Page   1
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                     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 O P E N I N G
 
                                          :
 
            and                           :         D E C I S I O 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.
 
            
 
                               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 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            
 
            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 
 
            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 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
            
 
            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."
 
            
 
                 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 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
            
 
            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).
 
            
 
                                 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 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
            
 
            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 343-3.1.
 
            
 
                 Signed and filed this ______ day of ____________, 1990.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            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
 
            
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                         5-1302.1, 5-2403, 5-2904
 
                                         Filed April 27, 1990
 
                                         MICHAEL G. TRIER
 
         
 
                     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.
 
         
 
         
 
         5-1302.1, 5-2403, 5-2904
 
         
 
              The physician's impairment rating increased, although the 
 
         range of motion figures showed less impairment than what had 
 
         existed previously.  The unexplained increase in permanent 
 
         impairment rating was held to be insufficient to warrant 
 
         reopening of the settlement agreement.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               5-1302.1, 5-2403, 5-2904
 
                                               Filed April 27, 1990
 
                                               MICHAEL G. TRIER
 
            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 O P E N I N G
 
                                          :
 
            and                           :         D E C I S I O N
 
                                          :
 
            UNITED STATES FIDELITY AND    :
 
            GUARANTY COMPANY,             :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
            5-1302.1, 5-2403, 5-2904
 
            The physician's impairment rating increased, although the 
 
            range of motion figures showed less impairment than what had 
 
            existed previously.  The unexplained increase in permanent 
 
            impairment rating was held to be insufficient to warrant 
 
            reopening of the settlement agreement.
 
            
 
 
         
 
         
 
         
 
             
 
         
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         ____________________________________________________________
 
                                       :
 
         RUSSELL J. KEENEY,            :
 
                                       :
 
              Claimant,                :
 
                                       :       File Nos. 679931
 
         vs.                           :                 789226
 
                                       :                 789227
 
         WILSON FOODS CORPORATION,     :
 
                                       :          R E M A N D
 
              Employer,                :
 
              Self-Insured,            :        D E C I S I O N
 
              Defendant.               :
 
         ___________________________________________________________
 
         
 
         
 
              This case is on remand from the Iowa Supreme Court.  The 
 
         court in a per curiam, unreported decision, remanded this matter 
 
         to consider whether the first three of claimant's back injuries 
 
         were the proximate causes of his fourth one.
 
         
 
                                      ISSUE
 
         
 
              The issue on remand is whether claimant has proved that his 
 
         back injuries in 1981, 1982 and 1984 are the proximate causes of 
 
         his current alleged permanent disability.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              The facts presented in the arbitration and review-reopening 
 
         decision filed January 29, 1988 are incorporated by reference 
 
         herein, will not be restated here and are the findings of fact 
 
         for this decision.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Upon review-reopening, claimant has the burden to show a 
 
         change in condition related to the original injury since the 
 
         original award or settlement was made.  The change may be either 
 
         economic or physical.  Blacksmith v. All-American, Inc., 290 
 
         N.W.2d 348 (Iowa 1980); Henderson v. Iles, 250 Iowa 787, 96 
 
         N.W.2d 321 (1959).  A mere difference of opinion of experts as to 
 
         the percentage of disability arising from an original injury is 
 
         not sufficient to justify a different determination on a petition 
 
         for review-reopening.  Rather, claimant's condition must have 
 
         worsened or deteriorated in a manner not contemplated at the time 
 
         of the initial award or settlement before an award on 
 
         review-reopening is appropriate.  Bousfield v. Sisters of Mercy, 
 
         249 Iowa 64, 86 N.W.2d 109 (1957).  A failure of a condition to 
 
         improve to the extent anticipated originally may also constitute 
 
         a change of condition.  Meyers v. Holiday Inn of Cedar Falls, 
 
         Iowa, 272 N.W.2d 24 (Iowa Ct. App. 1978).
 
         
 
              In a review-reopening the present alleged disability must 
 
         relate back to the original injury.  Langford v. Kellar 
 
         Excavating & Grading, Inc., 191 N.W.2d 667 (Iowa 1971).  The 
 
         claimant has the burden of showing that he has suffered increased 
 
         incapacity due to the original injury.  See Wagner v. Otis Radio 
 

 
         
 
         Page   2
 
         
 
         
 
         
 
         
 
         & Electric Co., 254 Iowa 990, 119 N.W.2d 751 (1963) and cases 
 
         cited therein.
 
         
 
              Claimant suffered separate and distinct incidents of injury 
 
         to his back in the events in 1981, 1982, 1984 and 1985.  
 
         Claimant's 1981 injury was a distinct event because he strained 
 
         his back while pulling a hog carcass.  He missed approximately 
 
         seven days of work for that injury.  Claimant's condition is not 
 
         the result of cumulative injury.  See Babe v. Greyhound Lines, 
 
         Inc., 456 N.W.2d 924 (Iowa App. 1990).
 
         
 
              The issue to be decided in this case is whether claimant has 
 
         proved that his injuries, which occurred in 1981, 1982 and 1984, 
 
         are the proximate cause of his current disability.  Prior to 
 
         claimant's injury on March 21, 1985, which occurred while working 
 
         for a different employer (Farmstead Foods), claimant had 
 
         sustained no permanent disability.  The prior agency decision 
 
         determined that claimant had not proved a permanent disability 
 
         from the injuries in 1981, 1982 and 1984.  Drs. Huey, Bickel and 
 
         MacMenamin, all treating physicians, found no permanent 
 
         impairment.  Dr. Bashara, an evaluating physician, found a 
 
         permanent impairment resulting from claimant's chronic back 
 
         problems (See Claimant's Exhibit l, page 11).  Those chronic 
 
         problems caused claimant's complaints about his right hip.  While 
 
         Dr. Bashara is well qualified and had advantage of reviewing 
 
         claimant's record in this case, his opinion cannot be given more 
 
         weight than the three treating physicians who found no 
 
         permanency.  Claimant has not proved that he suffered a permanent 
 
         disability as a result of his work injuries with defendant 
 
         employer in 1981, 1982 and 1984.
 
         
 
              In 1985 claimant suffered an acute injury while working for 
 
         a different employer (Farmstead).  For the first time he then 
 
         complained about pain radiating on the left side.  It was after 
 
         this incident that there was evidence of a protrusion or 
 
         herniation of the L5-Sl disc.  Dr. MacMenamin recognized the 
 
         protrusion which Dr. Bashara felt was a herniation.  Dr. 
 
         MacMenamin gave claimant a five percent impairment at most after 
 
         the 1985 incident.  Dr. Bashara gave claimant a five percent 
 
         impairment for the acute herniation (See Cl. Ex. 10, p. 19).
 
         
 
              It is clear that claimant suffered a separate injury in 
 
         1985.  If claimant had any permanent disability after his 1985 
 
         injury, the proximate cause of that permanent disability was the 
 
         1985 injury.  After the 1985 injury, which was the result of an 
 
         acute lifting episode, claimant had permanent impairment caused 
 
         by the acute protrusion or herniation and radiating pain into the 
 
         left leg.  Claimant had no permanent work-related disability 
 
         prior to the 1985 injury and he may have had a permanent 
 
         disability after that injury.
 
         
 
              The permanent disability, if any, after the 1985 injury does 
 
         not relate back to any of the three prior injuries in 1981, 1982 
 
         and 1984.  The liability for any permanent disability after the 
 
         1985 injury would be the result of the 1985 injury and would be 
 
         the responsibility of the employer at the time (Farmstead) and 
 
         not the defendant employer in the instant case.  The liability of 
 
         Farmstead is not at issue in this case because Farmstead has not 
 
         been named as a defendant.
 
         
 

 
         
 
         Page   3
 
         
 
         
 
         
 
         
 
              Claimant's alleged permanent disability at the time of the 
 
         hearing did not relate back to the original injuries in 1981, 
 
         1982 and 1984.  Claimant has not proved that his injuries of 
 
         1981, 1982 and 1984 were the proximate cause of any alleged 
 
         permanent disability.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That claimant shall take nothing from these proceedings.
 
         
 
              That defendant shall pay the costs of this matter including 
 
         the transcription of the hearing.  
 
         
 
              
 
         
 
              Signed and filed this ____ day of May, 1993.
 
         
 
         
 
         
 
         
 
                                       ________________________________
 
                                                BYRON K. ORTON
 
                                           INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Phillip Vonderhaar
 
         Attorney at Law
 
         840 Fifth Avenue
 
         Des Moines, Iowa  50309
 
         
 
         Mr. John M. Bickel
 
         Attorney at Law
 
         P O Box 2107
 
         Cedar Rapids, Iowa  52406
 
         
 
 
            
 
 
 
 
 
              
 
 
 
                                                    1402.40; 2905
 
                                                    Filed May 24, 1993
 
                                                    BYRON K. ORTON
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            RUSSELL J. KEENEY,            :
 
                                          :
 
                 Claimant,                :
 
                                          :       File Nos. 679931
 
            vs.                           :                 789226
 
                                          :                 789227
 
            WILSON FOODS CORPORATION,     :
 
                                          :          R E M A N D
 
                 Employer,                :
 
                 Self-Insured,            :        D E C I S I O N
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
            
 
            1402.40; 2905
 
            
 
            On remand it was determined that claimant's injuries in 
 
            1981, 1982 and 1984 while employed by defendant employer 
 
            were not the proximate cause of an alleged permanent 
 
            disability.  Claimant was also injured in 1985 while working 
 
            for another employer.  It was the opinion of both a treating 
 
            and an evaluating doctor that the injury in 1985 resulted in 
 
            impairment.
 
            
 
            Claimant's condition changed after the 1985 incident.  
 
            Claimant's three prior injuries (1981, 1982, 1984) were not 
 
            the proximate cause of his alleged current disability.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         PATRICIA ELSWICK,
 
         
 
              Claimant,                           File No. 681200
 
         
 
         vs.
 
                                               A R B I T R A T I 0 N
 
         ALUMINUM COMPANY OF AMERICA,
 
                                                  D E C I S I 0 N
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Patricia 
 
         Elswick, claimant, against self-insured employer, Aluminum 
 
         Company of America, to recover benefits under the Iowa Workers 
 
         Compensation Act as a result of an injury sustained on May 18, 
 
         1981.  This matter came on for hearing before the undersigned 
 
         deputy industrial commissioner April 27, 1988.  The record was 
 
         considered fully submitted at the close of hearing.  The record 
 
         in this case consists of the testimony of claimant, Mark 
 
         Flaherty, Joe Matesic, Harry Ney; George Pratt; claimant's 
 
         exhibits A through I, inclusive; and defendant's exhibits 1, 3, 4 
 
         and 12 through 17, inclusive.
 
         
 
                                      ISSUES
 
         
 
              Pursuant to the prehearing report submitted and approved 
 
         April 27, 1988, the following issues are presented for 
 
         determination:
 
         
 
              1.  Whether the work injury is the cause of permanent 
 
         disability;
 
         
 
              2.  The extent of claimant's entitlement to weekly 
 
         compensation for permanent partial disability, if any, stipulated 
 
         to be an industrial disability to the body as a whole; and,
 
         
 
              3.  The appropriate rate of weekly compensation.
 
         
 
                                 FACTS PRESENTED
 
         
 
              Claimant sustained an injury to her back on May 18, 1981 
 
         which arose out of and in the course of her employment when, 
 
         while working as a helper in the ingot plant, she felt "severe" 
 
         pain in her back as she was swinging a trough.  Claimant went 
 
         home that day after reporting to the medical department and 
 
         returned to work on light duty the following day only to get sick 
 
         from pain.  Claimant was then off work for approximately six 
 
         weeks and when she returned to work on or about July 5, 1981, she 
 
         was assigned to light duty work.  Claimant described that at this 
 
         time she was wearing a back brace and that her back was still 
 
         very painful.  Claimant left work again on August 22, 1981, and 
 
         testified that she ultimately underwent a laminectomy at L4-5 and 
 

 
         
 
         ELSWICK V. ALUMINUM COMPANY OF AMERICA
 
         PAGE 2
 
         
 
         
 
         returned to work in April 1984 with a weight lifting restriction. 
 
          Claimant, who had been working as a helper at pay grade 9 at the 
 
         time of her injury, returned to work in the Inspection and Pack 
 
         Ship (IPS) department at a pay grade 7 which position did not 
 
         violate any of her medical work restrictions.  Claimant explained 
 
         that she declines to work any overtime hours because of a lack of 
 
         stamina but that she still does her own yard work (although for a 
 
         shorter period of time than before the injury.) and engages in 
 
         her hobbies of photography and scuba diving where she has reached 
 
         the rank of dive master.
 
         
 
              Joe Matesic, who identified himself as an Alcoa employee 
 
         and second vice president for the employee's union, testified 
 
         that the maximum pay grade claimant could ascribe to in the 
 
         ingot plant was a pay grade 19 and the potential in IPS is a 
 
         pay grade 12.  Mr. Matesic did not know, however, the total 
 
         number of employees or the number of employees earning the pay 
 
         grade 19 in the ingot plant.
 
         
 
              Mark Flaherty, who explained that on April 2, 1984 he was 
 
         the union president, testified that when claimant returned to 
 
         work there was "no way" she could do her job in the ingot plant 
 
         and that but for the injury, claimant would be in a top job in 
 
         the ingot plant by this time.
 
         
 
              Harry Ney, who identified himself as a wage evaluator and 
 
         employment supervisor with Alcoa, testified he is the custodian 
 
         of records and determines job descriptions, job worth and 
 
         therefore job pay grades.  Mr. Ney explained that pay grade 9 
 
         pays $12.337 per hour and a pay grade 7 pays $12.083 per hour, 
 
         that there are a total of 146 employees in the ingot plant, 67 
 
         of which are a pay grade 19 and 13 of which have less seniority 
 
         than claimant and that he could not say what pay grade claimant 
 
         would have been at in the ingot plant had she not been injured 
 
         and stayed at her job there.
 
         
 
              George Pratt, who identified himself as the manager of 
 
         safety, health and environment with defendant employer and who 
 

 
         
 
         
 
         
 
         ELSWICK V. ALUMINUM COMPANY OF AMERICA
 
         PAGE   3
 
         
 
         oversees workers' compensation claims, testified he computed 
 
         claimantOs rate and that based on information received from the 
 
         payroll department, claimant was absent for the weeks of March 
 
         1, March 8 and March 15, 1981., although he did not know why 
 
         claimant was absent.  Claimant could not recall being absent 
 
         during this period of time.
 
         
 
              Medical records show that claimant's back injury was 
 
         originally treated conservatively with physical therapy, 
 
         exercise and cortisone injections.  Claimant eventually 
 
         improved under this mode of treatment and returned to light 
 
         duty work but in August 1981, experienced a recurrence of pain 
 
         which radiated into the lower left extremity.  Claimant was 
 
         thus referred for lumbar myelogram and an EMG of the lower 
 
         extremities the former of which revealed a herniated disc at 
 
         L4-5 and, to a lesser extent at L5-Sl which interverbebral disc 
 
         was significantly narrower than normal.  Surgical treatment was 
 
         recommended and on September 8, 1981 claimant underwent a 
 
         "laminectomy at L4-5 and L5-Sl on the left; discectomies L4-5 
 
         and L5-Sl."
 
         
 
              Eugene E. Herzberger, M.D., claimant's surgeon, advised on 
 
         January 13, 1982 that claimant could lift weights up to 25 
 
         pounds if "it is of straight lifting and does not involve any 
 
         reaching or excessive bending."  On May 6, 1982, Dr. Herzberger 
 
         noted claimant was doing well and that she had "recovered 
 
         sufficiently in order to do whatever is considered normal work 
 
         for a woman of her age and general strength."  Claimant was 
 
         restricted with regard to lifting, however, and no work 
 
         compatible with those restrictions, was available.  Claimant's 
 
         treating physician, Maurice D. Schnell, M.D., gave claimant a 
 
         return to work slip effective March 28, 1983 with the 
 
         restrictions that there be no lifting over 25 pounds, a job 
 

 
         
 
         
 
         
 
         ELSWICK V. ALUMINUM COMPANY OF AMERICA
 
         PAGE   4
 
         
 
         with both sitting and standing to vary the position of the 
 
         trunk and to avoid work tasks with repetitive motion.  Again, 
 
         no work was available and on April 2, 1984, Dr. Schnell's 
 
         restrictions consisted of no lifting over 50 pounds and a job 
 
         which would be free of repetitive bending, twisting or stooping 
 
         as much as possible.  Claimant's restrictions were revised 
 
         March 30, 1987 and were listed as:
 
         
 
              1.  50 lb weight lifting limit - non-repetitive
 
         
 
              2.  No repetitive bending, twisting or turning
 
         
 
              3.  No prolonged standing
 
         
 
              4.  Must observe the rules of correct lifting
 
         
 
              5.  Not to operate any mobile equipment
 
         
 
              6.  Not to operate marking machine or skid mule.
 
         
 
              7.  May operate radio controlled crane
 
         
 
         (Claimant's Exhibit F)
 
         
 
              On September 22, 1987, Dr. Schnell opined claimant "warrants 
 
         a 20 percent whole body permanent physical impairment" based on 
 
         the Manual For Orthopedic Surgeons in evaluating permanent 
 
         partial impairment.
 
         
 
              Claimant was seen January 27, 1988 by J. R. Lee, M.D., at 
 
         the request of defendant to evaluate permanent impairment 
 
         regarding the back injury of May 18, 1981.  Using the same manual 
 
         as Dr. Schnell, Dr. Lee opined claimant has a permanent physical 
 
         impairment of 10 percent to the whole body.
 
         
 
              Employer's exhibit 17 combined with claimant's exhibits H 
 
         and I reflect claimant had the following wage record:
 
         
 
              Week Ending           hours              Gross Wages
 
         
 
              5/17/81                40                  432.28
 
              5/10/81                36                  389.05
 
              5/3/81                 32                  345.82
 
              4/26/81                40                  432.28
 
              4/19/81                37                  399.86
 
              4/12/81                35                  378.25
 
              4/5/81                 40                  432.28
 
              3/29/81                40                  432.28
 
              3/22/81                39.1                422.55
 
              3/15/81 -- absent  - no wage record
 
              3/8/81  -- absent  - no wage record
 
              3/l/81  -- absent  - no wage record
 
              2/22/81 -- vacation
 
              2/15/81 -- absent
 
              2/8/81                 8.0                  82.97
 
         
 
                                                          508.19 vacation
 
              2/l/81                 37                   383.73
 

 
         
 
         
 
         
 
         ELSWICK V. ALUMINUM COMPANY OF AMERICA
 
         PAGE   5
 
         
 
              1/25/81                16                   165.94
 
                                     24 hrs. cr. (family death)
 
              1/18/81                50                   518.55
 
              1/11/81                37                   383.73
 
              1/4/81                 40                   414.84
 
         
 
                                  APPLICABLE LAW
 
         
 
              An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
         employment.  Section 85.3(l).
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of May 18, 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.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
 
         
 
              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).
 
         
 
              Iowa Code section 85.34(2) provides, in part:
 
         
 
                 Compensation for permanent partial disability shall 
 
              begin at the termination of the healing period .... For 
 
              all cases of permanent partial disability compensation 
 
              shall be paid as follows:
 
         
 
                 ....
 
         
 
              (u)   In all cases of permanent partial disability 
 
              other than those hereinabove described or referred to 
 
              in paragraphs "a" through "t" hereof, the compensation 
 
              shall be paid during the number of weeks in relation to 
 
              five hundred weeks as the disability bears to the body 
 
              of the injured employee as a whole.
 
         
 
              Iowa Code section 85.36 provides, in part:
 
         
 
                 The basis of compensation shall be the weekly 
 
              earnings of the injured employee at the time of the 
 
              injury.  Weekly earnings means gross salary, wages, or 
 
              earnings of an employee to which such employee would 
 
              have been entitled had he worked the customary hours 
 
              for the full pay period in which he was injured, as 
 

 
         
 
         
 
         
 
         ELSWICK V. ALUMINUM COMPANY OF AMERICA
 
         PAGE   6
 
         
 
              regularly required by his employer for the work or 
 
              employment for which he was employed, computed or 
 
              determined as follows and then rounded to the nearest 
 
              dollar:
 
         
 
                 ....
 
         
 
              6.  In the case of an employee who is paid on a daily, 
 
              or hourly basis, or by the output of the employee, the 
 
              weekly earnings shall be computed by dividing by 
 
              thirteen the earnings, not including overtime or 
 
              premium pay, of said employee earned in the employ of 
 
              the employer in the last completed period of thirteen 
 
              consecutive calendar weeks immediately preceding the 
 
              injury.
 
         
 
              Iowa Code section 85.30 provides:
 
         
 
              Compensation payments shall be made each week beginning 
 
              on the eleventh day after the injury, and each week 
 
              thereafter during the period for which compensation is 
 
              payable, and if not paid when due, there shall be added 
 
              to such weekly compensation payments, interest at six 
 
              percent from date of maturity.
 
         
 
                                    ANALYSIS
 
         
 
              Initially, it is noted that the parties dispute whether 
 
         claimant's work injury is the cause of permanent disability or, 
 
         in other words, the cause of the disability on which claimant now 
 
         bases her claim.  Generally, a claim of permanent disability 
 
         invokes an initial determination of whether the work injury was 
 
         the cause of permanent physical impairment or permanent 
 
         limitation in work activity.  By the very meaning of the phrase, 
 
         a person with a permanent impairment can never return to the same 
 
         physical condition he or she was in prior to the injury.  It is 
 
         clear from the evidence that claimant has both a permanent 
 
         physical impairment and permanent restrictions in her work 
 
         activity as a resuit of the work injury of May 18, 1981.  No 
 
         other evidence exists in the record which would establish that 
 
         claimant's permanent impairment or permanent physical limitations 
 
         are due to any other reason outside of the work-related injury.  
 
         Therefore, it cannot reasonably be disputed that the work injury 
 
         is the cause of a permanent disability.
 
         
 
              Dr. Schnell, claimant's treating physician, has opined that 
 
         claimant has a permanent partial impairment of 20 percent to the 
 
         body as a whole while Dr. Lee, an evaluating physician, has 
 
         opined that claimant has a 10 percent permanent partial 
 
         impairment of the whole body.
 
         
 
              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 
 

 
         
 
         
 
         
 
         ELSWICK V. ALUMINUM COMPANY OF AMERICA
 
         PAGE   7
 
         
 
         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.
 
         
 
              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 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).
 
         
 
              Claimant is currently 36 years old, has a high school 
 
         education and she has been attending college on a part-time basis 
 
         for the last three years.  Claimant has been employed with 
 
         defendant employer in a variety of jobs since January 1978 and 
 
         has previous work experience as a typist for an insurance office, 
 
         a bartender, and as a working supervisor for a printing company.  
 
         It is clear claimant's opportunities with defendant employer are 
 
         restricted because of her medical limitations arising from her 
 
         injury as well as the memorandum of agreement dated April 2, 1984 
 
         entered into between the claimant, the company and the union when 
 
         the claimant attempted to return to work at the end of her 
 
         healing period.  Claimant is currently employed at a job with a 
 
         pay grade 7 ($12.083 per hour) where she had been a pay grade 9 
 
         ($12.337 per hour) at the time of her injury.  Claimant argues 
 
         that but for her injury she would still be employed in the ingot 
 
         plant and would probably be a pay grade 19 ($13.607 per hour).  
 
         However, such an argument is based purely on speculation which, 
 
         pursuant to the industrial commissioner's decision in Umphress v. 
 

 
         
 
         
 
         
 
         ELSWICK V. ALUMINUM COMPANY OF AMERICA
 
         PAGE   8
 
         
 
         Armstrong Rubber Company, (Appeal Decision filed August 27, 1987) 
 
         is inappropriate for the undersigned to consider in making a 
 
         determination in this case.  The undersigned does not question, 
 
         however, that the work injury has hampered claimant's capacity to 
 
         earn.  Claimant had a scant medical history prior to this work 
 
         injury and, as a result thereof, had a healing period of almost 
 
         three years.  Claimant appears to possess an above average 
 
         intellect and to be well motivated although she also appears to 
 
         be somewhat resentful of the employer because of this injury.  
 
         Considering then all of the elements of industrial disability, it 
 
         is determined claimant has sustained a permanent partial 
 
         disability of 20 percent for industrial purposes thus entitling 
 
         claimant to 100 weeks of permanent partial disability benefits.
 
         
 
              The question thus becomes at what rate are the disability 
 
         benefits to be paid.  Since claimant was clearly paid on an 
 
         hourly basis, Iowa Code section 85.36(6) is clearly applicable 
 
         and this section calls for the employee's earnings in the last 
 
         completed period of 13 consecutive calendar weeks immediately 
 
         preceding the injury.  A completed period of 13 consecutive 
 
         calendar weeks means the most recent 13 weeks, prior to the 
 
         injury, in which the employee worked for that employer the hours 
 
         regularly required by that employer.  Applying this 
 
         interpretation, any week during the 13 weeks preceding the injury 
 
         which was not completed due to reasons personal to the employee 
 
         (such as illness, vacation, etc.) are not included in the 13 week 
 
         calculation.  Any such noncompleted week is removed from the 
 
         calculation and another prior completed week is added to arrive 
 
         at a period of 13 weeks.  Using this interpretation, it is 
 
         appropriate to include, in determining claimant's applicable 
 
         rate, the weeks ending May 17, May 10, May 3, April 26, April 19, 
 
         April 12, April 5, March 29, March 22, February 1, January 18, 
 
         January 11 and January 4, 1981 as the 13 week basis.  It should 
 
         be noted that overtime hours are to be calculated at the straight 
 
         hourly rate.  Using these 13 weeks, therefore, claimant has an 
 
         average weekly wage of $412.73 which entitles her to a disability 
 
         rate of $224.58.
 
         
 
              Finally, the employer maintains that interest on any award, 
 
         pursuant to Iowa Code section 85.30, should start to accrue as of 
 
         September 22, 1987, when it was first medically determined by Dr. 
 
         Schnell that claimant would in fact suffer some permanent 
 
         physical impairment as a result of the work-related injury.  Iowa 
 
         Code section 85.30 allows for the payment of interest if benefits 
 
         are not paid "when due."  Therefore, the questions becomes when 
 
         claimant's benefits were due.  Pursuant to the supreme court's 
 
         decision in Teel v. McCord, 394 N.W.2d 405 (Iowa 1986), interest 
 
         on an award for permanent partial disability accrues at the time 
 
         the employee returns to work where it is clear, had the medical 
 
         community been able to determine the extent of disability without 
 
         further treatment, the employee would have been entitled to 
 
         compensation when he first returned to work instead of having it 
 
         held for him until the extent of disability was known.  
 
         Therefore, interest shall accrue as of the date claimant returned 
 
         to work or April 9, 1984.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              Wherefore, based on all of the evidence presented, the 
 
         following findings of fact are made:
 

 
         
 
         
 
         
 
         ELSWICK V. ALUMINUM COMPANY OF AMERICA
 
         PAGE   9
 
         
 
         
 
              1.  Claimant sustained an injury to her back on May 18, 1981 
 
         which injury arose out of and in the course of her employment 
 
         when, while working as a helper in the ingot plant, she felt pain 
 
         in her back as she was swinging a trough.
 
         
 
              2.  Claimant returned to work the day after her injury but 
 
         was unable to continue working and was off work until July 5, 
 
         1981.
 
         
 
              3.  Claimant left work again August 22, 1981, as a result of 
 
         the work injury and underwent a laminectomy in September 1981 at 
 
         L4-5 and L5-Sl on the left and discectomies at L4-5 and L5-Sl.
 
         
 
              4.  Claimant was released to return to work March 15, 1983 
 
         with certain medical restrictions and the employer did not have 
 
         work available to the claimant which would be compatible with 
 
         those restrictions.  Claimant was released to return to work 
 
         March 15, 1983 with certain medical restrictions and the employer 
 
         did not have work available to the claimant which would be 
 
         compatible with those restrictions.
 
         
 
              5.  Claimant was released to return to work April 9, 1984 
 
         with lifting restrictions to 50 pounds maximum and to a job which 
 
         would be free of repetitive bending, twisting or stooping.
 
         
 
              6.  Claimant returned to work April 9, 1984 to a position 
 
         compatible with her work restrictions but to a position with a 
 
         lower pay grade than that which she held at the time of her 
 
         injury.
 
         
 
              7.  Claimant's work injury is the cause of the disability on 
 
         which she now bases her claim.
 
         
 
              8.  Claimant has a permanent partial impairment as a result 
 
         of the work injury.
 
         
 
              9.  Claimant's capacity to earn has been hampered as a 
 
         result of the work injury of May 18, 1981.
 
         
 
             10.  Claimant is currently 36 years old, has a high school 
 
         education and has been attending college on a part-time basis for 
 
         the last three years.
 
         
 
             11.  Claimant's work restrictions revised on March 30, 1987 
 
         dictate that there is a 50 pound weight lifting limit on a 
 
         non-repetitive basis, no repetitive bending, twisting or turning, 
 
         no prolonged standing, observation of the rules of correct 
 
         lifting, no operation of any mobile equipment, no operation of 
 
         marking machine or skid mule.
 
         
 
              12.  Claimant, as a result of the work injury of May 18, 
 
         1981, has sustained an industrial disability of 20 percent.
 
         
 
              13.  The appropriate 13 weeks for the calculation of rate 
 
         includes the weeks ending May 17, May 10, May 3, April 26, April 
 
         19, April 12, April 5, March 29, March 22, February 1, January 
 
         18, January 11 and January 4, 1981.
 
         
 
              14.  Based on these 13 weeks, claimant has an average weekly 
 

 
         
 
         
 
         
 
         ELSWICK V. ALUMINUM COMPANY OF AMERICA
 
         PAGE  10
 
         
 
         wage of $412.73 and is entitled to a rate of compensation of 
 
         $224.58.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Wherefore, based on the principles of law previously stated, 
 
         the following conclusions of law are made:
 
         
 
              1.  Claimant has established that the work injury of May 18, 
 
         1981 is the cause of the disability which she now bases her claim 
 
         and is the cause of permanent disability.
 
         
 
              2.  Claimant has established that as a result of the work 
 
         injury of May 18, 1981, she has sustained a permanent partial 
 
         disability of 20 percent for industrial purposes.
 
         
 
              3.  Claimant is entitled to payment of benefits at the rate 
 
         of $224.58 per week.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              Defendant is to pay unto claimant one hundred forty-four 
 
         (144) weeks of healing period benefits for the period from May 
 
         20, 1981 through July 5, 1981, inclusive, and August 22, 1981 
 
         through April 8, 1984, inclusive, at the rate of two hundred 
 
         twenty-four-and 58/100 dollars ($224.58) per week.
 
         
 
              Defendant is to pay unto claimant one hundred (100) weeks of 
 

 
         
 
         
 
         
 
         ELSWICK V. ALUMINUM COMPANY OF AMERICA
 
         PAGE  11
 
         
 
         permanent partial disability benefits at the rate of two hundred 
 
         twenty-four and 58/100 dollars ($224.58) commencing April 9, 
 
         1984.
 
         
 
              Defendant shall receive full credit for all disability 
 
         benefits previously paid.
 
         
 
              Payments that have accrued shall be paid in a lump sum 
 
         together with statutory interest thereon commencing April 9, 1984 
 
         pursuant to Iowa Code section 85.30.
 
         
 
              A claim activity report shall be filed upon payment of this 
 
         award.
 
         
 
              Costs of this action are assessed against defendant pursuant 
 
         to Division of Industrial Services Rule 343-4.33.
 
         
 
              Signed and filed this 7th day of September, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                         DEBORAH A. DUBIK
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies to:
 
         
 
         Mr. Michael W. Liebbe
 
         Attorney at Law
 
         116 E. 6th St.
 
         P.0. Box 339
 
         Davenport, IA 52805
 
         
 
         Mr. Thomas N. Kamp
 
         Attorney at Law
 
         600 Davenport Bank Bldg
 
         Davenport, IA 52801
 
 
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                  1803; 3000
 
                                                  Filed September 7, 1988
 
                                                  Deborah A. Dubik
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         PATRICIA ELSWICK,
 
         
 
              Claimant,                          File No. 681200
 
         
 
         vs.
 
                                             A R B I T R A T I 0 N
 
         ALUMINUM COMPANY OF AMERICA,
 
                                                 D E C I S I 0 N
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         
 
         1803
 
         
 
              Claimant injured her back and underwent a laminectomy at 
 
         L4-5 and was unable to return to her regular employment.  
 
         However, defendant found other employment and claimant awarded 
 
         20% permanent partial disability.
 
         
 
         3000
 
         
 
              Claimant's rate was computed by including as the 13 weeks 
 
         basis those 13 weeks prior to her injury which were computed and 
 
         excluding weeks which were not worked.
 
 
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            PATRICIA MESSENBRINK,         :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No.  681836
 
            FARMLAND FOODS,               :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            AETNA CASUALTY & SURETY CO.,  :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                                   INTRODUCTION
 
            
 
                 This is a proceeding in arbitration brought by Patricia 
 
            Messenbrink, claimant, against Farmland Foods, employer and 
 
            Aetna Casualty and Surety Company, insurance carrier, 
 
            defendants for benefits as the result of an injury which 
 
            occurred on October 3, 1981.  A hearing was held at Sioux 
 
            City, Iowa, on April 26, 1990, and the case was fully 
 
            submitted at the close of the hearing.  Claimant was 
 
            represented by Bruce H. Stoltze.  Defendants were 
 
            represented by Judith Ann Higgs.  The record consists of the 
 
            testimony of Patricia Messenbrink, claimant; Dennis 
 
            McFarland, production supervisor; joint exhibits 1 through 
 
            28; claimant's exhibits 1 through 53 (except exhibits 18, 28 
 
            and 39); and defendants' exhibits A through Q (except 
 
            deposition exhibit 4 to defendants' exhibit J).  The 
 
            excepted exhibits remain with the record, but were not 
 
            considered in the determination of the issues in this case.  
 
            Each attorney presented a brief written statement of their 
 
            contentions at the beginning of the hearing.  The deputy 
 
            ordered a transcript of the hearing.  Both attorneys 
 
            submitted outstanding posthearing briefs. 
 
            
 
                               preliminary matters
 
            
 
                 Claimant filed a motion for an extension of time to 
 
            file witness and exhibit lists because a secretary had 
 
            failed to diary the due date for the service of witness and 
 
            exhibit lists 15 days prior to hearing.  Claimant's witness 
 
            and exhibit lists were served on defendants, but were served 
 
            two days late.  The motion for an extension of time to serve 
 
            witness and exhibit lists was denied, even though the late 
 
            service resulted in no prejudice to defendants.  
 
            
 
                 Defendants moved that claimant's exhibits not be 
 
            admitted into evidence and that claimant not be permitted to 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            call any witnesses because of claimant's failure to timely 
 
            file witness and exhibits lists 15 days prior to hearing as 
 
            required by paragraph seven of the hearing assignment order.  
 
            Defendants' motion was granted in part and denied in part.  
 
            Claimant was prohibited from calling any witnesses other 
 
            than claimant herself to testify at hearing.  Claimant's 
 
            exhibits were admitted into evidence because they had been 
 
            served on defendants pursuant to rule 343 IAC 4.17 prior to 
 
            hearing, with the exception of claimant's exhibits 18, 28 
 
            and 39, which claimant withdrew from evidence.  
 
            
 
                 Claimant filed an objection to defendants' exhibits A 
 
            through F and L through P, but withdrew the objection at the 
 
            time of hearing.  Defendants voluntarily withdrew deposition 
 
            exhibit 4 to defendants' exhibit J.
 
            
 
                 Claimant filed a motion for sanctions under Iowa Rule 
 
            of Civil Procedure 34b because defendants failed to comply 
 
            with the order of Deputy Industrial Commissioner Michael G. 
 
            Trier on June 9, 1988, to state their contentions regarding 
 
            the degree of permanent partial disability and the facts 
 
            relied upon to support their contentions as requested by 
 
            interrogatories 3 and 13.  Under Iowa Rule of Civil 
 
            Procedure 134a.(3) an evasive or incomplete answer is 
 
            treated as a failure to answer.  Under rule 134b.(2)(D) the 
 
            deputy ordered defendants to pay claimant $200 as soon as 
 
            reasonably possible for failure to obey the order of Deputy 
 
            Industrial Commissioner Trier, for the reasonable expenses, 
 
            including attorney fees, caused by defendants failure to 
 
            directly and properly answer the interrogatories as ordered 
 
            by Deputy Industrial Commissioner Trier.  Defendants 
 
            appealed this order and Industrial Commissioner David A. 
 
            Linquist, on June 5, 1990, dismissed this appeal because the 
 
            hearing deputy's order was interlocutory (rule 343 IAC 
 
            4.27), but stayed the time for defendants to perform the 
 
            payment of the $200 sanction until 20 days from the date of 
 
            the arbitration decision.
 
            
 
                                   stipulations
 
            
 
                 The parties stipulated that claimant sustained an 
 
            injury on October 3, 1981, which arose out of and in the 
 
            course of employment with employer; that the type of 
 
            permanent disability, if any, is industrial disability to 
 
            the body as a whole; and that the rate of compensation, in 
 
            the event of an award of benefits, is $229.78 per week.
 
            
 
                                      issues
 
            
 
                 The parties submitted the following issues for 
 
            determination at the time of the hearing:
 
            
 
                 Whether the injury was the cause of either temporary or 
 
            permanent disability;
 
            
 
                 Whether claimant is entitled to temporary disability 
 
            benefits or permanent disability benefits, and, if so, the 
 
            nature and extent of temporary disability benefits and the 
 
            extent of permanent disability benefits to which claimant is 
 
            entitled; and
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
                 Whether claimant is entitled to future medical benefits 
 
            for an injury to her cervical spine.
 
            
 
                                 findings of fact
 
            
 
                causal connection-entitlement-temporary disability
 
            
 
                 It is determined that the injury was the cause of 
 
            healing period temporary disability at five different 
 
            periods of time which total 60.858 weeks of healing period 
 
            temporary total disability benefits.
 
            
 
                 The first healing period is from October 3, 1981, the 
 
            date of the injury, to December 8, 1981.  Claimant testified 
 
            that on October 3, 1981, she sought medical help because she 
 
            could not sleep, her left arm was totally numb, her left 
 
            hand would tingle, and that to hold anything would cause 
 
            severe pain (transcript page 97).  Healing period benefits 
 
            begin on the date of the injury.  Iowa Code section 
 
            85.34(1).  J.M. Hennessey, M.D., claimant's personal 
 
            physician, kept claimant off work on October 6, 1981 (joint 
 
            exhibit 1).  D.J. Soll, M.D., continued to keep claimant off 
 
            work on October 17, 1981 (jt. ex. 2).  W.R. Hamsa, Jr., 
 
            M.D., stated on November 10, 1981, that claimant had been 
 
            unable to use her shoulder and that she should probably be 
 
            off work (jt. ex. 3).  Dr. Hamsa returned claimant to work 
 
            on December 8, 1981 (jt. exs. 5 & 6).  The period from 
 
            October 3, 1981 to December 8, 1981, is 9.429 weeks.
 
            
 
                 The second period for which claimant is entitled to 
 
            healing period benefits is from April 26, 1982 to June 1, 
 
            1982.  On April 26, 1982, Rosemary Mason, M.D., took 
 
            claimant off work again (jt. ex. 7).  Dr. Hamsa continued to 
 
            keep claimant off work on May 11, 1982 (jt. ex. 8) because 
 
            he wanted an electromyogram (jt. ex. 9).  The EMG on May 24, 
 
            1982, was a normal EMG and normal nerve conduction study of 
 
            the left upper extremity (jt. ex. 10).  On June 1, 1982, Dr. 
 
            Hamsa concluded that she is going to have to more or less 
 
            accept the symptoms for the present time and did not 
 
            continue claimant off work as of that date (jt. ex. 11).  
 
            The period of time between April 26, 1982 to June 1, 1982, 
 
            is 5.143 weeks.
 
            
 
                 The third period for which claimant is entitled to 
 
            healing period benefits is from July 7, 1982 to July 13, 
 
            1982.  On July 7, 1982, Dr. Hennessey stated that claimant 
 
            was having more pain in her arm and shoulder and left work 
 
            and he did not want her to work again until she could see 
 
            Dr. Hamsa on July 13, 1982 (jt. ex. 13).  Dr. Hamsa saw 
 
            claimant on July 13, 1982.  He indicated he exhausted his 
 
            approaches and suggested she contact Dr. Hennessey for 
 
            another opinion.  Dr. Hamsa did not continue claimant off 
 
            work on July 13, 1982.  The period from July 7, 1982 to July 
 
            13, 1982, is .857 weeks.
 
            
 
                 The fourth period for which claimant is entitled to 
 
            healing period benefits is from August 16, 1982 to October 
 
            6, 1982.  During this period of time claimant saw Ronald K. 
 
            Miller, M.D., an orthopedic surgeon in Council Bluffs, who 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            commented several times that she could not handle her 
 
            regular job for employer even though she could possibly do 
 
            restricted or accommodated work.  A positive contrast 
 
            arthroscopy of the left shoulder showed the joint space to 
 
            be normal without extravasation that would indicate a tear 
 
            of the rotator cuff (jt. ex. 16).  Dr. Miller referred 
 
            claimant to Oscar M. Jardon, M.D., an orthopedic surgeon at 
 
            the University of Nebraska Medical Center, on October 6, 
 
            1982.  At that time, Dr. Miller said that he felt that her 
 
            problems probably do relate back to her throwing type of job 
 
            when she was working with hams as she relates she was having 
 
            difficulty with her left arm and shoulder since October of 
 
            1981 (jt. ex. 17).  The period of time between August 16, 
 
            1982 and October 6, 1982, is 7.286 weeks.
 
            
 
                 Dr. Jardon saw claimant on October 28, 1982.  He 
 
            diagnosed a left shoulder impingement syndrome and 
 
            recommended a release of the coracoacromial ligament 
 
            surgically as well as open the sheath of the biceps tendon.  
 
            As to causal connection, he said that claimant did have 
 
            potential for this type of an injury from the description in 
 
            detail of the type of work she was doing at the time this 
 
            began which is a lateral forward movement with supranation 
 
            in handling hams.  Dr. Jardon, however, did not say that 
 
            claimant was not able to work when he saw her on October 28, 
 
            1982 (claimant's ex. 19).
 
            
 
                 The fifth period for which claimant is entitled to 
 
            healing period benefits is from December 13, 1982 until 
 
            September 6, 1983.  Dr. Jardon performed the release of the 
 
            coracoacromial ligament with inspection of the biceps tendon 
 
            on December 13, 1982.  This resulted in gradual relief of 
 
            the anterior shoulder pain, but claimant then noticed 
 
            posterior shoulder pain which was previously masked by the 
 
            anterior shoulder pain.  She was continued off work on March 
 
            7, 1983, to engage in more active rehabilitation (cl. ex. 
 
            20, p. 2).  On April 4, 1983, Dr. Jardon said that he was 
 
            unable to allow claimant to return to work yet (cl. ex. 21).  
 
            On May 31, 1983, Dr. Jardon believed that she would very 
 
            shortly be able to return to work (cl. ex. 22).  On July 27, 
 
            1983, he said the patient is still unable to return to full 
 
            employment (cl. ex. 23).  Dr. Jardon then reported that he 
 
            saw claimant on September 6, 1983, and that she had probably 
 
            gotten as well medically as she was going to get.  His 
 
            assessment of permanent functional impairment as of 
 
            September 6, 1983, for an arthrotomy of the shoulder would 
 
            be 10 percent of the upper extremity with an additional 5 
 
            percent maximum for continued discomfort.  He said this 
 
            translates to 9 percent of the body as a whole (cl. ex. 24).  
 
            The period of time between December 13, 1982 and September 
 
            6, 1983, is 38.143 weeks.
 
            
 
                 The separate periods above for which it can be 
 
            medically verified that claimant was unable to work totals 
 
            60.858 weeks of healing period benefits to which claimant is 
 
            entitled.
 
            
 
                 There is a sixth period of time during which claimant 
 
            was taken off work by Dr. Jardon from May 15, 1985 to June 
 
            25, 1985, but claimant is not entitled to healing period 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            benefits for this period of time.  Dr. Jardon said claimant 
 
            was unable to work from May 15, 1985 to June 1, 1985 (cl. 
 
            ex. 33).  He also stated in a letter that claimant was 
 
            unable to work from June 1, 1985 through June 19, 1985, due 
 
            to an acute exacerbation of her pain (cl. ex. 37).  Dr. 
 
            Jardon stated that claimant was unable to work from June 19, 
 
            1985 to June 25, 1985 (cl. ex. 35).  
 
            
 
                 Healing period begins on the date of the injury and 
 
            extends until claimant returns to work, can perform 
 
            substantially similar work, or obtains maximum medical 
 
            improvement, which ever occurs first.  Since Dr. Jardon had 
 
            determined that claimant had attained maximum medical 
 
            improvement on September 6, 1983, her healing period ended 
 
            on that date.  The time lost between May 15, 1985 and June 
 
            25, 1985, was when claimant attempted to perform work for 
 
            employer again, but stated that she was unable to do so as 
 
            reflected in her testimony (tr. p. 108) and the notes of the 
 
            nurses at work dated May 9, 1985; May 15, 1985; May 29, 
 
            1985; and May 31, 1985 (cl. ex. 14).  Claimant did not 
 
            receive any additional treatment, but only evaluation, 
 
            during this period of time (cl. ex. 34).  
 
            
 
                 The fact that claimant's attendance record with 
 
            employer shows that she did not work after October 6, 1981, 
 
            is not sufficient to show entitlement to healing period from 
 
            that point forward (cl. ex. 9). 
 
            
 
                 The fact that claimant testified that she was paid 
 
            workers' compensation benefits from the date of the injury 
 
            on October 3, 1981, until she was terminated on July 23, 
 
            1985, does not establish a healing period either.  The 
 
            payment of weekly compensation benefits does not constitute 
 
            an admission of liability (Iowa Code section 86.13).  
 
            
 
                 Also, even though in his deposition Dr. Jardon stated 
 
            that normal maximum medical recovery would be three to five 
 
            months after the surgery, he explained that claimant's 
 
            anterior shoulder problems were further clouded by the 
 
            posterior shoulder problems which became manifest after the 
 
            surgery because they were masked by the anterior shoulder 
 
            problems and this extended her healing period (cl. ex. 1, p. 
 
            13).  Claimant's justification for being off work is fully 
 
            justified by Dr. Jardon's letters cited above (cl. ex. 20, 
 
            p. 2 and cl. exs. 21-23).
 
            
 
                 Wherefore, it is determined that claimant is entitled 
 
            to 60.858 weeks of healing period benefits for the periods 
 
            identified above which are the periods for which it can be 
 
            established from the evidence that claimant was medically 
 
            unable to work and was improving based upon the medical 
 
            evidence in the record cited above.
 
            
 
                 Claimant's contention that she is entitled to a running 
 
            award of healing period benefits for the reason that the 
 
            C5-6 disc injury has not attained maximum medical 
 
            improvement is without merit.  Claimant testified that she 
 
            has no doctor appointments scheduled at the time of the 
 
            hearing and the only medications that she was taking was 
 
            Tylenol, aspirin and hot water bottles (tr. pp. 150 & 151).
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
                causal connection-entitlement-permanent disability
 
            
 
                 It is determined that the injury of October 3, 1981, 
 
            was the cause of claimant's bulging and slightly herniated 
 
            disc at C5-6 as well as the injury to her anterior and 
 
            posterior shoulder.
 
            
 
                 It is further determined that claimant has sustained a 
 
            35 percent industrial disability to the body as a whole and 
 
            is entitled to 175 weeks of permanent partial disability 
 
            benefits.
 
            
 
                 The parties agreed that the injury was the cause of the 
 
            left shoulder problem.  Dr. Jardon rated this as 15 percent 
 
            of the left upper extremity which he converted to 9 percent 
 
            of the body as a whole (cl. exs. 1, pp. 8, 14, & 18; 24; 
 
            36).  In his deposition Dr. Jardon said this upper extremity 
 
            rating translates to 9 or 10 percent of the body as a whole 
 
            (cl. ex. 1, p. 9).  On March 18, 1986, when Dr. Jardon gave 
 
            the permanent impairment rating he also stated that claimant 
 
            had been on rehabilitative physical therapy, but that she 
 
            may need vocational retraining if the use of her left arm is 
 
            reduced to a minimum (cl. ex. 36).
 
            
 
                 W. Michael Walsh, M.D., an orthopedic surgeon at the 
 
            University of Nebraska Medical Center and the director of 
 
            the Sports Medicine Clinic, performed an arthrotomogram and 
 
            reported on December 12, 1983, that it was perfectly normal.  
 
            He found claimant's complaints of pain and weakness diffuse 
 
            and stated he had nothing further to offer.  He did not 
 
            think additional arthroscopy was indicated.  He indicated 
 
            that claimant was basically going to have to get along with 
 
            it as it is (cl. exs. 40 & 41).  
 
            
 
                 An examination by Dave Peterson, L.P.T., at Orthopedic 
 
            Associates in Des Moines, revealed considerable weakness 
 
            demonstrated in all left shoulder muscle groups (cl. ex. 
 
            46).
 
            
 
                 Claimant was referred to Lyal G. Leibrock, M.D., a 
 
            neurosurgeon at the University of Nebraska Medical Center, 
 
            by Dr. Jardon.  Dr. Leibrock ordered an electromyographic 
 
            study again and an MRI scan (cl. ex. 48).  Dr. Leibrock 
 
            reported on October 9, 1987, that the MRI scan demonstrated 
 
            a centrally herniated C5-6 disc, but because of lack of 
 
            major motor or reflex deficits in the upper extremities, it 
 
            was elected that she did not have to have surgery (cl. ex. 
 
            49).  On March 4, 1988, Dr. Leibrock stated that it was his 
 
            opinion that claimant had a very small, central C5-6 disc 
 
            bulging.  It causes her some sporadic and intermittent 
 
            difficulty, but so far has not done her any neurologic harm 
 
            and because of that he recommended continued conservative 
 
            therapy (cl. ex. 51).
 
            
 
                 Dr. Jardon stated several times that in his opinion the 
 
            injury of October 3, 1981, was the cause of the cervical 
 
            disc problem (ex. 1, p. 11).  Dr. Jardon stated that he 
 
            found no distinction between a mild bulge and a herniation.  
 
            He found they were similar and meant the same thing (cl. ex. 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            1, p. 19).  He further explained that it was casually 
 
            related to her type of employment at least to the extent of 
 
            being markedly exacerbated with every attempt to return to 
 
            work.  Therefore, he considered it to be work related.  He 
 
            added, "...at least now I feel we have a diagnosis for her 
 
            continued posterior shoulder complaint which has been an 
 
            ongoing problem from  -- to the last few years including 
 
            several referrals and [I] felt relieved and stated that at 
 
            last I feel we have a handle on her complain." (cl. ex. 1, 
 
            pp. 15 & 16).  
 
            
 
                 In response to the question on how C-5-6 pain would 
 
            manifest itself, Dr. Jardon said:  
 
            
 
                 Most usual place, though, is to see a combination 
 
                 of pain along the medial border of the scapula and 
 
                 then followed by numbness and tingling in the 
 
                 various locations in the hand which become more 
 
                 and more interrelated and more distinct as the 
 
                 disease progresses as has been the case with Mrs. 
 
                 Messenbrink.
 
            
 
                    She started with a para -- parascapular pain 
 
                 and then developed a fuller and fuller picture of 
 
                 the problem including bilaterality [sic] later on 
 
                 which fits the picture.
 
            
 
            (claimant's exhibit 1, pages 31 & 32)
 
            
 
                 Therefore, claimant's main treating physician, from 
 
            October of 1982 through September of 1987, who saw her on 
 
            several occasions and sought consultation with several other 
 
            physicians, believed and testified that the injury of 
 
            October 3, 1981, was the cause of the disc problem at C5-6, 
 
            as well as her left shoulder.
 
            
 
                 Dr. Leibrock testified by deposition on May 27, 1988, 
 
            that the electromyographic and nerve conduction studies 
 
            revealed no deficits or abnormalities in the left upper 
 
            extremity.  The report of the MRI scan revealed a C5-C6 
 
            central disc bulge with slight cord displacement (cl. ex. 2, 
 
            p. 10).  He explained that this meant a general bulge at the 
 
            disc rather than a frank herniation of disc material out of 
 
            the annulus (cl. ex. 2, p. 11).  Since there were no major 
 
            motor reflex or sensory deficits he continued to recommend 
 
            against surgery (cl. ex. 2, p. 17).  Dr. Leibrock refused to 
 
            give an opinion as to whether the C5-C6 problem was caused 
 
            by the injury of October 3, 1981.  He stated, "You know, it 
 
            would be difficult for me to say one way or the other."  (cl 
 
            ex. 2, p. 21).  The crux of his testimony on causal 
 
            connection is as follows:  
 
            
 
                    Q.  My question relates to whether or not you 
 
                 can -- you have made an evaluation as to whether 
 
                 there's a causal connection between the bulging 
 
                 disc she has and her work related activities.
 
            
 
                    A.  No.  I was asked to see her to evaluate the 
 
                 disc, not whether that had anything to do with her 
 
                 work.
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            
 
                    Q.  All right.  Would if be fair to state that 
 
                 Doctor Jardon who has treated her for a longer 
 
                 period of time would be in a better position to 
 
                 evaluate that?
 
            
 
                    A.  I would assume so.
 
            
 
            (claimant's exhibit 2, page 22)
 
            
 
                  Thus, Dr. Leibrock appears to defer to the judgment of 
 
            Dr. Jardon on causal connection of the work injury of 
 
            October 3, 1981, to the C5-6 disc bulge and slight 
 
            herniation.  Dr. Leibrock stated he did not know what work 
 
            claimant performed for employer (cl. ex. 2, p. 27).  He was 
 
            asked:
 
            
 
                    Q.  Do you have an opinion as to how this 
 
                 particular cervical disc problem developed?
 
            
 
                    A.  No.
 
            
 
            (claimant's exhibit 2, page 27).
 
            
 
                 Dr. Leibrock refused to give a permanent impairment 
 
            rating.  He stated that the shoulder would be an orthopedic 
 
            evaluation.  With respect to the neck, he, "Never had one 
 
            never get better." (cl. ex. 2, p. 30).  He also testified 
 
            that people that have these problems, generally get better, 
 
            about 80 percent of them get better (cl. ex. 2, p. 35).  
 
            
 
                 Behrouz Rassekh, M.D., a neurosurgeon, examined 
 
            claimant for defendants and reported on December 15, 1988, 
 
            that he did not believe that the bulging and degenerative 
 
            C5-C6 disc was related to the injury claimant sustained in 
 
            1981.  He said most of the time this is a normal finding due 
 
            to normal process of disc degeneration.  He also added that 
 
            surgery would not relieve all of claimant's symptoms.  He 
 
            recommended consideration of a pain clinic and an MMPI 
 
            (defendants' ex. J, deposition ex. 2).  
 
            
 
                 Dr. Rassekh gave a deposition on February 6, 1989, in 
 
            which he stated claimant had a rather diffuse and not 
 
            identifiable pain pattern.  Her physical examination was 
 
            generally normal.  There was no radicular pain and no 
 
            atrophy (def. ex. J, pp. 6-8).  After his first report and 
 
            before his deposition, he had examined the MRI scan.  He 
 
            clarified that claimant's disc was partially herniated.  A 
 
            fragment of the disc, but not the whole disc was herniated 
 
            (def. ex. J, p. 34).  The MRI showed more than degeneration.  
 
            It showed disc herniation (def. ex. J, p. 41).  After he 
 
            examined the MRI he wrote a letter on January 9, 1989, that 
 
            the MRI indicated a protrusion of the disc with a slight 
 
            encroachment of the subarachnoid space at C5-C6 indicating 
 
            bulging of the disc with possibly even some herniation of 
 
            the disc material in the epidural space (def. ex. J, dep. 
 
            ex. 3).
 
            
 
                 Like Dr. Leibrock, Dr. Rassekh refused to make a 
 
            statement or give an opinion as to whether or not the neck 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            injury was related to claimant's work.  He said, "I cannot 
 
            answer that." (def. ex. J, p. 41).  He said too many years 
 
            had expired between the injury of 1981 and the MRI scan 
 
            seven years later in 1987 (def. ex. J, p. 41).  He 
 
            concluded, "I cannot answer that question not having 
 
            examined her until seven years later." (def. ex. J, p. 42).  
 
            Dr. Rassekh granted that Dr. Jardon would be in a better 
 
            position to make a judgment of causal connection if Dr. 
 
            Jardon could say the symptoms in 1981 were related to a 
 
            ruptured disc (def. ex. J, p. 43).
 
            
 
                 Dr. Rassekh clarified that he was able to make a 
 
            statement that the bulging and degenerative disc was not 
 
            related to the injury, but with respect to the herniation, 
 
            he was unable to make an opinion (def. ex. J, p. 43).
 
            
 
                 In conclusion, Dr. Leibrock and Dr. Rassekh were unable 
 
            to give an opinion on whether the mild herniation of C5-C6 
 
            was caused by the injury in 1981 or not.  Dr. Jardon was 
 
            able to give an opinion and stated that the cervical disc 
 
            problem was caused by the injury in 1981.  Wherefore, the 
 
            solitary physician who was able to give an opinion, opined 
 
            that the C5-C6 disc injury was caused by the injury which 
 
            occurred on October 3, 1981.  Therefore, it is the weight of 
 
            the evidence and it is the determination of this deputy that 
 
            the injury of October 3, 1981, was the cause of the C5-C6 
 
            disc bulge and slight herniation.
 
            
 
                 None of the doctors gave any impairment rating for the 
 
            neck injury.  Dr. Leibrock and Dr. Rassekh expected claimant 
 
            to fully recover.  Dr. Jardon thought there was a 20 percent 
 
            chance that claimant might eventually need an anterior 
 
            cervical diskectomy and fusion.  Conversely stated, there is 
 
            an 80 percent chance that she will not need cervical 
 
            surgery.
 
            
 
                 With respect to restrictions, Dr. Jardon felt that as 
 
            far as the shoulder was concerned claimant was only 
 
            restricted by her comfort level and as far as the neck was 
 
            concerned she should not perform vibration repetitive 
 
            lifting with the upper extremities or hold her neck in one 
 
            position, especially a flexed position, such as performing 
 
            bench work or sewing.  This would preclude claimant from 
 
            most production line work and would preclude her from 
 
            bagging hams.  He said claimant might voluntarily restrict 
 
            her neck motions, but that he could place claimant through a 
 
            full passive range of motion (cl. ex. 1, p. 32).
 
            
 
                 Dr. Leibrock, the neurosurgeon, stated that claimant's 
 
            activity would only be limited or restricted by the 
 
            discomfort that it would cause.  For instance, she 
 
            complained of discomfort when she extended her head or 
 
            rotated it.  Therefore, those would be her restrictions (cl. 
 
            ex. 2, pp. 12 & 13).  Dr. Leibrock said his notes indicated 
 
            that claimant had more discomfort in the area of her 
 
            shoulder than she did with her neck (cl. ex. 2, p. 15).  He 
 
            found no major motor, sensory or reflex deficits in the 
 
            upper extremities.  He determined she had only a small 
 
            central bulging disc, which only caused sporadic and 
 
            intermittent difficulty.  He recommended against surgery and 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            for conservative therapy (cl. ex. 2, p. 20).  
 
            
 
                 Dr. Leibrock explained the basic work restriction for a 
 
            person with a cervical disc like claimant's is that they 
 
            probably shouldn't do work where they would sustain 
 
            significant axial loading to the spine.  Such a person 
 
            probably shouldn't be a parachutist, dirt bike rider, or a 
 
            high diver.  Probably repetitive hand-type activity would be 
 
            difficult or repetitive turning of the head either back and 
 
            forth or up and down like typing or a cashier (cl. ex. 2, 
 
            pp. 25 & 26).  
 
            
 
                 Dr. Leibrock classified claimant's cervical disc as 
 
            bulging rather than herniated (cl. ex. 2, p. 32).  However, 
 
            her symptoms of numbness, tingling and pain in her left 
 
            upper extremity, occasionally sharp, would restrict some 
 
            physical activities, particularly extension, left forward 
 
            rotation and repetitive assembly line activities (cl. ex. 2, 
 
            pp. 32-34).  Many of claimant's prior jobs, including 
 
            bagging hams, required repetitive hand activity and assembly 
 
            line activity.
 
            
 
                 Dr. Rassekh indicated that the restrictions that would 
 
            apply to claimant would be to avoid any occupation which 
 
            requires looking up a lot and turning her head or doing 
 
            heavy lifting over the head or strenuous work.  Otherwise, 
 
            he would tell her to do what ever she feels like she can do 
 
            (def. ex. J, pp. 35 & 36).  It was established by claimant's 
 
            testimony and the testimony of other witnesses that 
 
            claimant's job of bagging hams was strenuous (cl. exs. 3-7).
 
            
 
                 Thus, claimant is foreclosed from her former employment 
 
            with employer as a bagger.  As a bagger, she grabbed a wet 
 
            plastic bag in the right hand, transferred it to the left 
 
            hand, placed it over a horn on the side of the stuffing 
 
            machine while a plunger forced a ham through the horn and 
 
            into the bag being held with her left hand.  Although 
 
            claimant's testimony was exaggerated on the amount of force 
 
            or jerking encountered by the left hand, her testimony was 
 
            corroborated by several other witnesses to the degree that 
 
            the ham is expelled from the stuffer with force which 
 
            sometimes jerked her left hand, arm and shoulder.  A number 
 
            of witnesses testified that the stuffer shoots that hams out 
 
            very fast creating a pressure on the arms and shoulder of 
 
            the bagger (cl. exs. 3-7).  Smaller hams weighed six to ten 
 
            pounds.  Larger hams weighed eight to twelve pounds.  
 
            Occasionally there were some very large hams weighing 20 to 
 
            25 pounds (cl. exs. 3-7; tr. pp. 191, 194 and 200-202).  
 
            Claimant had performed this job for about a year or year and 
 
            one-half before she was forced to quit work (tr. p. 79).  
 
            
 
                 Prior to that time, and after she started with employer 
 
            in November of 1974, she performed various other repetitive 
 
            jobs for employer which included, arranging and weighing 
 
            sliced bacon, pressing bacon, cutting jowls, positioning 
 
            hams, packing hams, scaling boxes of meat, tearing down 
 
            hams, tearing down garbage, cutting salt pork, hanging hams, 
 
            putting stockinettes on hams, stuffing hams, and tippy tying 
 
            hams (tr. pp. 74-77).  
 
            
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
                 Prior employments included a checker on an assembly 
 
            line, a clerk checker in a supermarket, and trimming and 
 
            weighing steaks at another meat processor (tr. pp. 71-74).  
 
            While in high school she babysat, detasseled corn and worked 
 
            as a carhop (tr. p. 70).  
 
            
 
                 Since most of these jobs, including the bagger job, as 
 
            well as most of her jobs with employer, require repetitive 
 
            use of her hands, arms and shoulder, flexion and extension 
 
            of her neck, rotating her neck, and standing with her 
 
            shoulders in one place all day long, she is, therefore, 
 
            effectively foreclosed from most of these prior employments.  
 
            Michael v. Harrison County, Thirty-fourth Biennial Report 
 
            of the Industrial Commissioner 218, 220 (Appeal Decision 
 
            January 30, 1979); Rohrberg v. Griffin Pipe Products Co., I 
 
            Iowa Industrial Commissioner Report 282 (1984).  This injury 
 
            terminated her seven-year career employment with this 
 
            employer.  She received a termination letter on July 23, 
 
            1985, that she was removed from the rolls because they were 
 
            unable to place claimant within her restrictions (cl. ex. 
 
            15). 
 
            
 
                 Claimant is 35 years old and has a high school 
 
            education.  Since she was entering the peak years of her 
 
            employment career, her industrial disability is greater than 
 
            it would be for a younger or older employee.  Becke v. 
 
            Turner-Busch, Inc., Thirty-fourth Biennial Report of the 
 
            Industrial Commissioner 34 (Appeal Decision  1979); Walton 
 
            v. B & H Tank Corp., II Iowa Industrial Commissioner Report 
 
            426 (1981); McCoy v. Donaldson Company, Inc., file numbers 
 
            782670 & 805200 (Appeal Decision 1989).  
 
            
 
                 Claimant is young enough to be retrained and retraining 
 
            is feasible in as much as she was able to complete high 
 
            school.  At the hearing she testified that her high school 
 
            grades were C's and D's, but Roger Marquardt, a vocational 
 
            rehabilitation consultant, reported that claimant was a 
 
            slightly above average student in high school (cl. ex. 52).  
 
            Conrad v. Marquette School, Inc., IV Iowa Industrial 
 
            Commissioner Report 74, 89 (1984).  Marquardt opined, "From 
 
            this consultant's professional experience and through job 
 
            market research, it is my opinion Patricia Messenbrink has 
 
            lost at least 60% of her pre-injury access to employment and 
 
            50% or more of her pre-injury earning capacity." (cl. ex. 
 
            52-3).  
 
            
 
                 Claimant testified that she earned $9 per hour while 
 
            working for employer.  Since then, her other employments 
 
            have only earned approximately $3.85 per hour.  This 
 
            computes out to an approximate 50 or 60 percent actual wage 
 
            loss (tr. pp. 123, 128, 129).  
 
            
 
                 Claimant obtained an insurance license and sold 
 
            insurance for a couple of months, but lost money on gasoline 
 
            and found it difficult to ride in the car (tr. p. 120).  She 
 
            was then unemployed for three and one-half years (tr. p. 
 
            121).  She worked at a newspaper one day, but couldn't sit 
 
            in one position to type.  She worked at a convenience store 
 
            for two, three or four days and quit because cleaning the 
 
            store, vacuuming and lifting hurt her arm (tr. p. 124).  
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            Claimant did work at a general merchandise store for 
 
            approximately one year, first part-time then full time (tr. 
 
            pp. 126-129).  Just prior to hearing she obtained a job 
 
            operating a concession stand in the city aquatic fun center 
 
            where there is an indoor pool.  She operates equipment, 
 
            serves hot dogs, nachos and coffee and wipes of tables.  
 
            This is a full-time job at $3.85 per hour (tr. p. 129).  .
 
            
 
                 Claimant was denied social security disability benefits 
 
            because there were a number of jobs that she could perform 
 
            such as telemarketing, account clerk, crossing guard, and 
 
            hotel-motel clerk.  Subsequently, she tried telemarketing, 
 
            but could not sit that long.  There are no account clerk 
 
            jobs in Denison.  The crossing guard jobs are done by the 
 
            maintenance employees.  School aide jobs are few and far 
 
            between and hotel-motel owners manage their own desk (tr. 
 
            pp. 130-131).  
 
            
 
                 Claimant testified that she cannot walk distances 
 
            without severe pain.  She cannot perform exercises.  She 
 
            cannot clean the house or perform sports.  She can only ride 
 
            in the car for two hours.  Sometimes she drops things.  She 
 
            does mow the yard with one hand with the power mower that 
 
            her husband purchased (tr. pp. 119 & 133).  
 
            
 
                 Claimant contended that she needed to work for the 
 
            money, but it is also noted that her husband of 15 years has 
 
            23 years seniority with another meat packer and that 
 
            claimant has growing children ages 14 and 10 which could 
 
            reduce her motivation to find permanent full-time 
 
            employment.  Also, she had a three and one-half year period 
 
            of unemployment which was unexplained.  It is possible 
 
            claimant did not cooperate with employer's attempt to 
 
            accommodate her because claimant applied for social security 
 
            disability benefits and one of the requirements for those 
 
            benefits is that the claimant has not engaged in any 
 
            substantial gainful activity prior to the time the 
 
            application is made.  
 
            
 
                 The administrative law judge at the social security 
 
            administration also found that claimant was unable to 
 
            perform her past relevant work as a meat packing laborer 
 
            (jt. ex. 27, p. 8).  The administrative law judge also found 
 
            that when considering claimant's age, education, previous 
 
            work experience and residual functional capacity, jobs still 
 
            exist in significant numbers in the national economy that 
 
            she can perform (jt. ex. 27, p. 8).
 
            
 
                 It is also noted that the affected extremity is the 
 
            left upper extremity, whereas, claimant's dominant right 
 
            hand does not appear to be affected by this injury (tr. p. 
 
            148).  Defendants introduced evidence of prior injuries and 
 
            accidents, including a muscle strain of the left shoulder on 
 
            November 3, 1978 (def. exs. A-F & L-P).  However, none of 
 
            them were demonstrated to be causally connected with 
 
            claimant's current complaints as of October 3, 1981.  
 
            Furthermore, Dr. Jardon, when he was informed of these 
 
            incidents testified they had no effect on his medical 
 
            opinions with respect to this case and would not cause him 
 
            to change his opinion (cl. ex. 1, p. 37).  
 

 
            
 
            Page  13
 
            
 
            
 
            
 
            
 
            
 
                 It is also taken into consideration that defendants 
 
            went to great lengths to attempt to accommodate claimant's 
 
            injury by coordinating with the doctor and providing light 
 
            work which she should have been able to do (cl. ex. 8).  A 
 
            vocational rehabilitation consultant, Ronald J. Eischen, 
 
            worked with claimant, employer and Dr. Jardon to accommodate 
 
            claimant's limitations (cl. exs. 42-44).  
 
            
 
                 Jerome Behrens testified that he observed claimant 
 
            perform the data printer job.  This was performed with a 
 
            foot control and the right hand.  It consisted of weighing 
 
            and pasting a weight sticker on a package of meat.  He said 
 
            that claimant performed the job without any difficulty or 
 
            complaints.  She performed the job two days and then simply 
 
            stated she wasn't returning (def. ex. K, pp. 4-9; cl. ex. 8, 
 
            p. 31).  
 
            
 
                 Claimant did not satisfactorily explain why she was 
 
            unable to perform this job for longer then two or three 
 
            days.  Employers are responsible for the reduction in 
 
            earning capacity caused by the injury.  They are not 
 
            responsible for a reduction in actual earnings because the 
 
            employee resists returning to work.  Williams v. Firestone 
 
            Tire and Rubber Co., III Iowa Industrial Commissioner Report 
 
            279 (1982); Lawyer and Higgs, Iowa Workers' 
 
            Compensation--Law and Practice, section 13-5, pocket part at 
 
            page 25.  Claimant testified that Dr. Jardon had imposed a 
 
            10 or 15-pound weight restrictions (tr. pp. 166 & 168), 
 
            however, no medical evidence of this fact could be found in 
 
            the medical record.  
 
            
 
                 Wherefore, based upon (1) a 10 percent permanent 
 
            impairment rating to the body as a whole for the left 
 
            shoulder injury which needed to be surgically corrected; (2) 
 
            an MRI demonstrated bulging and slightly herniated C5-6 
 
            disc; (3) the fact that claimant is foreclosed from 
 
            continuing her seven-year career with employer in the meat 
 
            processing and packing business where she was earning twice 
 
            as much as she has earned since the injury; (4) the fact 
 
            that claimant is foreclosed from most of her former 
 
            employments; (5) the fact that claimant is restricted from 
 
            performing jobs requiring flexion and extension and rotation 
 
            of the neck as well as repetitive jobs with her left upper 
 
            extremity; (6) the fact that claimant's dominant upper 
 
            extremity is the right arm and hand; (7) the fact that 
 
            claimant is 35 years old; (8) has a high school education; 
 
            (9) is retrainable; (10) that claimant has not seriously 
 
            sought full-time permanent employment; (11) based on all of 
 
            the facts in this case; (12) based on all the factors used 
 
            to determine industrial disability, Peterson v. Truck Haven 
 
            Cafe, Inc., vol. 1, no. 3 State of Iowa Industrial 
 
            Commissioner Decisions 654, 658 (Appeal Decision February 
 
            28, 1985); Christensen v. Hagen, Inc., vol. I, no. 3, State 
 
            of Iowa Industrial Commissioner Decisions 529 (Appeal 
 
            Decision March 26, 1985); (13) and based on agency expertise 
 
            [Iowa Administrative Procedure Act 17A.14(5)]; it is 
 
            determined that claimant has sustained a 35 percent 
 
            industrial disability to the body as a whole and is entitled 
 
            to 175 weeks of permanent partial disability benefits.
 

 
            
 
            Page  14
 
            
 
            
 
            
 
            
 
            
 
                 Claimant did not establish that the complaints she has 
 
            in her legs, or that her headaches were caused by the injury 
 
            of October 3, 1981.  Dr. Jardon came up with a theory about 
 
            why the headaches might be caused by this injury, but his 
 
            testimony is controverted and contradicted by Dr. Leibrock 
 
            and Dr. Rassekh who had no immediate explanation for why 
 
            this injury would cause claimant to have headaches as a 
 
            result of this injury.  It is further noted that claimant 
 
            was medically treated for cephalgia by the Omaha 
 
            Neurological Clinic on October 22, 1976; November 5, 1976; 
 
            January 13, 1977; and July 11, 1977 (def. ex. O).  There was 
 
            other evidence that headaches have been a problem for 
 
            claimant at other times in her life, but they were never 
 
            causally connected medically with this injury which occurred 
 
            on October 3, 1981, by a preponderance of the evidence.
 
            
 
                                 medical benefits
 
            
 
                 Since it has been determined that the injury of October 
 
            3, 1981, was the cause of the C5-6 bulge and slight 
 
            herniation, therefore, of necessity, claimant is entitled to 
 
            future medical benefits for this injury to her neck.
 
            
 
                                conclusions of law
 
            
 
                 Wherefore, based upon the forgoing and following 
 
            principles or law, these conclusions of law are made:
 
            
 
                 That the injury of October 3, 1981, was the cause of 
 
            both temporary and permanent disability.  Bodish v. Fischer, 
 
            Inc., 257 Iowa 516, 133 N.W.2d 867 (1965); Lindahl v. L.O. 
 
            Boggs Co., 236 Iowa 296 18 N.W.2d 607 (1945).
 
            
 
                 That claimant is entitled to 60.858 weeks of healing 
 
            period benefits for the five periods of healing identified 
 
            in the findings of fact.  Iowa Code section 85.34(1).
 
            
 
                 That claimant has sustained a 35 percent industrial 
 
            disability to the body as a whole and is entitled to 175 
 
            weeks of permanent partial disability benefits.  Iowa Code 
 
            section 85.34(2)(u).
 
            
 
                 That claimant is entitled to medical benefits for 
 
            treatment of the neck injury as well as the shoulder injury.  
 
            Iowa Code section 85.27.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 That defendants pay to claimant sixty point eight five 
 
            eight (60.858) weeks of healing period benefits at the rate 
 
            of two hundred twenty-nine and 78/100 dollars ($229.78) per 
 
            week in the total amount of thirteen thousand nine hundred 
 
            eighty-three and 95/100 dollars ($13,983.95) commencing on 
 
            October 3, 1981.
 
            
 
                 That defendants pay to claimant one hundred 
 
            seventy-five (175) weeks of permanent partial disability 
 

 
            
 
            Page  15
 
            
 
            
 
            
 
            
 
            benefits at the rate of two hundred twenty-nine and 78/100 
 
            dollars ($229.78) per week in the total amount of forty 
 
            thousand two hundred eleven and 50/100 dollars ($40,211.50) 
 
            commencing on September 6, 1983.  
 
            
 
                 That defendants are entitled to a credit for one 
 
            hundred sixty-eight point four two nine (168.429) weeks of 
 
            workers' compensation benefits paid to claimant prior to 
 
            hearing at the rate of two hundred twenty-nine and 78/100 
 
            dollars ($229.78) per week in the total amount of 
 
            thirty-eight thousand seven hundred one and 62/100 dollars 
 
            ($38,701.62) as stipulated to by the parties.  
 
            
 
                 That interest will accrue pursuant to Iowa Code section 
 
            85.30. 
 
            
 
                 That all accrued benefits are to be paid in a lump sum.
 
            
 
                 That defendants pay to claimant the two hundred dollar 
 
            ($200) sanction ordered at hearing within twenty (20) days 
 
            of the filing of this decision.
 
            
 
                 That the costs of this action, including the cost of 
 
            the attendance of the court reporter at hearing and the cost 
 
            of the  transcript, are charged to defendants pursuant to 
 
            rule 343 IAC 4.33 and Iowa Code section 86.19(1).
 
            
 
                 That defendants file claim activity reports as 
 
            requested by this agency pursuant to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of September, 1991.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          WALTER R. McMANUS, JR.
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Bruce H. Stoltze
 
            Attorney at Law
 
            550 39th St. 
 
            Des Moines, Iowa  50312
 
            
 
            Ms. Judith Ann Higgs
 
            Mr. Charles Patterson
 
            701 Pierce St. STE 200
 
            PO Box 3086
 
            Sioux City, Iowa  51102-3086
 
            
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
                                          2903 2906 3700 2908 51401 
 
                                          51402.40 51802 51803
 
                                          Filed September 17, 1991
 
                                          Walter R. McManus, Jr.
 
            
 
                           before the iowa industrial 
 
                                   commissioner
 
            ____________________________________________________________
 
                                          :
 
            PATRICIA MESSENBRINK,         :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No.  681836
 
            FARMLAND FOODS,               :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            AETNA CASUALTY & SURETY CO.,  :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            2903 2906 3700
 
            Claimant's motion for an extension of time to file witness 
 
            and exhibit lists two days late because a secretary 
 
            neglected to diary the due date was denied irrespective of 
 
            whether defendants would suffer any prejudice if the motion 
 
            was granted.
 
            Defendants' motion to exclude claimant's witnesses and 
 
            exhibits for the reason that claimant did not timely file 
 
            witness and exhibit lists 15 days prior to hearing was 
 
            granted in part and denied in part.  Claimant was not 
 
            allowed to call any witnesses, but claimant herself was 
 
            allowed to testify.  All of the exhibits that had been 
 
            served upon defendants pursuant to rule 343 IAC 4.17 prior 
 
            to hearing were admitted into evidence and those which had 
 
            not been served by claimant prior to hearing pursuant to 
 
            rule 4.17 were withdrawn by claimant.
 
            
 
            2906 2908
 
            The deputy imposed a sanction of $200 upon defendants 
 
            pursuant to Iowa Rule of Civil procedure 134b(2)(D) and rule 
 
            343 IAC 4.35 because defendants failed to directly and 
 
            properly answer interrogatories as ordered by another 
 
            deputy.  IRCP 134a(3) states that an evasive or incomplete 
 
            answer is treated as a failure to answer.
 
            Defendants filed a motion for rehearing and reconsideration 
 
            of the sanction.  The motion for rehearing was denied.  The 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            motion for reconsideration was granted.  The matter was 
 
            reconsidered and defendants were again ordered to pay the 
 
            $200 sanction to claimant.
 
            Defendants appealed the sanction.  The industrial 
 
            commissioner refused to rule on the appeal because it was an 
 
            interlocutory matter, but stayed the payment of the sanction 
 
            until 20 days after the date of the arbitration decision.
 
            The decision ordered defendants to pay the $200 sanction 
 
            within 20 days of the signing and filing of the arbitration 
 
            decision.
 
            
 
            51401 51402.4
 
            The parties agreed that claimant injured her left shoulder, 
 
            arm and hand.  the issue was whether a bulging and slightly 
 
            herniated C5-6 disc discovered six years later was caused by 
 
            this injury.  After left shoulder impingement surgery 
 
            claimant continued to have left shoulder and other 
 
            complaints and the disc was not discovered until and MRI was 
 
            done.  The primary treating orthopedic physician over the 
 
            years said the disc was caused by this injury.  A consulting 
 
            neurosurgeon said he did not know, but deferred to the 
 
            primary treating orthopedic surgeon.  Defendants' evaluating 
 
            neurosurgeon said the bulge was degenerative and not caused 
 
            by this injury, but as to the slight herniation he declined 
 
            to give an opinion.  Therefore, the solitary medical opinion 
 
            of a physician who claimed to have knowledge on the issue 
 
            stated that the cervical problem was caused by this injury.  
 
            It was determined that the injury was the cause of both the 
 
            left shoulder and cervical problems.
 
            
 
            51802
 
            Claimant awarded 60.858 weeks of healing period disability 
 
            for five separate periods where it could be extracted from 
 
            the evidence that claimant was medically determined to be 
 
            unable to work and was being treated with some hope of 
 
            improvement.
 
            Claimant was denied a later period of temporary disability 
 
            when the treating physician took her off work because the 
 
            treating physician had already determined that she had 
 
            attained maximum medical improvement and she was not 
 
            undergoing any particular treatment with the hope or goal of 
 
            additional improvement.  She was taken off work again 
 
            because when she tried to return to work she had continuing 
 
            difficulties.  Healing period ends with return to work, 
 
            ability to perform substantially similar work or maximum 
 
            medical improvement which ever occurs first.
 
            Claimant's contention (1) that claimant was entitled to a 
 
            running award or (2) that healing period did not end until 
 
            the disc was discovered was determined to be without merit.  
 
            None of the doctors gave an impairment rating for the neck 
 
            injury and recommended only conservative treatment.  
 
            Claimant was not actively treating for the neck injury or 
 
            taking any prescription medications for it at the time of 
 
            the hearing.
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
            51803
 
            Claimant, age 38, high school graduate, normal intelligence, 
 
            capable of retraining, was foreclosed from bagging hams and 
 
            other meat processing and production line jobs and based on 
 
            what she earned before and after the injury had sustained a 
 
            50 percent to 60 percent actual wage loss.  However, 
 
            claimant's motivation to work was questioned because of a 
 
            long period of unemployment, her husband of 15 years had a 
 
            full-time job and 23 years seniority with another meat 
 
            processor, and she had two young children at home in their 
 
            formative years.  Defendants attempted to accommodate 
 
            claimant's limitations and restrictions, but claimant did 
 
            not appear to cooperate with these efforts, possibly because 
 
            she later applied for social security disability benefits 
 
            which require the claimant to be unemployed for some period 
 
            of time in order to qualify for benefits.  Claimant awarded 
 
            10 percent of the body as a whole for the left shoulder 
 
            permanent impairment.  There were no impairment ratings for 
 
            the neck.  Claimant awarded 35 percent industrial 
 
            disability.
 
            Claimant's headaches and leg complaints were not proven to 
 
            be caused by the injury.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         THOMAS C. JOHNSON,
 
         
 
              Claimant,
 
                                                        File No. 684104
 
         VS.
 
         
 
         YOUNKERS DEPARTMENT STORE,                       A P P E A L
 
         
 
              Employer,                                 D E C I S I 0 N
 
         
 
         and
 
         
 
         AETNA LIFE & CASUALTY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Claimant appeals from a review-reopening decision awarding 
 
         permanent partial disability and medical benefits, and defendants 
 
         cross-appeal.
 
         
 
              The record on appeal consists of the transcript of the 
 
         review-reopening-proceeding of March 26, 1986; claimant's 
 
         exhibits 1 through 13; and defendants' exhibits A through E.  
 
         Both parties filed briefs on appeal.
 
         
 
                                      ISSUES
 
         
 
              Claimant states the following issues on appeal:
 
         
 
              Whether the deputy industrial commissioner failed to 
 
         consider testimony in the record regarding the change in 
 
         claimant's condition from the prior review-reopening hearing held 
 
         on November 1, 1982.
 
         
 
              Whether Guyton v. Irving Jensen Company, 373 N.W.2d 101 
 
         (Iowa 1985) allows a finding of a change in condition.
 
         
 
              Whether the deputy industrial commissioner has utilized the 
 
         proper standard in determining a change in condition.
 
         
 
              Whether the deputy industrial commissioner erred in not 
 
         awarding payment under section 85.27, Code of Iowa, of the 
 
         billing from Iowa Methodist Medical Center in the amount of 
 
         $1,406.35, and a billing from Blue Cross/Blue Shield in the 
 
         amount of $83.00 
 
         representing charges not allowed by Blue Cross/Blue Shield on Dr. 
 
         Bunten's bill for the surgery charge allowed and payable to 
 
         Central Iowa Medical for services rendered on July 11, 1979.
 
         
 
              Whether costs incurred by the claimant for the expenses of 
 
         Roger Marquardt are taxable to the defendants.
 
         
 
              Whether the deputy erred in denying claimant's motion to 
 
         close the record.
 

 
         
 
         
 
         
 
         
 
         JOHNSON V. YOUNKERS DEPARTMENT STORE
 
         Page   2
 
         
 
         
 
         
 
              Whether claimant is permanently and totally disabled under 
 
         the meaning of section 85.34(3), Code of Iowa.
 
         
 
               Defendants state the following issue on cross-appeal:
 
         
 
              Whether defendants are responsible for the expenses of Dr. 
 
         Summers.
 
         
 
                            SUMMARY OF THE EVIDENCE
 
         
 
              Claimant was 61 years old at the time of the hearing, with a 
 
         sixth grade education.  Claimant had worked at various unskilled 
 
         manual labor jobs for minimal wages prior to beginning work for 
 
         Younkers in 1975 as a custodial worker.
 
         
 
              The prior review-reopening decision reveals that claimant 
 
         injured his back while lifting a table on June 27, 1979.  He 
 
         experienced back and leg pain, and underwent a decompressive 
 
         laminectomy in February 1980.  Thomas B. Summers, M.D., examined 
 
         claimant on February 23, 1981, and diagnosed a radicular 
 
         syndrome, lower lumbar chronic.  Claimant was given a rating of 
 
         20 percent permanent partial impairment of the body by Ronald K. 
 
         Bunten, M.D., on October 23, 1981, with 10 percent of that amount 
 
         based on disc degeneration and 10 percent based on surgery.  On 
 
         December 14, 1981, claimant was given an impairment rating of 15 
 
         percent of the body and a lifting restriction of 15 pounds by 
 
         Thomas A. Carlstrom, M.D.
 
         
 
              When claimant was released to return to work, defendant 
 
         Younkers did not rehire him, but did provide vocational 
 
         rehabilitation services through Richard McCluhan.  McCluhan 
 
         contacted over 100 employers for claimant and obtained a job for 
 
         claimant delivering newspapers.  Claimant used his car to go to 
 
         the newspaper route site.  Claimant's income from this job was 
 
         $22 per week.  Claimant quit this job.  McCluhan also obtained 
 
         work for claimant involving telephone sales of light bulbs, but 
 
         claimant was discharged for not selling enough bulbs.  McCluhan 
 
         testified that claimant was also capable of performing work as a 
 
         custodian or security guard.
 
         
 
               A memorandum of agreement was filed on October 21, 1982.  A 
 
         review-reopening hearing was held on November 1, 1982.  In a 
 
         decision dated November 10, 1982, claimant was awarded permanent 
 
         partial disability benefits for 33 1/3 percent of the body as a 
 
         whole.  That award was affirmed upon appeal by a decision of the 
 
         industrial commissioner on July 29, 1983, and affirmed upon 
 
         appeal to the district court on June 12, 1984.
 
         
 
              Dr. Summers again examined claimant on August 23, 1984.  Dr. 
 
         Summers found that claimant's diagnosis remained unchanged, but 
 
         also expressed the opinion that claimant had a significant 
 
         difference or worsening in his symptoms since he first examined 
 
         claimant in 1981.  Dr. Summers later acknowledged that his 
 
         findings during the second examination were similar to the 
 
         initial examination, with the exception that straight leg raising 
 
         was positive on the left at 60 degrees in February 1981, while in 
 
         August 1984 straight leg raising was positive on the left at 45 
 

 
         
 
         
 
         
 
         
 
         JOHNSON V. YOUNKERS DEPARTMENT STORE
 
         Page   3
 
         
 
         
 
         degrees.  Forward flexion bending in February 1981 was 45 
 
         degrees, while in August 1984 forward flexion bending was 60 
 
         degrees.
 
         
 
              Claimant filed a second petition in review-reopening and a 
 
         hearing was held on March 26, 1986.  Claimant testified that he 
 
         experienced more back pain and left leg pain than before and on a 
 
         more frequent basis, and that he could not lift, bend, twist or 
 
         walk up and down stairs as well as he could at the time of the 
 
         November 1981 hearing.  Claimant stated he worked for two weeks 
 
         as a bartender since the last hearing, but could not lift kegs.  
 
         Claimant was still unemployed at the time of hearing.  Claimant 
 
         stated he has lost his back brace.
 
         
 
              Claimant indicated he had never been fired from a job 
 
         because of his back, and that he has never been told he had been 
 
         denied a job because of his back.  Claimant admitted that his 
 
         pain was now confined to his left leg, as opposed to both legs at 
 
         the time of the first hearing.  Claimant testified he felt he 
 
         could perform such jobs as fry cook, janitor, shelf stocker, 
 
         night watchman, school crossing guard, and possibly laundry 
 
         worker.  Claimant also stated that he felt that if the employers 
 
         who had denied him employment would have had openings, he would 
 
         have been hired.  Claimant testified he spends his days in two 
 
         bars in Des Moines in an attempt to obtain employment as a 
 
         bartender, and that he does not utilize an employment office or 
 
         consult newspaper want ads to find employment.
 
         
 
              Claimant's friend, Euric Fountain, testified that claimant 
 
         goes fishing with him, and claimant is able to climb up and down 
 
         a 15 foot bank in order to do so.
 
         
 
              Richard McCluhan testified that he had reopened his file on 
 
         claimant in preparation for the second hearing.  McCluhan 
 
         indicated that he had located two job possibilities for claimant 
 
         as a security guard and as a custodian, but that no definite job 
 
         offers had been made.  McCluhan opined that claimant could work 
 
         as a school crossing guard with a pay rate of $6.00 per hour, 
 
         which was in excess of the minimum wages claimant had earned 
 
         prior to his injury.  McCluhan also testified that claimant had 
 
         missed three of five job opportunity training classes.  Claimant 
 
         maintains he had appeared at all five sessions but three were 
 
         cancelled due to low attendance.
 
         
 
              McCluhan declined to offer an opinion on whether claimant's 
 
         condition was such that the services or work he could perform 
 
         given his medical condition were so limited in quality, 
 
         dependability, and quantity that a reasonably stable market for 
 
         his services did not exist.  McCluhan also declined to state that 
 
         claimant was so handicapped by virtue of the combination of his 
 
         physical injury, age, education, and training that it was more 
 
         likely than not that he will not be employed regularly in any 
 
         well known branch of the labor market at full-time adult wages.  
 
         Finally, McCluhan declined to state that claimant had no 
 
         reasonable prospect of steady, adult full-time employment.  
 
         McCluhan instead stated that claimant could function as a school 
 
         crossing guard, janitor, security guard, and possibly as a 
 
         parking lot attendant, laundry worker, cook or dishwasher if 
 

 
         
 
         
 
         
 
         
 
         JOHNSON V. YOUNKERS DEPARTMENT STORE
 
         Page   4
 
         
 
         
 
         prolonged standing could be avoided.  McCluhan described the 
 
         market for these jobs as stable, regularly and continuously 
 
         available, and paying approximately minimum wage or above.
 
         
 
              McCluhan also testified that according to his observations, 
 
         claimant's ability to walk, bend, and stoop was about the same at 
 
         the time of the second hearing as he observed it to be in 1981 
 
         and 1982.
 
         
 
              The record shows that a medical bill in the amount of 
 
         $1,406.35 from Iowa Methodist Hospital was paid by Blue 
 
         Cross/Blue Shield.  The parties stipulated that claimant's rate 
 
         was $102.07.
 
         
 
              The deputy commissioner's decision dated June 19, 1986 
 
         determined that claimant had failed to show a change of 
 
         condition, and no further benefits were awarded.  Claimant filed 
 
         a request for a rehearing.  The deputy commissioner's decision on 
 
         rehearing dated October 3, 1986 found that claimant had shown a 
 
         non-physical change of condition, and awarded 75 percent 
 
         permanent partial disability benefits.  Claimant has appealed 
 
         that decision, and defendants have cross-appealed.
 
         
 
                                  APPLICABLE LAW
 
         
 
              Upon review-reopening, claimant has the burden to show that 
 
         he has suffered a change in his condition since the original 
 
         award was made.  Henderson v. Iles, 250 Iowa 787, 96 N.W.2d 21 
 
         (1959).  A mere difference of opinion of experts as to the 
 
         percentage of disability arising from an original injury would 
 
         not be sufficient 
 
         
 
         to justify a different determination on a petition for 
 
         review-reopening.  Rather, such a finding must be based on a 
 
         worsening or deterioration of the claimant's condition not 
 
         contemplated at the time of the first award.  Bousfield v. 
 
         Sisters of Mercy, 249 Iowa 64, 86 N.W.2d 109 (1957).  A failure 
 
         of a condition to improve to the extent originally anticipated 
 
         may also constitute a change of condition.  Meyers v. Holiday Inn 
 
         of Cedar Falls, 279 N.W.2d 24 (Iowa 1978).
 
         
 
              A worker is totally disabled if the only services a worker 
 
         can perform are so limited in quality, dependability or quantity 
 
         that a reasonable stable market for them does not exist.  Guyton 
 
         v. Irving Jensen Co., 373 N.W.2d 101 (Iowa 1985).
 
         
 
              In determining industrial disability, the fact that 
 
         employment opportunities are temporarily restricted due to a 
 
         local economic situation is not a proper factor, in that such 
 
         conditions affect all workers in the area equally, regardless of 
 
         claimant's injury.  Webb v. Lovejoy Construction Company, II Iowa 
 
         Industrial Commissioner Report 430 (Appeal Decision 1984).
 
         
 
              "Claimant is not entitled to reimbursement for medical bills 
 
         unless he shows that he paid them from his own funds."  See 
 
         Caylor v. Employers Mut. Cas. Co., 337 N.W.2d 890 (Iowa App. 
 
         1983).
 
         
 

 
         
 
         
 
         
 
         
 
         JOHNSON V. YOUNKERS DEPARTMENT STORE
 
         Page   5
 
         
 
         
 
              Iowa Industrial Commissioner Rule 343-4.33 states:
 
         
 
                   Costs taxed by the industrial commissioner or a deputy 
 
              commissioner shall be .... (4) witness fees and expenses as 
 
              provided by Iowa Code sections 622.69 and 622.72, (5) the 
 
              costs of doctors' and practitioners' deposition testimony, 
 
              provided that said costs do not exceed the amounts provided 
 
              by Iowa Code sections 622.69 and 622.72, (6) the reasonable 
 
              costs of obtaining no more than two doctors' or 
 
              practitioners' reports .... Costs are to be assessed at the 
 
              discretion of the deputy commissioner or industrial 
 
              commissioner hearing the case unless otherwise required by 
 
              the rules of civil procedure governing discovery.
 
         
 
              Section 622.72 (Code, 1987) states:
 
         
 
                   Witnesses called to testify only to an opinion founded 
 
              on special study or experience in any branch of science, or 
 
              to make scientific or professional examinations and state 
 
              the result thereof, shall receive additional compensation, 
 
              to be fixed by the court, with reference to the value of the 
 
              time employed and the degree of learning or skill required; 
 
              but such additional compensation shall not exceed one 
 
              hundred fifty dollars per day while so employed.
 

 
         
 
         
 
         
 
         
 
         JOHNSON V. YOUNKERS DEPARTMENT STORE
 
         Page   6
 
         
 
         
 
         
 
                                        
 
                                     ANALYSIS
 
         
 
              Claimant alleges a change of condition since the original 
 
         review-reopening decision of November 10, 1982.  The record 
 
         contains the testimony of Dr. Summers, which indicates claimant's 
 
         medical condition at his examination in 1984 was basically 
 
         unchanged from the time of the prior hearing.  Claimant had 
 
         suffered some further loss of straight leg raising, but had 
 
         gained some ability in forward flexion.  Other aspects of 
 
         claimant's ability to lift, bend or stoop were unchanged.  It 
 
         should be noted that Dr. Summers was comparing his examination of 
 
         February 23, 1981, a point in time prior to the first 
 
         review-reopening decision, and his examination of August 23, 
 
         1984.  There is a gap of one year and nine months between Dr. 
 
         Summers' first examination and the point in time that the initial 
 
         determination of 33 1/3 percent disability was made.  There is no 
 
         evidence to show to what extent claimant's condition may have 
 
         worsened between Dr. Summers' February 23, 1981 examination and 
 
         the hearing on November 1, 1982.
 
         
 
              Claimant admitted that his pain is now confined to one leg 
 
         instead of both legs.  McCluhan testified that he observed no 
 
         worsening of claimant's ability to walk, bend or stoop.  Dr. 
 
         Summers offered no rating of impairment in either the original 
 
         review-reopening proceeding or in this proceeding.  Neither Dr. 
 
         Bunten or Dr. Carlstrom, the physicians who did assign claimant 
 
         ratings of impairment, were utilized in the second hearing.  
 
         There is no evidence to indicate that their ratings of impairment 
 
         have changed.  It is thus concluded that the record fails to show 
 
         that claimant has suffered a physical change in his condition 
 
         since the hearing on November 1, 1982.
 
         
 
              An increase in industrial disability may occur without a 
 
         change in physical condition.  The record shows claim ' ant has 
 
         been unable to obtain meaningful employment since the November 1, 
 
         1982 hearing.  A reduction in earning capacity can constitute a 
 
         change of condition.
 
         
 
              At the time of the original award of benefits, the 
 
         vocational counselor stated that he had difficulty finding a job 
 
         for claimant.  Claimant was seen as capable of performing work as 
 
         a custodian, parking attendant, or security guard.  At the second 
 
         hearing, the vocational counselor felt claimant could work as a 
 
         custodian, security guard, crossing guard, and possibly as a 
 
         parking attendant, laundry worker, cook, or dishwasher.
 
         
 
              At the time of the November 1, 1982 hearing, the vocational 
 
         counselor listed telephone solicitation as a possible job for 
 
         claimant.  However, claimant had been dismissed from a telephone 
 
         solicitation job just prior to that hearing.  At the time of the 
 
         second hearing, the vocational counselor no longer listed 
 
         telephone solicitation for claimant as a possible employment.  
 
         Other than this, the vocational counselor enumerated the same job 
 
         possibilities for claimant at the second hearing as were listed 
 
         at the first hearing, and additional job possibilities were 
 
         listed at the second hearing as well.  There is no evidence to 
 

 
         
 
         
 
         
 
         
 
         JOHNSON V. YOUNKERS DEPARTMENT STORE
 
         Page   7
 
         
 
         
 
         indicate that claimant has attempted any of the jobs listed at 
 
         the time of the first hearing and discovered he was unable to 
 
         perform them.  The only employment claimant has attempted since 
 
         the hearing of November 1, 1982 has been a job as a bartender, 
 
         which was not among the occupations recommended by the vocational 
 
         counselor at the November 1, 1982 hearing.  Claimant's employment 
 
         opportunities have not changed since the November 1, 1982 
 
         hearing.
 
         
 
              Claimant has failed to prove a nonphysical change of 
 
         condition since the November 1, 1982 hearing.
 
         
 
              Thus, all the factors that affect claimant's industrial 
 
         disability at the present time were present and contemplated at 
 
         the time of the November 1, 1982 hearing and award of benefits 
 
         and have not changed.  If the economic climate in which claimant 
 
         seeks employment has.worsened since the first hearing, it has 
 
         worsened for all job applicants as well, and does not constitute 
 
         a change of condition.  The finding of 33 1/3 percent industrial 
 
         disability at the first hearing shows that difficulty in finding 
 
         employment for claimant was contemplated in that decision.  The 
 
         mere fact that claimant has indeed been unable to find employment 
 
         since the first hearing is not a non-physical change of a 
 
         condition.
 
         
 
              Claimant alleges he is an odd-lot employee.  Since claimant 
 
         has failed to show a change of condition, the question of whether 
 
         claimant is an odd-lot employee is not a proper issue in this 
 
         case.  The extent of claimant's disability was determined in the 
 
         November 1, 1982 review-reopening decision and it cannot be 
 
         redetermined in this proceeding unless a change of condition is 
 
         shown.
 
         
 
              Even if claimant had shown a change of condition, the record 
 
         shows substantial work for claimant does exist in the job market. 
 
          The vocational counselor listed several jobs available to 
 
         claimant, and indicated claimant is employable and that a market 
 
         exists for his services.  Claimant himself stated he felt he was 
 
         capable of performing several jobs.  Claimant is not an odd-lot 
 
         employee.
 
         
 
              Claimant also seeks payment of certain medical bills 
 
         connected with his injury and surgery.  However, the record shows 
 
         that the bill from Iowa Methodist Hospital was paid by Blue 
 
         Cross/Blue Shield.  Claimant cannot seek payment from defendants 
 
         for his stated reason of avoiding a windfall to defendants.  
 
         Claimant cannot be awarded medical expenses unless he has paid 
 
         them himself.  Defendants are responsible for any expenses of 
 
         
 
         Central Iowa Medical and Dr. Bunten not covered by Blue 
 
         Cross/Blue Shield and paid by claimant.
 
         
 
              Claimant seeks payment by defendants for the services of 
 
         Roger Marquardt, a vocational expert claimant consulted but did 
 
         not use at the hearing.  Claimant argues that defendants' alleged 
 
         delaying tactics necessitated these costs.  Defendants argued 
 
         that the fee is in excess of section 622.72, The Code.  Division 
 
         of Industrial Services Rule 4.33 allows the assessment of costs 
 

 
         
 
         
 
         
 
         
 
         JOHNSON V. YOUNKERS DEPARTMENT STORE
 
         Page   8
 
         
 
         
 
         of witness fees and expenses as provided by Iowa Code sections 
 
         622.69 and 622.72, to be assessed at the discretion of the 
 
         commissioner.  Section 622.72 limits said compensation to $150 
 
         per day.  Claimant seeks payment of $420.90 in payment for 
 
         Marquardt.  Claimant indicates that Marquardt was hired just 
 
         prior to the hearing because defendants' vocational witness, 
 
         McCluhan, was not utilized by defendants until late in the 
 
         proceedings.  Marquardt was not used by claimant as a witness due 
 
         to a scheduling conflict.  Claimant could have moved for time to 
 
         depose McCluhan to ascertain the need to employ Marquardt as a 
 
         rebuttal witness.  The undersigned has not seen any authority for 
 
         imposing a witness fee for someone who in fact is not used as a 
 
         witness.  Defendants are not responsible for the fees of Roger 
 
         Marquardt.
 
         
 
              Defendants, on cross-appeal, object to being required to pay 
 
         the fees of Dr. Summers as he was not the treating physician and 
 
         his services were not authorized by defendants.  In addition, 
 
         part of Dr. Summers' fees involved consultation with claimant's 
 
         attorney in preparation for hearing, and the amounts involved 
 
         exceed the limits contained in section 622.72, The Code.  
 
         Claimant has not addressed this issue in a reply brief.  As the 
 
         services of Dr. Summers do not appear to have been authorized, 
 
         defendants are not responsible for the fees of Dr. Summers.
 
         
 
              Claimant further seeks a reversal of the deputy's ruling not 
 
         to close the record to defendants because of alleged misconduct. 
 
          The record shows that defendants did arrange for the presence of 
 
         witness Liz Stelzer for her deposition.  Although claimant 
 
         alleges that the scheduling of the deposition did not provide 
 
         adequate time for claimant to prepare, that defendants did not 
 
         cooperate in making this witness available, and that the witness 
 
         did not bring proper records with her to the deposition, no 
 
         requests for a continuance pursuant to Division of Industrial 
 
         Services Rule 4.23 was made by claimant for the stated reason 
 
         that the hearing had already been continued before and claimant 
 
         wished to avoid further delay.  Defendants did provide the 
 
         witness for a deposition.  Rule of Civil Procedure 147(a), relied 
 
         upon by claimant, does not provide for the sanction of closing 
 
         the record to one of the parties.  The deputy's refusal to close 
 
         the record was proper.
 
         
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Claimant was awarded workers' compensation benefits 
 
         based on 33 1/3 percent industrial disability as the result of a 
 
         hearing on November 1, 1982.
 
         
 
              2.  Claimant's physical condition has not significantly 
 
         changed since November 1, 1982.
 
         
 
              3.  Claimant has not received a revised rating of impairment 
 
         subsequent to November 1, 1982.
 
         
 
              4.  Claimant has not experienced a nonphysical change of 
 
         condition since November 10, 1982.
 
         
 

 
         
 
         
 
         
 
         
 
         JOHNSON V. YOUNKERS DEPARTMENT STORE
 
         Page   9
 
         
 
         
 
              5.  The number and type of jobs claimant can perform has not 
 
         changed since November 1, 1982.
 
         
 
              6.  A market for services claimant can perform does exist, 
 
         and claimant is capable of performing jobs that exist in the job 
 
         market.
 
         
 
              7.  Claimant is not an odd-lot employee.
 
         
 
              8.  Claimant's medical bills from Iowa Methodist Hospital 
 
         have been paid by Blue Cross/Blue Shield
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant has failed to establish a change of condition not 
 
         contemplated by the original award of benefits and is not 
 
         entitled to additional weekly disability benefits.
 
         
 
              Defendants are not required to pay to claimant medical bills 
 
         which he has not paid.
 
         
 
              Defendants are not required to pay to claimant the fees and 
 
         expenses of Roger Marquardt.
 
         
 

 
         
 
         
 
         
 
         
 
         JOHNSON V. YOUNKERS DEPARTMENT STORE
 
         Page  10
 
         
 
         
 
              Defendants are not required to pay to claimant the fees and 
 
         expenses of Dr. Summers.
 
         
 
              The deputy industrial commissioner did not err in refusing 
 
         to close the record to defendants' evidence.
 
         
 
              WHEREFORE, the decision of the deputy is reversed in part 
 
         and modified in part.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That claimant shall take no weekly disability benefits from 
 
         this proceeding.
 
         
 
              That claimant shall pay the costs of this action.
 
         
 
         
 
              Signed and filed this 20th day of May, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                                   DAVID E. LINQUIST
 
                                                   INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Steven L. Udelhofen
 
         Attorney at Law
 
         1000 Des Moines Building
 
         Des Moines, Iowa 50309
 
         
 
         Mr. David D. Drake
 
         Attorney at Law
 
         West Towers Office
 
         1200 35th Street, Suite 500
 
         Des Moines, Iowa 50302
 
         
 
         Mr. R. Todd Gaffney
 
         Attorney at Law
 
         4th Floor Equitable Bldg.
 
         Des Moines, Iowa 50309
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                   2501; 4100; 2905;
 
                                                   2906; 3700; 2700
 
                                                   Filed May 20, 1988 
 
                                                   David E. Linquist
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         THOMAS C. JOHNSON,
 
         
 
              Claimant,
 
                                                       File No. 684104 
 
         VS.
 
         
 
         YOUNKERS DEPARTMENT STORE,                      A P P E A L
 
         
 
              Employer,                                D E C I S I 0 N
 
         
 
         and
 
         
 
         AETNA LIFE & CASUALTY,
 
         
 
             Insurance Carrier,
 
             Defendants.
 
         
 
         
 
         
 
         2501
 
         
 
              Defendants were found not responsible for payment of medical 
 
         bills already paid by claimant's insurance carrier.  Claimant 
 
         sought to prevent "windfall" to defendants.  Held that claimant's 
 
         medical insurance carrier was entitled to pursue subrogation, but 
 
         claimant could not pursue subrogation for his medical insurance 
 
         carrier in a workers' compensation action.
 
         
 
         4100
 
         
 
              Odd-lot question was not reached in that claimant had failed 
 
         to show a change of condition.  However, claimant would not have 
 
         been odd-lot in any event as the record showed work consistent 
 
         with his disability was available to claimant in the job market.
 
         
 
         2905
 
         
 
              Claimant failed to show a physical or non-physical change of 
 
         conditions.  The medical evidence did not show a different rating 
 
         of impairment or other indication of a change in claimant's 
 
         physical condition.  The number and type of jobs available to 
 
         claimant had not significantly changed since the original award 
 
         of benefits.
 
         
 
         2906; 3700; 2700
 
         
 
              Defendants held not liable for the fees of a vocational 
 
                                                
 
                                                         
 
         rehabilitation counselor consulted by claimant in anticipation of 
 
         hearing but not called as a witness.  Defendants held not liable 
 
         for fees of physician who was not treating physician, who was not 
 
         authorized, whose fees were in part in preparation for the 
 
         hearing, and whose fees exceeded the limits in Iowa Code section 
 
         622.72.  Approved ruling of deputy declining to close the record 
 
         to defendants because of deposition scheduling difficulties, 
 
         where deposition was eventually held and no request for a 
 
         continuance of hearing was made by the claimant.
 
 
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JOSEPH ALLEN HARPER,
 
         
 
              Claimant,
 
                                                   File No. 685546
 
         vs.
 
         
 
         CARRIER CORPORATION,                   A R B I T R A T I 0 N
 
         
 
              Employer,                            D E C I S I 0 N
 
         
 
         and                                          F I L E D
 
         
 
         LIBERTY MUTUAL,                             MAR 28 1988
 
         
 
              Insurance Carrier,              IOWA INDUSTRIAL COMMISSIONER
 
              Defendants.
 
         
 
         
 
                               STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Joseph Allen 
 
         Harper, claimant, against Carrier Corporation, employer, and 
 
         Liberty Mutual Insurance Company, insurance carrier, to recover 
 
         benefits under the Iowa Workers' Compensation Act as a result of 
 
         an injury sustained October 15, 1981.  This matter came on for 
 
         hearing before the undersigned deputy industrial commissioner 
 
         January 12, 1988.  The record was considered fully submitted at 
 
         the close of the hearing.  The record in this case consists of 
 
         the testimony of the claimant, and joint exhibits 1 through 12, 
 
         inclusive.
 
         
 
                                      ISSUES
 
         
 
              Pursuant to the prehearing report and order submitted and 
 
         approved January 12, 1988, the following issues are presented for 
 
         determination:
 
         
 
              1.  Whether claimant's work injury of October 15, 1981 is 
 
         causally connected to the disability on which claimant now bases 
 
         his claim;
 
         
 
              2.  The extent of claimant's entitlement, if any, to 
 
         temporary total disability/healing period benefits;
 
         
 
              3.  The extent of claimant's entitlement, if any, to 
 
         permanent partial disability benefits stipulated to be an 
 
         industrial disability; and
 
         
 
              4.  The appropriateness of certain medical expenses pursuant 
 
         to Iowa Code section 85.27.
 
         
 
                                                
 
                                                         
 
              It should be noted at the outset that at the time claimant 
 
         filed his original notice and petition, he alleged an injury date 
 
         of October 1, 1981 and certain records refer to that date. 
 
         However, the parties have stipulated that claimant sustained his 
 
         injury on or about October 15, 1981.
 
         
 
                               FACTS PRESENTED
 
         
 
              Claimant began working for defendant employer in 1979 and, 
 
         prior to sustaining the injury under review, sustained two other 
 
         injuries which affected his back.  In June 1979, claimant fell 
 
         after catching his leg between a loading dock and a truck bumper 
 
         twisting his back and right knee.  Claimant brought an action for 
 
         benefits (industrial commissioner file number 602160) which was 
 
         settled pursuant to Iowa Code section 85.35.  On May 5, 1981, 
 
         claimant felt a sharp pain in his back while reaching inside a 
 
         compressor to remove a screw.  Claimant again brought an action 
 
         (industrial commissioner file number 672305) which, according to 
 
         testimony, was dismissed.
 
         
 
              Claimant sustained an injury arising out of and in the 
 
         course of his employment on October 15, 1981 while installing a 
 
         compressor.  Claimant explained that while hoisting the 
 
         compressor, he felt his back tighten "severely" with pain going 
 
         down his left leg which was a sensation claimant did not feel he 
 
         had experienced in any of his previous injuries.  Claimant, who 
 
         was being treated as a result of the previous injuries, returned 
 
         to see the doctor and was off work until February 1, 1982. 
 
         Claimant explained he was still experiencing back pain but 
 
         returned to his regular job because he had been told by his 
 
         physician that nothing more could be done for his back.  Claimant 
 
         continued to work until his discharge for unsatisfactory job 
 
         performance on August 23, 1982.  Claimant testified he was 
 
         thereafter assigned to a series of jobs out of the union hall 
 
         which usually ended in what might be considered a "reduction in 
 
         force discharge" because of his inability to keep up with the 
 
         work.
 
         
 
              Claimant testified his leg pain was getting worse as time 
 
         progressed and when he asked his family doctor for some 
 
         medication for it, was referred to Scott B. Neff, D.O.  After 
 
         examination by Dr. Neff, testing and consultation with other 
 
         physicians, claimant underwent surgical procedures performed by 
 
         Dr. Neff and explained he could not work from February 1985 until 
 
         his release to return to work April 7, 1987 with the permanent 
 
         restrictions of no lifting, pushing or pulling.  Claimant 
 
         explained he began working in June 1987 for a former supervisor 
 
         who agreed to work around his medical restrictions and physical 
 
         limitations by providing claimant with an assistant who would do 
 
         the heavy work.  Claimant currently earns approximately $19.00 
 
         per hour but asserted the tenuous nature of the employment since 
 
         the company is currently in Chapter 11 bankruptcy.
 
         
 
              Claimant testified he has learned to "live with" his back 
 
         pain although he admitted the pain is not as severe as before the 
 
                                                
 
                                                         
 
         surgeries.  Claimant explained he has pain and stiffness in his 
 
         hip where bone fragment was removed in one of the surgical 
 
         procedures.  Claimant is able to drive, feels he cannot walk "too 
 
         far" because of tightening in his hip and must remember to stand 
 
         and sit "properly."  Claimant opined he is not employable within 
 
         his regular trade as a steamfitter/pipefitter because he cannot 
 
         do the heavy work required and must depend on a helper which the 
 
         employer is not, in the claimant's opinion, generally willing to 
 
         provide.
 
         
 
              Sinesio Misol, M.D., testifying in July of 1982 after 
 
         claimant commenced the action due to the June 1979 injury, stated 
 
         he first examined claimant on October 24, 1980 when Dr. Robinow, 
 
         who had been treating claimant, was no longer available.  Dr. 
 
         Misol saw claimant immediately after his injury on May 5, 1981 
 
         and, when asked where claimant's pain was coming from at that 
 
         time, stated:
 
         
 
              And that I had answered already when we said a few seconds 
 
              ago that he had no radiation of pain, that the pain was in 
 
              the back and in the lumbosacral area, so the back, the 
 
              lumbosacral area, is the lower part of the back, so that's 
 
              where the pain was coming from.
 
         
 
         (Joint Exhibit 9, pp. 13-14)
 
         
 
              Dr. Misol, aware of all three incidents (June of 1979, May 
 
         of 1981, and October of 1981) at the time he made the 
 
         determination claimant had a permanent and physical impairment of 
 
         10 percent, testified:
 
         
 
              Q.  And would I be correct in understanding you that to some 
 
              extent that permanent impairment that you described for him 
 
              would be attributed to the incidents of May 6th of 1981 and 
 
              October 29th of 1981?
 
         
 
              A.  I don't think I said that anywhere.  Correct me if I'm 
 
              wrong.  I, myself, I find myself unable to ascribe a 
 
              percentage of a physical impairment to specific incidents of 
 
              history.  All the best that I can do is to talk to a 
 
              patient, listen to how much pain he or she has, examine the 
 
              spine and the nerves, realize that it is not normal when 
 
              compared to normal, and try to give it a figure, but I 
 
              cannot tell you or anybody whether that ten percent comes 
 
              from February of 1980 or July of '81 or from before or after 
 
              that because I cannot do it.
 
         
 
         (Jt. Ex. 9, pp. 28-29)
 
         
 
              Medical records of Scott B. Neff, D.O., show claimant was 
 
         seen February 4, 1985 with complaints of pain in the low back at 
 
         the left posterior superior iliac spine radiating down the left 
 
         leg.  A CT scan was ordered which revealed a large herniated disc 
 
         to the left side at L5-S1 and a bulging disc at the L4-L5 level. 
 
         Dr. Neff concluded that based on claimant's history, the ruptured 
 
                                                
 
                                                         
 
         disc was related to the previous trauma to claimant's back 
 
         although he did not specify at that time the trauma to which he 
 
         was referring.  On May 28, 1985, claimant underwent extensive 
 
         discectomy with neuroforaminotomy after which claimant did well 
 
         for about six weeks until his symptoms in the left leg began to 
 
         recur.  Claimant was referred to William Boulden, M.D., for a 
 
         second opinion who found claimant to have a "tremendous amount of 
 
         epidural fibrosis" with "significant foraminal stenosis," either 
 
         or both of which could cause claimant's symptoms.  Dr. Boulden 
 
         recommended trigger point injections suggesting claimant may have 
 
         to have further decompression, fusion, and discograms at 3-4 and 
 
         4-5 to make sure there are no other abnormalities with the discs. 
 
         Claimant thereafter returned to Dr. Neff's care and discograms 
 
         were done October 11, 1985 which were totally normal at L3-L4 
 
         level and reproduced severe back pain at L4-L5 level.  Dr. Neff, 
 
         before recommending anterior interbody fusion and posterior 
 
         stabilization, referred claimant to Kent Patrick, M.D., for 
 
         another opinion.  Dr. Patrick concurred with Dr. Neff's opinion 
 
         and claimant subsequently underwent lumbar fusion from L4 through 
 
         the sacrum because of persistent pain.
 
         
 
              On November 7, 1985, Dr. Neff wrote:  "It is my opinion that 
 
         the recommended fusion in his lumbar spine is directly related to 
 
         his work injury of October 1, 1981, and is not a new injury, but 
 
         the continuum from that incident."  (Jt. Ex. 1, p. 7)
 
 
 
                               
 
                                                         
 
         
 
              Dr. Neff's final opinion was rendered April 8, 1987 and 
 
         stated:
 
         
 
                   Certainly this is a difficult historical situation, and 
 
              it is my opinion that the fusion which was required for his 
 
              lumbar spine was directly related to his work injury of 
 
              1981, and this did not result from a totally new injury, but 
 
              it continued a worsening process which occurred since that 
 
              injury of 1981.  Certainly there is no way to know the exact 
 
              date that the disc above the bottom disc began to break 
 
              down, but obviously both of these discs were subject to the 
 
              trauma at the time of injury. when it continued to 
 
              degenerate or break down further, then one was probably 
 
              ruptured on the very date of the injury.
 
         
 
                   ....
 
         
 
                   It is my opinion that this patient has a 25% impairment 
 
              to the body as a whole as a result of this injury and the 
 
              resultant surgery.
 
         
 
                   ....
 
         
 
                   At this time I believe we should end his healing period 
 
              because the last x-rays that were taken showed the bone 
 
              fusion to be substantially complete.
 
         
 
              ...Certainly he will never be totally without symptoms, and 
 
              that is the reason for unimpairment [sic] rating.
 
         
 
         (Jt. Ex. 1, pp. 1-2)
 
         
 
                                  APPLICABLE LAW
 
         
 
              An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
         employment.  Section 85.3(1).
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of October 1, 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).  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, 60-761 
 
         (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).
 
         
 
              Iowa Code section 85.34(1) provides that if an employee has 
 
         suffered a personal injury causing permanent partial disability, 
 
         the employer shall pay compensation for a healing period from the 
 
         day of the injury until (1) the employee returns to work; or (2) 
 
         it is medically indicated that significant improvement from the 
 
         injury is not anticipated; or (3) until the employee is medically 
 
         capable of returning to substantially similar employment.
 
         
 
              Iowa Code section 85.34(2) provides that compensation for 
 
         permanent partial disability shall begin at the termination of 
 
         the healing period.  Iowa Code section 85.34(2)(u) provides that 
 
         compensation for a nonscheduled or body as a whole injury shall 
 
         be paid in relation to 500 weeks that the disability bears to the 
 
         body as a whole.
 
         
 
              Iowa Code section 85.27 provides, in part:
 
         
 
                   The employer, for all injuries compensable under this 
 
              chapter or chapter 85A, shall furnish reasonable surgical, 
 
              medical, dental, osteopathic, chiropractic, podiatric, 
 
              physical rehabilitation, nursing, ambulance and hospital 
 
              services and supplies therefor and shall allow reasonably 
 
              necessary transportation expenses incurred for such 
 
              services.
 
         
 
                                   ANALYSIS
 
         
 
              The essential question for determination is whether 
 
         claimant's injury of October 15, 1981 is causally connected to 
 
         the disability on which claimant now bases his claim.  Certainly, 
 
         claimant presents a difficult historical situation.  There is no 
 
         dispute claimant suffered from degenerative disc disease and that 
 
         he injured his back originally in 1979 after which he never was 
 
         completely symptom-free.  Claimant asserts, however, that the 
 
         injury of October 15, 1981 caused additional permanent impairment 
 
         to that which existed prior.  To justify an award of benefits, 
 
         claimant must establish that the injury of October 1981 and not 
 
                                                
 
                                                         
 
         the previous injuries, was the proximate of the surgery and 
 
         subsequent additional disability.  As stated above, the question 
 
         of causal connection is essentially within the domain of expert 
 
         testimony.
 
         
 
              Two medical experts have presented opinions in this case. 
 
         Dr. Misol testified after claimant sustained all three injuries 
 
         but before the discovery of the problems which eventually led to 
 
         the surgery.  Dr. Misol stated essentially that he is unable to 
 
         determine which injury caused the rating of a 10 percent 
 
         permanent partial impairment.  Dr. Misol began treating claimant 
 
         in approximately December of 1980, after Dr. Robinow was no 
 
         longer available.  Medical records of Dr. Robinow have not been 
 
         submitted into evidence and Dr. Misol's records do not reflect 
 
         claimant had a CT scan which was what assisted Dr. Neff in 
 
         arriving at his ultimate diagnosis of herniated nucleus pulposus 
 
         or ruptured disc at the L5-S1 level with a bulging disc at the 
 
         L4-5 level, manifestation of internal disc disruption.  Dr. Neff 
 
         relates claimant's surgeries to the October 1981 injury although 
 
         he acknowledged there is no way to know the exact date the disc 
 
         began to break down.  It must be obvious, however, that even if 
 
         both discs were damaged before the incident of October 1981, 
 
         they were also subject to the trauma of that date.  There is no 
 
         evidence to suggest claimant suffered any further trauma to his 
 
         back after this October 1981 injury and, whereas prior to this 
 
         injury claimant had been capable of returning to work in his 
 
         regular job and capable of performing that job, the same is not 
 
         true after the October 1981 injury.  Claimant's testimony is 
 
         uncontroverted in that when he returned to work in February 
 
         1982, he simply was not performing the job in the same manner as 
 
         he had done before.  Claimant distinguished the previous 
 
         injuries from that which occurred in October 1981 by the amount 
 
         and intensity of pain he had in his back which radiated down his 
 
         left leg. Indeed, it was this radiating pain which precipitated 
 
         the referral to Dr. Neff.  It is concluded the opinion of Dr. 
 
         Neff, as the treating physician and as the last physician to see 
 
         claimant when all of the facets of claimant's injury may have 
 
         been made more evident, who appeared to do more testing and who 
 
         had the advantage of hindsight, is entitled to greater weight. 
 
         Therefore, this opinion, coupled with claimant's testimony 
 
         concerning the nature of the October 1981 injury and the course 
 
         of his physical condition after that injury, allows claimant to 
 
         meet his burden that the injury of October 1981 is causally 
 
         connected to the disability on which he now bases his claim.
 
         
 
              Dr. Misol, in July 1982, rated claimant 10 percent 
 
         permanently partially impaired without distinguishing 
 
         specifically what injury gave rise to this impairment rating.  It 
 
         cannot, however, be the subject of dispute that prior to the 
 
         injury of October 1981 claimant had already suffered some 
 
         permanent impairment.  Dr. Neff opines claimant has a 25 percent 
 
         impairment to the body as a whole as a result of the October 1981 
 
         injury and the resultant surgery.
 
         
 
              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 by a medical 
 
         evaluator does not equate to industrial disability.  This is so 
 
         as impairment and disability are not synonymous.  The 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.
 
         
 
              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 to draw upon prior 
 
         experience, general and specialized knowledge to make the finding 
 
         with regard to degree of industrial disability.  See Christensen 
 
         v. Hagen, Inc., (Appeal Decision, March 26, 1985); Peterson v. 
 
         Truck Haven Cafe, Inc., (Appeal Decision, February 28, 1985).
 
         
 
              Claimant is 41 years old with a high school education and 
 
         appears to be of above average intelligence with a good 
 
         motivation to work.  He not only has training as a 
 
         plumber/steamfitter but has also been trained to work with 
 
         centrifugal and absorption machines, a field claimant decided to 
 
         enter because of the limited number of qualified persons who 
 
         worked in the field.  Claimant, although he may no longer be able 
 
         to perform the heavy type of labor associated with his trade, 
 
         clearly has not lost the knowledge garnered from his years of 
 
         experience and training in these fields.  Indeed, claimant's 
 
         present employer hired claimant for that very reason.  Claimant 
 
         is currently employed at a rate of pay commensurate to what he 
 
         was receiving at the time of his injury.  Although claimant 
 
         stresses the tenuous nature of this employment because of the 
 
         financial situation of the company, it is claimant's present 
 
         status which must be evaluated.  To consider what may happen to 
 
         claimant in the future is pure speculation and not a proper area 
 
         of inquiry in this proceeding.  See Umphress v. Armstrong Rubber 
 
         Company, Appeal Decision filed August 27, 1987. ("It 
 
         appears...that the deputy based his decision in part on what may 
 
         occur to claimant in the future as opposed to his present 
 
         condition.  This is mere speculation.")  It is not, however, an 
 
         individual's earnings which are necessarily of major importance 
 
         in the evaluation of industrial disability but rather the loss or 
 
         reduction of an individual's earning capacity which must be 
 
         reviewed.  It is evident from claimant's testimony, as well as 
 
         the permanent medical restrictions imposed on him, that 
 
         claimant's capacity to earn has been hampered as a result of his 
 
         injury. Considering then all the elements of industrial 
 
         disability, it is determined claimant has a permanent partial 
 
         disability of 25 percent for industrial purposes.  However, the 
 
         employer asserts, with which the claimant does not take issue, 
 
         claimant had an industrial disability of eight percent at the 
 
         time of his settlement on the injury of June 1979.  No disability 
 
         attributable to the May 1981 injury has been shown.  Therefore, 
 
         it is determined eight percent of claimant's 25 percent 
 
         disability is attributable to his previous injury and defendants 
 
         are liable in this case for permanent partial disability benefits 
 
                                                
 
                                                         
 
         based upon a 17 percent industrial disability.
 
         
 
              While defendants dispute that the care given by claimant's 
 
         family doctor and Dr. Neff was not authorized, the record clearly 
 
         establishes defendants denied the compensability of claimant's 
 
         claim.  Claimant's original notice and petition for benefits was 
 
         filed March 6, 1985.  In the answer filed March 12, 1985, 
 
         defendants denied the injury date, how the injury occurred, the 
 
         time disabled, and that claimant sustained any permanent partial 
 
         disability as a result of the injury.  It is a well established 
 
         principle of workers' compensation law in Iowa that an employer 
 
         or insurance carrier cannot deny the compensability of the claim 
 
         and at the same time control the medical care.  Further, 
 
         defendants cannot take advantage of the benefits of surgery while 
 
         disputing its authorization particularly where unauthorized 
 
         treatment improved the employee's condition and ultimately may 
 
         mitigate the employer's liability.  Claimant has established the 
 
         medical care received was reasonable and necessary for the 
 
         treatment of the October 1981 injury.  Claimant is, therefore, 
 
         entitled to the medical expenses incurred and for healing period 
 
         benefits for the stipulated period from February 4, 1985 through 
 
         April 7, 1987.
 
         
 
                             FINDINGS OF FACT
 
         
 
              Wherefore, based on the all of the evidence presented, the 
 
         following facts are found:
 
         
 
              1.  Claimant sustained an injury to his back in June 1979.
 
         
 
              2.  As a result of the June 1979 injury, claimant had an 
 
         industrial disability of eight percent.
 
         
 
              3.  Claimant sustained an injury in May 1981, to which no 
 
         disability has been attributed.
 
         
 
              4.  Claimant sustained an injury to his back which arose out 
 
         of and in the course of his employment October 15, 1981.
 
         
 
              5.  Claimant was off work as a result of his injury from 
 
         October 15 until February 1, 1982.
 
         
 
              6.  When claimant returned to work, he was unable to perform 
 
         his job with the same degree of efficiency as before the injury.
 
         
 
              7.  Claimant was discharged from his employment with 
 
         defendant employer in August 1982 for unsatisfactory job 
 
         performance.
 
         
 
              8.  From August 1982 until February 1985, claimant held a 
 
         series of short term jobs secured through the union hall all of 
 
         which resulted in a "reduction in force discharge."
 
         
 
              9.  In early 1985, claimant was referred to Scott D. Neff, 
 
         D.O., by his family doctor for treatment of leg pain radiating 
 
                                                
 
                                                         
 
         from the back.
 
         
 
              10.  Dr. Neff diagnosed claimant as having a herniated 
 
         nucleus pulposus or ruptured disc at the L5-S1 level with a 
 
         bulging disc at the L4-5 level manifestation of internal disc 
 
         disruption.
 
         
 
              11.  Claimant underwent discectomy and neuroforaminotomy and 
 
         then a lumbar fusion from L4 through the sacrum because of 
 
         persistent pain.
 
         
 
              12.  Claimant's surgery was causally connected to his work 
 
         injury of October 15, 1981.
 
         
 
              13.  Claimant has a permanent partial impairment as a result 
 
         of the work injury of October 15, 1981.
 
         
 
              14.  Claimant was unable to work from February 4, 1985 
 
         through April 7, 1987 as a result of the reasonable and necessary 
 
         treatment he received for the October 15, 1981 work injury.
 
         
 
              15.  Claimant has an industrial disability of 25 percent, 
 
         eight percent of which is attributable to a previous injury.
 
         
 
                            CONCLUSIONS OF LAW
 
         
 
              Wherefore, based on the principles of law previously stated, 
 
         the following conclusions of law are made:
 
         
 
              1.  Claimant has established that a portion of the 
 
         disability on which he bases his claim is causally connected to 
 
         his work injury of October 15, 1981.
 
         
 
              2.  Claimant has established his entitlement to healing 
 
         period benefits for the period from February 4, 1985 through 
 
         April 7, 1985.
 
         
 
              3.  Claimant has established he has an industrial disability 
 
         of 25 percent, eight percent of which is attributable to a 
 
         previous injury.
 
         
 
              4.  Claimant has established his entitlement to medical 
 
         expenses under Iowa Code section 85.27.
 
         
 
                                     ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              That defendants are to pay unto claimant eighty-five (85) 
 
         weeks of permanent partial disability at the stipulated rate of 
 
         three hundred sixty-four and 15/100 dollars ($364.15) per week 
 
         commencing April 8, 1987.
 
         
 
              That defendants are to pay unto claimant one hundred 
 
         thirteen point two eight six (113.286) weeks of healing period 
 
                                                
 
                                                         
 
         benefits at the stipulated rate of three hundred sixty-four and 
 
         15/100 dollars ($364.15) for the period from February 4, 1985 
 
         through April 7, 1987.
 
         
 
              That defendants are to pay all disputed medical expenses.
 
         
 
              That defendants shall receive full credit for all disability 
 
         benefits previously paid.
 
         
 
              That payments which have accrued shall be paid in a lump sum 
 
         together with statutory interest thereon pursuant to Iowa Code 
 
         section 85.30.
 
         
 
              That a claim activity report shall be filed upon payment of 
 
         this award.
 
         
 
              That costs of this action are assessed against defendants 
 
         pursuant to Division of Industrial Services Rule 343-4.33.
 
         
 
              Signed and filed this 28th day of March, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            DEBORAH A. DUBIK
 
                                            DEPUTY INDUSTRIAL 
 
                                            COMMISSIONER
 
         
 
         Copies to:
 
         
 
         Mr. David D. Drake
 
                            
 
                                                         
 
         Attorney at Law
 
         West Towers Office Complex
 
         1200 35th Street, Suite 500
 
         West Des Moines, Iowa  50265
 
         
 
         Mr. W. C. Hoffmann
 
         Attorney at Law
 
         1000 Des Moines Building
 
         Des Moines, Iowa  50309
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            1402.40; 1803; 1806
 
                                            Filed March 28, 1988
 
                                            Deborah A. Dubik
 
         
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JOSEPH ALLEN HARPER,
 
         
 
              Claimant,
 
                                                      File No. 685546
 
         vs.
 
         
 
         CARRIER CORPORATION,                       A R B I T R A T I 0 N
 
         
 
              Employer,                                D E C I S I 0 N
 
         
 
         and
 
         
 
         LIBERTY MUTUAL,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1402.40
 
         
 
              Prior to sustaining the injury under review, claimant 
 
         sustained two other injuries (not under review) which affected 
 
         his back.  Two medical experts testified in the matter:  one 
 
         could not specify which of the three injuries gave rise to the 
 
         10% permanent partial impairment rating; one opined the injury 
 
         under review gave rise to the surgery and 25% permanent partial 
 
         impairment.  Based on this last medical opinion, taken in 
 
         conjunction with claimant's testimony that after the other 
 
         injuries he was also able to return to work and after this injury 
 
         he could never perform his job as a plumber/steamfitter the same, 
 
         held claimant met his burden that the injury under review was the 
 
         cause of the disability on which he now based his claim.
 
         
 
         1803
 
         
 
              Claimant, 41, high school graduate, of above average 
 
         intelligence, with good motivation, who has experience as a 
 
         plumber/steamfitter, and in the area of centrifugal and aborption 
 
         machines, who may no longer be able to perform the heavy labor 
 
         involved in those areas, still had the experience and training 
 
         from his years of work.  Claimant currently employed in the field 
 
         at a rate of pay commensurate with that which he was making at 
 
         the time of his injury.  Claimant's request to consider the 
 
         tenuous nature of the employment (current employer in bankruptcy 
 
         proceedings) rejected based on Umphress.  Claimant found to have 
 
         a 25% industrial disability.
 
         
 
         1806
 
                                                
 
                                                         
 
         
 
              There was no dispute claimant already suffered some 
 
         permanent disability as a result of previous work injuries.  Held 
 
         8% of the 25% industrial disability from the previous injuries 
 
         making this defendant liable for an industrial disability of 
 
         17%.