a 75% industrial 
 
            disability.
 
            
 
            5-1803.1
 
            Found claimant's work injury caused injury to claimant's 
 
            body as a whole, right lower extremity and back, and not 
 
            just to his scheduled member, right lower extremity.
 
            
 
            5-1802
 
            Found claimant's healing period ended March 31, 1989, 
 
            inclusive, and not February 22, 1989.
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     
 
         
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
                       
 
         SHELLIE ANDERSON,
 
         
 
              Claimant,
 
                                                   File No. 673653
 
         vs.
 
                                                      A P P E A L
 
         J I CASE COMPANY
 
                                                    D E C I S I O N
 
              Self-Insured,
 
              Defendant.                               F I L E D
 
         
 
                                                      JAN 27 1989
 
         
 
                                            IOWA INDUSTRIAL COMMISSIONER
 
         
 
                                        
 
                              STATEMENT OF THE CASE
 
         
 
              Claimant appeals from a review-reopening decision denying 
 
         permanent partial disability benefits as the result of an alleged 
 
         injury on June 22, 1981.
 
         
 
              The record on appeal consists of the transcript of the 
 
         review-reopening proceeding; claimant's exhibits 1 through 36; 
 
         and defendant's exhibits A through TT. Claimant filed a brief on 
 
         appeal.
 
         
 
                                      ISSUE
 
         
 
              Claimant states the following issue on appeal:  "Whether or 
 
         not the deputy erred in finding that the claimant-appellant 
 
         failed to show any unanticipated material change in his earning 
 
         capacity or in his physical condition subsequent to May 17th, 
 
         1984."
 
         
 
                           REVIEW OF THE EVIDENCE
 
         
 
              The review-reopening decision adequately and accurately 
 
         reflects the pertinent evidence and it will not be totally set 
 
         forth herein.
 
         
 
              Briefly stated, claimant entered into an agreement of 
 
         settlement on May 17, 1984, for a back injury occurring on June 
 
         22, 1981.  The agreement for settlement provided for 20 percent 
 
                                                
 
                                                
 
                                                
 
                                                         
 
         permanent partial disability, and was approved by this agency on 
 
         May 29, 1984.
 
         
 
              Claimant was 44 years old at the time of the hearing. 
 
         Claimant's original injury occurred when he fell from a forklift 
 
         he was operating.  Claimant was not employed after October of 
 
         1981.  Claimant testified he presently has pain in his low back 
 
         and his legs, and that this pain increases with activity.
 
         
 
              Claimant testified that at the time of the settlement in 
 
         1984, he had a lifting restriction of 20 pounds, as well as a 
 
         restriction on bending and stooping.  Claimant revealed that his 
 
         present treating physician, John E. Sinning, Jr., M.D., has 
 
         modified his lifting restriction to 50 pounds.  Because of this 
 
         change in his restrictions, claimant presented himself for work 
 
         at J. I. Case.  However, the employer has not rehired claimant.
 
         
 
              Prior medical examinations had revealed that on April 6, 
 
         1982, claimant was found to have a herniated disc at the L5-Sl 
 
         level; on October 11, 1982, a herniated disc at the L4-5 level; 
 
         on May 29, 1984, a bulging disc at the L4-5 level, as well as a 
 
         possible herniated disc on the right side of the L5-Sl level.
 
         
 
              On June 2, 1983, Richard T. Beaty, D.O., assigned claimant a 
 
         5-10 percent permanent partial "disability" rating, and stated 
 
         that claimant's condition would not substantially deteriorate 
 
         unless claimant was reinjured.  John T. Johnson, D.O., opined 
 
         claimant had degenerative osteoarthritis.  Claimant underwent a 
 
         physical training program and was able to lift 50 pounds.
 
         
 
              After the agreement for settlement, on October 30, 1984, a 
 
         CT scan showed abnormalities at the L4-5 and L5-Sl levels.  
 
         Claimant testified that his back condition is the same as it was 
 
         at the time of the settlement and that the problems he is having 
 
         with his back now are the same as he experienced in May of 1984.
 
         
 
              In December of 1985, F. Dale Wilson, M.D., examined claimant 
 
         and concluded that claimant's condition was causally related to 
 
         his June 22, 1981, injury, and that lifting 50 pounds was "too 
 
         much" for claimant's condition.  He also recommended a 25 to 30 
 
         pound weight lifting limit.
 
         
 
              Dr. Johnson opined that claimant was totally "disabled" on 
 
         June 6, 1985, and imposed a weight restriction of 10 pounds.
 
         
 
              On June 16, 1986, Dr. Sinning examined claimant and 
 
         claimant's prior CT and myelogram results, and concluded that 
 
         "expected changes have taken place . All this is part of the 
 
         expected evolution of degenerative disc disease."  (Defendant's 
 
         Exhibit PP)  Dr. Sinning also noted that the bulge at L4-5 was 
 
         less bulging than it was in 1984, and the obliteration of the 
 
         right Sl nerve root was similar to what it was in 1984.  The 
 
         L5-Sl showed a vacuum sign, "a further sign of progression of 
 
         degeneration."  (Def. Ex. PP)  In addition, Dr. Sinning stated 
 
         that, "[t}hese same changes occur in the majority of our 
 
                                                
 
                                                         
 
         population      as we age from age 20 through the 50's."  (Def. 
 
         Ex. PP) A lack of sensation in claimant's legs that developed 
 
         subsequent to the settlement was attributed to claimant's 
 
         diabetes by Dr. Sinning.  Dr. Sinning concluded that, 
 
         "[r]egarding Mr. Anderson's impairment it is certainly no greater 
 
         than it was in 1982," and reassigned claimant a five percent body 
 
         as a whole impairment rating.  Based on claimant's experience in 
 
         his rehabilitation program, Dr. Sinning assigned a lifting 
 
         restriction of 50 pounds.
 
         
 
              In his deposition, Dr. Sinning stated that during the 1986 
 
         examination, claimant had told him nothing had changed since 
 
         1984. Dr. Sinning again stated that at the time of his 1986 
 
         examination of claimant, there was no change in the L5-Sl disc 
 
         from 1984, and the L4-5 disc bulge had, "during those two years 
 
         shrunk to a point of being considered normal."  (Sinning 
 
         Deposition, page 28, lines 14-15)  Dr. Sinning also opined that 
 
         his tests showed that claimant was exaggerating his pain 
 
         symptoms.
 
         
 
              Dr. Beaty re-examined claimant on August 6, 1986, and opined 
 
         that claimant was showing symptoms of Sl radiculopathy, and again 
 
         rated claimant has having a 5-10 percent permanent partial 
 
         disability and imposed a 25-30 pound lifting restriction, 
 
         stating:
 
         
 
                 I tend to feel however that, even though he is able to 
 
              lift 50-lbs. in a controlled situation, that he would be 
 
              unable to return to 50-lb. lifting type activity.
 
         
 
                 I do believe, however, that he has demonstrated an 
 
              ability to work within the restrictions of 25-30 lbs. 
 
              lifting; no repetitive bending or twisting and no prolonged 
 
              periods of standing or sitting, in the past.
 
         
 
         (Claimant's Ex. 16)
 
         
 
              Dr. Beaty did note an "apparent increase in size of the disc 
 
         herniation."  (Cl. Ex. 16)
 
         
 
                                   APPLICABLE LAW
 
         
 
              Upon review-reopening, claimant has the burden to show that 
 
         he has suffered a change in his condition since the original 
 
         award was made.  Henderson v. Iles, 250 Iowa 787, 96 N.W.2d 321 
 
         (1959). A mere difference of opinion of experts as to the 
 
         percentage of disability arising from an original injury would 
 
         not be sufficient to justify a different determination on a 
 
         petition for review-reopening.  Rather, such a finding  must be 
 
         based on a worsening or deterioration of the claimant's condition 
 
         not contemplated at the time of the first award.  Bousfield v. 
 
         Sisters of Mercy, 249 Iowa 64, 86 N.W.2d 109 (1957).  A failure 
 
         of a condition to improve to the extent originally anticipated 
 
         may also constitute a change of condition.  Meyers v. Holiday Inn 
 
         of Cedar Falls, Iowa, 279 N.W.2d 24 (Iowa App. 1978).
 
                                                
 
                                                
 
                                                         
 
         
 
                                ANALYSIS
 
         
 
              Claimant seeks further benefits under review-reopening. 
 
         Claimant bears the burden of showing that he has suffered a 
 
         change of condition subsequent to the settlement in this case 
 
         that would justify an increase in benefits.
 
         
 
              Claimant, at the time of the settlement, had a rating of 
 
         permanent partial impairment of five percent of the body as a 
 
         whole.  His rating of impairment now is unchanged.  Dr. Beaty 
 
         noted an enlargement of claimant's disc herniation, but 
 
         nevertheless Dr. Beaty did not change claimant's rating of 
 
         impairment or restrictions.  Dr. Sinning also stated that 
 
         claimant's physical condition has not worsened.  Indeed, one of 
 
         claimant's disc conditions at the time of the settlement has 
 
         improved.
 
         
 
              The only alleged physical change in claimant's condition 
 
         concerns claimant's lifting restrictions.  At the time of the 
 
         settlement, claimant was restricted from lifting weights over 25 
 
         pounds.  Dr. Sinning has now altered that restriction to 50 
 
         pounds.  However, the other physicians who have examined claimant 
 
         have retained the original lifting restriction.
 
         
 
              The greater weight of the medical evidence indicates that 
 
         claimant's lifting restriction has not changed.  Even if Dr. 
 
         Sinning's view on the lifting restriction were adopted, this is 
 
         but one facet of claimant's physical condition.  Overall, 
 
         claimant's physical condition has not changed since the 
 
         settlement in 1984, except to the extent it has improved.  
 
         Claimant himself described his physical condition as the same as 
 
         it was at the time of the settlement.  Claimant has not suffered 
 
         a physical change of conditions.
 
         
 
              Claimant may also be entitled to further benefits for a 
 
         non-physical change of conditions.  The non-physical change of 
 
         conditions urged by claimant is the failure of the employer to 
 
         rehire claimant even though Dr. Sinning has raised claimant's 
 
         lifting restriction.  Claimant, prior to the new lifting 
 
         restriction by Dr. Sinning, was not eligible to work for J. I. 
 
         Case due to his lifting restriction.  The evidence indicates 
 
         there was hostility between claimant and his employer.  The 
 
         reason the former employer declined to rehire claimant is not 
 
         contained in the record.  In addition, if claimant's lifting 
 
         restriction has in fact been raised, it opens up to claimant the 
 
         opportunity to work at a greater number of other jobs with other 
 
         employers, and is thus indicative of a greater, rather than 
 
         lesser, earning capacity.
 
         
 
              The agreement for settlement acknowledged claimant's 
 
         condition as degenerative osteoarthritis.  The degenerative 
 
         nature of that condition implies further deterioration.  Even if 
 
         claimant had shown a worsening of his physical condition, the 
 
         agreement for settlement seems to contemplate degeneration.
 
         
 
              Claimant has failed to show either a physical or 
 
         non-physical change of conditions not contemplated by the 
 
         agreement for settlement.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Claimant received a back injury which arose out of and 
 
         was in the course of his employment with defendant on June 22, 
 
         1981.
 
         
 
              2.  Claimant and defendant entered into an approved 
 
         agreement for settlement for 20 percent industrial disability in 
 
         May of 1984.
 
         
 
              3.  At the time of the settlement, claimant had been given a 
 
         rating of impairment of five percent of the body as a whole and a 
 
         20-25 pound lifting restriction due to disc herniations at the 
 
         L4-5 and L5-S1 levels.
 
         
 
              4.  At the time of the hearing in this case, claimant 
 
         retained a rating of impairment of five percent of the body as a 
 
         whole, and two of claimant's doctors imposed a lifting 
 
         restriction of 20 pounds, and one doctor a lifting restriction of 
 
         50 pounds.
 
                             
 
                                                         
 
              5.  Claimant's physical condition has not changed since the 
 
         1984 settlement except that one of claimant's disc herniations 
 
         had improved.
 
         
 
              6.  Claimant does not have any increased loss of earning 
 
         capacity subsequent to the 1984 settlement.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant has failed to show a physical or non-physical 
 
         change of conditions not contemplated by the agreement for 
 
         settlement.
 
         
 
              Claimant is not entitled to further benefits.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That claimant take nothing from this proceeding.
 
         
 
              That claimant pay the costs of this proceeding.
 
         
 
         
 
              Signed and filed this 27th day of January, 1989.
 
         
 
         
 
                                                DAVID E. LINQUIST
 
                                             INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. John H. Westensee
 
         Attorney at Law
 
         1703 Second Ave.
 
         Rock Island, Illinois  61201
 
         
 
         Mr. Larry L. Shepler
 
         Attorney at Law
 
         Executive Square, Suite 102
 
         400 Main Street
 
         Davenport, Iowa 52801
 
 
 
 
        
 
 
 
 
 
        
 
        
 
                                          1404 - 2905
 
                                          January 27, 1989
 
                                          DAVID E. LINQUIST
 
        
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        SHELLIE ANDERSON,
 
        
 
            Claimant,
 
                                                 File No. 673653
 
        vs.
 
                                                   A P P E A L
 
        J. I. CASE COMPANY,
 
                                                 D E C I S I O N
 
            Employer,
 
            Self-Insured,
 
             Defendant.
 
             
 
             
 
             
 
        1404, 2905
 
        
 
             Claimant failed to show an unanticipated change of 
 
             conditions in review reopening where he acknowledged that his 
 
             back condition had not changed since the settlement in his case. 
 
             Claimant relied solely on the fact that one doctor raised his 
 
             lifting restriction from 25 pounds to 50 pounds and when he 
 
             presented himself to former employer for reemployment because of 
 
             this, employment was denied. The record showed hostility between 
 
             claimant and employer as a possible reason for the refusal to 
 
             rehire, and all other doctors in the case said his condition had 
 
             not changed.
 
             
 
        
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JACK KLASS, SR.
 
         
 
              Claimant,
 
         
 
         VS.                                       FILE NO. 674610
 
         
 
         COMMERCIAL SERVICES,                       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
 
         
 
         EXCALIBUR INSURANCE COMPANY,
 
         BY AND THROUGH IOWA INSURANCE
 
         GUARANTY ASSOCIATION,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in review-reopening brought by Jack 
 
         Klass, Sr., claimant, against Commercial Services, employer, and 
 
         Excalibur Insurance Company, by and through Iowa Insurance 
 
         Guaranty Association, insurance carrier, for workers' 
 
         compensation benefits as a result of an injury on June 25, 1980.  
 
         A prior review-reopening decision from this agency awarding 
 
         permanent partial disability benefits for a 15 percent industrial 
 
         disability to the body as a whole was filed on November 3, 1983.  
 
         This award was increased to 25 percent on appeal in a decision by 
 
         the industrial commissioner filed on June 29, 1984.  On January 
 
         22, 1988, a hearing was held on claimant's most recent 
 
         review-reopening petition requesting additional disability 
 
         benefits for a change of condition as a result of the original 
 
         work injury.
 
         
 
              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 and the 
 
         following witnesses: John TenPas, Lawrence Pursell and Shirley 
 
         Klass.  The exhibits received into the evidence at the hearing 
 
         are listed in the prehearing report.  According to the prehearing 
 
         report, the parties have stipulated that in the event of an award 
 
         of weekly benefits from this proceeding, claimant's rate of 
 
         compensation shall be $194.33 per week.
 
                                      
 
                                      ISSUES
 
         
 
              The parties submitted the following issues for 
 
         determination in this proceeding:
 

 
         
 
         
 
         
 
         KLASS V. COMMERCIAL SERVICES
 
         Page   2
 
         
 
         
 
         
 
              I.  Whether claimant suffered a change of condition 
 
         causally connected to the work injury since the last 
 
         arbitration award.
 
         
 
             II.  The extent of claimant's entitlement to weekly 
 
         benefits for permanent disability should a change of condition 
 
         be established.
 
         
 
                         SUMMARY OF THE EVIDENCE
 
         
 
              The following is a summary of the evidence presented in this 
 
         case.  For the sake of brevity, only the evidence most pertinent 
 
         to this decision is discussed.  Whether or not specifically 
 
         referred to in this summary, all of the evidence received at the 
 
         hearing was considered in arriving at this decision.  As will be 
 
         the case in any attempted summarization, conclusions about what 
 
         the evidence offered may show are inevitable.  Such conclusions, 
 
         if any, in the following summary should be considered as 
 
         preliminary findings of fact.
 
         
 
              In a medical report dated December 18, 1981, submitted at 
 
         hearing during the prior review-reopening proceedings in 1982, 
 
         John R. Walker, M.D., related the following history:
 
         
 
              The above captioned 51 year old male, comes to me for 
 
              diagnosis, evaluation and treatment.  He tells me that on 
 
              June 25, 1980 he was the driver of a semi-trailer truck, 
 
              employed by Commercial Services of Storm Lake, Iowa, 
 
              traveling around Algona, Iowa when his truck was hit head on 
 
              by a Pontiac that had crossed the center line and traveling 
 
              at an estimated speed of 75 miles per hour.  The patient 
 
              states that he was going about 40 miles per hour when they 
 
              hit and did have some opportunity apparently to slow down 
 
              before the actual impact.  His truck was thrown over on it's 
 
              right side.  He says that he hung on to the steering very 
 
              assiduously and more or less for dear life and following the 
 
              accident was taken to Algona for x-rays.  The x-rays did 
 
              determine that he had a crushed, right ankle.  He was then 
 
              sent on to Fort Dodge where surgery was performed 
 
              immediately by Dr. Stitt of Fort Dodge, Iowa.  The patient 
 
              was discharged after five days, wearing a cast and he wore 
 
              this cast for at least six or seven weeks and then was on 
 
              crutches for several months.  After his hospitalization he 
 
              complained more and more about his low back pain and says 
 
              that he had some in the hospital but it got worse after he 
 
              got out.  He says that his leg was hurting so bad in the 
 
              hospital that he didn't pay any attention to it because he 
 
              knew he had a fracture, however, he also began to have pain 
 
              down the leg and note numbness if he sat for too long in one 
 
              spot, also particularly if he elevated the foot up on the 
 
              couch or davenport.  After some months of complaining to Dr. 
 
              Stitt, x-rays were ordered of his low back and elbow.  These 
 
              were read, at least according to the patient, as being 
 
              negative, or nothing wrong, but he is not sure.  At least no 
 
              treatment was ordered.  In August of 1981, he was referred 
 
              to the Mayo Clinic by concerned parties, for a second 
 
     
 
         
 
         
 
         
 
         
 
         KLASS V. COMMERCIAL SERVICES
 
         Page   3
 
         
 
         
 
              opinion.  X-rays were taken of his elbow, back, right ankle 
 
              and right knee and he was told that he would probably have 
 
              to have an ankle fusion, that he had arthritis.  He was 
 
              given a support to wear on his shoe.  The patient has not 
 
              been able to return to work because of these problems.  He 
 
              still has his job and apparently could go back to it.  He 
 
              states that his back has been gradually giving him more and 
 
              more trouble and limits his activities.
 
         
 
              He denies any previous back pain or problem, but does state 
 
              that about ten years ago he sprained his right elbow, but it 
 
              had not been a problem as far as pain and discomfort was 
 
              concerned since that time.  He says that since the accident 
 
              he has not been able to straighten his elbow out quite as 
 
              much, but that there might have been some loss in complete 
 
              extension prior to this, but we cannot be sure.  He has 
 
              never had any problems with his right knee before, but did 
 
              have two broken toes on his right foot some thirty years 
 
              ago.  He has never had any chiropractic or osteopathic 
 
              treatments.
 
         
 
              On May 5, 1982, the doctor described the following 
 
         complaints made to him by claimant at that time:
 
         
 
                 1.)  He gets headaches in the occiput region rather than 
 
              all over his head and this indicates some improvement.
 
         
 
                 2.)  The patient has an aching neck most of the time but 
 
              not all the time.
 
         
 
                 3.)  The patient has a constant low back ache in the 
 
              lumbar region.
 
         
 
                 4.)  He has some discomfort in the elbow if he does any 
 
              pro or supination or twisting or turning.  He states that he 
 
              cannot run a screwdriver.
 
         
 
                 5.)  His right ankle aches 24 hours a day and if he is on 
 
              it it aches worse.
 
         
 
                 6.)  The right knee still gives out on him when he 
 
              walks.
 
         
 
              Based upon these complaints, his review of past records in 
 
         his examination of claimant, Dr. Walker rated claimant as 
 
         suffering from a 22 percent permanent partial impairment to the 
 
         whole man.
 
         
 
              However, in the review-reopening and appeal decisions of 
 
         this agency in 1982, not all of the permanent partial impairment 
 
         described by Dr. Walker was found to be work related.  In their 
 
         brief, defendants point out the following portion of the 
 
         review-reopening decision on page 6:
 
         
 
              Claimant has a multitude of other complaints, including neck 
 
              discomfort, right knee and right elbow pain.  Certainly the 
 
              right knee complaints may logically flow from the ankle 
 
              injury and change in gait.  The record does not establish a 
 
              relationship between the neck discomfort, the elbow problem 
 

 
         
 
         
 
         
 
         KLASS V. COMMERCIAL SERVICES
 
         Page   4
 
         
 
         
 
              and this injury.
 
         
 
                 ....
 
         
 
              In another sense, he says claimant has a 22 percent 
 
              impairment that appears to consider certain maladies, i.e., 
 
              elbow and neck, which have never been established to be 
 
              causally related to the incident.
 
         
 
              This portion of the review-reopening decision was sustained 
 
         on appeal by the industrial commissioner.
 
         
 
              At the hearing in this case, claimant and his wife testified 
 
         that claimant's condition is growing worse over the years.  
 
         Claimant testified that he continues to have trouble with his 
 
         knee, both shoulders and elbows.  He stated that he has 
 
         difficulty with his sex life and cannot be as active physically 
 
         as he was before the work injury.  Claimant said that his neck is 
 
         now more stiff then at the time of the prior hearing.
 
         
 
              Dr. Walker reexamined claimant on July 30, 1984.  As he did 
 
         in 1982, Dr. Walker listed the following complaints made to him:
 
         
 
                 1.)  He has a constant dull ache starting at the base of 
 
              the cervical spine and radiating up in to the occiput region 
 
              and ending at that region.
 
         
 
                 2.)  He has a dull ache across the trapezius area 
 
              bilaterally which is intensified after he is up and around 
 
              for any period of time.
 
         
 
                 3.)  He has a constant, dull ache in the midline in the 
 
              lumbar region which becomes worse with any activity.  At 
 
              times he has shooting pains down the entire right leg to the 
 
              ankle and he points basically to the L-4, L-5 and h-5, S-1 
 
              region.
 
         
 
                 4.)  He has aching in both knees when he walks or the 
 
              weather changes.  He says this is a dull ache around the 
 
              patellae or kneecaps as he puts it.
 
         
 
                 5.)  Both elbows have intermittent dull aches, especially 
 
              with damp or cold weather.
 
         
 
                 6.)  The right ankle gives him a constant, aching pain.
 
         
 
              However, Dr. Walker goes on to state as follows:
 
         
 
              OPINION: This patient seems to have a lot more pain and 
 
              discomfort based pretty much on his examination which 
 
              includes the loss of neck motion and his subjective [sic] 
 
              complaints.  It is my opinion that the patient has some 
 
              increase in his permanent, partial impairment.  His 
 
              permanent, partial impairment at this time in my opinion is 
 
              evaluated at 33% of the whole man.
 
         
 
              Two vocational rehabilitation counselors and evaluators 
 
         employed by the state, John TenPas and Lawrence Pursell, 
 
         testified that despite claimant's high motivation, he is 
 

 
         
 
         
 
         
 
         KLASS V. COMMERCIAL SERVICES
 
         Page   5
 
         
 
         
 
         unemployable.  However, TenPas testified at the previous 
 
         review-reopening proceedings in 1982 and issued the same opinion.  
 
         TenPas admitted at hearing in this case that he formed his 
 
         opinions in March, 1982, before the review-reopening hearing and 
 
         his opinions have remained unchanged since that time.  Pursell 
 
         testified that his opinions were based upon TenPas' findings and 
 
         evaluations performed in March, 1982.  The testimony of TenPas 
 
         was excluded from the consideration in the last review-reopening 
 
         proceedings due to failure to list him on a witness list served 
 
         upon defendants prior to hearing.
 
         
 
              Claimant testified that he is 55 years of age.  Claimant is 
 
         unable to read and write.  Claimant has not been employed since 
 
         the work injury.  Claimant believes that he is 100 percent 
 
         totally disabled.  Claimant said that he sought vocational 
 
         rehabilitation after the work injury but the counselors indicated 
 
         to him that he was unemployable.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              In a review-reopening proceeding, claimant has the burden of 
 
         establishing by a preponderance of the evidence that he suffered 
 
         a change of condition or a failure to improve as medically 
 
         anticipated as a proximate result of his original injury, 
 
         subsequent to the date of the award or agreement for compensation 
 
         under review, which entitles him to additional compensation.  
 
         Deaver v. Armstrong Rubber Co., 170 N.W.2d 455 (Iowa 1969); 
 
         Meyers v. Holiday Inn of Cedar Falls, Iowa, Iowa App., 272 
 
         N.W.2d 24 (1978).  Such a change of condition is not limited to a 
 
         physical change of condition.  A change in earning capacity 
 
         subsequent to the original award which was proximately caused by 
 
         the original injury also constitutes a change of condition under 
 
         Iowa Code section 85.26(2) and 86.14(2).  See McSpadden v. Big 
 
         Ben Coal Co., 288 N.W.2d 181 (Iowa 1980) and Blacksmith 
 
         v.All-American, Inc., 290 N.W.2d 348 (Iowa 1980).
 
         
 
              With reference to the alleged physical change in this case, 
 
         claimant's subjective complaints are little different than the 
 
         complaints he had at the hearing in 1982.  At the hearing in this 
 
         case, claimant only described additional neck stiffness.  This 
 
         additional stiffness was verified in the 1984 report of Dr. 
 
         Walker.  However, it was found in 1982 that claimant's neck 
 
         problems are not work related and this deputy industrial 
 
         commissioner is helpless to reverse a prior final agency decision 
 
         on the matter.  Claimant's attorney points to age as a factor to 
 
         award more benefits in this case.  It is well settled that a 
 
         change of condition must include factors which were not 
 
         anticipated at the time of the prior award.  Meyers at 24.  It 
 
         can safely be assumed that it was anticipated in the prior 
 
         proceedings that claimant would grow older.
 
         
 
              With reference to any change in claimant's industrial 
 
         disability, it seems rather clear that claimant is unemployable.  
 
         However, claimant has been unemployable since the date of injury.  
 
         Whether or not the prior award was sufficient or not is not an 
 
         issue before the undersigned deputy.  Also, the exclusion of the 
 
         vocational rehabilitation information at the prior hearing in 
 
         May, 1982, cannot form the basis of a second review-reopening 
 
         proceeding.
 

 
         
 
         
 
         
 
         KLASS V. COMMERCIAL SERVICES
 
         Page   6
 
         
 
         
 
         
 
              On the whole record, the undersigned deputy commissioner 
 
         certainly empathizes with claimant's current problems.  However, 
 
         the undersigned must follow the law and no significant change of 
 
         condition could be found.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Claimant continues to have problems regarding his right 
 
         ankle, both knees, both shoulders, both elbows, low back and neck 
 
         or cervical spine.
 
         
 
              2.  Claimant is  57 years of age.  His level of education, 
 
         his ability to read and write, his work experience and 
 
         occupational skills have remained unchanged since the injury.  
 
         Claimant was unemployable in May, 1982, and remains unemployable 
 
         at the present time.
 
         
 
              3.  It could not be found that claimant's physical condition 
 
         or the degree of his industrial disability has changed since May, 
 
         1982.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant has not established entitlement to additional 
 
         permanent partial disability benefits.
 
         
 
                                      ORDER
 
         
 
              1.  Claimant's petition in this matter shall be dismissed.
 
         
 
              2.  Defendants shall pay the cost of this action pursuant to 
 
         Division of Industrial Services Rule 343-4.33.
 
         
 
         
 
              Signed and filed this 28th day of March, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                           LARRY P. WALSHIRE
 
                                           DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. David A. Opheim
 
         Attorney at Law
 
         400 Boston Centre
 
         P. 0. Box 1314
 
         Fort Dodge, Iowa  50501
 
         
 
         Mr. Tito Trevino
 
         Attorney at Law
 
         503 Snell Bldg.
 
         P. 0. Box 1680
 
         Fort Dodge, Iowa  50501
 
         
 

 
         
 
         
 
         
 
         KLASS V. COMMERCIAL SERVICES
 
         Page   7
 
         
 
         
 
         Mr. Roy M. Irish
 
         Attorney at Law
 
         729 Insurance Exchange Bldg.
 
         Des Moines, Iowa 50309
 
         
 
         Mr. Cecil Goettsch
 
         Attorney at  Law
 
         1100 Des Moines Bldg.
 
         Des Moines, Iowa  50309
 
         
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 2904
 
                                                 Filed March 28, 1988
 
                                                 LARRY P. WALSHIRE
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         JACK KLASS, SR.,
 
         
 
              Claimant,
 
                                                   FILE NO. 674610
 
         VS.
 
                                                     R E V I E W -
 
         COMMERCIAL SERVICES,
 
                                                  R E 0 P E N I N G
 
              Employer,
 
                                                   D E C I S I 0 N
 
         and
 
         
 
         EXCALIBUR INSURANCE COMPANY,
 
         BY AND THROUGH IOWA INSURANCE
 
         GUARANTY ASSOCIATION,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         2904
 
         
 
              This was a proceeding in review-reopening.  Additional 
 
         benefits were denied for failure to show a change of condition 
 
         either physically or industrially since the last proceeding.
 
 
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         ROBERT L. EDLER,
 
         
 
              Claimant,                             File No. 675182
 
         
 
         vs.                                          R E M A N D
 
         
 
         EMCO SPECIALTIES, INC.,                    D E C I S I O N
 
         
 
              Employer,
 
                                                       F I L E D
 
         and
 
                                                      FEB 26 1988
 
         HARTFORD INSURANCE GROUP,
 
                                             IOWA INDUSTRIAL COMMISSIONER
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding on remand that comes as a result of the 
 
         following history.  An agreement for settlement was approved in 
 
         which claimant was given compensation for 20 percent permanent 
 
         partial disability of the body as a whole with an express 
 
         provision that termination of claimant's employment by the 
 
         employer had not been evaluated in arriving at the settlement.
 
         
 
              The claimant's termination from employment was eventually 
 
         upheld.  Claimant sought further benefits of additional permanent 
 
         partial disability in a review-reopening proceeding.  A 
 
         review-reopening decision dated July 3, 1984 concluded that 
 
         claimant's loss of employment was a result of the injury he had 
 
         sustained and that claimant was entitled to 25 additional weeks 
 
         of compensation based upon a 25 percent permanent total 
 
         disability.  Claimant appealed that decision to the commissioner, 
 
         and in an appeal decision dated January 8, 1985 a deputy 
 
         appointed by the commissioner concluded that claimant's 
 
         termination of employment was not related to his injury and that 
 
         no additional benefits should be awarded.  Claimant appealed the 
 
         appeal decision to the district court in Polk County.
 
         
 
              In a ruling filed May 30, 1986 the district court held that 
 
         the issue of causal connection between the termination and the 
 
         industrial disability was not properly before the commissioner. 
 
         The district court further held that even if the issue were 
 
         properly before the commissioner the resolution of the issue was 
 
         erroneous.  The district court reversed the appeal decision and 
 
         remanded the case to the commissioner for review to determine 
 
         whether the award of an additional five percent permanent partial 
 
         disability in the review-reopening decision is correct.  The 
 
         commissioner retained jurisdiction of the matter at the appeal 
 
         level.
 
                                                
 
                                                         
 
         
 
              The record on appeal consists of the transcript of the 
 
         review-reopening hearing; claimant's exhibit 1 through 7; and 
 
         defendants' exhibits A through E.  Both parties originally filed 
 
         briefs on appeal.
 
         
 
                                     ISSUES
 
         
 
              The issue on remand is the extent of claimant's industrial 
 
         disability.
 
         
 
                             REVIEW OF THE EVIDENCE
 
         
 
              The review-reopening decision adequately and accurately 
 
         reflects the pertinent evidence and it will not be totally 
 
         reiterated herein.
 
         
 
              At the time of the hearing held on May 1, 1984, claimant was 
 
         33 years of age.  He completed high school although he did not 
 
         get a regular high school diploma.  While in high school he 
 
         attended special classes in math and reading.  He testified that 
 
         he does not read well but he can read and understand.  He 
 
         testified that he can write but has trouble spelling.  While he 
 
         was in the service for a year and a half he was an antiaircraft 
 
         gunner.  His work history consists of construction and manual 
 
         labor jobs.
 
         
 
              While working for defendant employer as a videx machine 
 
         operator he injured his back when he pushed a crane with a spool 
 
         of metal on it.  At the time of his injury he was earning 
 
         approximately $8.65 per hour based on a 40 hour work week.  He 
 
         also received medical and life insurance coverage while employed 
 
         with the employer.  He testified that he has not had any steady 
 
         employment since 1981 but that he does earn approximately $5.00 
 
         per hour for the work he does for his church and, that since 1981 
 
         has worked about six weeks for the church.  Robert R. Tucker, 
 
         plant manager for the employer, testified that if claimant were 
 
         working for the employer at the time of the hearing he would have 
 
         been earning approximately $9.35 per hour and that the value of 
 
         the medical benefits would have been approximately $105 per 
 
         month.
 
         
 
              Robert C. Jones, M.D., testified in a deposition taken July 
 
         26, 1982 that he would give claimant a 15 percent impairment to 
 
         the body as a whole rating.  In a deposition taken February 8, 
 
         1984, Thomas B. Summers, M.D., opined that claimant had developed 
 
         a herniated intervertebral disc in the lower lumbar region as a 
 
         result of the work injury.  In a report submitted with the 
 
         deposition Dr. Summers rated functional impairment or physical 
 
         disability of at least 10 percent of the body as a whole.  Thomas 
 
         Carlstrom, M.D., testified in a deposition taken February 9, 1984 
 
         that under AMA Guides claimant had a five percent permanent 
 
         partial disability.
 
         
 
                                APPLICABLE LAW
 
                                                
 
                                                         
 
         
 
              The citations of law in the review-reopening decision are 
 
         appropriate to the issues and evidence.
 
         
 
                                  ANALYSIS
 
         
 
              The sole issue to be resolved is whether the deputy 
 
         correctly determined that claimant's industrial disability as a 
 
         result of an injury on June 17, 1981 was 25 percent and therefore 
 
         was entitled to an additional 25 weeks of permanent partial 
 
         disability.  The deputy stated in the review-reopening decision:
 
         
 
                   The opinions regarding claimant's functional impairment 
 
              range from five percent by Dr. Carlstrom to 15 percent of 
 
              the body as a whole by Dr. Jones.  All three medical 
 
              opinions fall within the range of what would normally be 
 
              expected following such a surgery and none can be deemed 
 
              unreasonable. The only objective basis for questioning any 
 
              one of the three opinions is that Dr. Jones' evaluation was 
 
              made so long ago that he did not have the benefit of 
 
              observing how good the result of his surgery actually was in 
 
              this case.  The greater weight of the evidence indicates 
 
              that claimant's functional impairment is in the range of 10 
 
              percent of the body as a whole and such finding is adopted.
 
         
 
                   Claimant's educational background is minimal and he has 
 
              not demonstrated or [sic] exhibited an apptitude [sic] for 
 
              further formal education.  His demeanor at hearing gave no 
 
              indication that he had suffered from a learning disability. 
 
              Most of claimant's prior work experience has involved 
 
              moderate to heavy physical labor.  He would still have the 
 
              present residual ability to perform janitor work as has been 
 
              exhibited.  At hearing he expressed an interest in working 
 
              with his hands and at small engine repair.  There are also 
 
              many other fields of employment for which claimant would 
 
              remain suited.  His actual physical impairment is small.
 
         
 
                   Claimant has sought reemployment but has not found any. 
 
              Although his physical impairment may play some part in that 
 
              inability to find work, the current state of the economy is, 
 
              in all likelihood, the primary reason for his failure to 
 
              become reemployed.  His motivation and attempts to return to 
 
              gainful employment fall within normal limits.
 
         
 
              Claimant argues that the rating of industrial disability by 
 
         the deputy is too low and defendants respond that the deputy is 
 
         correct.  The deputy correctly identified that claimant's 
 
         educational background is minimal and that claimant has not 
 
         demonstrated aptitudes for either further education or work which 
 
         requires reading, writing or mathematical calculation.  Claimant 
 
         had not had any steady employment between his injury in June 1981 
 
         and the hearing held in May 1984.  The employment he had had was 
 
         at a rate approximately $4.00 per hour lower than his job with 
 
         defendant employer.  When all factors are considered, it is 
 
         determined that claimant's work injury resulted in 30 percent 
 
                                                
 
                                                         
 
         industrial disability.
 
         
 
                           FINDINGS OF FACT
 
         
 
              1.  Claimant is a 33 year old married male with two 
 
         dependent children.
 
         
 
              2.  On June 17, 1981 claimant sustained an injury to his 
 
         lower back while pushing a coil onto a spindle at his employment 
 
         with Emco Industries, Inc.
 
         
 
              3.  The injury claimant sustained was in the nature of a 
 
         herniated disc in his lower back at the L5-S1 level.
 
         
 
              4.  Claimant underwent a laminectomy which ultimately had a 
 
         very good result with little residual functional impairment.
 
         
 
              5.  Claimant did complete high school by attending special 
 
         classes and has no formal education beyond the high school 
 
         level.
 
         
 
              6.  Claimant does not have an aptitude for work which 
 
         requires substantial reading, writing or mathematical 
 
         calculation.
 
         
 
                           
 
                                                         
 
              7.  Claimant's work experience has been in the area of 
 
         moderate to heavy physical labor.
 
         
 
              8.  Claimant remains physically capable of light to moderate 
 
         physical labor.
 
         
 
              9.  At the time of his injury claimant was earning 
 
         approximately $8.65 per hour and if still employed would be 
 
         earning approximately $9.35 per hour.
 
         
 
              10.  At the time of the agreement for settlement, claimant's 
 
         grievance for termination of his employment was pending and the 
 
         result of that grievance could not reasonably have been 
 
         determined.
 
         
 
              11.  Since claimant lost his job with Emco the most he has 
 
         been able to earn is $5.00 per hour.
 
         
 
              12.  Claimant has no demonstrated work skills which would 
 
         enable him to return to employment at or near the rate of 
 
         earnings which he enjoyed with Emco Industries.
 
         
 
              13.  Claimant's employment was terminated because he was 
 
         absent from work without having obtained a leave of absence from 
 
         his employer.
 
         
 
              14.  The only reason claimant was absent from work was the 
 
         necessary recuperation from the injury and its corrective 
 
         surgery.
 
         
 
              15.  Claimant was medically disabled from performing the 
 
         normal duties of his occupation at the time his employment was 
 
         terminated.
 
         
 
              16.  Claimant has previously received compensation for a 20 
 
         percent permanent partial disability of the body as a whole as a 
 
         result of an agreement for settlement which was approved October 
 
         15, 1982.
 
         
 
                           CONCLUSIONS OF LAW
 
         
 
              The adverse arbitration decision concerning claimant's 
 
         grievance constitutes an impairment of his earning capacity which 
 
         has occurred subsequent to the agreement for settlement and 
 
         constitutes a change of condition sufficient to warrant 
 
         reopening.
 
         
 
              The loss of claimant's employment was a proximate result of 
 
         the injury he sustained on June 17, 1981.
 
         
 
              Claimant has proved by the greater weight of evidence that 
 
         he has an industrial disability of 30 percent as a result of his 
 
         injury on June 17, 1981.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed and 
 
                                                
 
                                                         
 
         modified.
 
         
 
                                    ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That defendants pay claimant an additional fifty (50) weeks 
 
         of compensation for permanent partial disability at the rate of 
 
         two hundred five and 54/100 dollars ($205.54).
 
         
 
              That defendants pay the costs of the remand proceeding.
 
         
 
              That defendants file a claim activity report pursuant to 
 
         Division of Industrial Services Rule 343-3.1(2).
 
         
 
              Signed and filed this 26th day of February, 1988.
 
         
 
         
 
         
 
         
 
         
 
                                                    DAVID E. LINQUIST
 
                                                 INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Arthur C. Hedberg, Jr.
 
         Attorney at Law
 
         840 Fifth Avenue
 
         Des Moines, Iowa  50309
 
         
 
         Mr. Frank T. Harrison
 
         Attorney at Law
 
         Terrace Center, Suite 111
 
         2700 Grand Avenue
 
         Des Moines, Iowa  50312
 
 
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 1402.40 - 1803
 
                                                 Filed February 26, 1988
 
                                                 DAVID E. LINQUIST
 
         
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         ROBERT L. EDLER,
 
         
 
              Claimant,
 
                                                 File No. 675182
 
         vs.
 
         
 
         EMCO SPECIALTIES, INC.,                    R E M A N D
 
         
 
              Employer,                           D E C I S I 0 N
 
         
 
         and
 
         
 
         HARTFORD INSURANCE GROUP,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1402.40 - 1803
 
         
 
              This case was remanded from district court to determine 
 
         whether the deputy correctly awarded an additional five percent 
 
         industrial disability in a review-reopening.  The change in 
 
         condition from the prior agreement for settlement was claimant's 
 
         termination from employment.  Held on remand that deputy's rating 
 
         of industrial disability was too low.  Claimant's education was 
 
         minimal and did not have aptitude for further training.  Claimant 
 
         was awarded benefits based on 30 percent industrial disability.
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         GENE BELVEL,
 
                                                   File Nos. 675717
 
              Claimant,                                      825131
 
         
 
         VS                                           R E V I E W -
 
                                                   R E 0 P E N I N G
 
         FRENCH & HECHT,                                 A N D
 
                                                 A R B I T R A T I 0 N
 
              Employer,                             D E C I S I O N
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a consolidated proceeding filed by Gene Belvel, 
 
         claimant, against French & Hecht, a self-insured employer, for 
 
         the recovery of further benefits as a result of an injury 
 
         occurring April 20, 1981, and for benefits as a result of an 
 
         alleged injury of a continuing nature which became disabling in 
 
         January 1985.  This matter was heard before the undersigned at 
 
         the Bicentennial Building in Davenport, Iowa, on December 23, 
 
         1986.  It was considered fully submitted at the conclusion of the 
 
         hearing.
 
         
 
              The record consists of the testimony of Gene Belvel, and 
 
         claimant's exhibits 1 through 18.
 
         
 
         
 
                             STIPULATIONS AND ISSUES
 
         
 
              Pursuant to the prehearing report and order approving the 
 
         same, the parties stipulated that there was an employer-employee 
 
         relationship between the claimant and the defendant at the time 
 
         of the alleged injuries.  It was stipulated that claimant 
 
         received an injury arising out of and in the course of his 
 
         employment on April 20, 1981.  It was stipulated that the injury 
 
         of April 20, 1981 resulted in temporary disability for the period 
 
         from May 28, 1981 to July 9, 1981, and again from March 11, 1982 
 
         to April 4, 1982.  It was stipulated that claimant's rate of 
 
         compensation for an injury of 1981 is $255.83, and that if an 
 
         injury is found in 1985 the rate of compensation is $267.78.  It 
 
         was stipulated that there is no dispute regarding medical 
 
         benefits or defendant's entitlement to credit under section 
 
         85.38(2).  It was stipulated that claimant received 9 4/7 weeks 
 
         of healing period benefits.
 
         
 
              The issues to be resolved at this proceeding are whether
 
         
 
         claimant received an injury arising out of and in the course of 
 

 
         
 
         
 
         
 
         BELVEL V. FRENCH & HECHT
 
         Page   2
 
         
 
         
 
         his employment in 1985, whether the injury of April 20, 1981 or 
 
         the alleged injury of 1985 was the cause of any permanent 
 
         disability.
 
         
 
                             EVIDENCE PRESENTED
 
         
 
              Claimant testified he began working for the defendant in 
 
         1971.  He said he ceased his employment there in February 1985 
 
         and presently works as a bridge tender at the Rock Island 
 
         Arsenal.
 
         
 
              Claimant advised that he suffered no problems with his hands 
 
         until 1981 when his job at defendant changed from that of a 
 
         janitor to putting rims on combine wheels.  Claimant said the 
 
         rims weighed between 80 and 100 pounds and he had to use his 
 
         hands to turn them.  After several months on this job he began to 
 
         experience numbness in his hands.  He said he also began to lose 
 
         strength in his hands and they would be swollen and painful at 
 
         night.  As a result of this condition, claimant consulted the 
 
         company doctor.
 
         
 
              Claimant said the company doctor operated on his wrist for 
 
         carpal tunnel syndrome at Mercy Hospital in Davenport.  He said 
 
         this operation improved his condition quite a bit but he 
 
         continued to experience numbness with increased activities.  
 
         Claimant returned to work as a janitor and pallet repairman.  
 
         Claimant said his hands continued to feel weak and he felt 
 
         numbness in his fingers.  Claimant advised he was able to do his 
 
         job until December 1984 when because of a work force reduction, 
 
         he was returned to the rim line.
 
         
 
              Claimant said that after December 1984 he worked mostly on 
 
         line two which ran rims of 45 to 65 pounds.  He said he would 
 
         pick up and carry rims most of the day.  After working on this 
 
         job for a period of time, claimant again began to experience 
 
         problems with his hands and the pain returned at night.  He said 
 
         he reported this problem to the company nurse who refused to send 
 
         him to the doctor.  Claimant said that upon her refusal, he went 
 
         on his own to the doctor.  Subsequently, the doctor placed him on 
 
         a 15 pound weight lifting restriction.  This was apparently in 
 
         1985.  He said that although he was placed on the light duty rim 
 
         line, the foreman put him back on the same job where he was 
 
         required to lift in excess of 15 pounds.  Claimant consulted the 
 
         union representative concerning this matter.  He said that his 
 
         hands continued to grow worse with more swelling and pain and he 
 
         experienced a loss of range of motion in his wrists as well as 
 
         weakness in the hands and increased numbness.  Claimant reported 
 
         that at approximately the same time there was an additional plant 
 
         reduction in the work force and that he quit working because his 
 
         pay was reduced to $6.00 per hour, and the employer would not 
 
         respect the limitations imposed upon him as a result of his wrist 
 
         condition.
 
         
 
              After leaving the employment with defendant claimant worked 
 
         as a carpenter where his hands continued to cause him trouble.  
 
         He was then unemployed for a period of about eight months.  He 
 
         said he presently works as a bridge tender at the Rock Island 
 
         Arsenal which does require him to do some heavy lifting.  He said 
 
         he continues to experience numbness in his hands and that his 
 

 
         
 
         
 
         
 
         BELVEL V. FRENCH & HECHT
 
         Page   3
 
         
 
         
 
         right hand has gotten worse over the past two weeks.  Claimant 
 
         demonstrated the limited motion in his right hand.  He also 
 
         indicated that his left hand was deteriorating.
 
         
 
              Claimant said that one of his physicians advised him that 
 
         cigarettes may be a cause of his problem and he has accordingly 
 
         reduced his cigarette habit.  He reported, however, that he 
 
         continues to suffer from the condition and has noted no 
 
         improvement.
 
         
 
              On cross-examination, claimant said that he worked about two 
 
         months between the time the problem first arose and his carpal 
 
         tunnel surgery.  He said after the 1981 surgeries, he had pretty 
 
         good grip strength.  Claimant reported that the problems which 
 
         arose in 1985 took some time to develop.  Claimant reported that 
 
         after he quit work in February 1985, there was some improvement 
 
         in his condition.
 
         
 
              Claimant advised that his wife is employed by one of the 
 
         physicians who had assigned an impairment rating to him.
 
         
 
              Claimant reported that on occasion his hands appeared 
 
         discolored, particularly when it gets cold.  Claimant reported 
 
         that his hands were in pretty good condition until about two or 
 
         three weeks prior to the hearing when he was required to do heavy 
 
         work with his job at the arsenal.
 
         
 
              Claimant's exhibit 1 is copies of medical records concerning 
 
         claimant from East Kimberly Urgent Care Center.  According to 
 
         those records, claimant presented on January 15, 1985 with 
 
         complaints that his hands would go numb and ache.  According to 
 
         the January 15 records, claimant suffered from possible recurrent 
 
         carpal tunnel syndrome.  Claimant was released to return to 
 
         limited duty work with a 15 pound lifting restriction.  Nerve 
 
         conduction studies were scheduled to take place at Mercy 
 
         Hospital.  The results of those studies are included in the 
 
         exhibit which indicate that claimant had carpal tunnel syndrome, 
 
         but as compared to the May 1981 examination there had been a mild 
 
         to moderate improvement on the right and the left was essentially 
 
         unchanged.  This report by Stephen C. Rasmus, M.D., also 
 
         indicates that there was a mild slowing of the right ulnar nerve 
 
         conduction at the wrist, indicating possible compression at 
 
         Guyon's canal.  A January 18, 1985 work status form indicates 
 
         that claimant's 15 pound lifting restriction was to continue.  
 
         Also included in the exhibit is a January 29, 1985 report from 
 
         Dennis Miller, M.D.  Dr. Miller reviewed claimant's history 
 
         including the prior problems with claimant's hands.  He notes 
 
         that the electrodiagnostic tests done on January 17, 1985 do not 
 
         indicate a worsening of claimant's condition from his 1981 
 
         status.  The doctor clearly recommends a change in claimant's 
 
         work activities and indicates that with a change of activity, he 
 
         would not anticipate permanent impairment.  Claimant's exhibit 2 
 
         is a letter from John F. Collins, M.D., to claimant's attorney 
 
         suggesting that Dr. Paul Beckman, who treated claimant in 1981, 
 
         would be the appropriate person to obtain a permanent impairment 
 
         rating.  Included with the exhibit is a January 11, 1985 office 
 
         note from Dr. Collins indicating that he believed claimant's 
 
         heavy lifting at work was a cause of the exacerbation of his 
 
         symptoms.  Claimant's exhibit 3 is a duplication of the report 
 

 
         
 
         
 
         
 
         BELVEL V. FRENCH & HECHT
 
         Page   4
 
         
 
         
 
         from Dr. Miller which was discussed as part of claimant's exhibit 
 
         1.
 
         
 
              Claimant's exhibit 4 is a letter from Paul H. Beckman, M.D., 
 
         to claimant's attorney dated September 20, 1985.  According to 
 
         that letter, Dr. Beckman believed, based upon claimant's 
 
         description of his job duties, that the job could certainly 
 
         aggravate if not cause a recurrence of carpal tunnel syndrome.
 
         
 
              Claimant's exhibit 5 is a letter from John F. Collins, M.D., 
 
         to claimant's attorney indicating that claimant had a 30 percent 
 
         impairment of the upper extremity on the right and 25 percent on 
 
         the left as a result of his carpal tunnel problem which equated 
 
         to a 34 percent body as a whole impairment.  Claimant's exhibit 6 
 
         is copies of Mercy Hospital records from 1981 indicating that 
 
         claimant at that time suffered from bilateral carpal tunnel 
 
         syndrome for which he was surgically treated on May 28, 1981.  
 
         That particular surgery was to release the carpal tunnel on both 
 
         the left and right wrists.  Claimant's exhibit 7 is a certificate 
 
         to return to work executed by Dr. Beckman on July 2, 1981 
 
         indicating that he could return to work on July 6, 1981.  
 
         Claimant's exhibit 8 is a physician's report to defendant by Dr. 
 
         Beckman following the 1981 surgery indicating that claimant's 
 
         employment was the cause of the condition.  Claimant's exhibit 9 
 
         is additional copies of releases to return to work.  Claimant's 
 
         exhibit 10 is a copy of a physician's report dated August 9, 1982 
 
         which indicates claimant suffered a strain of the left forearm 
 
         and imposing a 10 pound lifting limit for ten days.  Claimant's 
 
         exhibit 11 is a copy of a return to work slip concerning the same 
 
         event.  Claimant's exhibit 12 is a release from work for the 
 
         period from March 11, 1982 to April 5, 1982 executed by Dr. 
 
         Beckman.  Claimant's exhibit 13 is a surgeon's report from a 
 
         doctor whose name is not disclosed on the report concerning 
 
         myositis of the right shoulder in November 1981.  Claimant's 
 
         exhibit 14 is the return to work slips executed by Dr. Beckman in 
 
         connection with that problem.  Exhibit 15 is a note and 
 
         accompanying work slips from Dr. Beckman indicating claimant was 
 
         to be off work for two weeks as a result of numbness in his right 
 
         hand for the period from July 8 and 9, 1981.  Claimant's exhibit 
 
         16 is a release from work concerning claimant dated January 11, 
 
         1985 indicating that he could not return to work because of pain 
 
         in his hands.  Claimant's exhibit 17 is a note from Dr. Collins 
 
         indicating that claimant should avoid lifting anything over 15 to 
 
         20 pounds as a result of an aggravation of his previous 
 
         condition.  This note is dated January 11, 1985.
 
         
 
              Claimant's exhibit 18 is a letter dated October 23, 1986 
 
         from Dennis L. Miller, M.D., to the defendant concerning 
 
         claimant's carpal tunnel condition.  Dr. Miller indicates that he 
 
         saw claimant on January 29, 1985 concerning claimant's 
 
         complaints.  The doctor notes that the January 1985 
 
         electrodiagnostic tests did not disclose a worsening of 
 
         claimant's condition.  The doctor explains in detail his 
 
         examination of claimant and concludes that at the most claimant 
 
         suffers a five percent impairment of the right and left 
 
         extremities based on the degree of sensory loss he had at the 
 
         time of that examination.  The doctor notes that he reviewed the 
 
         evaluation of Dr. Collins dated February 6, 1986 in which Dr. 
 
         Collins assigned a 34 percent whole body impairment to claimant 
 

 
         
 
         
 
         
 
         BELVEL V. FRENCH & HECHT
 
         Page   5
 
         
 
         
 
         as a result of his carpal tunnel condition.  According to Dr. 
 
         Miller, Dr. Collins' assessment of claimant's impairment is 
 
         totally inappropriate and do not reflect at all the findings in 
 
         this case.  The doctor also suggested that a possible cause of 
 
         the numbness and tingling in claimant's wrists might be related 
 
         to his heavy smoking.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              Claimant alleges disability arising from one or both 
 
         injuries.  In file number 675717 (injury date August 20, 1981) it 
 
         is his burden to prove by a preponderance of the evidence that 
 
         the disability upon which he bases this claim is causally related 
 
         to that injury.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
         N.W.2d 867 (1965).  This question is essentially within the 
 
         domain of expert testimony.  Bradshaw v. Iowa Methodist Hospital, 
 
         251 Iowa 375, 101 N.W.2d 167 (1960).  However, expert medical 
 
         evidence must be considered with all other evidence introduced 
 
         bearing on the causal connection.  Burt, 247 Iowa 691, 73 N.W.2d 
 
         732.  The opinion of experts need not be couched in definite, 
 
         positive or unequivocal language.  Sondag v. Ferris Hardware, 220 
 
         N.W.2d 903 (Iowa 1974).  However, the expert opinion may be 
 
         accepted or rejected, in whole or in part, by the trier of fact. 
 
         Id. at 907.  Further, the weight to be given to such an opinion 
 
         is for the finder of fact, and that may be affected by the 
 
         completeness of the premise given the expert and other 
 
         surrounding circumstances.  Bodish, 257 Iowa 516, 133 N.W.2d 867.  
 
         See also Musselman v. Central Telephone Co., 261 Iowa 352, 154 
 
         N.W.2d 128 (1967).
 
         
 
              Claimant must meet the same burden concerning his alleged 
 
         injury of January 1985.  In addition, however, claimant has the 
 
         burden of proving by a preponderance of the evidence that he 
 
         received an injury on April 20, 1981 which arose out of and in 
 
         the course of employment.  McDowell v. Town of Clarksville, 241 
 
         N.W.2d 904 (Iowa 1976); Musselman, 261 Iowa 352, 154 N.W.2d 128.
 
         
 
              The supreme court of Iowa in Almquist v. Shenandoah 
 
         Nurseries, 218 Iowa 724, 731-32, 254 N.W. 35, 38 (1934), 
 
         discussed the definition of personal injury in workers' 
 
         compensation cases as follows:
 
         
 
              While a personal injury does not include an occupational 
 
              disease under the Workmen's Compensation Act, yet an injury 
 
              to the health may be a personal injury. (Citations omitted.] 
 
              Likewise a personal injury includes a disease resulting from 
 
              an injury .... The result of changes in the human body 
 
              incident to the general processes of nature do not amount to 
 
              a personal injury.  This must follow, even though such 
 
              natural change may come about because the life has been 
 
              devoted to labor and hard work.  Such result of those 
 
              natural changes does not constitute a personal injury even 
 
              though the same brings about impairment of health or the 
 
              total or partial incapacity of the functions of the human 
 
              body.
 
         
 
                 ....
 
         
 
              A personal injury, contemplated by the Workmen's 
 

 
         
 
         
 
         
 
         BELVEL V. FRENCH & HECHT
 
         Page   6
 
         
 
         
 
              Compensation Law, obviously means an injury to the body, the 
 
              impairment of health, or a disease, not excluded by the act, 
 
              which comes about, not through the natural building up and 
 
              tearing down of the human body, but because of a traumatic 
 
              or other hurt or damage to the health or body of an 
 
              employee. [Citations omitted.]  The injury to the human body 
 
              here contemplated must be something, whether an accident or 
 
              not, that acts extraneously to the natural processes of 
 
              nature, and thereby impairs the health, overcomes, injures, 
 
              interrupts, or destroys some function of the body, or 
 
              otherwise damages or injures a part or all of the body.
 
         
 
              Both the injury of April 1981 and alleged injury of January 
 
         1985 fall within the concept of cumulative trauma as discussed in 
 
         McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (1985).  
 
         McKeever determined that liability attaches in a cumulative 
 
         injury case when because of pain or "physical inability" the 
 
         employee is no longer able to continue working.
 
         
 
              As applied to the facts of this case, it is clear that 
 
         claimant has in fact suffered two injuries.  The first in 1981 
 
         arising from repeated trauma while working on the rim line.  The 
 
         second was a recurrence of the same condition which arose in 
 
         1985, again following work on the rim line.  Claimant apparently 
 

 
         
 
         
 
         
 
         BELVEL V. FRENCH & HECHT
 
         Page   7
 
         
 
         
 
         had minimal problems between 1981 and 1985 when he worked as a 
 
         janitor, although he was not for any extended period totally 
 
         without symptoms.
 
         
 
              There seems little doubt among the experts that claimant's 
 
         employment was a substantial cause of his condition, though there 
 
         is a suggestion that heavy smoking may have been a contributing 
 
         factor.
 
         
 
              There is considerable disagreement between the experts, 
 
         particularly Doctors Collins and Miller, as the extent, if any, 
 
         of permanent impairment suffered by claimant.  Dr. Collins 
 
         asserts claimant suffers a 34 percent body as a whole impairment 
 
         based on the combined values of a 30 percent right and 25 percent 
 
         left upper extremity impairments.  Dr. Miller, however, suggests 
 
         claimant may have no impairment if he changed his activities and 
 
         would, at the most, have a 5 percent impairment of each 
 
         extremity.  Based upon the experts' reports, together with 
 
         claimant's testimony as to his present problems, it must be 
 
         concluded that claimant does suffer permanent impairment to the 
 
         upper extremities.
 
         
 
              The source of claimant's permanent impairment seems clearly 
 
         to be his 1981 injury.  Although a reaggravation occurred in 
 
         1985, all diagnostic tests actually showed claimant's condition 
 
         improved on the right and grew no worse on the left.  In 
 
         addition, claimant did not suffer lost time from his 1985 injury.  
 
         Claimant did cease his employment in 1985, but his reasons for 
 
         doing so appear to have been motivated in large part by a 
 
         reduction in his wages.  No doubt his carpal tunnel problem was a 
 
         factor in this decision, but it has not been shown to what degree 
 
         and there is no medical basis to conclude he could not work, even 
 
         though he was under limitations.  Thus, although defendant is 
 
         liable for medical treatment necessitated by the 1985 recurrence 
 
         of carpal tunnel syndrome, claimant has not shown an entitlement 
 
         to weekly compensation.
 
         
 
              The extent of claimant's permanent impairment will be 
 
         determined on the basis of the October 23, 1986 report of Dr. 
 
         Miller.  Neither Dr. Miller nor Dr. Collins were claimant's 
 
         treating physician for the 1981 injury; both have been involved 
 
         in claimant's treatment for the 1985 injury.  Dr. Miller's report 
 
         is adopted, however, because of his greater expertise as an 
 
         orthopedic surgeon and because his opinion is supported by 
 
         objective findings and detailed analyses.  Thus, his opinion that 
 
         claimant has a 5 percent impairment of each upper extremity is 
 
         controlling.  Since this is a bilateral carpal tunnel syndrome 
 
         diagnosis, section 85.34(2)(s) is the controlling section for 
 
         assessment of permanent disability.  Lynch v. Armstrong Rubber 
 
         Co., No. 718211 (Appeal Decision, March 1987.)  The combined 
 
         value chart of the AMA Guides assigns a 6 percent body as a whole 
 
         impairment.
 
         
 
              Code section 85.34(2) is controlling as to the commencement 
 
         date for payment of permanent disability which, in this case, 
 
         establishes the date of July 10, 1981.  McKeever is controlling 
 
         as to the rate of compensation which is found to be $255.83.
 
         
 
              There was some indication of a possible statute of 
 

 
         
 
         
 
         
 
         BELVEL V. FRENCH & HECHT
 
         Page   8
 
         
 
         
 
         limitations defense, however, the same was not affirmatively pled 
 
         and not designated as an issue at the prehearing conference or by 
 
         the prehearing report.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              WHEREFORE, the following facts are found:
 
         
 
              1.  On April 20, 1981, claimant suffered an injury arising 
 
         out of and in the course of his employment.
 
         
 
              2.  The nature of claimant's injury was bilateral carpal 
 
         tunnel syndrome.
 
         
 
              3.  Claimant was off work from May 28, 1981 through July 9, 
 
         1981.
 
         
 
              4.  Claimant returned to work on July 10, 1981.
 
         
 
              5.  Claimant's rate of compensation is $255.83.
 
         
 
              6.  Claimant was off work in March and April 1982 for an 
 
         unrelated condition.
 
         
 
              7.  Claimant suffered permanent impairment as a result of 
 
         his April 1981 injury equal to 5 percent of each upper 
 
         extremity.
 
         
 
              8.  Claimant suffered a recurrence of his carpal tunnel 
 
         syndrome in January 1985.
 
         
 
              9.  As a result of the recurrence, claimant incurred medical 
 
         expenses but lost no time from work nor permanent disability.
 
         
 
             10.  Claimant has been paid all healing period benefits to 
 
         which he is entitled.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              IT IS THEREFORE CONCLUDED:
 
         
 
              Claimant has proven by a preponderance of the evidence that 
 
         there is a causal relationship between his injury of April 1981 
 
         and the disability upon which this claim is based.
 
         
 
              Claimant has proven by a preponderance of the evidence that 
 
         in January 1985 he suffered an injury arising out of and in the 
 
         course of his employment.
 
         
 
              Claimant has failed to prove by a preponderance of the 
 
         evidence that he suffered disability as a result of his January 
 
         1985 injury.
 
         
 
              Claimant has proven by a preponderance of the evidence that 
 
         as a result of his injury of April 1981, he suffered permanent 
 
         partial disability pursuant to section 85.34(2)(s) equal to six 
 
         percent (6%) of the body as a whole.
 
         
 
                                      ORDER
 

 
         
 
         
 
         
 
         BELVEL V. FRENCH & HECHT
 
         Page   9
 
         
 
         
 
         
 
             IT IS THEREFOR ORDERED in file number 675717 that defendant 
 
         pay unto claimant Thirty (30) weeks of permanent partial 
 
         disability commencing July 10, 1981 at the stipulated rate of two 
 
         hundred fifty-five and 83/100 dollars ($255.83). All accrued 
 
         benefits shall be paid in a lump sum together with interest.
 
         
 
              IT IS FURTHER ORDERED in file number 825131 that claimant 
 
         take nothing from these proceedings.
 
         
 
              Costs are taxed to defendant.
 
         
 
              Defendant shall file a claim activity report-in thirty (30) 
 
         days.
 
         
 
              Signed and filed this 29th day of April, 1987.
 
         
 
         
 
         
 
         
 
         
 
                                            STEVEN E. ORT
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. James Hood
 
         Attorney at Law
 
         302 Union Arcade Bldg.
 
         Davenport, Iowa 52801
 
         
 
         Mr. Larry Shepler
 
         Attorney at Law
 
         600 Union Arcade Bldg.
 
         Davenport, Iowa 52801
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                   1100; 1402.40 1803
 
                                                   1806; 2209
 
                                                   Filed 4-29-87
 
                                                   Steven E. Ort
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         GENE BELVEL,
 
                                                File  Nos. 675717
 
              Claimant,                                    825131
 
         
 
         VS.                                       R E V I E W -
 
                                                R E 0 P E N I N G
 
         FRENCH & HECHT,                              A N D
 
                                              A R B I T R A T I 0 N
 
              Employer,                          D E C I S I 0 N
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         1100; 1402.40; 1803; 1806; 2209
 
         
 
              Claimant suffered bilateral carpal tunnel syndrome in 1981 
 
         which was surgically treated.  Evidence established that claimant 
 
         had permanent disability from this job, though not paid.  
 
         Claimant had returned to work for 3-4 years at a different job 
 
         and had few problems until he returned to the same job which had 
 
         caused the problem in 1981.  Symptoms of carpal tunnel recurred 
 
         and claimant quit.  Evidence showed that although 1985 incident 
 
         had temporarily aggravated preexisting carpel tunnel problem, all 
 
         permanent disability was related to 1981.  Claimant awarded 6% 
 
         body as a whole impairment based on 1981 rate.