BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         BRUNO MEISTERBURG,
 
         
 
              Claimant,                             File No. 676911
 
         
 
         VS.
 
                                                      A P P E A L
 
         GENERAL GROWTH PROPERTIES,
 
                                                    D E C I S I 0 N
 
              Employer,
 
         
 
         and
 
         
 
         THE HARTFORD,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Claimant appeals from a review-reopening decision denying 
 
         further compensation because he failed to establish a causal 
 
         connection between his work injury and his disability.
 
         
 
              The record on appeal consists of the transcript of the 
 
         hearing and joint exhibits 1 through 13.  Both parties filed 
 
         briefs on appeal.
 
         
 
                                      ISSUE
 
         
 
              Whether claimant has met his burden in proving that the 
 
         disability on which he is basing his claim was causally connected 
 
         to the injury he received while working for defendant employer on 
 
         July 24, 1981.
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              The review-reopening decision adequately and accurately 
 
         reflects the pertinent evidence and it will not be totally 
 
         reiterated herein.
 
         
 
              Claimant testified that in July 1980 he was injured in a 
 
         nonwork-related car accident in which he sustained a concussion, 
 
         a bruised elbow and a torn cartilage in the left knee.  Claimant 
 
         admitted that following the car accident he had problems with 
 
         headaches and with his left knee and left arm.
 
         
 
              Claimant's primary treating physicians for his left knee
 
         problems were Sinesio Misol, M.D., and Sidney Robinow, M.D., now 
 
         deceased.  Dr. Misol testified by deposition that Dr. Robinow 
 
         performed an arthroscopic examination of the knee and found "a 
 
         little damage of the joint surfaces.O (Misol Deposition, page 8)  
 
         Dr. Misol stated that because claimant continued to experience 
 
         pain and a clicking sensation, he performed an arthroscopy on 
 
         October 30, 1980 which he stated revealed "a roughness of the 
 
         undersurface of the patella, or the kneecap." (Misol Dep., p. 9) 
 

 
         Dr. Misol stated that subsequently on December 5, 1980 he removed 
 
         the inside cartilage of the knee joint.  Dr. Misol continued to 
 
         see claimant after December 5, 1980 and he opined the reason for 
 
         those visits:
 
         
 
              Q.  You mentioned seeing Mr. Meisterburg subsequent to 
 
              December 5th, 1980.  Could you briefly describe the 
 
              reason for those visits.
 
         
 
              A.  Yes.  So what has happened to him is that the 
 
              undersurface of the kneecap, that is not normal, and 
 
              nothing was done or could be done to change that in any 
 
              significant way, has continued to bother him some in 
 
              that if he does squat down or go up and down ladders or 
 
              steps, apparently there is still a little grinding and 
 
              some discomfort.  And the main thing, I believe, it is 
 
              the lack of one of the cartilages in the knee, the 
 
              inside cartilage, also known as medial meniscus, that 
 
              has led to a little extra wear and tear in that part of 
 
              the knee, because, after all, that structure is a shock 
 
              absorber that cushions the weight-bearing transmitted 
 
              from the thigh bone to the leg bone.  Because of that, 
 
              he has pain over the inner part of the left knee, 
 
              and--
 
         
 
         (Misol Dep., pp. 9-10, lines 21-25, 1-13)
 
         
 
              Dr. Misol opines that claimant suffers a 20 percent 
 
         permanent partial impairment of his left lower extremity as a 
 
         result of the July 1980 car accident and subsequent surgeries.
 
         
 
              Claimant stated that he only received immediate care for his 
 
         concussion.
 
         
 
              Claimant testified that in July 1981 while painting an 
 
         apartment for defendant, he slipped and fell down a flight of 
 
         stairs and landed on his left shoulder, left knee and head.  
 
         Claimant stated that he went back to Dr. Misol for his knee 
 
         problems.  Dr. Misol opined concerning the effect of the July 
 
         1981 injury on claimant's preexisting knee condition:
 
         
 
              Q.  And do you have an opinion as to what effect, if 
 
              any, that injury of July 24th, 1981, had on the 
 
              preexisting condition?
 
         
 
         
 
              A.  I have an opinion.
 
         
 
              Q.  What is that opinion?
 
         
 
              A.  That it probably did nothing but strain the joint a 
 
              little bit, so no permanent damage added to the 
 
              previous situation.
 
         
 
         (Misol Dep., p. 11, lines 16-23)
 
         
 
              Claimant has also seen Hugh W. Ratliff, M.D., Robert L. 
 
         Allred, M.D., P.A., and R. R. Groff, D.C., since the work injury 
 
         for examination and treatment of his left knee.  Dr. Ratliff 
 
         opines:
 
         
 
              IMPRESSION:  POSSIBLE INTERNAL DERANGEMENT OF THE LEFT 
 
              KNEE, MOST LIKELY CHONDROMALACIA OF THE PATELLA.  
 
              POSSIBLE MEDIAL PLICA CAUSING POPPING ACROSS THE MEDIAL 
 
              CONDYLE.
 
         
 

 
         
 
         
 
         
 
         MEISTERBURG V. GENERAL GROWTH PROPERTIES
 
         Page   3
 
         
 
              DISPOSITION:  I certainly see no reason for this 
 
              patient to be wearing a brace since he is running a 
 
              jackhammer and driving a truck, but I will start him on 
 
              Nalfon 600 mg. t.i.d. for 2 weeks.  See him back at 
 
              that time and then if there is no improvement I will 
 
              recommend arthroscopy of the knee primarily for 
 
              diagnostic reasons, possibly for therapeutic reasons of 
 
              an obvious cause for the popping and pain.  Examination 
 
              of the thigh reveals exactly 5 inches above the medial 
 
              joint line with both knees at full extension.  The 
 
              patient has 14-3/4" circumference of the left thigh and 
 
              15-3/4O on the right thigh.
 
         
 
         (Jt. Ex. 11, p. 1)
 
         
 
              Dr. Allred performed Cybex tests which he opines reveal 
 
         Osubstantial weakness in the [sic] hamstring muscle group and 
 
         some weakness in the guards group.  The comparison of the two 
 
         sides indicates that he might have an anterior cruciate deficient 
 
         knee although that should be attainable information from his 
 
         previous arthroscopic [sic] examinations and/or from his previous 
 
         surgery.O (Jt. Ex. 13, p. 2)
 
         
 
              Dr. Groff opines:
 
         
 
                 He has been working full time performing manual 
 
              labor.  There is still some degree of weakness and 
 
              discomfort in the leg during strenuous physical 
 
              activity.  I would rate his disability at 5% of the 
 
              whole man.
 
         
 
         
 
                 Since Mr. Meisterburg was not seen in this office 
 
              for a year after the accident, it is extremely 
 
              difficult for me to determine if the accident was the 
 
              cause of his problem.  We contacted Dr. Misol in Des 
 
              Moines, but he could be of little help to us.
 
         
 
         (Jt. Ex. 12, p. 4)
 
         
 
              Claimant stated that he went to Robert Jones, M.D., for his 
 
         arm condition and that Dr. Jones referred him to Albert L. 
 
         Clemens, M.D.  Dr. Clemens reports the treatment and diagnosis of 
 
         claimant's left arm condition in a December 21, 1981 letter:
 
         
 
                 Mr. Meisterburg does have a diagnosis of a thoracic 
 
              outlet syndrome, left, and it has been correlated with 
 
              the injury for which you have inquired.
 
         
 
                 The patient's original exam and diagnosis was made 
 
              by Dr. Robert Jones, neurosurgeon of this city, as you 
 
              have already noted.  He underwent a left transaxillary 
 
              resection of the lst rib on 9-25-81, and is showing 
 
              gradual improvement.  He still has a markedly decreased 
 
              grip in his left arm and hand.  I last saw him on 
 
              December 17, 1981.  He definitely has less pain, better 
 
              range of motion and I requested to see him in six 
 
              weeks.
 
         
 
         (Jt. Ex. 9, p. 1)
 

 
         
 
         
 
         
 
         MEISTERBURG V. GENERAL GROWTH PROPERTIES
 
         Page   4
 
         
 
         
 
              Dr. Clemens opines concerning the cause of claimant's 
 
         thoracic outlet syndrome:
 
         
 
                 In answer to your question in relationship to a fall 
 
              which I believe was his second of two accidents, the 
 
              only thing I can say would be that the patient 
 
              correlates aggravation continuation of his symptoms.  
 
              At least by history there is no anatomical way that I 
 
              can be more specific.  History, I am sure has also been 
 
              obtained from Dr. Robert Jones, who is his original 
 
              treating physician.
 
         
 
         (Jt. Ex. 9, p. 2)
 
         
 
               Dr. Clemens opines that claimant suffers from a 20 percent 
 
         permanent partial impairment to the left upper extremity.  See 
 
         joint exhibit 9, page 3. Dr. Clemens reports that claimant is 
 
         left-handed.
 
         
 
              Claimant indicated that the surgery to remove his first rib 
 
         reduced the numbness and tingling in his arm but that he still 
 
         experiences numbness and tingling in his fingers.
 
         
 
              Claimant continues to complain of headaches since the July 
 
         1981 work injury.  Claimant opined that these headaches are 
 
         untreatable except for aspirin and seclusion.  On 
 
         cross-examination, claimant denied that his headaches persisted 
 
         from the July 1980 car accident through the July 1981 work 
 
         injury.  Claimant admitted that he had some numbness and atrophy 
 
         in his left arm after the July 1980 car accident.  Claimant also 
 
         complains of back problems which he opines are due to his unusual 
 
         gait to compensate for his knee problems.
 
         
 
              After the work injury, claimant stated that he moved to 
 
         McKinney, Texas to work in the city maintenance department.  
 
         Claimant indicated that he worked for McKinney for two years 
 
         doing physical labor including loading and unloading an asphalt 
 
         truck and running a jackhammer.  After leaving McKinney, claimant 
 
         stated that he worked for two years as a painter for Fox and 
 
         Jacobs Company doing interior and exterior painting.  After 
 
         leaving Fox and Jacobs, claimant stated that he worked on his own 
 
         as a painting subcontractor for two and one-half years.  At the 
 
         time of the hearing, claimant reported that he was working for 
 
         Summit Paving in Golden, Colorado as a laborer and light 
 
         equipment operator.
 
         
 
              Claimant also testified concerning prework-injury education 
 
         and work history.  Briefly stated, claimant has a high school 
 
         diploma from Des Moines Technical High School, one and one-half 
 
         years of college at Grand View College in Des Moines, and 
 
         training in a position of various light equipment.  Claimant has 
 
         worked as a paint mixer for a body shop, an orderly, a batch 
 
         maker for a feed mill, an EKG technician and a painter.
 
         
 
         
 
                                  APPLICABLE LAW
 
         
 
              The citations of law in the review-reopening decision are 
 
         appropriate to the issues evidence.
 

 
         
 
         
 
         
 
         MEISTERBURG V. GENERAL GROWTH PROPERTIES
 
         Page   5
 
         
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of July 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, 760-761 
 
         (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).
 
         
 
                                     ANALYSIS
 
         
 
              Claimant argues on appeal that the work injury aggravated a 
 
         preexisting condition resulting in permanent disability.  The 
 
         deputy considered the question of whether claimant's disability 
 
         is causally connected to the work injury:
 
         
 
                 However, due to the existence of a prior injury 
 
              involving similar symptoms and a lack of helpful 
 
              medical testimony, claimant was unable to establish by 
 
              a preponderance of the evidence that the work injury 
 
              was a significant cause or contributing factor of his 
 
              current physical problems.  Approximately a year before 
 
              the work injury in this case, claimant was involved in 
 
              an automobile accident which severely injured his left 
 
              knee, left arm, and head.  Claimant admitted at the 
 
              hearing and in previous testimony that he had 
 
              significant difficulties with his left knee and arm as 
 
              a result of this accident including headaches.
 
         
 
                 Before the work injury, claimant underwent three 
 
              surgical procedures on his knee by Dr. Misol and his 
 
              former associate, Sidney Robinow, M.D.  According to 
 
              the records of these physicians, claimant complained of 
 
              catching and of his knee "going out" before the work 
 

 
         
 
         
 
         
 
         MEISTERBURG V. GENERAL GROWTH PROPERTIES
 
         Page   6
 
         
 
              injury.  In his deposition, Dr. Misol opines that 
 
              claimant only suffered a mild strain of his knee in the 
 
              July 1981 fall at work and that he suffered no change 
 
              of condition resulting in additional permanent partial 
 
              impairment.  It was the further opinion of Dr. Misol 
 
              that claimant's current continuing difficulties are an 
 
              expected consequence of the injuries claimant sustained 
 
              in the July 1980 auto accident.  Again, Dr. MisolOs 
 
              opinions are uncontroverted in the record.  Dr. Allred 
 
              gave no opinions as to the cause of claimant's current 
 
              leg weakness except for a lack of sufficient vigorous 
 
              physical therapy.
 
                 Claimant admitted in his deposition that he had 
 
              atrophy and weakness of his arm including tingling and 
 
              numbness in his arm and fingers as a result of the car 
 
              accident before the work injury.  His complaints today 
 
              are similar except that the tingling and numbness is 
 
              now limited to his fingers subsequent to the surgery 
 
              Dr. Clemens performed.  In his deposition in December 
 
              1984, claimant stated that his primary difficulties at 
 
              that time were his back and knee, not his hand.  
 
              Although he may now have a recurrence of arm and hand 
 
              problems, there does not appear to be a continuous 
 
              causal link between claimant's arm complaints and the 
 
              July 1981 work injury.  More importantly, claimant's 
 
              treating physician for the thoracic outlet syndrome 
 
              condition which is considered to be the cause of 
 
              claimant's current arm weakness and loss of feeling in 
 
              his fingers could not clearly causally connect the 
 
              thoracic outlet syndrome to the July 1981 work injury.  
 
              In his report of April 6, 1982, exhibit 9, Dr. Clemens 
 
              states as follows:
 
         
 
                   In answer to your question in relationship to 
 
              a fall which I believe was his second of two 
 
              accidents, the only thing I can say would be that 
 
              the patient correlates aggravation continuation of 
 
              his symptoms.  At least by history there is no 
 
              anatomical way that I can be more specific.
 
         
 
                 There is no explanation in the record as to what the 
 
              doctor meant by "patient correlates aggravation 
 
              continuation of his symptoms."  As no other medical 
 
              opinions regarding the thoracic outlet syndrome were 
 
              offered into the evidence, no finding of fact causally 
 
              connecting the injury to permanency either to the hand 
 
              or to the body as a whole could be made based upon this 
 
              language.  Dr. Clemens could be referring only to a 
 
              temporary aggravation of symptoms or he may be only 
 
              parroting the patient's view as to causal connection.
 
         
 
                 With reference to claimant's back difficulties, Dr. 
 
              Groff rendered no opinions as to the cause of such 
 
              problems.  Claimant had no back complaints at the time 
 
              of the work injury.  In his deposition of December 1984 
 
              claimant stated that his back began to hurt "just 
 
              lately."  Although claimant theorizes that his back 
 
              problems are due to his gait which was precipitated by 
 
              the knee injury, no physician has been shown to support 
 
              claimant's theories in this matter.
 

 
         
 
         
 
         
 
         MEISTERBURG V. GENERAL GROWTH PROPERTIES
 
         Page   7
 
         
 
         
 
                 Given the absence of clear medical opinions, we are 
 
              left only with claimant's belief that the work injury 
 
              is a cause of his difficulties.  Claimant testified at 
 
              the hearing that although he had difficulties before 
 
              the work injury, he was able to work.  However, the 
 
              evidence rather clearly demonstrates that claimant has 
 
              worked steadily in heavy manual labor since leaving the 
 
              employment of General Growth.  Furthermore, his 
 
              complaints before and after the injury are not 
 
              significantly different.  Although it is possible to 
 
              make a finding of causal connection without clear 
 
              support of medical authority such as when a connection 
 
              is only a "medical possibility," this agency can do 
 
              only when the lay testimony clearly establishes an 
 
              absence of symptoms before the injury and the presence 
 
              of symptoms immediately afterwards.  Such a showing has 
 
              not been made in this case.
 
         
 
         (Review-Reopening Dec., pp. 3-5)
 
         
 
              The greater weight of evidence supports the deputy's finding 
 
         that claimant's present disability is not causally connected to 
 
         the July 1981 work injury.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  On July 24, 1981, claimant sustained injuries to his 
 
         left knee, left shoulder and head when he fell down a flight of 
 
         stairs while painting an apartment for defendant employer.
 
         
 
              2.  The July 24, 1981 work injury to claimant's left knee, 
 
         left shoulder and head resulted in no permanent impairment.
 
         
 
                                CONCLUSION OF LAW
 
         
 
              Claimant has not established a causal connection between his 
 
         July 24, 1981 work injury and any permanent disability.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That claimant take nothing further from these proceedings.
 
         
 
              That claimant pay the costs of this appeal including the 
 
         transcript of the hearing proceeding and defendants pay the costs 
 
         of the review-reopening proceeding.
 
         
 
              Signed and filed this 20th day of January, 1988.
 
         
 
         
 
         
 
         
 
                                                 DAVID E. LINQUIST
 
                                                 INDUSTRIAL COMMISSIONER
 
         
 
         
 

 
         
 
         
 
         
 
         MEISTERBURG V. GENERAL GROWTH PROPERTIES
 
         Page   8
 
         
 
         
 
         Copies To:
 
         
 
         Mr. David D. Drake
 
         Attorney at Law
 
         P.O. Box 65355
 
         1200 35th Street, Suite 500
 
         Des Moines, Iowa 50265
 
         
 
         Mr. Marvin E. Duckworth
 
         Attorney at Law
 
         Terrace Center, Suite 111
 
         2700 Grand Avenue
 
         Des Moines, Iowa 50312
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                     1402.4; 2206
 
                                                     Filed 1-20-88
 
                                                     David E. Linquist
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         BRUNO MEISTERBURG,
 
         
 
              Claimant,                            File No. 676911
 
         
 
         VS.
 
         
 
                                                     A P P E A L
 
         GENERAL GROWTH PROPERTIES,
 
         
 
                                                   D E C I S I 0 N
 
              Employer,
 
         
 
         and
 
         
 
         THE HARTFORD,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1402.4
 
         
 
              Greater weight of evidence supports the deputy's finding 
 
         that claimant's present disability is not causally connected to 
 
         the July 1981 work injury.
 
         
 
         2206
 
         
 
              Claimant's argument that his work aggravated a preexisting 
 
         condition resulting in permanent disability was rejected.
 
 
 
         
 
         
 
         
 
 
        
 
 
 
 
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        MARY RAY WILLITS COLLINS,
 
        
 
            Claimant,
 
        
 
        vs.
 
        
 
        FRIENDSHIP VILLAGE, INC.,         File No. 679258
 
        d/b/a FRIENDSHIP VILLAGE
 
        RETIREMENT CENTER,                  A P P E A L
 
        
 
            Employer,                     D E I S I O N
 
        
 
        
 
        GREAT AMERICAN INSURANCE
 
        COMPANIES,
 
            Insurance Carrier,
 
            Defendants.
 
        
 
        
 
                                 STATEMENT OF THE CASE
 
        
 
        Defendants appeal from a review-reopening decision awarding 
 
        permanent total disability benefits from a work injury on August 
 
        13, 1981.
 
        
 
        The record on appeal consists of the transcript of the 
 
        review-reopening hearing and joint exhibits 1 through 30. Both 
 
        parties filed briefs on appeal.
 
        
 
                                      ISSUE
 
                                                
 
        The issue on appeal is the extent of claimant's disability.
 
        
 
                                 REVIEW OF THE EVIDENCE
 
                                                
 
        The review-reopening decision adequately and accurately reflects 
 
        the pertinent evidence and it will not be totally reiterated 
 
        herein.
 
        
 
        Claimant, who was born on February 1, 1948, injured herself while 
 
        working as a nurse's aide at the defendant employer Friendship 
 
        Village Retirement Center. She attempted to prevent a patient 
 
        from falling and fell to the floor hitting her back and buttocks 
 
        on August 13, 1981. She was treated by James Crouse, M.D., a 
 
        board certified orthopedic surgeon. An L5 disc excision was 
 
        performed on September 11, 1981. On December 1,
 
        
 
        COLLINS v. FRIENDSHIP VILLAGE, INC.
 
        page 2
 
        
 
        
 
        1981 claimant had re-exploration of the L5 disc, a laminectomy at 
 
        L5-Sl including complete curettage and rongeuring of the L5 disc 
 
        space. Claimant was released with restrictions to return to work 
 
        on February 8, 1982 as a nurse's aide but was unable to do the 
 
        work because of the lifting and bending required. She was 
 
        released to return to work on April 8, 1982 as a ward clerk but 
 
        was unable to do the work because of low back problems on 
 
        bending, leg problems while walking, and headaches. On October 
 
        20, 1982 Dr. Crouse performed a decompression of L4, L5 on the 
 

 
        
 
 
 
 
 
        left with bilateral, lateral fusion at L4 through the sacrum.
 
        
 
        Claimant testified that she completed ninth grade and as of 
 
        December 19, 1986 had enrolled in a program towards obtaining her 
 
        GED. Claimant obtained a nurse's aide certificate in 1979 after 
 
        completing a three month course. She had been employed as a 
 
        nurse's aide at various nursing homes prior to her employment at 
 
        Friendship Village. Claimant has also worked as a homemaker, as a 
 
        clearing house coupon counter, as a waitress, and as a barmaid. 
 
        She reported that she had not looked for work because she was 
 
        familiar with the Waterloo economy and felt that with three back 
 
        surgeries she would not be hired there. Claimant had not looked 
 
        into retraining.
 
        
 
        Dr. Crouse testified by way of his deposition. He estimated that 
 
        her permanent impairment would be approximately 25 percent of the 
 
        body as a whole under the Manual for Orthopedic Surgeons. He 
 
        opined that claimant could occasionally lift from 10 to 20 pounds 
 
        and could frequently lift very light weights. He also opined she 
 
        could not do prolonged sitting, but could sit six hours total 
 
        daily with a break after a couple of hours. He reported that she 
 
        could stand ten to fifteen minutes at a time up to a couple of 
 
        hours during the day. He characterized bending and stooping 
 
        activities as quite limited and reported that she should not be 
 
        climbing. He indicated claimant was able to drive but would need 
 
        occasional breaks from the sitting involved. He reported claimant 
 
        had no permanent restrictions concerning reading, but should 
 
        change positions and move about occasionally while doing so to 
 
        avoid prolonged sitting. He further opined that claimant's 
 
        restrictions would prevent her from working as a nurse's aide, as 
 
        a ward clerk in an unrestricted capacity, as a waitress, and as a 
 
        cashier in an unrestricted capacity. The doctor opined, however, 
 
        that a number of sedentary activities claimant could perform on a 
 
        full-time basis were within the restrictions outlined by him. 
 
        Thomas W. Magner, who is employed full time as a vocational 
 
        rehabilitation counselor with the state of Iowa, and who also 
 
        does private vocational consulting, testified that claimant's 
 
        counsel retained him to assess claimant's employability. Magner 
 
        reported that he took a work history for claimant, examined her 
 
        educational background and reviewed the medical information from 
 
        Dr. Crouse including her impairment rating and his restrictions
 
        
 
        COLLINS v. FRIENDSHIP VILLAGE, INC.
 
        Page 3
 
        
 
        
 
        on claimant's activities as well as Crouse's deposition. Magner 
 
        indicated that he reviewed the Dictionary of Occupational Titles 
 
        and the Iowa State Occupational Coordinating Handbook as well as 
 
        considered the local job market. He opined that claimant could 
 
        not do nurse's aide work, ward clerking, babysitting, telephone 
 
        answering, housecleaning, or telemarketing. He stated that most 
 
        sedentary jobs require sitting and that with restrictions against 
 
        prolonged standing and sitting, claimant could not handle such 
 
        jobs.
 
        
 
        Judy Steenhoek indicated that she has a Masters Degree in job 
 
        placement and job development and has worked as a rehabilitation 
 
        specialist with Intracorp for approximately five years. Steenhoek 
 
        indicated that great American Insurance Company initially asked 
 
        her in the Fall 1984 to evaluate and make recommendations as to 
 
        claimant's employability. Steenhoek took an employment history 
 
        and reviewed her medical records and restrictions. Steenhoek 
 
        opined that there were jobs within the Waterloo labor market 
 
        which claimant could perform. She reported that she had contacted 
 
        employers in telemarketing, home shopping, and at Casey's Store, 
 

 
        
 
 
 
 
 
        but had not advised those prospective employers as to claimant's 
 
        permanent partial impairment rating or her restrictions. 
 
        Steenhoek opined that claimant could do sales work, clerking, 
 
        cashiering, telemarketing, light weight fast food delivery, order 
 
        clerking, motel desk clerk, ticket sales, and receptionist work 
 
        as well as bartending in very
 
        specific settings.
 
        
 
                                 APPLICABLE LAW
 
        
 
        The citations of law in the review-reopening decision are 
 
        appropriate to the issues and evidence. The following additional 
 
        citations of law are relevant.
 
        
 
        The opinion of the supreme court in Olson V. Goodyear Service 
 
        Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963) cited 
 
        with approval a decision of the industrial commissioner for the 
 
        following proposition:
 
        
 
        Disability * * * as defined by the Compensation Act means 
 
        industrial disability, although functional disability is an 
 
        element to be considered . . . In determining industrial 
 
        disability, consideration may be given to the injured employee's 
 
        age, education, qualifications, experience and his inability, 
 
        because of the injury, to engage in employment for which he is 
 
        fitted. * * * *
 
        
 
        Functional impairment is an element to be considered in 
 
        determining industrial disability which is the reduction of 
 
        earning capacity, but consideration must also be given to the 
 
        injured employee's age, education, qualifications, experience
 
        
 
        COLLINS V . FRIENDSHIP VILLAGE, INC.
 
        Page 4
 
        
 
        
 
        and inability to engage in employment for which he is fitted. 
 
        Olson, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257.
 
        
 
                                      ANALYSIS
 
        
 
        The issue to be resolved is the extent of claimant's disability 
 
        and whether claimant is an odd-lot worker and therefore entitled 
 
        to permanent total disability benefits.
 
        
 
        On appeal defendants argue that the deputy erred in reaching 
 
        certain conclusions and erred in determining that claimant is an 
 
        odd-lot employee. Claimant counters by arguing that the deputy's 
 
        conclusions were correct and that claimant is an odd-lot 
 
        employee.
 
        
 
        The evidence shows that claimant had limited education, limited 
 
        skills, limited work experience, and a back impairment that has 
 
        resulted in three surgeries and that causes her discomfort which 
 
        is not likely to diminish. A vocational expert for claimant 
 
        indicated that her employment is not likely. Dr. Crouse also 
 
        stated that he thought claimant had limited employment 
 
        opportunity. Dr. Crouse was not shown to be a vocational expert 
 
        and is not qualified to give an opinion on employment 
 
        opportunities. Defendants counter with the opinion of their 
 
        vocational expert that claimant is employable. The question is 
 
        did claimant produce sufficient evidence to make a prima facie 
 
        showing that she is unemployable. In Guyton v. Irving Jensen 
 
        Co., 373 N.W.2d 101 (Iowa 1985) the court made the following 
 
        relevant observations about the record:
 
        
 

 
        
 
 
 
 
 
        Guyton is a black man approximately 40 years old who does not 
 
        know his age. He grew up in Mississippi where he had about one 
 
        month of formal education. He cannot read or write or make 
 
        change. The evidence included results of psychological tests 
 
        administered for social security disability purposes. The tests 
 
        showed Guyton to be mildly retarded. Considering his retardation 
 
        with his lack of education and illiteracy, the examiner concluded 
 
        Guyton "will be limited in competitive employment to jobs of an 
 
        unskilled, repetitive nature requiring no literacy."
 
        
 
        
 
        The record contains substantial evidence of Guyton's efforts 
 
        since his injury to find employment. He applied for work with the 
 
        assistance of a friend at numerous places in the Waterloo area 
 
        and up to 150 miles away. He had not found employment in this 
 
        period of more than four years. He subsisted by earning small 
 
        amounts through his junking activities and through social 
 
        security disability
 
        
 
        COLLINS v. FRIENDSHIP VILLAGE, INC.
 
        Page 5
 
        
 
        
 
        compensation. There was no evidence that jobs were available to 
 
        persons with his combination of impairments.
 
        
 
        There are significant differences between the facts of Guyton and 
 
        the facts of this case. Claimant has more education and is 
 
        intellectually more capable than Guyton. Claimant has not sought 
 
        other employment and Guyton made numerous attempts to find 
 
        employment. Merely because claimant can no longer do her prior 
 
        job as a nurse's aide does not mean she is unemployable. This 
 
        claimant cannot make a prima facie showing that she is 
 
        unemployable when she has not sought employment. Claimant has 
 
        not made a prima facie showing that she is unemployable.
 
        
 
        It is necessary to determine claimant's industrial disability. 
 
        Claimant was 38 years of age at the time of the hearing and has a 
 
        ninth grade education. Her work history consists of unskilled, 
 
        manual labor. She is reasonably motivated to work. She has had 
 
        three surgeries on her back. She has lifting restrictions of 10 
 
        to 20 pounds. She cannot bend, stoop, climb, or twist and cannot 
 
        sit or stand for prolonged periods of time. She has a permanent 
 
        impairment rating of 25 percent. While claimant has not shown she 
 
        is unemployable, she had shown that her impairment and the pain 
 
        she suffers have a significant impact on her earning capacity. 
 
        When all things are considered claimant has an industrial 
 
        disability of 70 percent.
 
        
 
                                 FINDINGS OF FACT
 
        
 
        1. Claimant, a nurse's aide, was injured on August 13, 1981 when 
 
        she fell to the floor hitting her buttocks and back while 
 
        attempting to prevent a confused patient from falling from her 
 
        bed.
 
        
 
        2. Claimant had an L5 disc protrusion on the left. Dr. Crouse 
 
        performed an L5 disc excision on September 11, 1981.
 
        
 
        3. Claimant initially did well but developed recurrent left leg 
 
        pain.
 
        
 
        4. Dr. Crouse re-explored the L5 disc and performed a laminectomy 
 
        at L5-Sl on December 1, 1981.
 
        
 
        5. Claimant attempted to return to work as a nurse's aide on 
 

 
        
 
 
 
 
 
        February 8, 1982 but could only work two and one-half hours.
 
        
 
        6. Claimant attempted to work four hours per day as a ward clerk 
 
        in April 1982, but was unable to continue after two or three 
 
        days.
 
        
 
        7. Claimant has not otherwise been released to work.
 
        
 
        COLLINS v. FRIENDSHIP VILLAGE, INC.
 
        Page 6
 
        
 
        
 
        8. Claimant's low back and leg pain returned.
 
        
 
        9. On October 20, 1982, Dr. Crouse performed a decompression of 
 
        L4, L5 on the left with bilateral, lateral fusion at L4 through 
 
        the sacrum.
 
        
 
        10. Claimant improved initially but had a subsequent return of 
 
        low back and left leg pain.
 
        
 
        11. Claimant has developed adhesions as a complication of her 
 
        back surgeries.
 
        
 
        12. Claimant will continue to have left leg and intermittent low 
 
        back symptoms.
 
        
 
        13. Claimant can frequently lift very light weights; can 
 
        occasionally lift from ten to twenty pounds; cannot bend, stoop, 
 
        climb, twist; and cannot sit or stand for prolonged periods.
 
        
 
        14. Claimant has an impairment of 25 percent of the body of the 
 
        whole.
 
        
 
        15. Claimant has received only minimal vocational rehabilitative 
 
        assistance.
 
        
 
        16. Claimant's work experience is primarily as a nurse's aide; 
 
        she has also done coupon counting, waitressing, bartending and 
 
        like manual labor.
 
        
 
        17. Claimant cannot return to those employments or other manual 
 
        labor requiring physical maneuvers from which she is restricted.
 
        
 
        18. Claimant has not actively sought employment since her August 
 
        13, 1981 injury.
 
        
 
        19. Claimant is not an odd-lot worker.
 
        
 
        20. Claimant was 38 years old at the time of the hearing and has 
 
        completed ninth grade.
 
        
 
        21. Claimant enrolled in a GED program after being encouraged and 
 
        assisted in doing so.
 
        
 
        22. Claimant's motivation to work is reasonable given her 
 
        physical condition, her current work skills, and her education 
 
        level.
 
        
 
        23. The work injury of August 13, 1981 was the cause of 
 
        claimant's industrial disability of 70 percent.
 
        
 
        COLLINS v. FRIENDSHIP VILLAGE, INC.
 
        Page 7
 
        
 
        
 

 
        
 
 
 
 
 
                                 CONCLUSIONS OF LAW
 
        
 
        Claimant has not established by a preponderance of evidence that 
 
        she is an odd-lot employee.
 
        
 
        Claimant has established by a preponderance of evidence that her 
 
        August 13, 1981 work injury is the cause of her industrial 
 
        disability of 70 percent.
 
        
 
        WHEREFORE, the decision of the deputy is affirmed and modified.
 
        
 
                                      ORDER
 
        
 
        THEREFORE, it is ordered:
 
        
 
        That defendants pay claimant three hundred fifty (350) weeks of 
 
        permanent partial disability benefits at the rate of ninety-three 
 
        and 82/100 dollars ($93.82) per week from April 20, 1983.
 
        
 
        That defendants pay accrued amounts in a lump sum.
 
        
 
        That defendants pay interest pursuant to section 85.30.
 
        
 
        That defendants pay the costs of this proceeding including the 
 
        costs of transcription of the review-reopening hearing.
 
        
 
        That defendants file claim activity reports pursuant to Division 
 
        of Industrial Services Rule 343-3.1(2).
 
        
 
        
 
        
 
                                         DAVID E. LINQUIST
 
                                      INDUSTRIAL COMMISSIONER
 
        
 
        
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         MARY KAY WILLITS COLLINS,
 
         
 
              Claimant,
 
         
 
         vs.
 
         
 
         FRIENDSHIP VILLAGE, INC.,                   File No. 679258
 
         d/b/a FRIENDSHIP VILLAGE
 
         RETIREMENT CENTER,                           A P P E A L
 
         
 
              Employer,                              D E C I S I O N
 
         and
 
         
 
         GREAT AMERICAN INSURANCE
 
         COMPANIES,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Defendants appeal from a review-reopening decision awarding 
 
         permanent total disability benefits from a work injury on August 
 
         13, 1981.
 
         
 
              The record on appeal consists of the transcript of the 
 
         review-reopening hearing and joint exhibits 1 through 30.  Both 
 
         parties filed briefs on appeal.
 
         
 
                                      ISSUE
 
         
 
              The issue on appeal is the extent of claimant's disability.
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              The review-reopening decision adequately and accurately 
 
         reflects the pertinent evidence and it will not be totally 
 
         reiterated herein.
 
         
 
              Claimant, who was born on February 1, 1948, injured herself 
 
         while working as a nurse's aide at the defendant employer 
 
         Friendship Village Retirement Center.  She attempted to prevent a 
 
         patient from falling and fell to the floor hitting her back and 
 
         buttocks on August 13, 1981.  She was treated by James Crouse, 
 
         M.D., a board certified orthopedic surgeon.  An L5 disc excision 
 
         was performed on September 11, 1981.  On December 1, 1981 
 
         claimant had re-exploration of the L5 disc, a laminectomy at 
 
         L5-Sl including complete curettage and rongeuring of the L5 disc 
 
         space.  Claimant was released with restrictions to return to work 
 
         on February 8, 1982 as a nurse's aide but was unable to do the 
 
         work because of the lifting and bending required.  She was 
 
         released to return to work on April 8, 1982 as a ward clerk but 
 
         was unable to do the work because of low back problems on 
 
         bending, leg problems while walking, and headaches.  On October 
 
         20, 1982 Dr. Crouse performed a decompression of L4, L5 on the 
 

 
         left with bilateral, lateral fusion at L4 through the sacrum.
 
         
 
              Claimant testified that she completed ninth grade and as 
 
         of December 19, 1986 had enrolled in a program towards 
 
         obtaining her GED.  Claimant obtained a nurse's aide 
 
         certificate in 1979 after completing a three month course.  She 
 
         had been employed as a nurse's aide at various nursing homes 
 
         prior to her employment at Friendship Village.  Claimant has 
 
         also worked as a homemaker, as a clearing house coupon counter, 
 
         as a waitress, and as a barmaid.  She reported that she had not 
 
         looked for work because she was familiar with the Waterloo 
 
         economy and felt that with three back surgeries she would not 
 
         be hired there.  Claimant had not looked into retraining.
 
         
 
              Dr. Crouse testified by way of his deposition.  He 
 
         estimated that her permanent impairment would be approximately 
 
         25 percent of the body as a whole under the Manual for 
 
         Orthopedic Surgeons.  He opined that claimant could 
 
         occasionally lift from 10 to 20 pounds and could frequently 
 
         lift very light weights.  He also opined she could not do 
 
         prolonged sitting, but could sit six hours total daily with a 
 
         break after a couple of hours.  He reported that she could 
 
         stand ten to fifteen minutes at a time up to a couple of hours 
 
         during the day.  He characterized bending and stooping 
 
         activities as quite limited and reported that she should not be 
 
         climbing.  He indicated claimant was able to drive but would 
 
         need occasional breaks from the sitting involved.  He reported 
 
         claimant had no permanent restrictions concerning reading, but 
 
         should change positions and move about occasionally while doing 
 
         so to avoid prolonged sitting.  He further opined that 
 
         claimant's restrictions would prevent her from working as a 
 
         nurse's aide, as a ward clerk in an unrestricted capacity, as a 
 
         waitress, and as a cashier in an unrestricted capacity.  The 
 
         doctor opined, however, that a number of sedentary activities 
 

 
         
 
         
 
         
 
         COLLINS V. FRIENDSHIP VILLAGE, INC.
 
         PAGE   3
 
         
 
         claimant could perform on a full-time basis were within the 
 
         restrictions outlined by him.
 
         
 
              Thomas W. Magner, who is employed full time as a 
 
         vocational rehabilitation counselor with the state of Iowa, and 
 
         who also does private vocational consulting, testified that 
 
         claimant's counsel retained him to assess claimant's 
 
         employability.  Magner reported that he took a work history for 
 
         claimant, examined her educational background and reviewed the 
 
         medical information from Dr. Crouse including her impairment 
 
         rating and his restrictions on claimant's activities as well as 
 
         Crouse's deposition.  Magner indicated that he reviewed the 
 
         Dictionary of Occupational Titles and the Iowa State 
 
         Occupational Coordinating Handbook as well as considered the 
 
         local job market.  He opined that claimant could not do nurse's 
 
         aide work, ward clerking, babysitting, telephone answering, 
 
         housecleaning, or telemarketing.  He stated that most sedentary 
 
         jobs require sitting and that with restrictions against 
 
         prolonged standing and sitting, claimant could not handle such 
 
         jobs.
 
         
 
              Judy Steenhoek indicated that she has a Masters Degree in 
 
         job placement and job development and has worked as a 
 
         rehabilitation specialist with Intracorp for approximately five 
 
         years.  Steenhoek indicated that great American Insurance 
 
         Company initially asked her in the Fall 1984 to evaluate and 
 
         make recommendations as to claimant's employability.  Steenhoek 
 
         took an employment history and reviewed her medical records and 
 
         restrictions.  Steenhoek opined that there were jobs within the 
 
         Waterloo labor market which claimant could perform.  She 
 
         reported that she had contacted employers in telemarketing, 
 
         home shopping, and at Casey's Store, but had not advised those 
 
         prospective employers as to claimant's permanent partial 
 

 
         
 
         
 
         
 
         COLLINS V. FRIENDSHIP VILLAGE, INC.
 
         PAGE   4
 
         
 
         impairment rating or her restrictions.  Steenhoek opined that 
 
         claimant could do sales work, clerking, cashiering, 
 
         telemarketing, light weight fast food delivery, order clerking, 
 
         motel desk clerk, ticket sales, and receptionist work as well 
 
         as bartending in very specific settings.
 
         
 
                                 APPLICABLE LAW
 
         
 
              The citations of law in the review-reopening decision are 
 
         appropriate to the issues and evidence.  The following additional 
 
         citations of law are relevant.
 
         
 
              The opinion of the supreme court in Olson v. Goodyear 
 
         Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963) 
 
         cited with approval a decision of the industrial commissioner for 
 
         the following proposition:
 
         
 
              Disability * * * as defined by the Compensation Act 
 
              means industrial disability, although functional 
 
              disability is an element to be considered . . . In 
 
              determining industrial disability, consideration may be 
 
              given to the injured employee's age, education, 
 
              qualifications, experience and his inability, because 
 
              of the injury, to engage in   employment for which he 
 
              is fitted. * * * *
 
         
 
              Functional impairment is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications,  experience 
 
         and inability to engage in employment for which he is fitted.  
 
         Olson, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257.
 
         
 
                                     ANALYSIS
 
         
 
              The issue to be resolved is the extent of claimant's 
 
         disability and whether claimant is an odd-lot worker and 
 
         therefore entitled to permanent total disability benefits.
 
         
 
              On appeal defendants argue that the deputy erred in reaching 
 
         certain conclusions and erred in determining that claimant is an 
 
         odd-lot employee.  Claimant counters by arguing that the deputy's 
 
         conclusions were correct and that claimant is an odd-lot 
 
         employee.
 
         
 
              The evidence shows that claimant had limited education, 
 
         limited skills, limited work experience, and a back impairment 
 
         that has resulted in three surgeries and that causes her 
 
         discomfort which is not likely to diminish.  A vocational expert 
 
         for claimant indicated that her employment is not likely.  Dr. 
 
         Crouse also stated that he thought claimant had limited 
 
         employment opportunity.  Dr. Crouse was not shown to be a 
 
         vocational expert and is not qualified to give an opinion on 
 
         employment opportunities.  Defendants counter with the opinion of 
 
         their vocational expert that claimant is employable.  The 
 
         question is did claimant produce sufficient evidence to make a 
 
         prima facie showing that she is unemployable.  In Guyton v. 
 
         Irving Jensen Co., 373 N.W.2d 101 (Iowa 1985) the court made the 
 
         following relevant observations about the record:
 
         
 

 
         
 
         
 
         
 
         COLLINS V. FRIENDSHIP VILLAGE, INC.
 
         PAGE   5
 
         
 
              Guyton is a black man approximately 40 years old who 
 
              does not know his age.  He grew up in Mississippi where 
 
              he bad about one month of formal education.  He cannot 
 
              read or write or make change.  The evidence included 
 
              results of psychological tests administered for social 
 
              security disability purposes.  The tests showed Guyton 
 
              to be mildly retarded.  Considering his retardation 
 
              with his lack of education and illiteracy, the examiner 
 
              concluded Guyton "will be limited in competitive 
 
              employment to jobs of an unskilled, repetitive nature 
 
              requiring no literacy."
 
         
 
                 ....
 
         
 
                 The record contains substantial evidence of Guyton's 
 
              efforts since his injury to find employment.  He 
 
              applied for work with the assistance of a friend at 
 
              numerous places in the Waterloo area and up to 150 
 
              miles away.   He had not found employment in this 
 
              period of more than four years.  He subsisted by 
 
              earning small amounts through his junking activities 
 
              and through social security disability compensation.  
 
              There was no evidence that jobs were available to 
 
              persons with his combination of impairments.
 
         
 
              There are significant differences between the facts of 
 
         Guyton and the facts of this case.  Claimant has more education 
 
         and is intellectually more capable than Guyton.  Claimant has not 
 
         sought other employment and Guyton made numerous attempts to find 
 
         employment.  Merely because claimant can no longer do her prior 
 
         job as a nurse's aide does not mean she is unemployable.  This 
 
         claimant cannot make a prima facie showing that she is 
 
         unemployable when she has not sought employment.  Claimant has 
 
         not made a prima facie showing that she is unemployable.
 
         
 
              It is necessary to determine claimant's industrial 
 
         disability.  Claimant was 38 years of age at the time of the 
 
         hearing and has a ninth grade education.  Her work history 
 
         consists of unskilled, manual labor.  She is reasonably motivated 
 
         to work.  She has had three surgeries on her back.  She has 
 
         lifting restrictions of 10 to 20 pounds.  She cannot bend, stoop, 
 
         climb, or twist and cannot sit or stand for prolonged periods of 
 
         time.  She has a permanent impairment rating of 25 percent.  
 
         While claimant has not shown she is unemployable, she had shown 
 
         that her impairment and the pain she suffers have a significant 
 
         impact on her earning capacity.  When all things are considered 
 
         claimant has an industrial disability of 70 percent.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Claimant, a nurse's aide, was injured on August 13, 1981 
 
         when she fell to the floor hitting her buttocks and back while 
 
         attempting to prevent a confused patient from falling from her 
 
         bed.
 
         
 
              2.  Claimant had an L5 disc protrusion on the left.  Dr. 
 
         Crouse performed an L5 disc excision on September 11, 1981.
 
         
 
              3.  Claimant initially did well but developed recurrent left 
 
         leg pain.
 

 
         
 
         
 
         
 
         COLLINS V. FRIENDSHIP VILLAGE, INC.
 
         PAGE   6
 
         
 
         
 
              4.  Dr. Crouse re-explored the L5 disc and performed a 
 
         laminectomy at L5-Sl on December 1, 1981.
 
         
 
              5.  Claimant attempted to return to work as a nurse's aide 
 
         on February 8, 1982 but could only work two and one-half hours.
 
         
 
              6.  Claimant attempted to work foul hours per day as a ward 
 
         clerk in April 1982, but was unable to continue after two or 
 
         three days.
 
         
 
              7.  Claimant has not otherwise been released to work.
 
         
 
              8.  Claimant's low back and leg pain returned.
 
         
 
              9.  On October 20, 1982, Dr. Crouse performed a 
 
         decompression of L4, L5 on the left with bilateral, lateral 
 
         fusion at L4 through the sacrum.
 
         
 
             10.  Claimant improved initially but had a subsequent return 
 
         of low back and left leg pain.
 
         
 
             11.  Claimant has developed adhesions as a complication of 
 
         her back surgeries.
 
         
 
             12.  Claimant will continue to have left leg and intermittent 
 
         low back symptoms.
 
         
 
             13.  Claimant can frequently lift very light weights; can 
 
         occasionally lift from ten to twenty pounds; cannot bend, stoop, 
 
         climb, twist; and cannot sit or stand for prolonged periods.
 
         
 
             14.  Claimant has an impairment of 25 percent of the body of 
 
         the whole.
 
         
 
             15.  Claimant has received only minimal vocational 
 
         rehabilitative assistance.
 
         
 
             16.  Claimant's work experience is primarily as a nurse's 
 
         aide; she has also done coupon counting, waitressing, bartending 
 
         and like manual labor.
 
         
 
             17.  Claimant cannot return to those employments or other 
 
         manual labor requiring physical maneuvers from which she is 
 
         restricted.
 
         
 
             18.  Claimant has not actively sought employment since her 
 
         August 13, 1981 injury.
 
         
 
             19.  Claimant is not an odd-lot worker.
 
         
 
             20.  Claimant was 38 years old at the time of the hearing and 
 
         has completed ninth grade.
 
         
 
             21.  Claimant enrolled in a GED program after being 
 
         encouraged and assisted in doing so.
 
         
 
             22.  Claimant's motivation to work is reasonable given her 
 
         physical condition, her current work skills, and her education 
 
         level.
 

 
         
 
         
 
         
 
         COLLINS V. FRIENDSHIP VILLAGE, INC.
 
         PAGE   7
 
         
 
         
 
             23.  The work injury of August 13, 1981 was the cause of 
 
         claimant's industrial disability of 70 percent.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant has not established by a preponderance of evidence 
 
         that she is an odd-lot employee.
 
         
 
              Claimant has established by a preponderance of evidence that 
 
         her August 13, 1981 work injury is the cause of her industrial 
 
         disability of 70 percent.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed and 
 
         modified.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That defendants pay claimant three hundred fifty (350) weeks 
 
         of permanent partial disability benefits at the rate of 
 
         ninety-three and 82/100 dollars ($93.82) per week from April 20, 
 
         1983.
 
         
 
              That defendants pay accrued amounts in a lump sum.
 
         
 
              That defendants pay interest pursuant to section 85.30.
 
         
 
              That defendants pay the costs of this proceeding including 
 
         the costs of transcription of the review-reopening hearing.
 
         
 
              That defendants file claim activity reports pursuant to 
 
         Division of Industrial Services Rule 343-3.1(2).
 
         
 
         
 
              Signed and filed this 14th day of October, 1988.
 
         
 
         
 
         
 
         
 
         
 
                                               DAVID E.LINQUIST
 
                                              INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Edward J. Gallagher, Jr.
 
         Attorney at Law
 
         P.O. Box 2615
 
         Waterloo, Iowa 50704
 
         
 
         Mr. David Shinkle
 
         Attorney at Law
 
         1040 Des Moines Bldg.
 
         Des Moines, Iowa 50309
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                   1803 - 4100
 
                                                   Filed October 31, 1988
 
                                                   DAVID E. LINQUIST
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         MARY KAY WILLITS COLLINS,
 
         
 
               Claimant,
 
         
 
         vs.
 
         
 
         FRIENDSHIP VILLAGE, INC.,                File No. 679258
 
         d/b/a FRIENDSHIP VILLAGE
 
         RETIREMENT CENTER,                         A P P E A L
 
         
 
              Employer,                          D E C I S I 0 N
 
         
 
         and
 
         
 
         GREAT AMERICAN INSURANCE
 
         COMPANIES,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1803
 
         
 
              The claimant was 38 years old with a ninth grade education. 
 
          Her work history was unskilled manual labor.  She was reasonably 
 
         motivated to do work.  Her 25 percent impairment; three back 
 
         surgeries; inability to bend, stoop, lift; lifting restrictions 
 
         of 10-20 pounds; inability to sit or stand for extended periods 
 
         of time; and pain with physical activities resulted in a 
 
         significant loss of earning capacity.  Claimant was found to have 
 
         an industrial disability of 70 percent.
 
         
 
         4100
 
         
 
              Claimant had not sought other employment since her injury.  
 
         Claimant was not an odd-lot employee.
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                           
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         MARY KAY WILLITS COLLINS
 
         
 
              Claimant,
 
                                                        File No. 679258
 
         VS.
 
         
 
         FRIENDSHIP VILLAGE, INC.,                       R E V I E W -
 
         d/b/a FRIENDSHIP VILLAGE
 
         RETIREMENT CENTER,                            R E O P E N I N G
 
         
 
              Employer,                                 D E C I S I O N
 
         
 
         and
 
         
 
         GREAT AMERICAN INSURANCE
 
         COMPANIES,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in review-reopening brought by the 
 
         claimant, Mary Kay Willits Collins, against her employer, 
 
         Friendship Village, Inc., d/b/a Friendship Village Retirement 
 
         Center, and its insurance carrier, Great American Insurance 
 
         Companies, to recover benefits under the Iowa Workers' 
 
         Compensation Act as a result of an injury sustained August 13, 
 
         1981.  This matter came on for hearing before the undersigned 
 
         deputy industrial commissioner in Waterloo, Iowa, on December 29, 
 
         1986.  The record was considered fully submitted at close of 
 
         hearing.
 
         
 
              The record in this case consists of the testimony of 
 
         claimant, of Orlo K. Collins, of Florence Hare, of Thomas Magner, 
 
         and of Judy Steenhoek, as well as of joint exhibits 1 through 30.  
 
         Exhibits 1 and 2 are medical reports of M. A. Afridi, M.D., of 
 
         May 17, 1983 and February 14, 1984, respectively.  Exhibits 3 
 
         through 6 are medical reports of James E. Crouse, M.D., of August 
 
         23, 1982, February 25, 1983, April 29, 1983, and September 12, 
 
         1983, respectively.  Exhibits 7 through 11 are office records of 
 
         Dr. Crouse.  Exhibit 12 is the deposition of Dr. Crouse taken 
 
         November 6, 1986.  Exhibits 13 through 16 are medical 
 
         illustrations as originally introduced and elaborated upon by Dr. 
 
         Crouse in his deposition.  Exhibits 18 through 20 are reports and 
 
         notes of Dr. Crouse as originally introduced in the Crouse 
 
         deposition.  Exhibit 21 is a report and accompanying office notes 
 
         of R. R. Roth, M.D.,
 
         of February 14, 1983.  Exhibit 22 is Dr. Roth's progress report 
 
         from August 17, 1981 through October 28, 1982.  Exhibit 23 is 
 
         Schoitz Hospital records from August 31, 1981 to September 16, 
 

 
         
 
         
 
         
 
         WILLITS COLLINS V. FRIENDSHIP VILLAGE
 
         Page   2
 
         
 
         
 
         1981.  Exhibit 24 is Schoitz Hospital records from November 24, 
 
         1981 to December 8, 1981.  Exhibit 25 is Schoitz Hospital 
 
         records of October 19, 1982 to October 29, 1982.  Exhibit 26 is 
 
         Schoitz Hospital records from March 8, 1983 to March 20, 1983.  
 
         Exhibit 27 is the curriculum vitae of Thomas W. Magner.  
 
         Exhibit 28 is a report of Mr. Magner of August 2, 1985.  
 
         Exhibits 29 and 30 are reports of Judy Steenhoek of December 
 
         23, 1986 and November 14, 1984, respectively.  All evidentiary 
 
         objections are overruled.
 
         
 
                                   ISSUES
 
         
 
              Pursuant to the prehearing report and the uncontested 
 
         modification of same, the parties stipulated that claimant's work 
 
         injury is the cause of temporary disability and that claimant is 
 
         entitled to temporary total or healing period benefits from 
 
         August 14, 1981 to April 20, 1983 with permanent partial 
 
         disability benefits to commence on that date.  They further 
 
         stipulated that claimant's rate of weekly compensation is $93.82.  
 
         Issues remaining to be resolved are:
 
         
 
              1)  Whether a causal relationship exists between claimant's 
 
         injury and her claimed permanent disability;
 
         
 
              2)  Whether claimant is entitled to permanent partial or 
 
         permanent total disability benefits; and
 
         
 
              3)  Whether claimant is an odd-lot worker under the Guyton 
 
         doctrine.
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              Claimant, who was born on February 1, 1948, injured herself 
 
         while working in the infirmary at the Friendship Village 
 
         Retirement Center.  She attempted to prevent a confused patient 
 
         from falling from her bed and subsequently fell to the floor 
 
         hitting her buttocks and back.  Claimant's injury occurred on 
 
         August 13, 1981, a Thursday evening.  She experienced immediate 
 
         low back pain but worked throughout her shift.  Claimant was off 
 
         the following three days, but on her work return was examined by 
 
         Carol Walters, R.N., night supervisor who subsequently 
 
         referred-her to R. R. Roth, M.D.  Roth initially prescribed 
 
         Motrin and treated claimant with physical therapy.  Claimant 
 
         continued to experience low back pain with radiation into her 
 
         left leg.  On physical examination on August 24, 1981, claimant's 
 
         straight leg raising was positive at 60 degrees on the left, 
 
         DTR's were normal and Patrick's sign was negative.
 
         
 
              On August 28, 1981, Dr. Roth referred claimant to James
 
         Crouse, M.D., a board certified orthopedic surgeon.  Claimant was 
 
         admitted to Schoitz Memorial Hospital on August 31, 1981.  A 
 
         lumbar pantopaque myelogram of September 8, 1981 showed a disc 
 
         protrusion at L5 on the left.  An L5 disc excision was carried 
 
         out on September 11, 1981.  Dr. Crouse reported that 
 
         postoperatively, claimant initially did very well with no leg 
 
         pain.  On October 27, 1981, claimant was complaining of recurrent 
 

 
         
 
         
 
         
 
         WILLITS COLLINS V. FRIENDSHIP VILLAGE
 
         Page   3
 
         
 
         
 
         pain in her back and into the left leg.  Following an initial 
 
         attempt at conservative treatment, claimant was readmitted to 
 
         Schoitz Hospital on November 25, 1981.  A CT scan of November 25, 
 
         1981 suggested a protruded disc at L5 in the midline and somewhat 
 
         to the left.  On December 1, 1981, claimant had reexploration of 
 
         the L5 disc, a laminectomy at L5-Sl including complete curettage 
 
         and rongeuring of the L5 disc space.  Dr. Crouse reported that 
 
         claimant improved following that surgery and released her to 
 
         return to work on February 8, 1982.  Claimant testified that she 
 
         attempted to return to work on that date as a nurse's aide at 
 
         Friendship Village with restrictions, but that after two and 
 
         one-half hours of work, she could not handle the lifting and 
 
         bending required.  She indicated that her supervisor then 
 
         instructed her to leave work.  Claimant stated that her back 
 
         improved with bedrest and that after examination by Dr. Crouse, 
 
         she was released to return to work on April 8, 1982 for half days 
 
         working as a ward clerk.  In that position, claimant filed 
 
         medications, kept and filed patient records, and answered the 
 
         telephone.  Claimant testified that she worked two or three days, 
 
         but developed low back problems on bending, leg problems while 
 
         walking, and headaches.  She reported that her supervisor advised 
 
         her to leave and that Dr. Crouse then advised her that she could 
 
         not work.  Claimant testified that Crouse has not since released 
 
         her for either job.
 
         
 
              Claimant's low back and left buttock pain persisted and 
 
         worsened through Spring and Summer 1982.  Her straight leg 
 
         raising test remained positive.  On August 26, 1982, Dr. Crouse 
 
         opined that she probably had formed adhesions subsequent to her 
 
         two surgeries.  Dr. Crouse readmitted claimant to Schoitz 
 
         Hospital and on October 20, 1982 performed a decompression of L4, 
 
         L5 on the left with bilateral, lateral fusion at L3 through the 
 
         sacrum.  Claimant testified that she initially improved following 
 
         that surgery, but subsequently had a return of low back and left 
 
         leg pain.  A back brace and corset were prescribed.  Claimant was 
 
         continued on Parafon Forte for muscle spasm and pain.  TENS unit 
 
         treatment was initiated.
 
         
 
              In Spring 1983, claimant was referred to M.A. Afridi, M.D., 
 
         for psychiatric evaluation.  Claimant was noted subjectively as 
 
         feeling anxious and depressed as a result of pain.  Her condition 
 
         was diagnosed as a depressive reaction, anxious personality, and 
 
         back pain.  Dr. Afridi primarily treated claimant for her back 
 
         pain and saw her on six occasions for acupuncture related to that 
 
         pain.  The doctor prescribed Elavil 50 mg. at bedtime as well.
 
              
 
              In a report of February 25, 1983, Dr. Crouse indicated that 
 
         claimant's increasing left leg pain after initially having good 
 
         relief following her last surgery could be attributed to 
 
         postoperative scarring.  He reported that no further surgical 
 
         treatment was indicated and opined that she was quite likely to 
 
         continue to have left leg symptoms as well as intermittent low 
 
         back symptoms.  He estimated that her permanent impairment would 
 
         be approximately 25 percent of the body as a whole under the 
 
         Manual for Orthopedic Surgeons.  On April 29, 1983, Dr. Crouse 
 
         opined that claimant had been totally disabled from working since 
 
         August 1981 and reported she did not believe she was able to 
 
         return to work as a nurse's aide or any job requiring repetitive 
 
         lifting, bending, and stooping.  He then reported that under the 
 
         Manual for Orthopedic Surgeons, a patient with surgical excision 
 

 
         
 
         
 
         
 
         WILLITS COLLINS V. FRIENDSHIP VILLAGE
 
         Page   4
 
         
 
         
 
         of a disc with a fusion with lifting activities modified and some 
 
         persistent pain and stiffness would have an estimated permanent 
 
         partial impairment of 20 percent of the body as a whole.  In his 
 
         deposition, Dr. Crouse characterized that as a misstatement on 
 
         his part of the manual and again opined that claimant's actual 
 
         permanent partial impairment should be 25 percent of the body as 
 
         a whole.
 
         
 
              Claimant was admitted to Schoitz Medical Center on March 8, 
 
         1983 and subsequently underwent an exploratory laparotomy with 
 
         lysis of adhesions, small bowel enteroenterostomy, and bilateral 
 
         oophorectomy with removal of large right ovarian cyst with a 
 
         discharge on March 20, 1983.  She saw Dr. Crouse on April 7, 1983 
 
         with back discomfort and some left leg pain.  He noted her recent 
 
         surgery and stated that prior to that surgery her back had been 
 
         reasonably comfortable.  Dr. Crouse opined in his deposition, 
 
         however, that bowel surgery wouldn't have injured claimant's back 
 
         but for weakening the abdominal muscles and, thereby, aggravating 
 
         back symptoms in a patient already having them or creating 
 
         increased aching simply from altered activities and accompanying 
 
         bedrest.
 
         
 
              Dr. Crouse apparently saw claimant in November 1984 for 
 
         further evaluation regarding her permanent partial impairment and 
 
         then did not see her until August 27, 1986 when she was 
 
         re-evaluated because of reported increased discomfort in her back 
 
         and through her left leg.  The doctor then stated that claimant 
 
         had been getting along reasonably well and was able to do light 
 
         housework until two weeks prior to her examination.  He indicated 
 
         that her back and leg pain persisted from the August 13, 1981 
 
         injury but that he expected claimant's exacerbation of back 
 
         discomfort to resolve and leave her with the same degree of 
 
         permanent impairment previously estimated.
 
         
 
              In his deposition, Dr. Crouse indicated that claimant's 
 
         history of initial improvement and then worsening of her 
 
         condition was consistent with-adhesions as a complication of a 
 
         back injury.  Dr. Crouse opined that claimant could occasionally 
 
         lift from 10 to 20 pounds and could frequently lift very light 
 
         weights.  He opined she could not do prolonged sitting, but could 
 
         sit six hours total daily with a break after a couple of hours.  
 
         He reported that she could stand ten to fifteen minutes at a time 
 
         up to a couple of hours during the day.  He characterized bending 
 
         and stooping activities as quite limited and reported that she 
 
         should not be climbing.  He indicated claimant was able to drive 
 
         but would need occasional breaks from the sitting involved.  He 
 
         reported claimant had no permanent restrictions concerning 
 
         reading, but should change positions and move about occasionally 
 
         while doing so to avoid prolonged sitting.  Dr. Crouse opined 
 
         that claimant's restrictions would prevent her from working as a 
 
         nurse's aide, as a ward clerk in an unrestricted capacity, as a 
 
         waitress, and as a cashier in an unrestricted capacity.  The 
 
         doctor opined, however, that a number of sedentary activities 
 
         claimant could perform on a full-time basis were within the 
 
         restrictions outlined by him.
 
         
 
              Claimant testified that she continues to have back and leg 
 
         pain and muscle spasms and that her condition is aggravated by 
 
         cold, damp weather.  She has difficulty sleeping.  Her left leg 
 

 
         
 
         
 
         
 
         WILLITS COLLINS V. FRIENDSHIP VILLAGE
 
         Page   5
 
         
 
         
 
         gives out although she has not fallen.  She reported she takes 
 
         from eight to nine non-prescription pain pills per day.  Claimant 
 
         does housekeeping at home, working intermittently at sweeping, 
 
         vacuuming, cooking, cleaning; she occasionally does family 
 
         laundry.  She does not carry groceries.  Claimant testified that 
 
         she told Dr. Crouse that she had back pain and headaches after 
 
         she had read for too long and that he then told her not to sit 
 
         and read for too long a time.  Claimant reported that she can 
 
         drive her husband's gearshift, four-wheel drive truck for at 
 
         least fifteen to twenty miles without problems.  She denied that 
 
         the vehicle was hard to drive stating occasionally she could move 
 
         her feet about.
 
         
 
              Claimant reported that her daughter and the daughter's 
 
         seventeen month old child live with claimant and her husband.  
 
         Claimant stated that the daughter does housekeeping for claimant 
 
         and that claimant Otakes care of" the baby only if her husband or 
 
         claimant's sister is there.  Claimant opined that she could not 
 
         babysit for income because of the constant activity and lifting 
 
         involved.  She denied having ever told Judy Steenhoek that she 
 
         enjoyed being home watching the child.  Claimant opined she could 
 
         not work as a housekeeper because of the reaching and lifting 
 
         involved; that she could not work as an usher because of standing 
 
         and walking involved or as a ticket taker because of standing and 
 
         sitting involved.  Claimant reported that she can ride in a car 
 
         for approximately an hour and then must walk around.  She stated 
 
         she has difficulty climbing stairs and must do so slowly and 
 
         carefully and while using a handrail.  Claimant indicated that 
 
         she no longer bowls and dances both of which she had done prior 
 
         to the injury.
 
         
 
              Claimant testified that she completed ninth grade and as of 
 
         December 19, 1986 had enrolled in a program towards obtaining her 
 
         GED.  She reported that she wanted her GED in order to enhance 
 
         her employability, but agreed that she had not taken steps to 
 
         obtain it until Judy Steenhoek suggested she do so.  Claimant 
 
         obtained a nurse's aide certificate in 1979 after completing a 
 
         three month course.  She had been employed as a nurse's aide at 
 
         various nursing homes prior to her employment at Friendship 
 
         Village.  Claimant has also worked as a homemaker, as a clearing 
 
         house coupon counter, as a waitress, and as a barmaid.  As a 
 
         coupon counter, claimant sat counting boxes of coupons.  She 
 
         reported that she would count a box and then get up and get the 
 
         next box.  A break was available every two hours.  As a nurse's 
 
         aide, claimant was involved in general patient care including 
 
         bathing, showering, walking patients, applying heat treatments, 
 
         and lifting patients with the assistance of another person.
 
         
 
              Claimant reported that she does not routinely read the 
 
         newspaper want ads in that she does not believe doing so will 
 
         benefit her.  She reported that she had not looked for work 
 
         because she was familiar with the Waterloo economy and felt that 
 
         with three back surgeries she would not be hired there.  Claimant 
 
         stated that she had visited the area office of State Vocational 
 
         Rehabilitation but that when she did so, she was told that she 
 
         was at the wrong place that vocational rehabilitation only helped 
 
         people with "handicaps."  She indicated she was not told what 
 
         programs were available for someone with difficulties such as 
 
         hers.  Claimant indicated that she had called Karen Johns of Job 
 

 
         
 
         
 
         
 
         WILLITS COLLINS V. FRIENDSHIP VILLAGE
 
         Page   6
 
         
 
         
 
         Service regarding the Job Service work search program, but that 
 
         Ms. Johns had not returned her call.  Claimant indicated that she 
 
         had not called Ms. Johns again in that she was occupied with a 
 
         family member's death.  Claimant further explained that her 
 
         understanding was that Steenhoek was to help her obtain her GED 
 
         and then to help her seek employment, not that Steenhoek was to 
 
         initially help her seek employment.  Claimant agreed that she has 
 
         not considered work with the Home Shopper Network or telephone 
 
         sales work.  Claimant agreed that she had never formulated plans 
 
         to determine what employment she could handle but stated she 
 
         would be willing to seek retraining.  She subsequently agreed 
 
         that she had not looked into such retraining, however.
 
         
 
              Orlo K. Collins, claimant's husband, testified that he has 
 
         known claimant whom he married on April 3, 1982 since February 
 
         1981.  He substantiated claimant's testimony regarding her 
 
         condition.  Mr. Collins testified that he has discouraged 
 
         claimant from returning to work because he did not feel she 
 
         should work given her condition.
 
         
 
              Florence Hare testified that she has known claimant since 
 
         March 1981 and has observed her activities since the injury.  She 
 
         also substantiated claimant's testimony regarding claimant's
 
         condition.
 
         
 
              Thomas W. Magner, who is employed full time as a vocational 
 
         rehabilitation counselor with the state of Iowa, and who also 
 
         does private vocational consulting, testified that claimant's 
 
         counsel retained him to assess claimant's employability.  Mr. 
 
         Magner is a certified rehabilitation counselor and holds a Master 
 
         of Science Degree in rehabilitation counseling.  He has been 
 
         employed in rehabilitation work since 1973.  Magner saw claimant 
 
         initially on July 30, 1985 and then on October 9, 1986 and once 
 
         spoke with her by telephone.  Magner reported that he took a work 
 
         history for claimant, examined her educational background and 
 
         reviewed the medical information from Dr. Crouse including her 
 
         impairment rating and his restrictions on claimant's activities 
 
         as well as CrouseOs deposition.  Magner indicated that he 
 
         reviewed the Dictionary of Occupational Titles and the Iowa State 
 
         Occupational Coordinating Handbook as well as considered the 
 
         local job market.  He opined that claimant is motivated to work 
 
         and is quite frustrated at her inability to work.  He opined that 
 
         claimant could not do nurse's aide work, ward clerking, 
 
         babysitting, telephone answering, housecleaning, or 
 
         telemarketing.  He stated that most sedentary jobs require 
 
         sitting and that with restrictions against prolonged standing and 
 
         sitting, claimant could not handle such jobs.  Magner agreed 
 
         there was no indication that claimant had sought other employment 
 
         or training and stated that while generally getting a GED results 
 
         in better preparation for employment than a ninth grade education 
 
         only, he did not believe a GED would make claimant employable 
 
         given that claimant's pain limits what she can actually do.  
 
         Magner agreed that if sedentary work in stable jobs were 
 
         available, and if claimant could perform such work, claimant 
 
         could work in recognizable fields in the Waterloo area.  Magner 
 
         agreed that he had not assisted claimant in learning how to look 
 
         for work or how to interview for jobs nor had he arranged 
 
         interviews with claimant, nor did he recommend claimant seek 
 
         vocational rehabilitation in July 1985, nor did he mention that 
 

 
         
 
         
 
         
 
         WILLITS COLLINS V. FRIENDSHIP VILLAGE
 
         Page   7
 
         
 
         
 
         Job Service was available to assist claimant.
 
         
 
              Judy Steenhoek indicated that she has a Masters Degree in 
 
         job placement and job development and has worked as a 
 
         rehabilitation specialist with Intracorp for approximately five 
 
         years.  Ms. Steenhoek indicated that Great American Insurance 
 
         Company initially asked her in Fall 1984 to evaluate and make 
 
         recommendations as to claimant's employability.  Rehabilitation 
 
         work. with claimant was reinitiated in November 7, 1986.  Ms. 
 
         Steenhoek then saw claimant on that date and on December 10, 1986 
 
         and December 22, 1986 as well.  Ms. Steenhoek took an employment 
 
         history and reviewed her medical records and restrictions.  In 
 
         December 1986, Ms. Steenhoek gave claimant information about how 
 
         to begin work on her GED.  Ms. Steenhoek also directed claimant 
 
         to a job search assistance class with Job Service.  Ms. Steenhoek 
 
         only could meet with claimant when a person from claimant's 
 
         counsel's office was present.  Ms. Steenhoek opined that this did 
 
         not help her develop a relationship with claimant.
 
         
 
              Ms. Steenhoek opined that generally the longer an individual 
 
         is off work the more difficult it will then be to return to work. 
 
          She stated that obtaining a GED will positively affect 
 
         employability and that work on the GED was a form of gainful 
 
         activity and, therefore, was a justifiable job placement effort. 
 
         Ms. Steenhoek opined that there were jobs within the Waterloo 
 
         labor market which claimant could perform.  She reported that she 
 
         had contacted employers in telemarketing, home shopping,.and at 
 
         Casey's Store, but had not advised those prospective employers as 
 

 
         
 
         
 
         
 
         WILLITS COLLINS V. FRIENDSHIP VILLAGE
 
         Page   8
 
         
 
         
 
         to claimant's permanent partial impairment rating or her 
 
         restrictions.  Ms. Steenhoek opined that claimant could do sales 
 
         work, clerking, cashiering, telemarketing, light weight fast food 
 
         delivery, order clerking, motel desk clerk, ticket sales, and 
 
         receptionist work as well as bartending in very specific 
 
         settings.  Ms. Steenhoek characterized telemarketing as a 
 
         growing,,more reputable field in which individuals can sit or 
 
         stand.  She reported that a telemarketing personnel worker 
 
         informed her on-site telemarketing work paying $150 to $200 per 
 
         week for a thirty hour week was available in Waterloo.  Ms. 
 
         Steenhoek agreed she had not considered whether light weight 
 
         delivery work would involve stair climbing.  Ms. Steenhoek 
 
         indicated that her wage survey had revealed that jobs within 
 
         claimant's capacities would pay from $3.35 per hour to $8.00 per 
 
         hour.  The greater number of positions surveyed had salary ranges 
 
         from $3.35 to $4.25 per hour.  Claimant was earning $4.25 per 
 
         hour when injured.  Ms. Steenhoek testified that she is aware 
 
         that employers are hesitant to hire persons with back problems 
 
         because they fear further workers' compensation claims.  She 
 
         reported that she knew of no job where claimant would be able to 
 
         lie down or bathe if needed for her pain.
 
         
 
              Ms. Steenhoek characterized motivation as a most important 
 
         factor in finding employment.  She reported that claimant had not 
 
         been highly motivated to seek employment from her injury date to 
 
         her medical release, but that she had seen a slight improvement 
 
         in claimant's motivation since she began working with her in 
 
         November 1983.
 
         
 
              The reports of Mr. Magner and Ms. Steenhoek were consistent 
 
         with their testimony at hearing.
 
         
 
              The balance of the evidence was reviewed and considered in 
 
         the disposition of this matter.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              Our initial concern is with the causal connection issue.
 
         
 
              The claimant has the burden of proving by a preponderance 
 
         of the evidence that the injury of August 13, 1981 is causally 
 
         related to the disability on which she now bases her claim.  
 
         Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). 
 
         Lindahl v. L. 0. 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 
 

 
         
 
         
 
         
 
         WILLITS COLLINS V. FRIENDSHIP VILLAGE
 
         Page   9
 
         
 
         
 
         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).
 
         
 
              Subsequent to her work-related fall, claimant underwent 
 
         three back surgeries.  Generally after her surgeries, claimant's 
 
         condition improved initially and then again deteriorated.  
 
         Claimant continues with back and leg pain.  Dr. Crouse opined 
 
         that claimant's course is typical of that found in persons who 
 
         develop adhesions following back surgery and that her back and 
 
         leg pain persisted from her August 13, 1981 injury.  Claimant has 
 
         established the requisite causal connection between her claimed 
 
         disability and her injury.  Defendants raise the issue that 
 
         claimant's condition somehow results from her abdominal surgery.  
 
         The evidence including Dr. CrouseOs express testimony does not 
 
         support that however.
 
         
 
              Our next concern is the nature and extent of claimant's 
 
         benefit entitlement and the related question of whether claimant 
 
         is an odd-lot worker.
 
         
 
              An injury is the producing cause; the disability, however, 
 
         is the result, and it is the result which is compensated.  Barton 
 
         v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (1961); 
 
         Dailey v. Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 569(1943).
 
         
 
              If claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
         593, 258 N.W. 899, 902 (1935) as follows: OIt is therefore plain 
 
         that the legislature intended the term 'disability' to mean 
 
         'industrial disability' or loss of earning capacity and not
 
         a mere 'functional disability' to be computed in the terms of 
 
         percentages of the total physical and mental ability of a normal 
 
         man.O
 
         
 
              In Parr v. Nash Finch Co., (Appeal decision, October 31, 
 
         1980) the Industrial Commissioner, after analyzing the decisions 
 
         of 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), 
 
         stated:
 
         
 
              Although the court stated that they were looking, for the 
 
              reduction in earning capacity it is undeniable that it was 
 
              the "loss of earnings" caused by the job transfer for 
 
              reasons related to the injury that the court was indicating 
 
              justified a finding of "industrial disability."  Therefore, 
 
              if a worker is placed in a position by his employer after an 
 
              injury to the body as a whole and because of the injury 
 
              which results in an actual reduction in earning, it would 
 
              appear this would justify an award of industrial disability. 
 
               This would appear to be so even if the worker's "capacity" 
 
              to earn has not been diminished.
 
         
 
              In Guyton v. Irving Jensen Co., 373 N.W.2d 101 (Iowa 1985), 
 
         the Iowa court formally adopted the "odd-lot doctrine."  Under 
 
         that doctrine a worker becomes an odd-lot employee when an injury 
 
         makes the worker incapable of obtaining employment in any well 
 

 
         
 
         
 
         
 
         WILLITS COLLINS V. FRIENDSHIP VILLAGE
 
         Page  10
 
         
 
         
 
         known branch of the labor market.  An odd-lot worker is thus 
 
         totally disabled if the only services the worker can perform are 
 
         'so limited in quality, dependability, or quantity that a 
 
         reasonably stable market for them does not exist.
 
         
 
              The burden of persuasion on the issue of industrial 
 
         disability always remains with the worker.  However, when a 
 
         worker makes a prima facie case of total disability by producing 
 
         substantial evidence that the worker is not employable in the 
 
         competitive labor market, the burden to produce evidence of 
 
         suitable employment shifts to the employer.  If the employer 
 
         fails to produce such evidence and the trier of fact finds the 
 
         worker does fall in the odd-lot category, the worker is entitled 
 
         to a finding of total disability.  Id. Even under the odd-lot 
 
         doctrine, the trier of fact is free to determine weight and 
 
         credibility of evidence in determining whether the worker's 
 
         burden of persuasion has been carried, and only in an exceptional 
 
         case would evidence be sufficiently strong to compel a finding of 
 
         total disability as a matter of law.  Id.  In Guyton, the court 
 
         also stated the following regarding determination of a worker's 
 
         industrial loss.
 
         
 
                 The question is more than the one posed by the 
 
              commissioner concerning what the evidence shows Guyton Ocan 
 
              or cannot do." The question is the extent to which the 
 
              injury reduced Guyton's earning capacity.  This inquiry 
 
              cannot be answered merely by exploring the limitations on 
 
              his ability to perform physical activity associated with 
 
              employment.  It requires consideration of all the factors 
 
              that bear on his actual employability.  See New Orleans 
 
              (Gulfwide) Stevadores v. Turner, 661 F.2d 1031, 1042 (5th 
 
              Cir.1981) (are there jobs in the community that the worker 
 
              can do for which he could realistically compete?)  Id.
 
         
 
              Proof that a defendant failed to retain claimant in its 
 
         employ in any capacity after the work injury is one of the 
 
         factors which determines whether the claimant made a prima facie 
 
         case showing he is an odd-lot employee, although such proof is 
 
         not necessarily conclusive.  Chrysler Corp. v. Duff, 314 A.2d 915 
 
         (Delaware).  See also 2A Larson, The Law of Workmen's 
 
         Compensation, sec 57.61 at 10-164.90.
 
         
 
              Age is a relevant factor in determining industrial 
 
         disability.  However, a distinction must be drawn between a case 
 
         where, for instance, persons age 45 to 50 are displaced from the 
 
         only line of work for which they are trained or educationally 
 
         qualified, and the case where the vast majority of claimant's 
 
         earning years are passed.  In the former case (of course 
 
         dependent upon various factors) the injured worker's earning 
 
         capacity has seriously been reduced due to age.  He or she has 
 
         been injured not at a time when they are younger and more easily 
 
         retrainable, nor at an advanced working age when working earning 
 
         capacity will be curtailed by the fact that a person will soon 
 
         retire and that their earning capacity will not be based upon 
 
         their work but upon their age, retirement schemes, etc.  These 
 
         people have been injured at the prime of their earning years, 
 
         where they have many working years ahead of them-where their 
 
         earning capacity is based upon their ability to work--to be 
 
         employed.  Industrial disability is based upon lack of earning 
 

 
         
 
         
 
         
 
         WILLITS COLLINS V. FRIENDSHIP VILLAGE
 
         Page  11
 
         
 
         
 
         capacity due to a compensable injury that has diminished the 
 
         injured worker's ability to maintain the earning capacity he 
 
         enjoyed prior to his injury.  Haney v. Protein Blenders, Inc. and 
 
         TransAmerican Insurance Services, (Appeal Decision October 18, 
 
         1985).
 
         
 
                 For workmen's (sic) compensation purposes total 
 
              disability does not mean a state of absolute helplessness, 
 
              but means disablement of an employee to earn wages in the 
 
              same kind of work, or work of a similar nature, that he was 
 
              trained for, or accustomed to perform, or any other kind of 
 
              work which a person of his [sic] mentality and attainments 
 
              could do.  Franzen v. Blakley, 155 Neb. 621, 51 N.W.3d 833 
 
              (1952).  Total and permanent disability contemplates the 
 
              inability of the workman (sic) to perform any work for which 
 
              he (sic) has the experience or capacity to perform.  Shaw v. 
 
              Gooch Feed Mill Corp., 210 Neb. 17, 312 N.W.2d 682 (1981).
 
         
 
         
 
              Claimant has made a prima facie showing that she is an 
 
         odd-lot worker.  Claimant has restrictions on bending, lifting, 
 
         sitting, standing, stooping and climbing.  She continues to have 
 
         significant back and leg discomfort which is not likely to 
 
         diminish in the future.  The discomfort and limitations in 
 
         themselves would limit what claimant "can or cannot do," but 
 
         alone would hardly be sufficient for a prima facie showing that 
 
         claimant is incapable of obtaining employment in any.well known 
 
         branch of the labor market.  Additionally, claimant is only 
 
         thirty-eight years old.  She appears to be a reasonably 
 
         intelligent lady who was well motivated to work throughout her 
 
         preinjury lifetime.  Claimant's formal education is minimal, 
 
         however.  She has only completed ninth grade and a three month 
 
         nurse's.aide training course.  Given those education limitations, 
 
         her preinjury history of consistent work at lackluster jobs is 
 
         remarkable.  The greater weight of the evidence shows claimant 
 
         cannot return to such employment, however.  Both Dr. Crouse and 
 
         Mr. Magner have opined claimant cannot do a whole series of 
 
         manual jobs including nurse's aide, ward clerking, cashiering, 
 
         waitressing, babysitting, receptionist and telephone answering, 
 
         housecleaning and telemarketing.  Defendants' vocational expert, 
 
         Ms. Steenhoek, has opined that claimant could do sales work, 
 
         clerking, cashiering, telemarketing, light weight, fast food 
 
         delivery, order clerking, motel desk clerking, ticket sales, 
 
         receptionist work and bartending in very specific settings.  Ms. 
 
         Steenhoek's opinions are rejected as contrary to the medical 
 
         opinion of Dr. Crouse and because Ms. Steenhoek appears to not 
 
         have considered all physical maneuvers required of claimant in 
 
         each of the positions recommended.  Further, she did not inform 
 
         potential employers of claimant's restrictions.  Hence, her 
 
         testimony does not establish that claimant would actually be 
 
         offered positions given claimant's restrictions.  Ms. Steenhoek 
 
         did not consider the climbing likely required in fast food 
 
         delivery nor apparently the prolonged sitting and standing 
 
         required in clerking, sales, and bartending. (Arguably, claimant 
 
         might be able to do coupon counting under conditions like those 
 
         under which she did that work in the past.  We do not believe the 
 
         evidence establishes that such work is so readily available in 
 
         the general economy as to carry defendants' burden of showing 
 
         suitable employment exists for claimant, however.)
 

 
         
 
         
 
         
 
         WILLITS COLLINS V. FRIENDSHIP VILLAGE
 
         Page  12
 
         
 
         
 
         
 
              Defendants argue claimant's failure to look for work and her 
 
         failure to work on her GED show a lack of motivation on her part.  
 
         In a more general case, we might well agree with defendants.  
 
         Claimant testified, however, that she did not seek work because 
 
         given her three back surgeries she felt she would not find work 
 
         in the depressed Waterloo economy.  Claimant's perception of her 
 
         situation was in keeping with her education and life and work 
 
         experience.  If jobs were actually available for claimant in the 
 
         Waterloo economy, defendants were in far better position than
 
         
 
         
 
         
 
         claimant to ascertain that and direct claimant as to how to go 
 
         about obtaining those positions.  We do not believe that claimant 
 
         should be penalized because they did not choose to actively 
 
         involve themselves in claimant's rehabilitation until mere weeks 
 
         before the hearing in this matter.  Likewise, claimant left 
 
         school almost twenty years ago, and but for her nurse's aide 
 
         course, has not returned.  Some insecurity about returning to 
 
         school is understandable in a person with that educational 
 
         history.  Both defendants and claimant's legal representative and 
 
         claimant's vocational expert were in a position to encourage 
 
         claimant to begin work on her GED and direct her as to how to do 
 
         so.  We find the fact that none took that very reasonable action 
 
         until just days prior to hearing far from commendable.  We do not 
 
         believe that failure should be charged against claimant, however.  
 
         Further, we are not convinced that claimant's obtaining her GED 
 

 
         
 
         
 
         
 
         WILLITS COLLINS V. FRIENDSHIP VILLAGE
 
         Page  13
 
         
 
         
 
         would appreciably enhance her employability given her significant 
 
         physical problems and limitations.  We note that claimant did 
 
         begin work on the GED within days of Ms. Steenhoek's active 
 
         involvement with her case.  That fact speaks well of claimant's 
 
         actual motivation.  We encourage claimant to continue her 
 
         educational efforts as doing so is likely to enhance her own self 
 
         esteem and life satisfaction.  Defendants have not produced 
 
         evidence of suitable employment for claimant nor shown that 
 
         claimant's failure to find work results from something other than 
 
         her injury when all factors bearing on her actual employability 
 
         are considered.  Claimant is a permanently totally disabled 
 
         worker.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              WHEREFORE, IT IS FOUND:
 
         
 
              Claimant, a nurse's aide, was injured on August 13, 1981 
 
         when she fell to the floor hitting her buttocks and back while 
 
         attempting to prevent a confused patient from falling from her 
 
         bed.
 
         
 
              Claimant had an L5 disc protrusion on the left.  Dr. Crouse 
 
         performed an L5 disc excision on September 11, 1981.
 
         
 
              Claimant initially did well but developed recurrent left leg 
 
         pain.
 
         
 
              Dr. Crouse re-explored the L5 disc and performed a 
 
         laminectomy at L5-S1 on December 1, 1981.
 
         
 
              Claimant attempted to return to work as a nurse's aide on 
 
         February 8, 1982 but could only work two and one-half hours.
 
         
 
         
 
              Claimant attempted to work four hours per day as a ward 
 
         clerk in April 1982, but was unable to continue after two or 
 
         three days.
 
              
 
              Claimant has not otherwise been released to work.
 
         
 
              Claimant's low back and leg pain returned.
 
         
 
              On October 20, 1982, Dr. Crouse performed a decompression of 
 
         L4, L5 on the left with bilateral, lateral fusion at L3 through 
 
         the sacrum.
 
         
 
              Claimant improved initially but had a subsequent return of 
 
         low back and left leg pain.
 
         
 
              Claimant has developed adhesions as a complication of her 
 
         back surgeries.
 
         
 
              Claimant will continue to have left leg and intermittent low 
 
         back symptoms.
 
         
 
              Claimant can frequently lift very light weights; can 
 
         occasionally lift from ten to twenty.pounds; cannot bend, stoop, 
 
         climb, twist; and cannot sit or stand for prolonged periods.
 
         
 

 
         
 
         
 
         
 
         WILLITS COLLINS V. FRIENDSHIP VILLAGE
 
         Page  14
 
         
 
         
 
              Claimant has received only minimal vocational rehabilitative 
 
         assistance.
 
         
 
              Claimant's work experience is primarily as a nurse's aide; 
 
         she has also done coupon counting, waitressing, bartending and 
 
         like manual labor.
 
         
 
              Claimant cannot return to those employments or other manual 
 
         labor requiring physical maneuvers from which she is restricted.
 
         
 
              Claimant has not actively sought work, but her perception 
 
         that no work would be available to her was reasonable given her 
 
         back surgeries, her minimal work skills, and the depressed local 
 
         economy.
 
         
 
              Claimant is 38 years old and has completed ninth grade.
 
         
 
              Claimant enrolled in a GED program after being encouraged 
 
         and assisted in doing so.
 
         
 
              Claimant's motivation to work is reasonable given her 
 
         physical condition, her current work skills, and her education 
 
         level.
 
         
 
              Claimant is incapable of obtaining employment in any well 
 
         known branch of the labor market as a result of her work injury 
 
         and not as a result of factors attributable to her but not 
 
         otherwise bearing on her actual employability.
 
         
 
              Claimant is an odd-lot worker.
 
         
 
              Defendants have not shown suitable employment exists for 
 
         claimant.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              THEREFORE, IT IS FOUND:
 
         
 
              Claimant has established that her August 13, 1981 injury is 
 
         the cause of the disability on which she bases her claim.
 
         
 
              Claimant is entitled to permanent total disability benefits 
 
         resulting from her injury from her injury date and through the 
 
         period of her disability.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Defendants pay claimant permanent total disability benefits 
 
         at the rate of ninety-three and 82/100 dollars ($93.82) during 
 
         the period of her disability.
 
         
 
              Defendants pay accrued amounts in a lump sum.
 
         
 
              Defendants pay interest pursuant to section 85.30
 
         
 
              Defendants pay costs pursuant to Division of Industrial 
 
         Services Rule 343-4.33, formerly Industrial Commissioner Rule 
 

 
         
 
         
 
         
 
         WILLITS COLLINS V. FRIENDSHIP VILLAGE
 
         Page  15
 
         
 
         
 
         500-4.33.
 
         
 
              Defendants file claim activity reports as required by the
 
         agency.
 
         
 
         
 
         
 
              Signed and filed this 29th day of January, 1987.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            HELEN JEAN WALLESER
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         
 
         
 
         Copies to:
 
         
 
         Mr. Edward J. Gallagher, Jr.
 
         Attorney at Law
 
         P.O. Box 2615
 
         405 East Fifth Street
 
         Waterloo, Iowa 50704
 
         
 
         Mr. David Shinkle
 
         Attorney at Law
 
         1040 Des Moines Building
 
         Des Moines, Iowa 50309
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                       1108; 1804; 4100
 
                                                       Filed 1-29-87
 
                                                       Helen Jean Walleser
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         MARY KAY WILLITS COLLINS
 
         
 
              Claimant,
 
         
 
         VS.                                         File No. 679258
 
         
 
         FRIENDSHIP VILLAGE, INC.,                     R E V I E W -
 
         d/b/a FRIENDSHIP VILLAGE
 
         RETIREMENT CENTER,                          R E O P E N I N G
 
         
 
              Employer,                               D E C I S I O N
 
         
 
         and
 
         
 
         GREAT AMERICAN INSURANCE
 
         COMPANIES,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1108; 1804; 4100
 
         
 
              Thirty-eight year old female claimant with ninth grade 
 
         education, three back surgeries and subsequent adhesive scarring 
 
         found to be an odd-lot worker.  Defendants' argument that 
 
         claimant was not motivated to work not persuasive where 
 
         defendants had attempted vocational rehabilitation with claimant 
 
         only weeks before hearing.  Claimant had then enrolled in GED 
 
         course; claimant's perception that she would be unable to find 
 
         work in the Waterloo economy was reasonable given her education 
 
         and experience.  Permanent partial disability benefits awarded.
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         KAREN J. MARCKS,
 
         
 
              Claimant,                             File No. 679369
 
         
 
         VS.
 
                                                      A P P E A L
 
         RICHMAN GORDMAN,
 
                                                    D E C I S I 0 N
 
              Employer,
 
         
 
         and
 
         
 
         THE HARTFORD INSURANCE C0.
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Defendants appeal from a review-reopening decision awarding 
 
         permanent total disability and medical benefits.  Claimant 
 
         cross-appeals.
 
         
 
              The record on appeal consists of the transcript of the 
 
         review-reopening proceeding and joint exhibits 1 through 73.  
 
         Both parties filed briefs on appeal.
 
         
 
                                      ISSUES
 
         
 
              Defendants state the following issues on appeal:
 
         
 
              1.  Where claimant failed to raise the "odd-lot doctrine" as 
 
         an issue at any time prior to or during the hearing, the deputy 
 
         industrial commissioner erred in relying on the odd-lot doctrine 
 
         in awarding claimant benefits in the review-reopening decision.
 
         
 
              2.  Where there was no substantial evidence to establish a 
 
         causal relationship between injury and disability, the deputy 
 
         industrial commissioner erred in finding and concluding claimant 
 
         was entitled to benefits and finding and concluding a causal 
 
         relationship existed between injury and disability.
 
         
 
              Claimant adds the following issue on cross-appeal:
 
         
 
              The deputy industrial commissioner erred in determining 
 
         claimant's cash bonuses were irregular and not to be included 
 
         in her gross earnings.
 
         
 
                                        
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 

 
         
 
         
 
         
 
         MARCKS V. RICHMAN GORDMAN
 
         Page   2
 
         
 
              The review-reopening decision adequately and accurately 
 
         reflects the pertinent evidence and it will not be totally set 
 
         forth herein.
 
         
 
              Briefly stated, claimant was 43 years old at the time of the 
 
         hearing, and had a high school education.  Although her normal 
 
         occupation was as an administrative secretary for Barton 
 
         Solvents, claimant worked part time as a sales clerk for 
 
         defendant Richman Gordman.  On May 17, 1981, claimant fell 
 
         approximately six feet off a ladder while at work for Richman 
 
         Gordman, injuring her back and elbow.
 
         
 
              Prior to May 17, 1981, claimant had injured her back in a 
 
         1975 car accident.  Claimant was diagnosed as having a herniated 
 
         disc and underwent lumbar disc surgery by Cemil Adli, M.D., at 
 
         the fifth lumbar interspace in September 1975.  Claimant 
 
         continued to experience pain, and subsequently underwent a fusion 
 
         of the L5-Sl interspace in March 1976 by Dr. Adli.  Claimant 
 
         indicated she experienced relief following this surgery.  On June 
 
         14, 1976, claimant was seen for lumbosacral strain by Dr. 
 
         Rassekh.  Claimant had normal myelograms in April 1978 and June 
 
         1980.  Claimant was released to go back to her work as 
 
         administrative secretary by Behrouz Rassekh, M.D., a 
 
         neurosurgeon, in 1980.  The record contained a photograph of 
 
         claimant performing in a chorus line for a local variety show 
 
         during this period.  Claimant was also able to perform such 
 
         activities as water skiing and swimming.
 
         
 
              After her injury on May 17, 1981, claimant experienced pain 
 
         in her lower back, right lower extremity and occasional pain in 
 
         her left lower extremity.  Claimant tried a transcutaneous 
 
         stimulator without relief, as well as attending a pain clinic.  
 
         Claimant sought medical attention from Edward R. Farrage, M.D.,, 
 
         who prescribed a back brace.  Claimant was also seen on August 5, 
 
         1981 by Maurice D. Margules, M.D., a neurosurgeon.  Claimant 
 
         reported to Dr. Margules that she was experiencing pain in the 
 
         right lower extremity and weakness of her right foot.  Dr. 
 
         Margules noted that claimant had difficulty walking, dressing, 
 
         undressing, and had rigidity of the lumbar spine, with forward 
 
         flexion limited to five degrees.
 
         
 
              A unilateral spinothalamic tractomy was performed by Dr. 
 
         Margules on September 3, 1981, which revealed that both the L5 
 
         and Sl roots were compressed by bony structures and residual disc 
 
         tissue.  Dr. Margules also performed a resection of residual disc 
 
         tissue at the L4-L5 interspace.  Dr. Margules diagnosed 
 
         claimant's condition as adhesive arachnoiditis.  Claimant 
 
         indicated that she experienced little relief as a result of this 
 
         surgery.
 
         
 
         
 
              Dr. Margules indicated that during the surgery, the bony 
 
         growth he found compressing the nerve route would not have been 
 
         the result of the May 17, 1981 fall, but rather was the result of 
 
         the 1976 fusion.  However, he also stated that the degenerative 
 
         disc problem would have been aggravated by the May 17, 1981 
 
         injury, based on the marked problems claimant experienced after 
 
         the fall.
 
         
 
              Although claimant sought relief from the pain after the 
 

 
         
 
         
 
         
 
         MARCKS V. RICHMAN GORDMAN
 
         Page   3
 
         
 
         surgery, subsequently she experienced more pain in the right 
 
         lower extremity, which Dr. Margules attributed to adhesive 
 
         arachnoiditis of the cauda equina.  Claimant began to experience 
 
         sudden bucklings or paroxysms of the right leg and falling in 
 
         March 1982.  Dr. Margules prescribed codeine for relief of 
 
         claimant's pain, stating that neither further surgery or a pain 
 
         clinic offered claimant any hope of relief.
 
         
 
              On April 9, 1982, Dr. Margules performed a cordotomy of 
 
         claimant's spinothalamic tract on the left to relieve pain in the 
 
         right lower extremity.  On April 18, 1982, Dr. Margules released 
 
         claimant and noted there was no further intractable pain in the 
 
         right lower extremity and no motor loss or bladder function loss. 
 
          Dr. Margules concluded claimant was suffering from systems of 
 
         adhesive arachnoiditis of the cauda equina, which was likely to 
 
         be progressive in nature.  Dr. Margules indicated that it was 
 
         possible that this condition would not be detected by a 
 
         myelogram, or during surgery, and that arachnoiditis could be 
 
         caused by bleeding, by surgery, by trauma, or meningitis.
 
         
 
              On November 23, 1982, claimant reported to Dr. Margules that 
 
         she was experiencing severe pain in the right posterior shoulder 
 
         and the right trapezius muscle, as well as pain in both lower 
 
         extremities.  Dr. Margules expressed the opinion that claimant 
 
         was unable to return to work at that time, and that her future 
 
         prospects for return to work were unfavorable.
 
         
 
              On July 1, 1983, claimant indicated to Dr. Margules that she 
 
         had severe pain in the left lower extremity, which Dr. Margules 
 
         also diagnosed as caused by claimant's adhesive arachnoiditis of 
 
         the cauda equina.  Dr. Margules also predicted that the pain 
 
         might become more severe in the near future and may require 
 
         surgery for pain relief, but on April 10, 1984, Dr. Margules 
 
         recommended against further surgery for pain relief.  Dr. 
 
         Margules opined that claimant had a 35 percent permanent partial 
 
         impairment of the body as a whole.
 
         
 
              On February 3, 1984, Daniel L. McKinney, M.D., a 
 
         neurological surgeon, examined claimant and diagnosed chronic 
 
         pain syndrome secondary to arachnoiditis, and stated that no 
 
         satisfactory treatment existed for claimant's condition.
 
         
 
              On June 29, 1984, Dr. Margules opined that "as the result 
 
         of
 
         the injury sustained on May 17, 1981, Mrs. Marcks has a partial 
 
         permanent physical disability which is rated at 35 to 40% of the 
 
         body as a whole.O (Jt. Ex. 32) Dr. Margules prescribed a walker, 
 
         crutches or cane, and stated that claimant should not walk up or 
 
         down steps without assistance because of the danger of falling.
 
         
 
              On September 13, 1984, claimant's family physician, E. B. 
 
         Mathiason, M.D., stated that claimant was disabled due to 
 
         intractable pain in the right lower extremity as a result of 
 
         adhesive arachnoiditis of the cauda equina, post right dorsal 
 
         cordotomy as well as left leg pain secondary to the above, along 
 
         with generalized arthritis and fibrositis with pain in the neck 
 
         and both arms developing three to six months after her last 
 
         surgery.
 
         
 
              On October 5, 1984, Jose Martinez, M.D., noted that claimant 
 

 
         
 
         
 
         
 
         MARCKS V. RICHMAN GORDMAN
 
         Page   4
 
         
 
         was experiencing bladder problems, and stated that "definitely 
 
         her last surgery, mainly the cordotomy for the relief of her pain 
 
         has much to do with her bladder. (Jt. Ex. 35)
 
         
 
              On November 24, 1984, claimant was seen by Dr. Margules for 
 
         her bladder dysfunction problems.  Dr. Margules diagnosed this as 
 
         neurogenic hypotonic bladder.  Dr. Margules felt the bladder 
 
         problems were not the result of the cordotomy in that the 
 
         symptoms appeared two years later and he would have expected 
 
         those symptoms to manifest sooner if they had been caused by the 
 
         cordotomy.
 
         
 
              Claimant was again seen by Dr. Martinez on June 13, 1985.  
 
         Dr. Martinez found that claimant had improved but required 
 
         self-catheterization four times daily, and diagnosed a permanent 
 
         neurogenic bladder.
 
         
 
              On August 23, 1985, Dr. Margules declined to give a rating 
 
         of permanent impairment as claimant's condition was "still 
 
         changing clinically." (Jt. Ex. 37) On September 3, 1985, Dr. 
 
         Martinez referred claimant to Ronald L. Bendorf, M.D., for 
 
         psychiatric consultation after claimant broke down in tears 
 
         during the examination.  On November 16, 1985, claimant suffered 
 
         a contusion of the neck when she fell down twelve stairs.
 
         
 
              After his examination of claimant in January 1986, Dr. 
 
         Margules concluded that claimant had complete loss of bladder 
 
         function, as well as repeated episodes of motor loss.  Dr. 
 
         Margules opined that claimant was totally disabled:
 
         
 
              A.  At the present time, that is, as of January, when I 
 
              last saw her, I felt that this woman was going to reach 
 
              the levels of a high dysfunction.  And she had by then 
 
              total bladder dysfunction.  And she had no control of 
 
              her bladder, almost none.  And has to use 
 
              self-catherization.  And had repeated episodes of loss 
 
              of motor function, so I felt personally that she was 
 
              really from the functional standpoint, totally 
 
              disabled, as to performing any job in the open market.
 
         
 
                 ...
 
         
 
              Q.  All right.  Now, the motor function that you're 
 
              talking about that she has lost, is -- relates to -- 
 
              one or both of her lower extremities?
 
         
 
              A.  Yes.
 
         
 
              Q.  And that is handled by use of a walker and could be 
 
              handled by using a wheelchair, under some 
 
              circumstances, although if I am correct, this young 
 
              lady has not yet progressed to using a wheelchair?
 
         
 
              A.  Oh, I think she doesn't want to.  I told her that 
 
              the only way I would allow her to go on and walk into 
 
              open spaces by herself, certainly would be -- that 
 
              would be impossible, unless she wants to take a chance.  
 
              She did that once.  She fell and I saw her in the 
 
              emergency room and sustaining hematoma of her scalp or 
 
              her face.  I mean, this is -- I think she refuses to 
 

 
         
 
         
 
         
 
         MARCKS V. RICHMAN GORDMAN
 
         Page   5
 
         
 
              accept the evidence that she has to use a wheelchair. 
 
              or else to have somebody with her.  And she is 
 
              certainly totally restricted as to going up and down 
 
              steps without help.  I made that very clear to her.
 
         
 
              Q.  So the two problems that you take into --physical 
 
              problems that you primarily focus upon, are the bladder 
 
              problem and the loss of the motor function in the lower 
 
              extremities?
 
         
 
              A.  Yes ....
 
         
 
                 ...
 
         
 
              Q.  Doctor, when you said that in your opinion she is 
 
              totally disabled, if you were putting that in 
 
              functional terms then, are you saying that she's in 
 
              your opinion one hundred per cent disabled 
 
              functionally?
 
         
 
              A.  Yes.
 
         
 
                 ...
 
         
 
              Q.  At the present time, can you describe her ability 
 
              to function, with regard to bending, stooping, 
 
              twisting, lifting, pushing or pulling, those motions?
 
         
 
              A.  I think this lady is extremely limited.  She can 
 
              try any of those things, if she is willing to accept 
 
              the consequences of, you know, repeated falls and -- in 
 
              public, which is not very pleasant and so on.  As to 
 
              working at home, I think she is very limited, only to 
 
              doing very, very small menial part of her work.  
 
              Bending, she can do some stoop -- she can do some of a 
 
              little bit of everything, but nothing can be done to 
 
              even less than thirty per cent of normal.
 
         
 
         (Jt. Ex. 72, pp. 32-37)
 
         
 
              Dr. Margules also expressed the opinion that claimant's fall 
 
         of May 17, 1981 aggravated her condition:
 
         
 
              Q.  With regard to this fall from the ladder on May 17, 
 
              1981, in your opinion, was that -- or tell us to what 
 
              extent that fall contributed to her problems of the 
 
              buckling of the leg and the bladder problems and the 
 
              adhesive arachnoiditis?
 
         
 
              A.  I think that -- you have to take into consideration 
 
              the entire clinical picture of this patient.  Okay?  We 
 
              all agreed that the lady had pre-existing problems.  We 
 
              all agree that this pre-existing problem changed 
 
              radically after this episode of falling.  So therefore 
 
              I am basing my discussion and my reasoning on that 
 
              fact.  That her case was aggravated by this fall and 
 
              from then, rather marked and precipitous changes have 
 
              occurred in her condition.  Therefore, I would say that 
 
              her case was either -- the adhesive arachnoiditis was 
 
              triggered or markedly aggravated by the fall from the 
 

 
         
 
         
 
         
 
         MARCKS V. RICHMAN GORDMAN
 
         Page   6
 
         
 
              ladder.
 
         
 
         (Jt. Ex. 72, p. 36)
 
         
 
              Dr. Margules stated that claimant's condition would continue 
 
         to deteriorate:
 
         
 
              Q.  Would you go back and look at your notes for March 
 
              17, 1984?
 
         
 
              A.  1984?
 
         
 
              Q.  Yes.
 
         
 
              A.  Yes, sir
 
         
 
              Q.  If I understand your report, that appears to be the 
 
              date when you made the decision that you would not do 
 
              any further surgery; is that correct?
 
         
 
              A.  I think I had made that decision -- yeah -- at that 
 
              time but I felt that nothing else could be done for 
 
              this patient, yes.
 
         
 
              Q.  What I'm exploring is:  When, in your opinion, she 
 
              reached maximum medical improvement from which you 
 
              would not anticipate any further improvement?  Does 
 
              that have anything to do with that decision?
 
         
 
              A.  Well, I think as I now look at this case, it is 
 
              very difficult to say this woman has reached maximum 
 
              improvement, because she is going to continue to 
 
              deteriorate, so it's kind of the opposite of what I 
 
              would like to try to say.  I don't think she will ever 
 
              reach maximum medical improvement because she is going 
 
              to continue to deteriorate as times goes.  So maybe we 
 
              could say that she was at her best, maybe at this time 
 
              and from then on, it was all the way downhill.  It 
 
              becomes a very moot point, i think, from the medical 
 
              point of view.
 
         
 
         (Jt. Ex. 72, pp. 37-38)
 
         
 
              Dr. Margules acknowledged that claimant had numerous 
 
         episodes of back pain prior to her fall of May 17, 1981, but also 
 
         stated that it was impossible to determine if the fall on May 17, 
 
         1981 caused claimant's scar tissue to adhere to the nerve root 
 
         system and caused her subsequent problems, or whether that 
 
         adhesion would have occurred even without the fall.  However, he 
 
         based his conclusion on the fact that claimant was able to work 
 
         before the fall, but then experienced a rapid, progressive 
 
         deterioration of her condition after the fall:
 
         
 
              Q.  Doctor, when you examined her and performed that 
 
              surgery in September, 1981, did you find any physical 
 
              evidence that you can attribute directly to a fall on 
 
              May 17, 1981, or did what you find was the residuals of 
 
              that 1975 and 1976 surgeries?
 
         
 
              A.  You mean, could I say, after surgery, that I could 
 

 
         
 
         
 
         
 
         MARCKS V. RICHMAN GORDMAN
 
         Page   7
 
         
 
              ascribe what I found there as the result of the fall 
 
              itself?
 
         
 
              Q.  Yes, sir.
 
         
 
              A.  No.
 
         
 
              Q.  Yet you could identify the bony growth as traceable 
 
              back to the surgeries in 1975 and 1976?
 
         
 
              A.  I found two things -- three different things:  One 
 
              was the bony growth, which was the result of the 
 
              fusion.  The second was the adhesive arach -the 
 
              adhesive arachnitis around the nerve root, which was 
 
              present, I would assume, when she fell, but I don't 
 
              know that for sure.  And the third was the degenerative 
 
              disc problem, the compression, which might have been -- 
 
              most likely was aggravated by the trauma and involved 
 
              some more -- and compressed the root.  That's all I can 
 
              say.  But that is certainly not saying that I could 
 
              say, this is strictly the result of that fall then.  
 
              I'm talking about strictly from the tissue standpoint.
 
         
 
              Q.  So the key to ascribing any of her problems that 
 
              she has today to a fall in May of 1981, is based upon 
 
              her statement that there was a marked change in her 
 
              pain pattern?
 
         
 
              A.  Yes.  Partially that and partially the evolution of 
 
              her symptoms, which is obviously quite marked.
 

 
         
 
         
 
         
 
         MARCKS V. RICHMAN GORDMAN
 
         Page   8
 
         
 
         
 
                 ...
 
         
 
              Q.  And so the key, of course, would be:  Did the 
 
              arachnoiditis of the cauda equina follow from the 1975 
 
              and 1976 injuries and surgical treatment?  Or was the 
 
              arachnoiditis caused by the fall on May 17, 1981?  
 
              Would it not be?
 
         
 
              A.  Well, that is really -- yes, that would be a way to 
 
              look at it.  Unfortunately, I don't think anybody would 
 
              be able to make a statement on this, because as I 
 
              explained to you before, we're dealing with something 
 
              that we can't see, so it's rather impalpable and we 
 
              have therefore to use a rather deduction type of 
 
              reasoning to arrive to a solution.
 
         
 
         (Jt. Ex. 72, pp. 41-43)
 
         
 
              On April 4, 1986, Dr. Margules opined that:
 
         
 
                 As the result of the injury sustained on May 17, 
 
              1981, and the ensuing severe complications of the 
 
              adhesive arachnoiditis of the cauda equina, it is our 
 
              opinion, at this time, that the patient is totally and 
 
              permanently disabled.
 
         
 
                 As the result of those complications, this patient 
 
              has frequent recurrent episodes of sudden paralysis of 
 
              the lower extremities which cause her to fall 
 
              sustaining severe injuries.
 
         
 
                 ...
 
         
 
                 It is our opinion, at this time, that the patient's 
 
              prognosis for the future is poor and the possibility of 
 
              progressive disability is certainly to be considered 
 
              with the patient finally being reduced to using a 
 
              wheelchair or small electric cart for transportation 
 
              purposes.
 
         
 
         (Jt. Ex. 42)
 
         
 
              On April 28, 1986, Dr. Mathiasen also opined that claimant 
 
         was totally and permanently disabled. (Jt. Ex. 43)
 
         
 
              Claimant last worked for Barton Solvents, her full-time 
 
         employer, on July 1, 1981, and has not worked for Richman Gordman 
 
         since the injury on May 17, 1981.  Claimant began a clerical 
 
         position for the office of Senator Tom Harkin in October 1983, 
 
         but her supervisor, Bonnie Simons, testified as to claimant's 
 
         increasing difficulty in walking, filing, etc., since December 
 
         16, 1985.  Claimant is able to type, but can no longer bend to 
 
         file or collect mail, cannot travel in a car with the Senator as 
 
         she formerly did, and has difficulty moving about the office 
 
         without using the walls for support.  Claimant also has fallen at 
 
         the office, and is no longer able to answer the phone.  Ms. 
 
         Simons also expressed doubt that claimant would be able to 
 
         continue in her present position.  Claimant's salary in this 
 
         position is $500 monthly on a part-time basis.  Ms. Simons 
 

 
         
 
         
 
         
 
         MARCKS V. RICHMAN GORDMAN
 
         Page   9
 
         
 
         testifies that Senator Harkin has a policy of trying to hire 
 
         handicapped or disabled workers.
 
         
 
              Claimant and her husband both testified as to the 
 
         restrictions on activities claimant has experienced since her 
 
         fall, as well as claimant's psychiatric treatment by Ronald L. 
 
         Bendorf, M.D., from September 4, 1985 through October 21, 1985, 
 
         for depression.  Claimant uses a walker or a cane at all times.  
 
         Claimant states she falls frequently, and has had constant pain 
 
         since approximately four months after her cordotomy.
 
         
 
              The parties stipulated that claimant was married at the time 
 
         of her injury, and had four exemptions.  Claimant's earnings at 
 
         Barton Solvents for the twelve months prior to her injury were 
 
         $7,945.16, with monthly bonuses based on company profit, 
 
         longevity, and gross wages, totaling $2,728.88.  The record shows 
 
         that claimant's bonuses are varied in amount, and that for one 
 
         month claimant's pay record showed a cash bonus of zero dollars 
 
         and zero cents.  Claimant earned $652.02 from Richman Gordman in 
 
         the twelve months prior to her injury.
 
         
 
                                  APPLICABLE LAW
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of May 17, 1981 is causally related 
 
         to the disability on which she now bases her claim.  Bodish v. 
 
         Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  Lindahl v.  
 
         L. 0. 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, 760-761 
 
         (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).
 
         
 
              When an aggravation occurs in the performance of an 
 
         employer's work and a causal connection is established, claimant 
 
         may recover to the extent of the impairment.  Ziegler v. United 
 

 
         
 
         
 
         
 
         MARCKS V. RICHMAN GORDMAN
 
         Page  10
 
         
 
         States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591, 595 
 
         (1960).
 
         
 
              The Iowa Supreme Court cites, apparently with approval, the 
 
         C.J.S. statement that the aggravation should be material if it is 
 
         to be compensable.  Yeager v. Firestone Tire & Rubber Co., 253 
 
         Iowa 369, 112 N.W.2d 299 (1961); 100 C.J.S. Workmen's 
 
         Compensation SS555(17)a.
 
         
 
              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.
 
         
 
              If claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
         593, 258 N.W. 899, 902 (1935) as follows:  "It is therefore plain 
 
         that the legislature intended the term 'disability' to mean 
 
         'industrial disability' or loss of earning capacity and not a 
 
         mere 'functional disability' to be computed in the terms of 
 
         percentages of the total physical and mental ability of a normal 
 
         man."
 
         
 
              Functional disability is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963). 
 
         Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961).
 
         
 
              A finding of impairment to the body as a whole found by a 
 
         medical evaluator does not equate to industrial disability.  This 
 
         is so as impairment and disability are not synonymous.  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 later 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 
 
         disability include the employee's medical condition prior to the 
 
         injury, immediately after the injury, and presently; the situs of 
 
         the injury, its severity and the length of healing period; the 
 
         work experience of the employee prior to the injury, after the 
 
         injury and potential for rehabilitation; the employee's 
 
         qualifications intellectually, emotionally and physically; 
 
         earnings prior and subsequent to the injury; age; education; 
 
         motivation; functional impairment as a result of the injury; and 
 
         inability because of the injury to engage in employment for which 
 
         the employee is fitted.  Loss of earnings caused by a job 
 
         transfer for reasons related to the injury is also relevant.  
 
         These are matters which the finder of fact considers collectively 
 
         in arriving at the determination of the degree of industrial 
 
         disability.
 

 
         
 
         
 
         
 
         MARCKS V. RICHMAN GORDMAN
 
         Page  11
 
         
 
         
 
              There are no weighting guidelines that indicate how each of 
 
         the factors are to be considered.  There are no guidelines which 
 
         give, for example, age a weighted value of 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 disability.  
 
         See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, 
 
         February 28, 1985); Christensen v. Hagen, Inc., (Appeal Decision, 
 
         March 26, 1985).
 
         
 
              A worker is totally disabled if the only services the worker 
 
         can perform are so limited in quality, dependability; or 
 
         quantity, that a reasonable, stable market for them does not 
 
         exist.  When a combination of industrial disability factors 
 
         precludes a worker from obtaining regular employment to earn a 
 
         living, a worker with only a partial functional disability has a 
 
         total industrial disability.  Guyton v. Irving Jensen Company, 
 
         373 N.W.2d 101 (Iowa 1985).
 
         
 
              A finding that a claimant is an "odd-lot" worker under 
 
         Guyton, cannot be made if the odd-lot doctrine was not raised 
 
         prior to or at the time of the administrative hearing.  Klein v. 
 
         Furnas Electric Company, 384 N.W.2d 370 (Iowa 1986); Armstrong v. 
 
         Iowa State Buildings and Grounds, 382 N.W.2d 161 (Iowa 1986) 
 
         Chamberlin v. Ralston Purina (Appeal Decision, October 29, 
 
         1987).
 
         
 
              Iowa Code section 85.36(10) (1979) provides, in part:
 
         
 
              In the case of an employee who earns either no wages or 
 
              less than the usual weekly earnings of the regular 
 
              full-time adult laborer in the line of industry in 
 
              which the employee is injured in that locality, the 
 
              weekly earnings shall be one-fiftieth of the total 
 
              earnings which the employee has earned from all 
 
              employment during the twelve calendar months 
 
              immediately preceding the injury but shall be not less 
 
              than an amount equal to thirty-five percent of the 
 
              state average weekly wage paid employees as determined 
 
              by the Iowa department of job service under the 
 
              provisions of section 96.3, and in effect at the time 
 
              of the injury.
 
         
 
                   Iowa Code section 85.61(12) (1979) provides:
 
         
 
              "Gross earnings" means recurring payments by employer 
 
              to the employee for employment, before any authorized 
 
              or lawfully required deduction or withholding of funds 
 
              by the employer, excluding irregular bonuses, 
 
              retroactive pay, overtime, penalty pay, reimbursement 
 
              of expenses, expense allowances, and the employer's 
 
              contribution for welfare benefits.
 
         
 

 
         
 
         
 
         
 
         MARCKS V. RICHMAN GORDMAN
 
         Page  12
 
         
 
              Iowa Code section 85.34(l) (1979) provides:
 
         
 
              Healing period.  If an employee has suffered a personal 
 
              injury causing permanent partial disability for which 
 
              compensation is payable as provided in subsection 2 of 
 
              this section, the employer shall pay to the employee 
 
              compensation for a healing period, as provided in 
 
              section 85.37, beginning on the date of the injury, and 
 
              until he has returned to work or competent medical 
 
              evidence indicates, that recuperation from said injury 
 
              has been accomplished, whichever comes first.
 
         
 
              Apportionment is limited to those situations where a prior 
 
         injury or illness, unrelated to the employment, independently 
 
         produces some ascertainable portion of the ultimate industrial 
 
         disability which exists following the employment-related 
 
         aggravation.  Varied Enterprises, Inc., v. Sumner, 353 N.W.2d 407 
 
         (Iowa 1984).
 
         
 
                                     ANALYSIS
 
         
 
              Claimant has the burden to show that her present disability 
 
         is causally connected to her injury of May 17, 1981.  The record 
 
         shows that prior to that date, claimant did have preexisting back 
 
         problems stemming from her car accident and two subsequent 
 
         surgeries.  Two myelograms showed normal results prior to the May 
 
         17, 1981 fall.  Claimant was able to work at two jobs and, in 
 
         addition, engaged in recreational activities involving the use of 
 
         her back.  Although she did find it necessary to seek medical 
 
         attention for back strain during the five years from her last 
 
         surgery in 1976 until her injury in May 1981, the record as a 
 
         whole shows that claimant's preexisting back condition did not 
 
         disable her from performing the duties of a secretary.
 
         
 
              Subsequent to the fall on May 17, 1981, claimant related 
 
         increased pain.  Claimant's bladder problems were also subsequent 
 
         to her May 17, 1981 injury.  Claimant did not begin to experience 
 
         falling incidents until after the May 17, 1981 injury.  Although 
 
         she was on medication prior to the May 17, 1981 injury, 
 
         claimant's medication needs increased after the fall.  Claimant's 
 
         psychological problems in coping with her increasing disability 
 
         also developed after her injury.
 
         
 
              In addition, Dr. Margules opined that claimant's 
 
         arachnoiditis condition was significantly aggravated by her fall 
 
         on May 17, 1981.  There is a difference of opinion between Dr. 
 
         Margules and Dr. Martinez on whether claimant's bladder problems 
 
         were caused by her fall or by her subsequent cordotomy.  Dr. 
 
         Martinez is a urologist, and opined that the bladder problems 
 
         were caused by the cordotomy.  Dr. Margules felt that since two 
 
         years had elapsed between the cordotomy and the onset of the 
 
         bladder problems, that the cordotomy did not cause the bladder 
 
         problems.  However, the cordotomy itself appears to have been 
 
         caused by the fall of May 17, 1981.  Claimant's bladder problems 
 
         did not develop until after her May 17, 1981 injury.  The record 
 
         does not show any medical evidence that claimant would have been 
 
         likely to surfer bladder control problems as a result of her 
 
         condition prior to the May 17, 1981 injury.  The opinion of Dr. 
 
         Martinez that claimant's bladder problems are causally related to 
 
         claimant's cordotomy will be given the greater weight.
 

 
         
 
         
 
         
 
         MARCKS V. RICHMAN GORDMAN
 
         Page  13
 
         
 
         
 
              "[A] workman who receives an injury which entitles him to 
 
         workmen's compensation may have compensation for an aggravation 
 
         or increase thereof in its treatment .... See Bradshaw v. Iowa 
 
         Methodist Hospital, 251 Iowa 375, 386, 101 N.W.2d 167, 173 
 
         (1960). If claimant is entitled to compensation for her injury of 
 
         May 17, 1981, she is also entitled to compensation for the 
 
         sequelae of that injury, including any aggravation of her 
 
         condition by the cordotomy.
 
         
 
              Dr. Margules' opinion was based on his observations of 
 
         claimant's condition during surgery and treatment, as well as 
 
         claimant's related history to him of her problems.  Claimant's 
 
         testimony as to the marked increase in pain and disability after 
 
         the fall is corroborated by the exhibits showing claimant able to 
 
         perform such activities as participating in a chorus line prior 
 
         to her fall.  When contrasted with the testimony of claimant's 
 
         current work supervisor that claimant cannot answer a telephone, 
 
         pick up mail, or even walk without holding onto walls, it is 
 
         clear claimant has suffered a severe deterioration of her 
 
         condition subsequent to the fall of May 17, 1981.
 
         
 
              Although defendants sought to cast claimant's current 
 
         condition as the result of a process that was ongoing prior to 
 
         her fall and would have inevitably occurred even absent the fall, 
 
         the testimony of Dr. Margules is significant in establishing the 
 
         fall on May 17, 1981 as the cause of significant aggravation of 
 
         claimantOs arachnoiditis and disability.  Even if defendants' 
 
         argument that claimant's present condition would have inevitably 
 
         occurred is accepted in spite of the absence of any evidence to 
 

 
         
 
         
 
         
 
         MARCKS V. RICHMAN GORDMAN
 
         Page  14
 
         
 
         that effect, the record still shows that the deterioration of 
 
         claimant's condition has nevertheless been accelerated by the 
 
         fall of May 17, 1981.
 
         
 
              Finally, it is noted that Dr. Margules' opinion that 
 
         claimant's aggravation of her arachnoiditis was caused by her 
 
         fall of May 17, 1981, is uncontroverted in the record.  Thus, it 
 
         is concluded that the aggravation of claimant's arachnoiditis of 
 
         the cauda equina and resulting disability was caused by her fall 
 
         of May 17, 1981.
 
         
 
              Defendants maintain on appeal that the deputy industrial 
 
         commissioner improperly relied on the Oodd-lot" doctrine in 
 
         granting claimant permanent total disability.  However, the 
 
         deputy's decision found claimant to be permanently and totally 
 
         disabled without reliance on the odd-lot doctrine, although it 
 
         was determined that claimant might be permanently and totally 
 
         disabled under Guyton as well.
 
         
 
              The record shows that claimant did not raise the odd-lot 
 
         doctrine in any of the pleadings, prehearing conference, or at 
 
         the hearing.  The Guyton case is a procedural holding that 
 
         results in a shift of the burden of going forward with the 
 
         evidence to the dependants to show that employment was available 
 
         to the claimant.  If claimant intended to rely on the odd-lot 
 
         doctrine, it was necessary for claimant to properly raise that 
 
         issue prior to the hearing so that the defendants would have an 
 
         opportunity to prepare and present evidence that employment was 
 
         in fact available.  Since claimant did not raise the odd-lot 
 
         issue prior to or at the hearing, thereby denying defendants the 
 
         opportunity to put on evidence that claimant was not an odd-lot 
 
         employee, that doctrine could not properly be relied on in 
 
         determining the extent of claimant's disability.
 
              Even if the odd-lot doctrine were properly raised, claimant 
 
         is not an odd-lot employee.  Claimant was employed at the time of 
 
         the hearing.  Although there was testimony that claimant's job 
 
         was part time and might not continue much longer because of her 
 
         increasing disability, it would be speculative to determine that 
 
         claimant would soon be unemployed.  Although the record indicates 
 
         claimant may have been hired in Senator Harkin's office because 
 
         of the policy to hire the disabled, her clerical position there 
 
         is not a "make work" job, but rather a recognized occupation that 
 
         does exist throughout the employment market.  In order to find 
 
         that claimant is an odd-lot employee, it must be shown that there 
 
         is no market available for services claimant can perform.  
 
         Clerical positions are commonly held by persons confined to a 
 
         wheelchair and suffering disability as great as, or even greater 
 
         than, claimant suffers.  Some of these people work for years and 
 
         are a great asset to their employers as well as society.  To say 
 
         that such people are permanently totally disabled is factually 
 
         incorrect.  That does not mean that if claimantOs physical 
 
         condition changes or her employment opportunities change she will 
 
         not be determined to be permanently totally disabled under 
 
         section 85.34(3). Since claimant is working and performing 
 
         clerical services in a market where clerical service jobs exist, 
 
         claimant is not an odd-lot employee.
 
         
 
              Having determined that claimant is not an odd-lot employee, 
 
         it is next necessary to ascertain the extent of claimantOs 
 
         disability.  The record is undisputed that claimant's condition 
 

 
         
 
         
 
         
 
         MARCKS V. RICHMAN GORDMAN
 
         Page  15
 
         
 
         is permanent.  Indeed, not only is claimant's condition not 
 
         expected to improve, it is expected to worsen.  Claimant is still 
 
         capable of performing typing duties.  Although accommodations 
 
         would have to be made by any future employers, there is no 
 
         showing that such accommodations are so extreme that an employer 
 
         willing to make the necessary accommodations cannot be found.  It 
 
         is thus concluded that claimant is not totally disabled.
 
         
 
              Claimant was given three ratings of impairment by Dr. 
 
         Margules.  Dr. Margules initially assigned claimant a rating of 
 
         35 percent impairment of the body as a whole and, later, 35 to 40 
 
         percent of the body as a whole.  Later still, Dr. Margules opined 
 
         that claimant was totally disabled, and this opinion was also 
 
         expressed by Dr. Mathiason.
 
         
 
              Although Dr. Margules stated that his rating was based on 
 
         functional impairment, it was brought out in the record that Dr. 
 
         Margules also took into consideration the types of jobs claimant 
 
         could perform and the availability of that type of job.  Medical 
 
         evidence is properly limited to opinion testimony on the degree 
 
         of functional impairment.  Functional impairment is only one 
 
         factor to be considered in determining industrial disability.  
 
         Industrial disability is to be determined by the finder of fact. 
 
          Dr. Margules' testimony will be utilized in the determination of 
 
         industrial disability only as it related to claimant's functional 
 
         impairment.
 
         
 
              Claimant is no longer capable of performing the duties she 
 
         performed as a clerk for Richman Gordman when she was injured.  
 
         Claimant's ability to perform the duties of a secretary have been 
 
         severely curtailed.  Claimant has a loss of motor control in her 
 
         lower extremities to the extent that she cannot walk without a 
 
         walker, cane, or assistance.  Claimant faces a danger of falling 
 
         when she walks.  Dr. Margules stated that claimant should be in a 
 
         wheelchair.  Claimant also suffers loss of bladder control.  She 
 
         cannot lift, bend, or stoop.  She cannot perform such activities 
 
         as answering a phone, filing or collecting mail.  Claimant 
 
         suffers constant pain.  Claimant has also experienced 
 
         psychological problems as a result of her injury.  The only 
 
         activity claimant can be expected to perform is typing.
 
         
 
              Claimant's earning capacity has been reduced.  While 
 
         employed by Barton Solvents, claimant earned $7,945.16 in the 
 
         year preceding her injury, with a bonus income of $2,728.88.  She 
 
         also worked in a part-time position where she earned $652.02.  
 
         Claimant presently earns $500 per month on a part-time basis, or 
 
         $6,000 annually.  Claimant's ability to obtain employment as a 
 
         secretary in the future would be affected by her impairment in 
 
         that claimant is not able to produce work output to the same 
 
         degree as she formerly could.  In addition, claimant cannot 
 
         perform many of the common activities of a secretary that she 
 
         performed prior to her injury, such as filing, answering the 
 
         phone, or picking up mail.
 
         
 
              Claimant has a high school education.  Her age was 43 at the 
 
         time of the hearing.  Claimant's work experience has been limited 
 
         to secretarial positions and retail clerking.  Claimant's 
 
         motivation is to be commended.  Based on these and all other 
 
         appropriate factors for determining disability, it is concluded 
 
         that claimant has an industrial disability of 90 percent.
 

 
         
 
         
 
         
 
         MARCKS V. RICHMAN GORDMAN
 
         Page  16
 
         
 
         
 
              Claimant had a preexisting back condition.  To the extent 
 
         that preexisting condition causes claimant's present disability, 
 
         an apportionment should be considered.  Claimant had a prior 
 
         herniated disc and a fusion of the L5-Sl interspace in 1976.  
 
         Claimant had an incident of lumbrosacral strain in 1978.  It is 
 
         determined that claimant had a prior industrial disability of 10 
 
         percent of the body as a whole.  Claimant is determined to have 
 
         an 80 percent industrial disability as a result of her injury of 
 
         May 17, 1981.
 
         
 
              Claimant states on appeal that the rate was improperly 
 
         determined by the deputy commissioner.  Specifically, it is urged 
 
         that the deputy erred in disregarding claimant's bonuses under 
 
         section 85.61(12).  The record shows that claimant received a 
 
         bonus every month, concurrent with her regular biweekly paycheck 
 
         that she received near the end of the month.  The amount of the 
 
         bonus varied, and was determined by the company's profits, the 
 
         employee's gross wages and the employee's longevity.  In that the 
 
         bonus was paid on a regular basis, that is, every month, it was 
 
         not irregular.  In addition, in that at least part of the bonus 
 
         was determined by the company's profits, it appears to have been 
 
         made available to employees to encourage efficiency.  As such, it 
 
         is in part incentive pay.  The bonus income is includable in 
 
         determining claimant's gross earnings under section 85.61(12), 
 
         The Code.  Claimant was injured while working at her part-time 
 
         employment.  Accordingly, the rate is determined under section 
 
         85.36(10), The Code.  Claimant's income from all sources of 
 
         employment during the twelve months prior to her injury was 
 
         $11,326.06.  Dividing this sum by 50, claimant's weekly earnings 
 
         are determined to be $226.52.  As claimant was married and had 
 
         four exemptions at the time of her injury in May 1981, her rate 
 
         of compensation is $148.06.
 
         
 
              It is also necessary to establish claimant's healing period. 
 
          Dr. Margules testified that on March 17, 1984, he determined 
 
         that further surgery would not be performed, and that "nothing 
 
         else could be done for this patient."  Dr. Margules also stated 
 
         that claimant would never reach maximum medical improvement as 
 
         her condition continued to deteriorate.  Claimant did not return 
 
         to work significantly similar to the work she held at the time of 
 
         the injury.
 
         
 
              The healing period is that period during which there is 
 
         reasonable expectation of improvement of the disabling condition, 
 
         and ends when maximum medical improvement is reached.  Where 
 
         improvement is not anticipated from the start, claimant is not 
 
         entitled to healing period benefits.  See Armstrong Tire & 
 
         Rubber Co. v. Kubli, Iowa App., 312 N.W.2d 60 (Iowa 1981).  The 
 
         testimony of Dr. Margules indicates that claimant's condition 
 
         steadily worsened from the time of the injury, and could be 
 
         expected to continue to worsen.  Claimant is not entitled to 
 
         healing period benefits.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Claimant injured herself on May 17, 1981 when she fell 
 
         from a ladder while working part-time as a sales clerk for 
 
         defendant employer.
 
         
 

 
         
 
         
 
         
 
         MARCKS V. RICHMAN GORDMAN
 
         Page  17
 
         
 
              2.  Claimant had had preexisting injuries to her low back 
 
         for which she had two laminectomies at L5-Sl as well as drug and 
 
         pain clinic therapy prior to May 17, 1981.
 
         
 
              3.  Claimant had marked and distinct changes in her physical 
 
         condition following May 17, 1981.
 
         
 
              4.  Claimant severely aggravated her impairment of the L5-Sl 
 
         nerve root distribution system and lit up or aggravated 
 
         arachnoiditis of the cauda equina on May 17, 1981.
 
         
 
              5.  Claimant's neurogenic bladder is causally connected to 
 
         her May 17, 1981 injury.
 
         
 
              6.  Claimant developed depressive symptomatology and 
 
         received medical and psychotherapeutic treatment through Dr. 
 
         Bendorf's office as a result of her May 17, 1981 injury and its 
 
         physical and emotional sequela.
 
         
 
              7.  Claimant has arthritic and fibrositic changes in the 
 
         neck and upper extremities not shown to result from her May 17, 
 
         1981 injury.
 
         
 
              8.  Claimant's lower extremities give way.  She must walk 
 
         with a cane at all times and uses a walker at home.  Claimant 
 
         cannot climb stairs unless accompanied by another adult to 
 
         prevent her falling.
 
         
 
              9.  Claimant's condition is progressive and will worsen.
 
         
 
             10.  Claimant continues to work part-time as a 
 
         receptionist-secretary and is able to type.
 
         
 
             11.  Claimant can no longer answer the telephone, bend to 
 
         pick up the mail, stand and lift to file, or travel with her 
 
         employer.
 
         
 
             12.  Claimant is 43 and a high school graduate.
 
         
 
             13.  Claimant's primary past work experience is as an 
 
         executive secretary.
 
         
 
             14.  Claimant's prescription and medical care costs for 
 
         treatment of her arthritic and fibrositic conditions do not 
 
         relate to a compensable injury.
 
         
 
             15.  Claimant has medical mileage expenses for 620.5 miles.
 
         
 
              16.  Claimant's parking costs for medical visits are a 
 
         reasonable transportation expense.
 
         
 
             17.  Claimant was married and entitled to four exemptions 
 
         when injured.
 
         
 
             18.  Claimant received regular monthly bonuses at her 
 
         full-time employment totaling $2,728.88 at her Barton Solvents 
 
         employment in the 12 calendar months immediately preceding her 
 
         injury.
 
         
 
             19. Claimant's Barton Solvents regular earnings in the 12 
 

 
         
 
         
 
         
 
         MARCKS V. RICHMAN GORDMAN
 
         Page  18
 
         
 
         calendar months immediately preceding her injury were $7,945.16; 
 
         her Richman Gordman earnings were $652.02.  Her total earnings 
 
         were $8,597.18; and her weekly earnings are $226.52.
 
         
 
             20.  Claimant's condition has continued to deteriorate since 
 
         her injury and is not expected to improve.
 
         
 
             21.  Claimant's rate of compensation is $148.06.
 
         
 
             22.  Claimant was hospitalized from August 26, 1981 to 
 
         September 12, 1981, and from April 4, 1982 to April 18, 1982.
 
         
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant has established that her May 17, 1981 injury is the 
 
         cause of the disability on which she bases her claim.
 
         
 
              Claimant is entitled to permanent partial disability 
 
         benefits equivalent to 80 percent of the body as a whole as a 
 
         result of her injury of May 17, 1981.
 
         
 
              Claimant is entitled to payment of costs of care from Dr. 
 
         Bendorf's office.
 
         
 
              Claimant is entitled to payment of post-injury prescription 
 
         costs related to her compensable injury provides claimant 
 
         delineates these as set forth in the decision of the deputy 
 
         industrial commissioner dated August 28, 1986.
 
         
 
              Claimant is entitled to temporary total disability benefits 
 
         front August 26, 1961 to September 12, 1981, and from April 4, 
 
         1982 to April 18, 1982.
 
         
 
              Claimant is entitled to payment of costs outlined in exhibit 
 
         61.
 
         
 
              Claimant is not entitled to payment of any prescription 
 
         costs incurred prior to May 17, 1981.
 
         
 
              Claimant is not entitled to payment of prescription costs 
 
         related to treatment of her arthritic and fibrositic conditions.
 
         
 
              Claimant is entitled to payment of medical mileage of 620.5 
 
         miles at a rate applicable when she incurred the costs.
 
         
 
              Claimant is entitled to payment of parking costs of $12.50.
 
         
 
              Claimant's bonus income is part of her gross earnings.
 
         
 
              Claimant's rate of weekly compensation is $148.06.
 
         
 
              Claimant did not properly raise the "odd-lot doctrine" for 
 
         consideration by the deputy industrial commissioner.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed and 
 
         modified.
 
         
 
                                      ORDER
 
         
 

 
         
 
         
 
         
 
         MARCKS V. RICHMAN GORDMAN
 
         Page  19
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That defendants pay claimant temporary total disability 
 
         benefits from August 26, 1981 through September 12, 1981, and 
 
         from April 4, 1982 through April 18, 1982 at the rate of one 
 
         hundred forty-eight and 06/100 dollars ($148.06).
 
         
 
              That defendants pay claimant four hundred (400) weeks of 
 
         permanent partial disability benefits at the rate of one hundred 
 
         forty-eight and 06/100 dollars ($148.06) during the period of her 
 
         disability.
 
         
 
              That defendants pay claimant mileage and parking expenses as 
 
         set forth in the above conclusions of law.
 
         
 
              That defendants pay claimant the costs of medical care and 
 
         prescription costs as set forth in the above conclusions of law. 
 
          If claimant has not already done so, claimant shall file a 
 
         written submission of compensable prescription costs as set forth 
 
         in the deputy commissioner's order of August 28, 1986.
 
         
 
              That defendants pay accrued amounts in a lump sum.
 
         
 
              That defendants pay interest on weekly benefits pursuant to 
 
         Iowa Code section 85.30.
 
         
 
              That defendants pay costs including the costs of the 
 
         transcription of the hearing proceeding pursuant to Division of 
 
         Industrial Services Rule 343-4.33.
 
         
 

 
         
 
         
 
         
 
         MARCKS V. RICHMAN GORDMAN
 
         Page  20
 
         
 
              That defendants file claim activity reports as required by 
 
         the agency.
 
         
 
              Signed and filed this 29th day of June, 1988.
 
         
 
         
 
         
 
         
 
         
 
                                                DAVID E. LINQUIST
 
                                                INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Philip Willson
 
         Attorney at Law
 
         370 Midlands Mall
 
         P.O. Box 249
 
         Council Bluffs, Iowa 51502
 
         
 
         Mr. James E. Thorn
 
         Attorney at Law
 
         501 Park Building
 
         P.O. Box 398
 
         Council Bluffs, Iowa 51502
 
 
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                      1108; 2904; 4100;
 
                                                      1803; 1806; 3003
 
                                                      1802 ;1801
 
                                                      Filed June 29, 1988
 
                                                      David E. Linquist
 
         
 
                     BEFORE THE I0WA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         KAREN J. MARCKS,
 
         
 
              Claimant,                                File  No.  679369
 
         
 
         VS.
 
                                                          A P P E A L
 
         RICHMAN GORDMAN,
 
                                                        D E C I S I 0 N
 
              Employer,
 
         
 
         and
 
         
 
         THE HARTFORD INSURANCE CO.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1108
 
         
 
              Claimant's back condition was shown to be causally related 
 
         to her work injury.
 
         
 
         2904
 
         
 
              Since claimant did not raise odd-lot doctrine prior to or at 
 
         hearing, arbitration decision could not be based on odd-lot.
 
         
 
         4100
 
         
 
              Although odd-lot doctrine was not properly raised, claimant 
 
         would not be an odd-lot employee in any event in that claimant 
 
         was working at the time of hearing at a job that was not "make 
 
         work."
 
         
 
         1803
 
         
 
              Claimant, age 43 with a high school education, and 
 
         arachnoiditis resulting in falling, loss of bladder control, loss 
 
         of earnings, inability to walk without a cane or wheelchair, and 
 
         inability to lift, bend or stoop but working as a secretary, 
 
         found to have an industrial disability of 90%,
 
         
 
         1806
 
         
 
              ClaimantOs prior back injury from a car accident found to 
 
         have caused 10% of her present industrial disability.
 

 
         
 
         
 
         
 
         MARCKS V. RICHMAN GORDMAN
 
         Page   2
 
         
 
         
 
         3003
 
         
 
              Claimant's bonuses, although varying in amount, including 
 
         one month where her bonus was $0.00, were nevertheless regular 
 
         in that they were paid every month, and thus were properly 
 
         included in the determination of rate under section 85.61(12).
 
         
 
         1801; 1802
 
         
 
              Claimant was not entitled to healing period where medical 
 
         evidence showed that claimant's condition continually worsened 
 
         from time of injury and was not expected to improve, but would 
 
         continue to deteriorate.  Claimant was entitled to temporary 
 
         total disability benefits for the time she was hospitalized for 
 
         surgery.
 
         
 
         
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         LOIS J. HARDIN,
 
          
 
                Claimant,
 
          
 
          VS.                                         File No. 679383
 
          
 
          A-Z MANUFACTURING CO.                       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
 
          
 
          UNITED STATES FIDELITY AND
 
          GUARANTY COMPANY,
 
          
 
                Insurance Carrier,
 
                Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in review-reopening from an agreement 
 
         for settlement which was approved May 15, 1985.  In that 
 
         settlement, claimant was awarded 16.35 percent permanent partial 
 
         disability of the foot which entitled her to 24.525 weeks of 
 
         compensation at the rate of $113.79 per week.
 
         
 
              This proceeding was heard on April 24, 1990 at Des Moines, 
 
         Iowa.  The record consists of jointly offered exhibits A, B, C, D 
 
         and E and testimony from Lois J. Hardin.  The record also 
 
         contains the documents submitted as a part of the 1985 settlement 
 
         and the pleadings in the agency file.
 
         
 
                                      ISSUES
 
         
 
              The only issue for determination is whether claimant is 
 
         entitled to receive additional permanent partial disability.  It 
 
         was stipulated by the parties that the disability should be 
 
         evaluated as a disability of the leg, rather than as a disability 
 
         of the foot.  Defendants' position was that they owed an 
 
         additional 1.875 weeks of compensation while claimant seeks to 
 
         receive compensation based upon a 20 percent permanent partial 
 
         disability of the leg.
 
         
 
         
 
         HARDIN v. A-Z MANUFACTURING CO.
 
         Page 2
 
         
 
         
 
                               SUMMARY OF EVIDENCE
 
         
 
              All the evidence referred to in the Introduction, as well as 
 
         the demeanor of the claimant who testified at hearing, was 
 
         considered when deciding this case.  The lack of a reference to 
 
         any particular part of the record does not indicate.that it was 
 
         overlooked.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Lois J. Hardin injured her right foot, ankle and leg in 1981 
 
         when a tow motor backed over her.  She described the injury as a 
 
         crush/bruise.  Lois stated that the condition of her foot and leg 
 
         has changed since the 1985 settlement.  She stated that she walks 
 
         part of the time with a cane because it sometimes hurts really 
 
         bad.  She stated that she is unable to walk as far now as she 
 
         could in 1985.
 
         
 
              When the case was settled in 1985, Des Moines orthopaedic 
 
         surgeon Ronald K. Bunten, M.D., opined that claimant had a five 
 
         percent permanent partial impairment of her right foot based upon 
 
         residuals of the 1981 injury.
 
         
 
              On June 5, 1984, Des Moines orthopaedic surgeon, David B. 
 
         McClain, D.O., reported that he had evaluated claimant and found 
 
         the ranges of motion of her foot to be decreased by 50 percent in 
 
         dorsi flexion, and by 20 percent each in inversion, eversion and 
 
         plantar flexion.  He expressed the opinion that she sustained a 
 
         17 percent impairment of the right foot as a result of the 1981 
 
         injury (exhibit A).
 
         
 
              On February 22, 1988, Dr. McClain issued a second report in 
 
         which he found claimant to have a decrease of 20 percent each in 
 
         dorsi flexion, plantar flexion, inversion and eversion.  He 
 
         reported that those losses combined to be equivalent to a 20 
 
         percent permanent partial disability of the right lower 
 
         extremity, all as a result of the 1981 injury.  Dr. McClain also 
 
         indicated that radiographic studies showed an increase of spur 
 
         formation in the right calcaneus from 1984.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              The parties stipulated that claimant's permanent partial 
 
         disability should be compensated as a scheduled, member 
 
         disability of her right leg.  Defendants consented to having the 
 
         disability be evaluated as.a disability of the leg, but did not 
 
         consent to having the overall extent of disability being 
 
         increased.  It should be noted that under Iowa Code section 
 
         85.34(2)(n), compensation for the loss of a foot is 150 weeks of 
 
         compensation.  Under section 85.34(2)(o), compensation for 
 
         complete loss of a leg is 220 weeks.  Use of the AMA guides shows 
 
         Dr. McClain's original 17 percent impairment rating of the foot 
 
         to be equivalent to
 
         
 
         
 
         HARDIN v. A-Z MANUFACTURING CO.
 
         Page 3
 
         
 
         
 
         a 12 percent impairment rating of the lower extremity or leg.  
 
         Twelve percent impairment of the leg would entitle claimant to 
 
         receive 26.4 weeks of compensation, an amount which is 1.875 
 
         weeks more than the amount paid under the 1985 settlement 
 
         agreement.  Since this is a case where the disability is 
 
         evaluated according to the scheduled member system, the impact 
 
         upon earning capacity is not considered.  Graves v. Eagle Iron 
 
         Works, 331 N.W.2d 116 (Iowa 1983).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Dr. McClain's rating in the 1988 report is to the lower 
 
         extremity, while the 1984 rating was to the foot.  There is no 
 
         explanation for the change.  Any rating can be converted from the 
 
         foot to the leg to the body as a whole using tables.  The 
 
         anatomical site of the disability is the controlling factor, not 
 
         the physician's choice of the method in which to characterize the 
 
         disability.  The 1984 and 1988 reports both characterized the 
 
         injury as a crush injury to the right foot.  Nothing in the 
 
         reports compels changing the disability from the foot into the 
 
         leg.  Were it not for counsel's stipulation, the disability would 
 
         remain compensated as a disability of the foot.
 
         
 
              A party seeking a review-reopening of an award or agreement 
 
         for settlement must demonstrate by a preponderance of the 
 
         evidence, a change of condition subsequent to an initial award or 
 
         agreement.  Stice v. Consol.  Ind..Coal Co., 228 Iowa 1031, 1035, 
 
         291 N.W. 452 (1940).  In Stice, the Iowa Supreme Court stated 
 
         that the Act's review-reopening provisions provide no basis for 
 
         concluding that "the commissioner is to re-determine the 
 
         condition of the employee which was adjudicated by the former 
 
         award."  Id. at 1038.
 
         
 
              In Bousfield v. Sisters of Mercy, 249 Iowa 64, 86 N.W.2d 109 
 
         (1957), the Iowa Supreme Court stated that "a mere difference of 
 
         opinion of experts or competent observers as to the percentage of 
 
         disability arising from the original injury would not be 
 
         sufficient to justify a different determination by another 
 
         commissioner on a petition for review-reopening."  Id., at 69.  
 
         However, the court recognized that a worsening of a claimant's 
 
         condition, not contemplated at. the time of an initial award, 
 
         will justify a subsequent review-reopening award.
 
         
 
              In Gosek v. Garmer & Stiles Co., 158 N.W.2d 731, 735 (Iowa 
 
         1968), the Iowa Supreme Court held that "cause for allowance of 
 
         additional compensation exists on proper showing that facts 
 
         relative to an employment connected injury existed but were 
 
         unknown and could not have been discovered by the exercise of 
 
         reasonable diligence, sometimes referred to as a substantive 
 
         omission due to mistake, at time of any prior settlement or 
 
         award."
 
         
 
         
 
         HARDIN v. A-Z MANUFACTURING CO.
 
         Page 4
 
         
 
         
 
              In a somewhat analogous vein, the Iowa Court of Appeals held 
 
         in Meyers v. Holiday Inn of Cedar Falls, Iowa, 272 N.W.2d 24, 25 
 
         (Iowa App. 1978), that a review-reopening petition may allow a 
 
         change in compensation when a claimant has failed to improve to 
 
         the extent initially anticipated.
 
         
 
              Each of the above cases, however, rests upon some disparity 
 
         between a claimant's actual or anticipated physical condition at 
 
         the time of initial assessment and the physical condition which 
 
         exists at the time of the review-reopening action.  However, 
 
         there is a scarcity of medical evidence within the record of this 
 
         case to show any physical change in condition causally related to 
 
         the 1981 injury which was not contemplated at the time of the 
 
         1985 settlement.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant has the burden of showing an unanticipated change 
 
         of condition.  Interestingly, when the 1984 report from Dr. 
 
         McClain is compared with the 1988 report, there is but one change 
 
         in the four ranges of motion which were evaluated.  Dorsi flexion 
 
         was decreased by 50 percent in 1984, but only by 20 percent in 
 
         1988.  This apparent improvement is wholly inconsistent with 
 
         changing the impairment rating from 17 percent of the foot to 20 
 
         percent of the leg.  The record shows, if anything, an 
 
         improvement in claimant's condition, not a worsening.  While Dr. 
 
         McClain did provide a second, higher impairment rating in 1988, 
 
         the record fails to show any change which would support the 
 
         higher impairment rating.  It is therefore determined that 
 
         claimant.has failed to prove, by a preponderance of the evidence, 
 
         that there has been any change of condition subsequent to the 
 
         1985 agreement for settlement which would warrant reopening of 
 
         the award under the provisions of Iowa Code section 86-14(2).
 
         
 
              In view of counsel's stipulation, the disability will be 
 
         evaluated and compensated as a disability of the leg, rather than 
 
         one of the foot.  Claimant is therefore entitled to recover 26.4 
 
         weeks of compensation at the stipulated rate of $113.79 per week.  
 
         This entitles her to receive an additional 1.875 weeks, an amount 
 
         equal to $213.36. The additional compensation is payable.on the 
 
         date of this decision.  Bousfield v. Sisters of.Mercy,.249 Iowa 
 
         64, 86
 
         N.W.2d 109 (1957).
 
         
 
         
 
         HARDIN v. A-Z MANUFACTURING CO.
 
         Page 5
 
         
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1. The evidence introduced fails to show it to be probable 
 
         that there has been any substantial change in claimant's 
 
         condition since the settlement of this case which was approved on 
 
         May 15, 1985.
 
         
 
              2. The change in impairment ratings from Dr. McClain does 
 
         not demonstrate any change in claimant's condition when the 
 
         ranges of motion upon which the impairment ratings were based are 
 
         compared.
 
         
 
              3. An impairment of 17 percent of the foot is equivalent to 
 
         a 12 percent impairment of the leg.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              1. This agency has jurisdiction of the subject matter of 
 
         this proceeding and its parties.
 
         
 
              2. Review-reopening is not warranted in this case due to the 
 
         lack of any change of condition since the 1985 settlement.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              3. Claimant is entitled to recover an additional 1.875 weeks 
 
         of compensation for permanent partial disability.
 
         
 
                                      ORDER
 
         
 
              IT IS THEREFORE ORDERED that defendants pay claimant one 
 
         point eight seven five (1.875) weeks of compensation for 
 
         permanent partial disability at the.stipulated rate of one 
 
         hundred thirteen and 79/100 dollars ($113.79) per week payable on 
 
         the date of this decision.
 
         
 
              IT IS FURTHER ORDERED that defendants pay the costs of this 
 
         action pursuant to Division of Industrial Services Rule 343-4.33.
 
         
 
              IT IS FURTHER ORDERED that defendants file claim activity 
 
         reports as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.l.
 
         
 
              Signed and filed this 27th day of April, 1990.
 
         
 
         
 
         
 
         
 
         
 
                                         MICHAEL G. TRIER
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         HARDIN v. A-Z MANUFACTURING CO.
 
         Page 6
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Michael.L. Jankins 
 
         Attorney at Law 
 
         2323 Grand Avenue
 
         Des Moines, Iowa 50310
 
         
 
         Mr. Thomas E. Leahy
 
         Attorney at Law
 
         2222 Grand Avenue
 
         P.O. Box 10434
 
         Des Moines, Iowa 50306