BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         LEWIS A. MERRITT,
 
         
 
              Claimant,
 
                                                    File No. 705825
 
         vs.
 
                                                       A P P E A L
 
         QUAKER OATS COMPANY,
 
                                                     D E C I S I O N
 
              Employer,
 
                                                        F I L E D
 
         and
 
                                                       APR 28 1989
 
         IOWA INSURANCE GUARANTY,
 
         ASSOCIATION,                          IOWA INDUSTRIAL 
 
         COMMISSIONER
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Claimant appeals from a review-reopening decision denying 
 
         further permanent partial disability benefits as the result of an 
 
         alleged injury on June 18, 1982.
 
         
 
              The record on appeal consists of the transcript of the 
 
         review-reopening proceeding; joint exhibits A, B, C, and 1 
 
         through 6; claimant's exhibit D; and defendants' exhibits 7 and 
 
         8.  Both parties filed briefs on appeal.
 
         
 
                                    ISSUES
 
         
 
              Claimant states the following issue on appeal:
 
         
 
               I.  The deputy erred in apportioning the percentage of 
 
         disability.
 
         
 
              II.  The evidence supported a finding that Mr. Merritt 
 
         sustained an industrial disability greater than 10% to the body 
 
         as a whole.
 
         
 
                           REVIEW OF THE EVIDENCE
 
         
 
              The review-reopening decision adequately and accurately 
 
         reflects the pertinent evidence and it will not be set forth 
 
         herein.
 
         
 
                              APPLICABLE LAW
 
         
 
              The citations of law in the arbitration decision are 
 
         appropriate to the issues and the evidence.
 
                                                
 
                                                         
 
         
 
                                  ANALYSIS
 
         
 
              The analysis of the evidence in conjunction with the law is 
 
         adopted.
 
         
 
                               FINDINGS OF FACT
 
         
 
              1.  There is no evidence that the injury of June 18, 1982, 
 
         was the cause of claimant's injury, or resulting disability from 
 
         the injury, that occurred to claimant in the pump well at home on 
 
         December 25, 1983.
 
         
 
              2.  Albert R. Coates, M.D., determined that the injury of 
 
         June 18, 1982, was a cause of permanent disability to claimant's 
 
         left shoulder and left arm.
 
         
 
              3.  The injury to the left shoulder was an injury to both 
 
         sides of the shoulder capsule and therefore, was an injury to the 
 
         body as a whole.
 
         
 
              4.  The injury to the ulnar nerve was an injury to 
 
         claimant's left upper extremity because it affected only his 
 
         arm.
 
         
 
              5.  Dr. Coates stated that the carpal tunnel syndrome was 
 
         not causally connected to the injury of June 18, 1982.
 
         
 
              6.  Dr. Coates found that the injury of June 18, 1982, was 
 
         the cause of a permanent impairment of 20 percent of the left 
 
         upper extremity; ten percent of which was attributable to the 
 
         ulnar nerve and that less than ten percent was attributable to 
 
         the left shoulder.
 
         
 
              7. Claimant has sustained an industrial disability of ten 
 
         percent of the body as a whole which includes both his left arm 
 
         and left shoulder.
 
         
 
                             CONCLUSIONS OF LAW
 
         
 
              The injury of June 18, 1982, was not the cause of claimant's 
 
         injury on December 25, 1983, or the disability resulting from 
 
         it.
 
         
 
              Claimant is not entitled to temporary disability benefits 
 
         for the period from December 26, 1983 to October 12, 1984.
 
         
 
              The injury of June 18, 1982, was the cause of permanent 
 
         injury to claimant's left upper extremity and left shoulder.
 
         
 
              Claimant has sustained an industrial disability of ten 
 
         percent of the body as a whole taking into consideration both the 
 
         left shoulder and the ulnar nerve condition.
 
         
 
              Claimant is entitled to 50 weeks of permanent partial 
 
                                                
 
                                                         
 
         disability.
 
         
 
              The issue of whether defendants are entitled to a credit 
 
         under Iowa Code section 85.38(2) is moot.
 
         
 
              Claimant is not entitled to the costs of this action set out 
 
         in exhibit D.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That claimant take nothing from this proceeding because he 
 
         has already been paid fifty (50) weeks of permanent partial 
 
         disability benefits prior to hearing pursuant to the memorandum 
 
         of agreement.
 
         
 
              That the costs of this action are charged to claimant 
 
         pursuant to Division of Industrial Services Rule 343-4-33.
 
         
 
              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 28th day of April, 1989.
 
         
 
         
 
         
 
         
 
         
 
                                               DAVID E. LINQUIST
 
                                            INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Robert Rush
 
         Attorney at Law
 
         P.O. Box 2457
 
         Cedar Rapids, Iowa  52406
 
         
 
         Mr. James Shipman
 
         Ms. Carolyn Hinz
 
         Attorneys at Law
 
         1200 Merchants National Bank Bldg.
 
         Cedar Rapids, Iowa  52401
 
         
 
         
 
         
 
 
 
 
 
 
 
 
 
                                                
 
 
            
 
 
 
 
 
             
 
 
 
                                            51800
 
                                            Filed April 28, 1989
 
                                            DAVID E.LINQUIST
 
         
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         LEWIS A MERRITT,
 
         
 
              Claimant,
 
                                                    File No. 705825
 
         vs.
 
         
 
         QUAKER OATS COMPANY,                          A P P E A L
 
         
 
              Employer,
 
                                                    D E C I S I 0 N
 
         and
 
         
 
         IOWA INSURANCE GUARANTY,
 
         ASSOCIATION,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         51800
 
         
 
              Deputy's determination of 10 percent industrial disability 
 
         was affirmed on appeal.
 
         
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         LEWIS A. MERRITT,
 
         
 
              Claimant,
 
                                                   File No.  705825
 
         vs
 
                                                     R E V I E W-
 
         QUAKER OATS,
 
                                                  R E 0 P E N I N G
 
              Employer,
 
                                                   D E C I S I 0 N
 
         and
 
         
 
         IDEAL MUTUAL INSURANCE,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in review-reopening from a memorandum 
 
         of agreement.  This action was filed by Lewis A. Merritt, 
 
         claimant, against Quaker Oats, employer and Ideal Mutual 
 
         Insurance Company, insurance carrier, defendants, for benefits as 
 
         a result of an injury which occurred on June 18, 1982.  The 
 
         memorandum of agreement was filed on November 16, 1982 and 
 
         pursuant to it claimant has been paid $5,098.33 in medical 
 
         benefits, $8,275.92 in healing period benefits and $14,629.00 in 
 
         permanent partial disability benefits on the basis of a 20 
 
         percent disability of the left arm which amounted to 50 weeks of 
 
         permanent partial disability benefits.  A hearing was held in 
 
         Cedar Rapids, Iowa on June 23, 1987 and the case was fully 
 
         submitted at the close of the hearing.  The record consists of 
 
         joint exhibits A, B, C and 1 through 6; claimant's exhibit D; 
 
         defendants' exhibits 7 and 8; the testimony of Lewis A. Merritt 
 
         (claimant), Philip J. Stoos (claimant's co-worker), Dewey L. 
 
         Jacobson (claimant's co-worker), Betty Merritt (claimant's wife) 
 
         and Gayne A. Darrow (claimant's supervisor).  Both parties 
 
         submitted excellent briefs.
 
         
 
                                STIPULATIONS
 
         
 
              The parties stipulated to the following matters.
 
         
 
              That an employer-employee relationship existed between 
 
         claimant and employer at the time of the injury.
 
         
 
              That the claimant sustained an injury on June 18, 1982 which 
 
         arose out of and in the course of employment with employer.
 
         
 
              That the injury was the cause of temporary disability; that 
 
         claimant is entitled to temporary disability benefits from June 
 
         19, 1982 through January 2, 1983; that these benefits have been 
 
         paid; and that temporary disability for that period is no longer 
 
         an issue in dispute in this case.
 
         
 

 
         
 
         
 
         
 
         MERRITT V. QUAKER OATS
 
         Page   2
 
         
 
              That claimant's entitlement to additional temporary 
 
         disability benefits is disputed but the time off work for which 
 
         claimant now seeks additional temporary disability benefits is 
 
         stipulated to be from December 26, 1983 through October 12, 
 
         1984.
 
         
 
              That the weekly rate of compensation, in the event of an 
 
         award, is $292.58 per week.
 
         
 
              That claimant's entitlement to medical benefits under Iowa 
 
         Code section 85.27 and 85.39 is no longer in dispute.
 
         
 
              That defendants are entitled to a credit for 50 weeks of 
 
         permanent partial disability benefits paid prior to hearing at 
 
         the rate of $292.58 per week in the total amount of $14,629.00.
 
         
 
                                      ISSUES
 
         
 
              The parties submitted the following issues for determination 
 
         at the time of the hearing.
 
         
 
              Whether claimant is entitled to temporary disability 
 
         benefits for the period from December 26, 1983 through October 
 
         12, 1984.
 
         
 
              Whether the injury was the cause of any permanent 
 
         disability.
 
         
 
              Whether claimant is entitled to permanent disability 
 
         benefits, and if so, whether claimant is entitled to scheduled 
 
         member or industrial disability benefits.
 
         
 
              Whether defendants are entitled to a credit under Iowa Code 
 
         section 85.38(2) for $12,446.75 of income disability benefits 
 
         paid under an employee nonoccupational group health plan prior to 
 
         hearing for the period from December 26, 1983 through October 12, 
 
         1984.
 
         
 
              Whether claimant is entitled to certain costs set out in 
 
         claimant's exhibit D.
 
         
 
                             SUMMARY OF THE EVIDENCE
 
         
 
              There were numerous duplications in the exhibits introduced 
 
         into evidence because both parties introduced many of the same 
 
         documents.  Apparently, the parties made no attempt to comply 
 
         with paragraph 10(2) of the hearing assignment order to eliminate 
 
         this unnecessary duplication of exhibits.  Nevertheless, all of 
 
         the evidence was examined and considered.  The following is a
 
         
 
         summary of the pertinent evidence.
 
         
 
              Claimant was 55 years old at the time of his injury and 58 
 
         years old at the time of the hearing.  He grew up on a farm and 
 
         went to the tenth grade in high school.  He was in the Navy for 
 
         two years.  At sea, he ran the boiler.  On land, he repaired 
 
         small engines.  Past employments include machine shop work, 
 
         running a lathe and a drill press in the winter and working on 
 
         construction in the summer.  He drove a truck over the road for 
 
         three years.  He was a plumber for five years and then operated 
 

 
         
 
         
 
         
 
         MERRITT V. QUAKER OATS
 
         Page   3
 
         
 
         his own plumbing shop for ten years.  He started to work for 
 
         employer in 1970 as a pipefitter and continues to be employed 
 
         there as a pipefitter today.  He passed a preemployment physical 
 
         examination and testified that he had no shoulder problems when 
 
         he started to work for employer.
 
         
 
              Claimant stated that his job as a pipefitter requires a lot 
 
         of overhead work.  There are miles and miles of overhead pipe and 
 
         some 10,000 sprinklers.  His job is to keep this pipe system 
 
         functioning.  At the time of the injury he was installing a new 
 
         steam line in a tunnel.  He dislocated his left shoulder on June 
 
         18, 1982.  Claimant had dislocated this same shoulder four times 
 
         prior to this injury and twice after this injury.
 
         
 
              Claimant testified that his first shoulder dislocation 
 
         occurred at work in 1976.  He was working in the humidity room 
 
         standing on some sacks.  As he stepped off the sack a friend 
 
         called to him.  This distracted him, he missed his footing, fell 
 
         against the ladder, hit his shoulder and drove it out of its 
 
         socket.
 
         
 
              The medical report of John R. Walker, M.D., also records 
 
         that claimant injured his shoulder again on December 8, 1976 when 
 
         he was standing on a ladder loosening a pipe with a pipe wrench.  
 
         He lost his balance and fell from the ladder approximately 15 
 
         feet, landing on his heels and then falling to his left side, 
 
         striking his left shoulder (Exhibit A, Dr. Walker, page 1).
 
         
 
              Claimant further testified that in approximately January of 
 
         1981, while working at home, he reached down to pick up some 
 
         sheetrock and his shoulder dislocated again.  While his wife was 
 
         driving him to the hospital for emergency care they crossed some 
 
         railroad tracks.  Claimant was crunched down in the seat due to 
 
         pain and when the car struck the railroad tracks it popped his 
 
         left shoulder back into the socket and the pain quit.
 
         
 
              Claimant testified that in approximately April of 1982 he 
 
         was putting some plywood on a roof at home when he dislocated his 
 
         left shoulder again.  He was standing on the ground, his foot 
 
         slipped, and he fell against the house hitting his shoulder.
 
         
 
              Then on June 18, 1982 claimant was working on a ladder in a
 
         tunnel on a steam line putting hangers on the ceiling to hold an 
 
         eight inch pipe.  He reached through the pipes with his left arm, 
 
         his dominant arm, and put his wrench on a bolt.  As he began to 
 
         tighten the bolt, his left shoulder popped out again.  Dewey 
 
         Jacobson, a welder, and Philip Stoos, another pipefitter, were 
 
         working with him at this time.  He simply felt a sudden pain as 
 
         he reached through the pipes and began to tighten the bolt with 
 
         his wrench.  Jacobson and Stoos had to help him get down from the 
 
         ladder.  He saw the nurse who sent him to the emergency room at 
 
         St. Luke's Hospital where he was examined and treated.  Claimant 
 
         testified that they popped his arm back into the socket; however, 
 
         the records of Dr. Walker indicate as claimant was being 
 
         transferred on a cart the shoulder dislocation reduced itself 
 
         (Ex. A, Dr. Walker, p. 2).
 
         
 
              Claimant then testified that his arm had popped out of the 
 
         socket so many times that the employer's physician W. R. Basler, 
 
         M.D., gave him a list of three specialists and claimant chose to 
 

 
         
 
         
 
         
 
         MERRITT V. QUAKER OATS
 
         Page   4
 
         
 
         go see Albert R. Coates, M.D., an orthopedic surgeon, in Cedar 
 
         Rapids.  Claimant related that Dr. Coates performed surgery in 
 
         the summer of 1982 to staple and tighten the muscles in his left 
 
         shoulder.  Claimant added that after this surgery the little 
 
         finger and ring finger on his left hand went numb.  Then Dr. 
 
         Coates performed a second surgery to relieve this finger 
 
         numbness.
 
         
 
              Claimant testified that he returned to work on January 2, 
 
         1983.  He performed his job but his shoulder was still sore.  He 
 
         felt like it was not completely healed.  He had trouble when 
 
         working overhead.  He stated that he did his job to the best of 
 
         his ability but he had trouble doing it.  Therefore, later in 
 
         1983 claimant related that he bid and received a job as a 
 
         pipefitter in the ready-to-eat department because there was less 
 
         overhead work there than in the pump department where he had been 
 
         working.  Claimant explained that seventy percent of the pump 
 
         room work was overhead whereas only fifty percent of the 
 
         ready-to-eat department work was overhead.
 
         
 
              Claimant further related that on December 25, 1983 
 
         (Christmas Day) he injured his shoulder again at home.  He 
 
         climbed down a ladder into a well to let air out of the pump to 
 
         make it stop short cycling.  As he climbed out of the well there 
 
         was ice on the step, his foot slipped, he fell and hit his arm 
 
         and dislocated it again.  He said that he was off work until 
 
         February of 1984 following that incident.  Dr. Coates released 
 
         claimant to return to work on February 24, 1984 but Dr. Coates 
 
         said that claimant was restricted from doing overhead work.  
 
         Employer had no work for a pipefitter who could not do overhead 
 
         work since most of a pipefitter's work is overhead.  Claimant 
 
         said employer told him that he would have to do the full job as a 
 
         pipefitter or else they did not have any work for him at all.  
 
         Claimant testified that this caused a severe financial crisis for 
 
         him.  He said that he worked at home to try to build up his 
 
         ability to work while he continued to treat with Dr. Coates.  Dr. 
 
         Coates then tested claimant's strength on a machine and allowed 
 
         him to return to work without restrictions on October 12, 1984.  
 
         Since returning to work he has had to be cautious about how he 
 
         does things and to be very careful as to how he works in order to 
 
         do his job.  He said that he had worked solidly from October 12, 
 
         1984 doing his old job as a pipefitter without any restrictions 
 
         from the doctor.  He has not missed any work since October 12, 
 
         1984 until he dislocated his left shoulder again at home on May 
 
         27, 1987 while putting siding on a shed at home.  At that time, 
 
         he was lifting a piece of siding, the wind caught it and jerked 
 
         his shoulder out of the socket again.  Claimant admitted that he 
 
         used a hammer to put this siding on and was able to pound while 
 
         standing on a ladder at face level.
 
         
 
              Claimant disclosed that his fingers are still a little bit 
 
         numb.  He said he lacks the strength it usually takes to use pipe 
 
         wrenches.  He uses "cheater bars" on the wrenches.  It is 
 
         difficult to work overhead but he does the best he can.  He 
 
         indicated that he thought his left arm was atrophied and that he 
 
         believed he was limited to lifting only 20 pounds as a self 
 
         determined weight restriction.  Claimant complained that his left 
 
         arm hurts all of the time if he does not take pain pills.  He 
 
         said his pain pills are Bayer aspirin and Tylenol.  He takes four 
 
         to six of them per day.  They do provide relief.  This is what 
 

 
         
 
         
 
         
 
         MERRITT V. QUAKER OATS
 
         Page   5
 
         
 
         the doctor prescribed for him to take for pain.  He has been 
 
         taking them ever since his injury on June 18, 1982.  He can no 
 
         longer throw 60 pound bales of hay at home.  He cannot mow the 
 
         yard because the vibration of the mower hurts his left arm.
 
         
 
              Claimant testified that he was earning $10.75 per hour on 
 
         June 18, 1982.  He also revealed that he was earning $14.10 per 
 
         hour at the time of the hearing.  He added that he works overtime 
 
         practically every time the opportunity arises, which is 
 
         approximately once a month, because he needs the money.
 
         
 
              Philip J. Stoos testified that he is a 19 year employee of 
 
         Quaker Oats.  He is a pipefitter and was working with claimant at 
 
         the time of his injury on June 18, 1982.  Claimant was tightening 
 
         a bolt while installing a hanger for an eight inch pipe when 
 
         claimant slumped over on his ladder.  He was ten or fifteen feet 
 
         away when it occurred.  Claimant was taken to a nurse and then to 
 
         the hospital.
 
         
 
              Dewey L. Jacobson testified that he is a 20 year employee of 
 
         employer.  He is a welder and was working with claimant on June 
 
         18, 1982.  He was standing on the ladder behind claimant about 
 
         half way up stabilizing the ladder.  All of a sudden, claimant 
 
         was laying over the ladder.  He stated claimant does some things 
 
         with his right hand now.  It was Jacobson's opinion that claimant 
 
         did not have as much power with his left hand and that he could 
 
         not work like he used to do.
 
         
 
              Betty Merritt, claimant's wife, testified that after June 
 
         18, 1982 claimant could not put bales up in the barn at home and 
 
         that if he hammered a lot it hurt his arm.  She said claimant can 
 
         no longer mow the yard because it jolts his shoulder.  He cannot 
 
         paint because it hurts his shoulder.  They live on an acreage of 
 
         eight acres.  Claimant built a garage and a shed from scratch but 
 
         since his injuries he is limited to what he can do.
 
         
 
              Gayne A. Darrow testified that he is a 16 year employee of 
 
         employer.  He has been maintenance supervisor since 1981.  He 
 
         supervises all craft employees, including pipefitters.  He has 
 
         been claimant's supervisor since May 2, 1983.  Claimant was 
 
         earning $10.75 per hour on May 2, 1983.  He now earns $14.10 per 
 
         hour.  Darrow stated that claimant was a very good worker.  He 
 
         never complains.  He has never failed to perform his job.  His 
 
         work is not inferior to other pipefitters.  Claimant is a very 
 
         good pipefitter.  He has never refused to work overtime when 
 
         asked to do so.  Claimant has never voiced any physical 
 
         complaints or said that he had any difficulty doing his job.  
 
         Claimant's attendance record is good.  Claimant has not lost any 
 
         work due to his shoulder.  Claimant does not have any medical 
 
         restrictions.
 
         
 
              Darrow photographed a brief video of three jobs that a 
 
         pipefitter does which was shown at the hearing.  The video 
 
         demonstrated a pipefitter (1) taking off a coupling (2) breaking 
 
         a joint and (3) working on overhead pipes.  Claimant said that 
 
         these three jobs did not represent all of the jobs that a 
 
         pipefitter does.  Claimant also pointed out that the man in the 
 
         video is six foot tall, whereas he is only five foot five inches 
 
         tall and he finds many things over his head.
 
         
 

 
         
 
         
 
         
 
         MERRITT V. QUAKER OATS
 
         Page   6
 
         
 
              Darrow said he has never seen any medical reports on 
 
         claimant.  He has never thought of claimant as having a bad 
 
         shoulder or having any impairment.  He is a good worker who has 
 
         always done his entire job without any complaints and has done it 
 
         well.
 
         
 
              Dr. Coates, the primary and only treating physician, first 
 
         saw claimant on June 22, 1982 for what he described as recurrent 
 
         dislocations of the left shoulder.  Claimant did not have a 
 
         dislocation at that time, but because of his chronic dislocation 
 
         problem, claimant did not trust his shoulder and wanted to have 
 
         it repaired.  Dr. Coates described that claimant had torn the 
 
         soft tissues on both sides of his shoulder joint which allowed 
 
         his shoulder to dislocate repeatedly (Ex. C, pp. 4 & 5).
 
         
 
              Dr. Coates speculated that claimant did not have a 
 
         significant tear after the initial 1976 injury at work because 
 
         the second dislocation did not happen until five years later.  
 
         Apparently Dr. Coates was not aware of the second dislocation 
 
         that occurred in December of 1976 that Dr. Walker described.  Dr. 
 
         Coates felt that the subsequent dislocations in January of 1981 
 
         and April of 1982 worsened claimant's condition to the point that 
 
         the tear had become complete enough that it simply would not hold 
 
         the shoulder in the joint anymore.  Furthermore, the fact that 
 
         the dislocations would reduce themselves spontaneously 
 
         demonstrated that the shoulder was so unstable that it could slip 
 
         in and out at will.  When claimant's shoulder dislocated at work 
 
         on June 18, 1982, it was not a normal shoulder (Ex. C, pp. 6-9).
 
         
 
              Dr. Coates performed surgery on the left shoulder on June 
 
         30, 1982.  At that time he confirmed that the joint capsule, 
 
         which is the tissue attached to both sides of the shoulder joint, 
 
         had been torn loose completely from the glenoid which is the cup 
 
         part of the bone of the shoulder blade (scapula).  Dr. Coates 
 
         said there was nothing to hold the arm bone in that socket.  The 
 
         history of this injury was nontraumatic.  Claimant was simply 
 
         reaching up tightening a screw with a wrench when the shoulder 
 
         slipped out of the joint.  This would not cause extensive injury 
 
         in a normal shoulder.  The doctor testified that the surgery, 
 
         which was called a tight capsule procedure, stapled the torn 
 
         tissues next to the bone long enough for them to heal back in 
 
         that position (Ex. C, pp. 9-11).
 
         
 
              Dr. Coates said that claimant did not have any specific long 
 
         standing injury as a result of the dislocation that occurred on 
 
         June 18, 1982.  The only reason for the surgery then was to 
 
         repair it so that it would not continue to dislocate again and 
 
         again.  It's difficult to go through life with your shoulder 
 
         popping out (Ex. C, pp. 12 & 13).  The doctor said that claimant 
 
         had a full range of motion without resistance.  With resistance 
 
         claimant had some limited range of motion and loss of strength.  
 
         Nevertheless, the doctor testified that claimant was released to 
 
         return to work at his old job without restriction and claimant 
 
         did in fact return to work in January of 1983.  The physician 
 
         pointed out that the shoulder actually was more stable after the 
 
         surgery than before the surgery.  Claimant returned to work 
 
         without restrictions to see if he could do the job by agreement 
 
         between claimant, employer, insurance carrier and the doctor.  
 
         Claimant continued to work until he injured his shoulder at home 
 
         on December 25, 1983.  Dr. Coates believed that claimant chipped 
 

 
         
 
         
 
         
 
         MERRITT V. QUAKER OATS
 
         Page   7
 
         
 
         his glenoid, the cup part of the shoulder blade, at that time 
 
         (Ex. C, pp. 13-19).  Dr. Coates determined that claimant 
 
         sustained a permanent functional impairment after the June 18, 
 
         1982 injury and before the December 25, 1983 injury, but that he 
 
         was unable to mathematically allocate or apportion how much 
 
         impairment was due to prior dislocations previous to June 18, 
 
         1982 or the December 25, 1983 dislocation.  Dr. Coates clearly 
 
         stated that part of the permanent impairment was due to the prior 
 
         dislocations but he could not say how much (Ex. C, pp. 19-22).
 
         
 
              After the tight capsule surgical procedure on June 30, 1982 
 
         claimant developed ulnar dysfunction of the left arm that was 
 
         caused by the surgery.  Claimant began to have paresthesia in the 
 
         ring and little finger of the left hand and hypersensitivity
 
         
 
         distal to the left elbow.  Dr. Coates explained that this was 
 
         because when he tightened up the tissues to attach them to the 
 
         bone it pulled on the ulnar nerve which runs from the neck to the 
 
         elbow at the point of the armpit causing these symptoms (Ex. C, 
 
         pp. 24-25).  Therefore, Dr. Coates then performed an ulnar nerve 
 
         transplant and decompression on September 28, 1982 in an attempt 
 
         to relieve these symptoms.
 
         
 
              On September 28, 1983 Dr. Coates determined that claimant 
 
         sustained a 20 percent permanent functional impairment of the 
 
         left upper extremity (Ex. C, p. 28).  He reiterated that he was 
 
         unable to mathematically allocate or apportion how much of this 
 
         rating was due to the injury of June 18, 1982 and how much was 
 
         attributable to the prior dislocations (Ex. C, pp. 30-33).  He 
 
         did break down the 20 percent rating of the left upper extremity 
 

 
         
 
         
 
         
 
         MERRITT V. QUAKER OATS
 
         Page   8
 
         
 
         to say that one-half, or ten percent of it, was for the ulnar 
 
         nerve and he determined this from reference to the Guides to 
 
         Evaluation of Permanent Impairment, second edition published by 
 
         the American Medical Association.  The other one-half, or ten 
 
         percent, is for the shoulder and he based this determination 
 
         simply on his professional experience and judgment (Ex. C, pp. 39 
 
         & 40).
 
         
 
              Claimant also had carpal tunnel syndrome on the left side 
 
         but Dr. Coates said it was not related to claimant's shoulder 
 
         condition and that the carpal tunnel syndrome is not included in 
 
         the 20 percent permanent functional impairment rating (Ex. C, pp. 
 
         32-34).
 
         
 
              Dr. Coates cautioned that claimant's shoulder prognosis was 
 
         guarded.  He stated that claimant should restrict or eliminate 
 
         working overhead because it puts the most amount of strain on the 
 
         repaired tissue.  As far as the ulnar nerve injury, claimant 
 
         should avoid putting pressure on the elbow as a matter of his own 
 
         personal comfort (Ex. C, pp. 35-38).  The doctor also warned that 
 
         claimant should avoid heavy pushing and pulling with his left arm 
 
         (Ex. C, p. 38).
 
         
 
              John R. Walker, M.D., an orthopedic surgeon, examined 
 
         claimant one time for a diagnosis and evaluation and made a 
 
         report on February 23, 1987 (Ex. A).  Dr. Walker took an 
 
         excellent detailed history and even pointed out that claimant had 
 
         two shoulder dislocations in 1976 rather than just one 
 
         dislocation.
 
         
 
              Dr. Walker felt that the glenoid chip which appeared on 
 
         x-ray preexisted the December 25, 1983 fall in the pump well pit.  
 
         Dr. Walker listed claimant's complaints about his shoulder, arm 
 
         and hand then he concluded as follows.
 
         
 
              OPINION:  The patient has the following diagnoses:
 
         
 
              1.)  He has a post-traumatic arthritis of the left 
 
              shoulder.
 
              2.)  He has still an unstable, not completely 
 
              dependable shoulder following the original surgery.
 
         
 
              3.)  The patient appears to have a persistent ulnar 
 
              neuritis of the left, upper extremity.
 
         
 
              4.)  He appears to have a carpal tunnel syndrome on the 
 
              left with involvement of the median nerve.
 
         
 
              All-in-all I believe that this patient has a permanent, 
 
              partial impairment of the left, upper extremity 
 
              amounting to 40% of the left upper extremity.  This, 
 
              then, reduces to a permanent, partial impairment of 24% 
 
              of the whole man.
 
         
 
         (Ex. A, Dr Walker, pp. 5 & 6)
 
         
 
              Dr. Walker did not specify which of these conditions, if 
 
         any, were caused by the injury of June 18, 1982.  Nor did he 
 
         mathematically allocate or apportion claimant's disability rating 
 
         by or between these six different shoulder dislocations that he 
 

 
         
 
         
 
         
 
         MERRITT V. QUAKER OATS
 
         Page   9
 
         
 
         described.
 
         
 
              Neither orthopedic surgeon recommended any further surgery 
 
         for the shoulder or the ulnar nerve condition.
 
         
 
              Dr. Coates testified that claimant did have a very unstable 
 
         shoulder prior to June 18, 1982.  Nevertheless, he felt that the 
 
         injury of June 18, 1982 aggravated claimant's preexisting 
 
         condition and precipitated the anterior capsulorrhaphy surgery 
 
         which he performed on June 28, 1982 which he also called a tight 
 
         capsule procedure.  Again, Dr. Coates stated that he could not 
 
         allocate or apportion the impairment because he had not seen 
 
         claimant prior to June of 1982.  He did concede that some of 
 
         claimant's impairment was due to his earlier dislocations.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of June 18, 1982 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. 0. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A possibility 
 
         is insufficient; a probability is necessary.  Burt v. John Deere 
 
         Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
         question of causal connection is essentially within the domain of 
 
         expert testimony.  Bradshaw v. Iowa Methodist Hospital, 251 Iowa 
 
         375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
         Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              While a claimant is not entitled to compensation for the 
 
         results of a preexisting injury or disease, the mere existence at 
 
         the time of a subsequent injury is not a defense.  Rose v. John 
 
         Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2d 756, 760-761 
 
         (1956).  If the claimant had a preexisting condition or 
 
         disability that is aggravated, accelerated, worsened or lighted 
 
         up so that it results in disability, claimant is entitled to 
 
         recover.  Nicks v. Davenport Produce Co., 254 Iowa 130, 115 
 
         N.W.2d 812, 815 (1962).
 
         
 
              Our supreme court has stated many times that a claimant may 
 
         recover for a work connected aggravation of a preexisting 
 
         condition.  Almquist v. Shenandoah Nurseries, 218 Iowa 724, 254 
 
         N.W. 35 (1934).  See also Auxier v. Woodward State Hosp. Sch., 
 
         266 N.W.2d 139 (Iowa 1978); Gosek v. Garmer and Stiles Co., 158 
 
         N.W.2d 731 (Iowa 1968); Barz v. Oler, 257 Iowa 508, 133 N.W.2d 
 
         704 (1965); Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 
 
         N.W.2d 251 (1963); Yeager v. Firestone Tire & Rubber Co., 253 
 
         Iowa 369, 112 N.W.2d 299 (1961); Ziegler v. United States Gypsum 
 

 
         
 
         
 
         
 
         MERRITT V. QUAKER OATS
 
         Page  10
 
         
 
         Co., 252 Iowa 613, 106 N.W.2d 591 (1960).
 
         
 
              The right of a worker to receive compensation for injuries 
 
         sustained which arose out of and in the course of employment is 
 
         statutory.  The statute conferring this right can also fix the 
 
         amount of compensation to be paid for different specific 
 
         injuries, and the employee is not entitled to compensation except 
 
         as provided by the statute.  Soukup v. Shores Co., 222 Iowa 272, 
 
         268 N.W. 598 (1936).
 
         
 
              Permanent partial disabilities are classified as either 
 
         scheduled or unscheduled.  A specific scheduled disability is 
 
         evaluated by the functional method; the industrial method is used 
 
         to evaluate an unscheduled disability.  Martin v. Skelly Oil Co., 
 
         252 Iowa 128, 133, 106 N.W.2d 95, 98 (1960); Graves v. Eagle 
 
         Iron Works, 331 N.W.2d 116 (Iowa 1983); Simbro v. DeLong's 
 
         Sportswear, 332 N.W.2d 886, 887 (Iowa 1983).
 
         
 
              If a claimant contends he has industrial disability he has 
 
         the burden of proving his injury results in an ailment extending 
 
         beyond the scheduled loss.  Kellogg v. Shute and Lewis Coal Co., 
 
         256 Iowa 1257, 130 N.W.2d 667 (1964).
 
         
 
              An injury is the producing cause; the disability, however, 
 
         is the result, and it is the result which is compensated.  Barton 
 
         v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (1961); 
 
         Dailey v. Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 569 
 
         (1943).
 
         
 
              If claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
         593, 258 N.W. 899, 902 (1935) as follows: "It is therefore plain 
 
         that the legislature intended the term 'disability' to mean 
 
         'industrial disability' or loss of earning capacity and not a 
 
         mere 'functional disability' to be computed in the terms of 
 
         percentages of the total physical and mental ability of a normal 
 
         man.O
 
         
 
              Functional impairment is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 
 
         257 (1963).
 
         
 
              Claimant contends that he is entitled to benefits for the 
 
         period of time claimant was off work after he injured himself at 
 
         home in the pump well on December 25, 1983.  He claims benefits 
 
         from December 26, 1983 until October 12, 1984 when he returned to 
 
         work after that injury.  There is no medical evidence or any 
 
         other evidence or even suggestion that the work injury of June 
 
         18, 1982 caused the nonwork injury of December 25, 1983 or the 
 
         disability resulting from the nonwork injury which occurred on 
 
         December 25, 1983.  DeShaw v. Energy Manufacturing Company, 192 
 
         N.W.2d 777, 780 (1971).  On the contrary, Dr. Coates stated in a 
 
         letter dated March 26, 1984 "This incident is an independent body 
 
         injury." Everything else in the record supports Dr. Coates on 
 
         this point.  Not even the claimant in his testimony claimed that 
 

 
         
 
         
 
         
 
         MERRITT V. QUAKER OATS
 
         Page  11
 
         
 
         the work injury on June 18, 1982 caused either the injury or 
 
         resulting disability on December 25, 1983 when claimant slipped 
 
         and fell in the pump well at home.  Therefore, it is determined 
 
         that claimant is not entitled to temporary disability benefits as 
 
         a result of the nonwork injury that occurred on December 25, 
 
         1983.
 
         
 
              Claimant did sustain the burden of proof by a preponderance 
 
         of the evidence that the work injury of June 18, 1982 was a cause 
 
         of permanent disability.  Dr. Coates stated that the injury of 
 
         June 18, 1982 was the cause of some, but not all, of claimant's 
 
         permanent disability.  Dr. Coates explained this (1) at the time 
 
         he wrote to the insurance carrier on July 20, 1982 (Ex. A, p. 
 
         11), (2) at the time he rated claimant on October 12, 1983 (Ex. 
 
         A, p. 20), (3) at the time of his deposition (Ex. C, p.p. 19 & 
 
         22), and (4) and in his letter to defendants counsel on May 22, 
 
         1986 (Ex. A, pp. 36 & 37; Ex. 1, pp. 26 & 26).
 
         
 
              Dr. Walker did not specify how much of his impairment rating 
 
         was due to the injury of June 18, 1982.  Nor did he address the 
 
         subject of causal connection at all.  This seriously damages Dr. 
 
         Walker's opinion in as much as he described a total of six 
 
         separate shoulder dislocations on six different dates.
 
         
 
              Therefore, the only reliable opinion is that of Dr. Coates, 
 
         the treating physician, who stated that the June 18, 1982 injury 
 
         aggravated claimant's preexisting unstable shoulder condition and 
 
         that the anterior capsulorrhaphy which he performed on June 30, 
 
         1982 caused claimant's ulnar nerve condition.
 
         
 
              The injury is determined to be an injury to both the left 
 
         upper extremity and also to the body as a whole.  Dr. Coates 
 
         clearly described that the injury affected both sides of the 
 
         shoulder joint.  The soft tissues that form the entire capsule 
 
         between humerous of the arm and the glenoid of the scapula were 
 
         torn loose and reattached by a staple.  Dr. Coates stated that 
 
         claimant had a complete avulsion of the subscapularis tendon as 
 
         well as the anterior capsule (Ex. A, p. 11).  Claimant described 
 
         that his pain was to the anterior and superior portion of his 
 
         left shoulder.  This is what he told the doctor and this is what 
 
         he testified to at the hearing.  Claimant's worst impairment is 
 
         lifting his arm overhead which is a function of the entire 
 
         shoulder and not just the arm.  The derangement then is in the 
 
         shoulder and not just the arm.  It is only manifested by the use 
 
         of the arm.  Therefore, it is determined that the injury to 
 
         claimant's shoulder is an injury to the body as a whole.  Alm v. 
 
         Morris Barick Cattle Co., 240 Iowa 1174, 38 N.W.2d 161 (1949), 
 
         Nazarenus v. Oscar Mayer & Co., II Iowa Industrial Commissioner 
 
         Reports 281, (1982); Godwin v. Hicklin G.M. Power, II Iowa 
 
         Industrial Commissioner Reports 170 (1981); Lauhoff Grain v. 
 
         McIntosh 395 N.W.2d 834 (Iowa 1986).
 
         
 
              Claimant also sustained a permanent injury to his arm as a 
 
         sequelae of the tight capsule surgery on June 30, 1982 which 
 
         compressed his ulnar nerve and resulted in the ulnar nerve 
 
         transplant and decompression on September 28, 1982.  Claimant 
 
         still suffers residual paresthesia in the ring and little finger 
 
         and hypersensitivity of the ulnar nerve just distal to the elbow 
 
         (Ex. 1, p. 13).  Injury resulting from medical treatment is 
 
         considered as being proximate to the original injury.  Cross v. 
 

 
         
 
         
 
         
 
         MERRITT V. QUAKER OATS
 
         Page  12
 
         
 
         Hermanson Bros., 235 Iowa 739, 741, 16 N.W.2d 616, 617 (1944); 
 
         Heumphreus v. State, 334 N.W.2d 757 (Iowa 1983); and Bradshaw 
 
         v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).  
 
         Therefore, claimant has sustained permanent disability to both 
 
         the body as a whole, with respect to the left shoulder, and also 
 
         a scheduled member injury to the left upper extremity due to the 
 
         ulnar nerve residuals.  The scheduled disability merges with and 
 
         becomes part of the disability to the body as a whole.
 
         
 
              Dr. Walker awarded claimant a 40 percent permanent 
 
         functional impairment rating of the left upper extremity and 
 
         stated that this converts to 24 percent of the body as a whole.  
 
         It is almost inherently incredible that claimant has permanently 
 
         lost almost one-half of the use of his left arm in view of the 
 
         fact
 
         (1)  that Dr. Coates looked at claimant's job duties and returned 
 
         him to work after the June 18, 1982 injury without any 
 
         restrictions, (2)  that claimant returned to work in January of 
 
         1983 and performed his duties in the pump room satisfactorily 
 
         until September of 1983 when he bid on and received the job of 
 
         pipefitter, (3) that claimant was able to satisfactorily perform 
 
         the job of pipefitter until his injury at home in the pump well 
 
         on December 25, 1983, (4) that claimant returned to work on 
 
         October 12, 1984 after his injury at home and has again 
 
         satisfactorily performed his job, (5) that Darrow, claimant's 
 
         supervisor since May 2, 1983, testified that claimant has 
 
         satisfactorily performed the job of a pipefitter without physical 
 
         complaint or any difficulty, also works overtime at every 
 
         available opportunity and that claimant has lost no time from 
 
         work due to his shoulder.  Dr. Walker performed a very thorough 
 
         examination and wrote a very carefully detailed informative 
 
         report, but his impairment rating is at great disparity with the 
 
         treating physician and also with the other evidence in this 
 
         case.
 
         
 
              Dr. Coates said that claimant suffered a 20 percent 
 
         permanent functional impairment,to the left upper extremity.  He 
 
         attributed ten percent of this to the ulnar nerve problem in the 
 
         left upper extremity.  He attributed the other ten percent to the 
 
         left shoulder.  Dr. Coates further explained that some of the ten 
 
         percent allocated to the shoulder was caused by the earlier 
 
         dislocations but he did not give a numerical apportionment or 
 
         allocation.  He did indicate that the injury of June 18, 1982 was 
 
         not a significant injury.  It was not traumatic.  The shoulder 
 
         displaced simply while reaching overhead.  Therefore, based on 
 
         the foregoing information it is determined that claimant has 
 
         sustained a ten percent permanent functional impairment of the 
 
         left upper extremity due to the ulnar nerve problems.  The 
 
         impairment to the left shoulder is something less than ten 
 
         percent of the left upper extremity because of the prior 
 
         dislocations, which when converted to the body as a whole would 
 
         be even a much lower number.  A full ten percent of the left 
 
         upper extremity converts to only six percent of the whole person 
 
         (AMA Guides, table 20, p. 23).
 
         
 
              In evaluating industrial disability it is acknowledged that 
 
         claimant is 58 years old, has a tenth grade education, and has 
 
         had a variety of past employments.  After the injury of June 18, 
 
         1982 he returned to the same job at the same pay in the pump 
 
         house.  No formal medical restrictions were issued.  Claimant 
 

 
         
 
         
 
         
 
         MERRITT V. QUAKER OATS
 
         Page  13
 
         
 
         performed his old job from January of 1983 to September of 1983 
 
         when he requested and was granted the pipefitters job.  Claimant 
 
         testified that 70 percent of the pump room work was overhead 
 
         whereas only 50 percent of the job in the ready-to-eat department 
 
         was overhead.  Claimant testified that he could perform this job 
 
         even though it caused him pain and difficulty.  His supervisor 
 
         testified that he performed the job without any limitations or 
 
         medical restrictions.  He did his job well without loss of time.
 
         
 
              Claimant testified that he was earning $10.75 at the time of 
 
         the injury and was earning $14.10 at the time of the hearing.  
 
         Therefore, claimant has received a substantial increase in actual 
 
         earnings.  Claimant had dislocated his shoulder at home on two 
 
         different occasions after the injury of June 18, 1982 and is 
 
         still able to satisfactorily perform his job for employer.  There 
 
         are no permanent restrictions from Dr. Coates, although, claimant 
 
         was cautioned about doing overhead work and pushing and pulling 
 
         with his left arm.  Claimant's employment with employer appears 
 
         to be secure.  Based on the foregoing evidence it is determined 
 
         that claimant has sustained an industrial disability of ten 
 
         percent of the body as a whole taking into consideration both the 
 
         shoulder injury and the ulnar nerve problems.
 
         
 
              Since claimant was awarded no benefits for the period of 
 
         disability from December 26, 1983 to October 12, 1984, then the 
 
         issue of a credit pursuant to Iowa Code section 85.38(2) is moot. 
 
          At the same time, defendants should know that a claim for 
 
         credits under Iowa Code section 85.38(2) must be supported by 
 
         evidence that (1) benefits were received under a group plan, (2) 
 
         contributions were made to the plan by employer and (3) that the 
 

 
         
 
         
 
         
 
         MERRITT V. QUAKER OATS
 
         Page  14
 
         
 
         benefits should not have been paid if workers' compensation was 
 
         received.  Hebensperger v. Motorola Communications and 
 
         Electronics, Inc, II Iowa Industrial Commissioner Report 187, 
 
         189 (1981).  Defendants introduced no evidence that 
 
         nonoccupational group plan payments would not have been paid if 
 
         workers' compensation benefits were received.  The plan document 
 
         is the best evidence of what the plan provides on this issue and 
 
         nothing from the plan document was introduced into evidence.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              WHEREFORE, based upon the evidence presented the following 
 
         findings of fact are made.
 
         
 
              That there is no evidence that the injury of June 18, 1982 
 
         was the cause of claimant's injury, or resulting disability from 
 
         the injury, that occurred to claimant in the pump well at home on 
 
         December 25, 1983.
 
         
 
              That Dr. Coates determined that the injury of June 18, 1982 
 
         was a cause of permanent disability to claimant's left shoulder 
 
         and left arm.
 
         
 
              That the injury to the left shoulder was an injury to both 
 
         sides of the shoulder capsule and therefore, was an injury to the 
 
         body as a whole.
 
         
 
              That the injury to the ulnar nerve was an injury to 
 
         claimant's left upper extremity because it affected only his 
 
         arm.
 
         
 
              That Dr. Coates stated that the carpal tunnel syndrome was 
 
         not causally connected to the injury of June 18, 1982.
 
              That Dr. Coates found that the injury of June 18, 1982 was 
 
         the cause of a permanent impairment of 20 percent of the left 
 
         upper extremity; ten percent of which was attributable to the 
 
         ulnar nerve and that less than ten percent was attributable to 
 
         the left shoulder.
 
         
 
              That claimant has sustained an industrial disability of ten 
 
         percent of the body as a whole which includes both his left arm 
 
         and left shoulder.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              WHEREFORE, based upon the evidence presented and the 
 
         principles of law previously discussed the following conclusions 
 
         of law are made.
 
         
 
              That the injury of June 18, 1982 was not the cause of 
 
         claimant's injury on December 25, 1983 or the disability 
 
         resulting from it.
 
         
 
              That claimant is not entitled to temporary disability 
 
         benefits for the period from December 26, 1983 to October 12, 
 
         1984.
 
         
 
              That the injury of June 18, 1982 was the cause of permanent 
 
         injury to claimant's left upper extremity and left shoulder.
 
         
 

 
         
 
         
 
         
 
         MERRITT V. QUAKER OATS
 
         Page  15
 
         
 
              That claimant has sustained an industrial disability of ten 
 
         percent of the body as a whole taking into consideration both the 
 
         left shoulder and the ulnar nerve condition.
 
         
 
              That claimant is entitled to 50 weeks of permanent partial 
 
         disability as industrial disability to the body as a whole.
 
         
 
              That the issue of whether defendants are entitled to a 
 
         credit under Iowa Code section 85.38(2) is moot.
 
         
 
              That claimant is not entitled to the costs of this action 
 
         set out in exhibit D.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              That claimant take nothing from this proceeding because he 
 
         has already been paid fifty (50) weeks of permanent partial 
 
         disability benefits prior to hearing pursuant to the memorandum 
 
         of agreement.
 
         
 
              That the costs of this action are charged to claimant 
 
         pursuant to Division of Industrial Services Rule 343-4.33.
 
         
 
              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 7th day of March, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                           WALTER R. McMANUS, JR.
 
                                           DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Robert Rush
 
         Attorney at Law
 
         P.O. Box 2457
 
         Cedar Rapids, Iowa 52406
 
         
 
         Mr. James Shipman
 
         Ms. Carolyn Hinz
 
         Attorneys at Law
 
         1200 Merchants National Bank Bldg
 
         Cedar Rapids, Iowa 52401
 
 
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               1106; 1108.50; 1402.40;
 
                                               1802; 1803; 1803.10; 1806
 
                                               1701; 2907
 
                                               Filed March 7, 1988
 
                                               WALTER R. MCMANUS, JR.
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         LEWIS A. MERRITT,
 
         
 
              Claimant,
 
                                                   File No. 705825
 
         vs
 
                                                     R E V I E W -
 
         QUAKER OATS,
 
                                                  R E 0 P E N I N G
 
              Employer,
 
                                                   D E C I S I 0 N
 
         and
 
         
 
         IDEAL MUTUAL INSURANCE,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1106; 1108.50; 1402.40; 1802; 1803; 1803.10; 1806
 
         
 
              Claimant had multiple shoulder dislocations, some at home 
 
         and some at work, four of them before this injury and two more of 
 
         them after this injury.  After this injury he had surgery not 
 
         specifically due to this injury but because of his deteriorated 
 
         shoulder which would not stay in place.  The shoulder surgery 
 
         damaged his ulnar nerve and he had another surgery to repair 
 
         that.  A later injury at home caused him to miss several months 
 
         from work again.  Surgeon awarded 20 percent impairment of the 
 
         left upper extremity.  He said some was due to prior dislocations 
 
         but would not give it a numerical value.  He said this injury was 
 
         not a significant injury.  Held: The injury was not the cause of 
 
         the lost time due to the later dislocation at home.  The injury 
 
         was the cause of permanent partial disability.  The shoulder was 
 
         an injury to the body as a whole.  The ulnar nerve injury was an 
 
         injury to the left upper extremity.  Claimant awarded ten percent 
 
         of the body as a whole or 50 weeks.  Claimant took nothing 
 
         because he had already been paid 50 weeks based on 20 percent of 
 
         the left upper extremity.
 
         
 
         1701
 
         
 
              Claim for 85.38(2) credit became moot but defendants had 
 
         not
 
         
 
         made out a proper case for credit as prescribed by Hebensperger 
 
         standard cited.
 
                                                
 
                                                         
 
         
 
         2907
 
         
 
              Claimant denied costs as the nonprevailing party.
 
         
 
         
 
         
 
 
 
 
        
 
 
 
 
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        LARRY BELLIS,
 
        
 
           Claimant,
 
                                         File No. 706072
 
        vs .
 
        
 
        FIRESTONE TIRE & RUBBER          A P P E A L
 
        COMPANY,
 
                                       D E C I S I O N
 
           Employer,
 
        
 
        and
 
        
 
        CIGNA/INA,
 
        
 
           Insurance Carrier,
 
           Defendants.
 
        
 
        
 
                                 STATEMENT OF THE CASE
 
        
 
        Defendants appeal from a review-reopening decision awarding 
 
        benefits based on a 25 percent industrial disability.
 
        
 
        The record on appeal consists of the transcript of the 
 
        review-reopening hearing and defendants' exhibits A through K. 
 
        Both parties filed briefs on appeal.
 
        
 
                                      ISSUE
 
        
 
        The issue on appeal is the extent of claimant's industrial 
 
        disability.
 
        
 
                                 REVIEW OF THE EVIDENCE
 
        
 
        The review-reopening decision adequately and accurately reflects 
 
        the pertinent evidence and it will not be totally reiterated 
 
        herein.
 
        
 
        Briefly stated, claimant testified that he had graduated from 
 
        high school and served a four-year sheet metal apprenticeship and 
 
        received his journeyman's card. Prior to the time he worked for 
 
        the defendant employer (hereinafter the employer) he worked as a 
 
        sheet metal worker for ten years. He worked from 1972 to January 
 
        1982 as a sheet metal worker for the employer. That job required 
 
        claimant to stand for periods of time and to sometimes lift metal 
 
        weighing as much as 235 pounds. In 1982, the employer went to a 
 
        multicraft system and claimant began working as a machinery 
 
        repairman. He testified the machine repairman job was lighter 
 
        work than the sheet metal work. The machine repair work involved 
 
        making minor adjustments on
 
        
 
        BELLIS V. FIRESTONE TIRE & RUBBER COMPANY
 
        Page 2
 
        
 
        machinery and replacing broken bearings, belts and chains.
 
        
 
        On June 16, 1982, claimant was struck by a fork truck at work. He 
 
        hurt his left leg, left hip and back as a result of the accident. 
 
        He was off work approximately two weeks and returned to light 
 

 
        
 
 
 
 
 
        duty work until he was laid off in January 1983. After being laid 
 
        off for approximately three months claimant returned to work for 
 
        the employer in production. He went back to work in the 
 
        maintenance department in September 1983.
 
        
 
        Claimant was treated by Kent M. Patrick, M.D., and he had surgery 
 
        on his hip on May 5, 1984. Claimant returned to work with the 
 
        employer on September 17, 1984 as a machine repairman. Claimant 
 
        testified that his work is different after the surgery in that he 
 
        is unable to do a lot of the heavy work and climbing that is 
 
        sometimes required. He also testified that he gets another man or 
 
        a hoist or fork truck to help him lift if an item is too heavy. 
 
        Claimant also testified that in 1985 there was a general wage 
 
        reduction in an agreement between the union and the employer. He 
 
        further testified that he intends to continue his present job and 
 
        his restrictions are a 30 pound weight limit, no bending, and a 
 
        limited amount of twisting.
 
        
 
        A note from Dr. Patrick's office dated October 17, 1983 states: 
 
        "I feel the majority of Mr. Bellis' problems are referable [sic] 
 
        to his left greater trochanteric bursitis.'' (Defendants' Exhibit 
 
        H) A note from Dr. Patrick's office dated September 12, 1984 
 
        states: "I am letting him return to work on Monday, September 17. 
 
        He should avoid any repetitive bending, stooping, twisting, 
 
        lifting, pushing, or pulling. He is not to lift more than 25 
 
        pounds. If he is doing well after a couple of weeks, we may be 
 
        able to liberalize his restrictions." (Def. Ex. H) Subsequent 
 
        office notes indicate that claimant continued to have pain in his 
 
        back and in a letter dated January 25, 1985, Dr. Patrick wrote: 
 
        "Based on Mr. Bellis' low back and hip complaints, as well as his 
 
        left hip surgery, I feel Mr. Bellis warrants a permanent partial 
 
        impairment rating of 10% of the body as a whole. This encompasses 
 
        both his hip and back disease."
 
        
 
                                 APPLICABLE LAW
 
        
 
        The citations of law in the review-reopening decision are 
 
        appropriate to the issues and evidence.
 
        
 
                                      ANALYSIS
 
        
 
        The dispute on appeal is the extent of claimant's industrial 
 
        disability. Defendants argue that the deputy placed too much 
 
        emphasis on the unsubstantiated loss of speculative employment 
 
        and too little emphasis on the fact that claimant has continued 
 
        to be employed by the employer on a full-time basis in 
 
        essentially the same job and with no loss of earnings. Claimant 
 
        counters
 
        
 
        BELLIS V. FIRESTONE TIRE & RUBBER COMPANY
 
        Page 3
 
        
 
        
 
        by arguing that claimant's earning capacity has been reduced
 
        because of his work injury.
 
        
 
        Claimant has suffered little, if any, loss of earnings as a 
 
        result of his injury of June 16, 1982. Claimant now has a lifting 
 
        restriction of 25 to 30 pounds and a restriction on repetitive 
 
        bending, stooping, twisting, lifting, pushing or pulling. He has 
 
        a 10 percent permanent impairment rating of the body as a whole. 
 
        Although that impairment rating appears to include a preexisting 
 
        back disease, there is no indication that claimant was unable to 
 
        do his assigned work prior to his work injury. He has returned to 
 
        his old job, but only with accommodations including assistance 
 
        from his fellow workers. Even though he has not experienced a 
 

 
        
 
 
 
 
 
        loss of earnings as a result of the injury of June 16, 1982, 
 
        claimant has experienced a loss of earning capacity. Claimant's 
 
        work history is confined to manual labor jobs. He has lost a 
 
        portion of his ability to perform those jobs, both his current 
 
        job and his former job as a sheet metal worker. Nevertheless, 
 
        claimant was able to return to work on a production job and was 
 
        working the same job he had prior to the injury albeit with 
 
        restrictions. Claimant was 47 years old at the time of the 
 
        hearing and had a high school education. Based on these and all 
 
        other appropriate factors for determining industrial disability, 
 
        claimant is determined to have an industrial disability of 25 
 
        percent.
 
        
 
                                 FINDINGS OF FACT
 
        
 
        1. Claimant was born on October 16, 1939 and was 47 years old at 
 
        time of the hearing.
 
        
 
        2. Claimant graduated from high school in 1958.
 
        
 
        3. Claimant was a sheet metal apprentice from 1958 through 1962.
 
        
 
        4. Claimant obtained his journeyman card in 1962.
 
        
 
        5. Subsequent to 1962, claimant worked as a sheet metal worker.
 
        
 
        6. In 1972, claimant went to work for the employer as a sheet 
 
        metal worker.
 
        
 
        7. In 1982, claimant lost his title as sheet metal worker and was 
 
        reclassified as a repairman.
 
        
 
        8. Claimant is not currently able to do his "consolidated job" 
 
        without the assistance of a coworker.
 
        
 
        9. Claimant currently has pain in his back, leg and hip.
 
        
 
        10. Claimant has had hip surgery.
 
        
 
        BELLIS V. FIRESTONE TIRE & RUBBER COMPANY
 
        Page 4
 
        
 
        
 
        11. Claimant is not currently able to do his trade of sheet metal 
 
        worker without assistance because of the physical impairment 
 
        resulting from his work-related injury of June 16, 1982.
 
        
 
        12. Claimant's work-related inJury of June 16, 1982 caused a 
 
        whole body permanent partial impairment of about 10 percent.
 
        
 
        13. There is a causal connection between claimant's work-related 
 
        injury of June 16, 1982 and his approximate 10 percent whole body 
 
        impairment.
 
        
 
        14. Claimant's industrial disability because of the work injury 
 
        of June 16, 1982 is 25 percent.
 
        
 
                                 CONCLUSION OF LAW
 
        
 
        Claimant has proved by the greater weight of evidence that he has 
 
        an industrial disability of 25 percent as a result of his work 
 
        injury of June 16, 1982.
 
        
 
        WHEREFORE, the decision of the deputy is affirmed.
 
        
 
                                      ORDER
 

 
        
 
 
 
 
 
                                                
 
        THEREFORE, it is ordered:
 
        
 
        That defendants pay claimant one hundred twenty-five (125) weeks 
 
        of permanent partial disability benefits at a weekly rate of two 
 
        hundred ninety-two and 07/100 dollars ($292.07) commencing on 
 
        September 17, 1984.
 
        
 
        That defendants pay accrued benefits in a lump sum, and pay 
 
        interest pursuant to section 85.30, The Code.
 
        
 
        That defendants be given credit for benefits already paid.
 
        
 
        That defendants pay the costs of this action including 
 
        transcription of the review-reopening hearing pursuant to 
 
        Division of Industrial Services Rule 343-4.33.
 
        
 
        That defendants shall file claim activity reports as required by 
 
        this agency pursuant to Division of Industrial Services Rule 
 
        343-3.1(2).
 
        
 
        Signed and filed this 26th day of September, 1988.
 
        
 
        
 
        
 
                                         DAVID E. LINQUIST
 
                                      INDUSTRIAL COMMISSIONER
 
        
 
        
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         LARRY BELLIS,
 
         
 
              Claimant,
 
                                                  File No. 706072
 
         
 
         vs.
 
         
 
         FIRESTONE TIRE & RUBBER                    A P P E A L
 
         COMPANY,
 
                                                  D E C I S I 0 N
 
              Employer,
 
         
 
         and
 
         
 
         CIGNA/INA, 
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Defendants appeal from a review-reopening decision awarding 
 
         benefits based on a 25 percent industrial disability.
 
         
 
              The record on appeal consists of the transcript of the 
 
         review-reopening hearing and defendants' exhibits A through K.  
 
         Both parties filed briefs on appeal.
 
         
 
                                      ISSUE
 
         
 
              The issue on appeal is the extent of claimant's industrial 
 
         disability.
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              The review-reopening decision adequately and accurately 
 
         reflects the pertinent evidence and it will not be totally 
 
         reiterated herein.
 
         
 
              Briefly stated, claimant testified that he had graduated 
 
         from high school and served a four-year sheet metal 
 
         apprenticeship and received his journeyman's card.  Prior to the 
 
         time he worked for the defendant employer (hereinafter the 
 
         employer) he worked as a sheet metal worker for ten years.  He 
 
         worked from 1972 to January 1982 as a sheet metal worker for the 
 
         employer.  That job required claimant to stand for periods of 
 
         time and to sometimes lift metal weighing as much as 235 pounds.  
 
         In 1982, the employer went to a multicraft system and claimant 
 
         began working as a machinery repairman.  He testified the machine 
 
         repairman job was lighter work than the sheet metal work.  The 
 
         machine repair work involved making minor adjustments on 
 
         machinery and replacing broken bearings, belts and chains.
 
         
 

 
         
 
         
 
         
 
         BELLIS V. FIRESTONE TIRE & RUBBER COMPANY
 
         PAGE   2
 
         
 
         
 
              On June 16, 1982, claimant was struck by a fork truck at 
 
         work.  He hurt his left leg, left hip and back as a result of 
 
         the accident.  He was off work approximately two weeks and 
 
         returned to light duty work until he was laid off in January 
 
         1983.  After being laid off for approximately three months 
 
         claimant returned to work for the employer in production.  He 
 
         went back to work in the maintenance department in September 
 
         1983.
 
         
 
              Claimant was treated by Kent M. Patrick, M.D., and he had 
 
         surgery on his hip on May 5, 1984.  Claimant returned to work 
 
         with the employer on September 17, 1984 as a machine repairman. 
 
          Claimant testified that his work is different after the 
 
         surgery in that he is unable to do a lot of the heavy work and 
 
         climbing that is sometimes required.  He also testified that he 
 
         gets another man or a hoist or fork truck to help him lift if 
 
         an item is too heavy.  Claimant also testified that in 1985 
 
         there was a general wage reduction in an agreement between the 
 
         union and the employer.  He further testified that he intends 
 
         to continue his present job and his restrictions are a 30 pound 
 
         weight limit, no bending, and a limited amount of twisting.
 
         
 
              A note from Dr. Patrick's office dated October 17, 1983 
 
         states:  "I feel the majority of Mr. Bellis' problems are 
 
         referable [sic] to his left greater trochanteric bursitis." 
 
         (Defendants' Exhibit H)  A note from Dr. Patrick's office dated 
 
         September 12, 1984 states:  "I am letting him return to work on 
 
         Monday, September 17.  He should avoid any repetitive bending, 
 
         stooping, twisting, lifting, pushing, or pulling.  He is not to 
 
         lift more than 25 pounds.  If he is doing well after a couple 
 
         of weeks, we may be able to liberalize his restrictions." (Def. 
 
         Ex. H) Subsequent office notes indicate that claimant continued 
 
         to have pain in his back and in a letter dated January 25, 
 

 
         
 
         
 
         
 
         BELLIS V. FIRESTONE TIRE & RUBBER COMPANY
 
         PAGE   3
 
         
 
         
 
         1985, Dr. Patrick wrote:  "Based on Mr. Bellis' low back and 
 
         hip complaints, as well as his left hip surgery, I feel Mr. 
 
         Bellis warrants a permanent partial impairment rating of 10% of 
 
         the body as a whole.  This encompasses both his hip and back 
 
         disease."
 
         
 
                                 APPLICABLE LAW
 
         
 
              The citations of law in the review-reopening decision are 
 
         appropriate to the issues and evidence.
 
         
 
                                     ANALYSIS
 
         
 
              The dispute on appeal is the extent of claimant's industrial 
 
         disability.  Defendants argue that the deputy placed too much 
 
         emphasis on the unsubstantiated loss of speculative employment 
 
         and too little emphasis on the fact that claimant has continued 
 
         to be employed by the employer on a full-time basis in 
 
         essentially the same job and with no loss of earnings.  Claimant 
 
         counters by arguing that claimant's earning capacity has been 
 
         reduced because of his work injury.
 
         
 
              Claimant has suffered little, if any, loss of earnings as a 
 
         result of his injury of June 16, 1982.  Claimant now has a 
 
         lifting restriction of 25 to 30 pounds and a restriction on 
 
         repetitive bending, stooping, twisting, lifting, pushing or 
 
         pulling.  He has a 10 percent permanent impairment rating of the 
 
         body as a whole.  Although that impairment rating appears to 
 
         include a preexisting back disease, there is no indication that 
 
         claimant was unable to do his assigned work prior to his work 
 
         injury.  He has returned to his old job, but only with 
 
         accommodations including assistance from his fellow workers.  
 
         Even though he has not experienced a loss of earnings as a result 
 
         of the injury of June 16, 1982, claimant has experienced a loss 
 
         of earning capacity.  Claimant's work history is confined to 
 
         manual labor jobs.  He has lost a portion of his ability to 
 
         perform those jobs, both his current job and his former job as a 
 
         sheet metal worker.  Nevertheless, claimant was able to return to 
 
         work on a production job and was working the same job he had 
 
         prior to the injury albeit with restrictions.  Claimant was 47 
 
         years old at the time of the hearing and had a high school 
 
         education.  Based on these and all other appropriate factors for 
 
         determining industrial disability, claimant is determined to have 
 
         an industrial disability of 25 percent.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Claimant was born on October 16, 1939 and was 47 years 
 
         old at time of the hearing.
 
         
 
              2.  Claimant graduated from high school in 1958.
 
         
 
              3.  Claimant was a sheet metal apprentice from 1958 through 
 
         1962.
 
         
 
              4.  Claimant obtained his journeyman card in 1962.
 
         
 
              5.  Subsequent to 1962,claimant worked as a sheet metal 
 
         worker.
 

 
         
 
         
 
         
 
         BELLIS V. FIRESTONE TIRE & RUBBER COMPANY
 
         PAGE   4
 
         
 
         
 
         
 
              6.  In 1972, claimant went to work for the employer as as 
 
         sheet metal worker
 
         
 
              7.  In 1982, claimant lost his title as sheet metal worker 
 
         and was reclassified as a repairman.
 
         
 
               8.  Claimant is not currently able to do his "consolidated 
 
         job" without the assistance of a coworker.
 
         
 
               9.  Claimant currently has pain in his back, leg and hip.
 
         
 
              10.  Claimant has had hip surgery.
 
         
 
              11.  Claimant is not currently able to do his trade of sheet 
 
         metal worker without assistance because of the physical 
 
         impairment resulting from his work-related injury of June 16, 
 
         1982.
 
         
 
              12.  Claimant's work-related injury of June 16, 1982 caused 
 
         a whole body permanent partial impairment of about 10 percent.
 
         
 
              13.  There is a causal connection between claimant's 
 
         work-related injury of June 16, 1982 and his approximate 10 
 
         percent whole body impairment.
 
         
 
              14.  Claimant's industrial disability because of the work 
 
         injury of June 16, 1982 is 25 percent.
 
         
 
                                CONCLUSION OF LAW
 
         
 
              Claimant has proved by the greater weight of evidence that 
 
         he has an industrial disability of 25 percent as a result of his 
 
         work injury of June 16, 1982.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That defendants pay claimant one hundred twenty-five (125) 
 
         weeks of permanent partial disability benefits at a weekly rate 
 
         of two hundred ninety-two and 07/100 dollars ($292.07) commencing 
 
         on September 17, 1984.
 
         
 
               That defendants pay accrued benefits in a lump sum, and pay 
 
         interest pursuant to section 85.30, The Code.
 
         
 
               That defendants be given credit for benefits already paid.
 
         
 
               That defendants pay the costs of this action including 
 
         transcription of the review-reopening hearing pursuant to 
 
         Division of Industrial Services Rule 343-4.33.
 
         
 
              That defendants shall file claim activity reports as 
 
         required by this agency pursuant to Division of Industrial 
 
         Services Rule 343-3.1(2).
 
         
 

 
         
 
         
 
         
 
         BELLIS V. FIRESTONE TIRE & RUBBER COMPANY
 
         PAGE   5
 
         
 
         
 
              Signed and filed this 26th day of September, 1988.
 
         
 
         
 
         
 
         
 
                                           DAVID E. LINQUIST
 
                                           INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies to:
 
         
 
         Mr. David D. Drake
 
         Attorney at Law
 
         West Towers office
 
         1200 35th St, Ste 500
 
         West Des Moines, IA 50265
 
         
 
         Mr. Marvin E. Duckworth
 
         Attorney at Law
 
         Terrace Center, Ste 111
 
         2700 Grand Avenue
 
         Des Moines, IA 50312
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               1402,40; 1803
 
                                               Filed September 26, 1988
 
                                               David E. Linquist
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         LARRY BELLIS,
 
         
 
              Claimant,
 
                                                  File No. 706072
 
         vs.
 
         
 
         FIRESTONE TIRE & RUBBER                   A P P E A L
 
         COMPANY,
 
         
 
              Employer,                          D E C I S I 0 N
 
         
 
         and
 
         
 
         CIGNA/INA,
 
         
 
               Insurance Carrier,
 
               Defendants.
 
         
 
         
 
         
 
         1402.40; 1803
 
         
 
              Appeal decision affirms the review-reopening decision which 
 
         found claimant had an industrial disability of 25%.  Claimant had 
 
         had hip surgery and could not do prior job of sheet metal work.  
 
         However, he could do same job he had before the injury with the 
 
         employer with some accommodations by coworkers.
 
 
 
 
            
 
 
 
 
 
 
 
 
 
                 
 
         
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         LARRY BELLIS,
 
         
 
              Claimant,
 
                                                      File No. 706072
 
         VS.
 
         
 
         FIRESTONE TIRE & RUBBER                       R E V I E W -
 
         COMPANY,
 
                                                     R E 0 P E N I N G
 
              Employer,
 
                                                      D E C I S I 0 N
 
         and
 
         
 
         CIGNA/INA,
 
         
 
              Insurance Carrier,
 
              Defendants
 
         
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in review-reopening (a memorandum of 
 
         agreement was filed herein on September 2, 1982) brought by Larry 
 
         Bellis, claimant, against Firestone Tire & Rubber Company, 
 
         employer, and Cigna/INA, insurance carrier, for benefits as a 
 
         result of an injury of June 16, 1982.  A hearing was held in Des 
 
         Moines, Iowa, on April 9, 1987 and the case was submitted on that 
 
         date.
 
         
 
              The record consists of the testimony of claimant, and 
 
         defendants' exhibits A through K.  Defendants filed a brief.
 
         
 
              The parties stipulated that claimant's weekly rate of 
 
         compensation is $292.07; that healing period benefits are not at 
 
         issue; that defendants have paid 75 weeks of permanent partial 
 
         disability benefits (15 percent industrial disability); that 
 
         permanent partial disability benefits commence on September 17, 
 
         1984; and that claimant's injury is a body as a whole injury.  
 
         The hearing deputy stated on the record at time of hearing that 
 
         he was not requiring claimant to show a change of condition in 
 
         this review-reopening proceeding.  Specifically, the hearing 
 
         deputy concluded that the mere filing of a memorandum of 
 
         agreement does not require a change of condition showing by a 
 
         claimant.
 
         
 
                                  ISSUES
 
         
 
              The contested issues are:
 
         
 
              1)  Whether there is a causal relationship between 
 

 
         
 
         
 
         
 
         BELLIS V. FIRESTONE TIRE & RUBBER COMPANY
 
         Page   2
 
         
 
         
 
         claimant's work-related injury of June 16, 1982 and his asserted 
 
         disability; and
 
         
 
              2)  Nature and extent of disability.
 
         
 
                             SUMMARY OF THE EVIDENCE
 
         
 
              Claimant testified that he was born on October 16, 1939.  He 
 
         graduated from Des Moines Technical High School in 1958, and 
 
         while attending high school took general studies and a sheet 
 
         metal course.  Claimant ultimately had a four year sheet metal 
 
         apprenticeship and then got a journeyman card.  Claimant obtained 
 
         on-the-job training by working with other journeymen.  A 
 
         journeyman card entitled claimant to perform work by himself; an 
 
         apprentice cannot work by himself or herself.  Claimant 
 
         ultimately obtained employment at Corn States Sheet Metal and did 
 
         pattern making in the shop for this employer.  The pattern making 
 
         portion of sheet metal work requires physical exertion.  This 
 
         activity requires standing all day long and some stooping is 
 
         required.
 
         
 
              Claimant stated that he started the apprenticeship program 
 
         in 1958 and became a journeyman in 1962.  In 1972, claimant 
 
         started working for Firestone as a sheet metal person.  When 
 
         claimant initially started working for Firestone, he built chain 
 
         guards and belt guards and worked with air pipes.  The Firestone 
 
         work was a little bit lighter than the work he had previously 
 
         done.   He lifted objects by himself at Firestone and the weight 
 
         of these objects would vary.  Claimant's job duties changed in 
 
         January 1982 when Firestone went to a multicraft system and this 
 
         resulted in claimant doing less sheet metal work and he started 
 
         to do a lot of mechanical work such as replacing belts and 
 
         chains.  Claimant had no training in mechanical work when he 
 
         started performing these functions.  He stated that the sheet 
 
         metal work duties at Firestone were heavier than the mechanical 
 
         work he was required to do.
 
         
 
              Claimant testified that he is currently employed by 
 
         Firestone, and that he "does the best he can" at this job.  Some 
 
         aspects of his current job require a lot of lifting, and he is 
 
         unable to perform these lifting duties by himself.
 
         
 
              Claimant then described how his injury of June 16, 1982 
 
         occurred.  He then described the course of medical treatment that 
 
         ensued after his work-related injury.  Claimant mentioned that he 
 
         ultimately had surgery that helped him.  This surgery reduced his 
 
         pain.
 
         
 
              Claimant testified that he returned to work on September 17? 
 
         1984 as a machinery care person.  Claimant testified that walking 
 
         currently causes him to have pain in his back.  Claimant 
 
         currently has another employee help him perform his job.  
 
         Claimant currently has back problems as well as problems with one 
 
         of his legs and hip.  Claimant testified that prior to June 1982, 
 
         he did not have problems with his low back, legs or hips.
 
         
 
              Claimant testified that he could not now do sheet metal work 
 
         because the lifting required to do this function is too heavy for 
 
         him.
 

 
         
 
         
 
         
 
         BELLIS V. FIRESTONE TIRE & RUBBER COMPANY
 
         Page   3
 
         
 
         
 
         
 
              Claimant testified on cross-examination, that the 
 
         "consolidation of the trades" occurred in 1982.  He further 
 
         acknowledged that since 1982 he has worked forty to forty-eight 
 
         hours per week.  Claimant stated that he hopes to continue his 
 
         current job.  He works within a 30 pound weight restriction and 
 
         acknowledged that he needs the assistance of a coworker.
 
         
 
              Exhibit A contains claimant's W2's for tax years 1982 
 
         through 1985.  Exhibit B is claimant's deposition taken on 
 
         September 16, 1986.  On page 12, claimant stated that he now 
 
         constantly works with a coworker and is able to do his job.  
 
         Claimant stated on page 13 that he cannot now do production jobs 
 
         without assistance.  Claimant's current job title is machine 
 
         repairman.  The coworker that assists him is also a machine 
 
         repairman.  Claimant was classified as a machine repairman after 
 
         the job title of steel metal worker was eliminated.  Claimant was 
 
         placed in the machine repairman category prior to his "physical 
 
         problems" and    the imposition of medical restrictions.  On page 
 
         21, claimant testified that he now makes $15.20 per day less than 
 
         he did one and one-half years ago.  On page 38, claimant 
 
         described his hip surgery.
 
         
 
              Page 1 of exhibit H contains a 10 percent whole body rating. 
 
          On page 2 of exhibit H the manner in which claimant was injured 
 
         in June 1982 is described as claimant being run down by a 
 
         forklift.  Exhibit H, page 8, reads in part under the entry dated 
 
         July 24, 1985:  "He is on light duty, and I think he is going to 
 
         be there permanently.  He says even this seems to be too much for 
 
         him." Exhibit H is the records and reports of Kent M. Patrick, 
 
         M.D., and Peter D. Wirtz, M.D.  Exhibit H, page 9, has an entry 
 
         dated December 16, 1986 that states claimant's left knee 
 
         continues to be symptomatic.  Exhibit I is a discharge summary 
 
         from Mercy Hospital Medical Center, Des Moines, Iowa, and it 
 
         reads in part: OLow back pain extending to the left hip and 
 
         sometimes the left thigh and leg."  The primary diagnosis set 
 
         forth on page 1 of exhibit I is lumbar disc syndrome.
 
         
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              I.  The claimant has the burden of proving by a 
 
         preponderance of the evidence that the injury of June 16, 1982 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. 0. Boggs, 236 Iowa 296, 18 N.W.2d 607 
 
         (1945).  A possibility is insufficient; a probability is 
 
         necessary.  Burt v. John Deere Waterloo Tractor Works, 247 Iowa 
 
         691, 73 N.W.2d 732 (1955).  The question of causal connection is 
 
         essentially within the domain of expert testimony.  Bradshaw v. 
 
         Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
         
 
              It is concluded that claimant's testimony on this issue is 
 
         persuasive.  Also, the medical evidence of record supports 
 
         claimant's position that there is a causal connection between his 
 
         work-related injury and his asserted disability.  The primary 
 
         fighting issue in this case will now be addressed, and that is 
 
         the issue of the appropriate amount of permanent partial 
 
         disability benefits owing to claimant.
 

 
         
 
         
 
         
 
         BELLIS V. FIRESTONE TIRE & RUBBER COMPANY
 
         Page   4
 
         
 
         
 
         
 
              II.  As claimant has an impairment to the body as a whole, 
 
         an industrial disability has been sustained.  Industrial 
 
         disability was defined in Diederich v. Tri-City Railway Co., 219 
 
         Iowa 587, 593, 258 N.W. 899, 902 (1935) as follows:  "It is 
 
         therefore plain that the legislature intended the term 
 
         'disability' to mean 'industrial disability' or loss of earning 
 
         capacity and not a mere 'functional disability' to be computed in 
 
         the terms of percentages of the total physical and mental ability 
 
         of a normal man."
 
         
 
              Functional disability is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963).  
 
         Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961).
 
         
 
              A finding of impairment to the body as a whole found by a 
 
         medical evaluator does not equate to industrial disability.  This 
 
         is so as impairment and disability are not synonymous.  Degree of 
 
         industrial disability can in fact be much different than the 
 
         degree of impairment because in the first instance reference is 
 
         to loss of earning capacity and in the later to anatomical or 
 
         functional abnormality or loss.  Although loss of function is to 
 
         be considered and disability can rarely be found without it, it 
 
         is not so that a degree of industrial disability is 
 
         proportionally related to a degree of impairment of bodily 
 
         function.
 
         
 
              Factors to be considered in determining industrial 
 
         disability include the employee's medical condition prior to the 
 
         injury, immediately after the injury, and presently; the situs of 
 
         the 
 
         
 
         injury, its severity and the length of healing period; the work 
 
         experience of the employee prior to the injury, after the injury 
 
         and potential for rehabilitation; the employee's qualifications 
 
         intellectually, emotionally and physically; earnings prior and 
 
         subsequent to the injury; age; education; motivation; functional 
 
         impairment as a result of the injury; and inability because of 
 
         the injury to engage in employment for which the employee is 
 
         fitted.  Loss of earnings caused by a job transfer for reasons 
 
         related to the injury is also relevant.  These are matters which 
 
         the finder of fact considers collectively in arriving at the 
 
         determination of the degree of industrial disability.
 
         
 
              There are no weighting guidelines that indicate how each of 
 
         the factors are to be considered.  There are no guidelines which 
 
         give, for example, age a weighted value of ten percent of the 
 
         total value, education a value of fifteen percent of total, 
 
         motivation - five percent; work experience - thirty percent, etc.  
 
         Neither does a rating of functional impairment directly correlate 
 
         to a degree of industrial disability to the body as a whole.  In 
 
         other words, there are no formulae which can be applied and then 
 
         added up to determine the degree of industrial disability. it 
 
         therefore becomes necessary for the deputy or commissioner to 
 
         draw upon prior experience, general and specialized knowledge to 
 

 
         
 
         
 
         
 
         BELLIS V. FIRESTONE TIRE & RUBBER COMPANY
 
         Page   5
 
         
 
         
 
         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).
 
         
 
              As mentioned above, a threshold question in this case is 
 
         whether claimant needs to show a change of, condition in order to 
 
         be awarded permanent partial disability benefits in excess of the 
 
         75 weeks paid to him by defendants.  It is concluded that such 
 
         showing is not required under the circumstances of this case as 
 
         there has not been a prior award or agency approved settlement in 
 
         this case.  The filing of a memorandum of agreement leaves the 
 
         question of extent of disability open for adjustment in 
 
         accordance with the facts of a particular case.  See Shoemaker v. 
 
         Adams Door Company, et al., (Appeal Decision filed August 30, 
 
         1985).  This change of condition question was argued to the Iowa 
 
         Supreme Court on July 14, 1987 in a case entitled Caterpillar 
 
         Tractor Company v. Mejorado.  Regarding the degree of industrial 
 
         disability in this case, a showing that a claimant has no actual 
 
         loss of earnings does not preclude a finding of industrial 
 
         disability.  See Michael v. Harrison County, 34 Biennial Report, 
 
         Iowa Industrial Commissioner, 218, 220 (Appeal Decision 1979 and 
 
         the cases discussed therein).  However, claimant's current 
 
         employment with Firestone is a consideration in assessing his 
 
         industrial disability; his current employment lessens his 
 
         industrial disability and defendants resulting lability.
 
         
 
         
 
              Claimant argues in this case that his industrial disability 
 
         exceeds 15 percent because he is not currently able to perform 
 
         his job without assistance, and because he is not able to do the 
 
         metal trade work that he is best suited for.  Claimant, at time 
 
         of hearing, argued that the concept of industrial disability 
 
         focuses on the loss of earning capacity and not on actual loss of 
 
         earnings.  I agree with claimant's argument in this regard as it 
 
         applies to the facts of this case and determine that an award of 
 
         25 percent industrial disability is therefore appropriate.  
 
         Claimant is currently doing what could be characterized as light 
 
         duty work because of his work-related injury of June 16, 1982 and 
 
         is unable to perform his job without assistance.  Claimant's 
 
         physical impairment is permanent and he will continue 
 
         experiencing difficulty doing his job as a result of the 
 
         impairment that resulted from his work-related injury.  Also, 
 
         claimant's testimony that he cannot do his work by himself is 
 
         believed.  It is also believed that claimant cannot do any 
 
         production job without assistance from a coworker.  In addition, 
 
         claimant is now unable to perform his trade of sheet metal 
 
         working without assistance.  Taking all appropriate factors into 
 
         account, it is determined that claimant is entitled to 125 weeks 
 
         of permanent partial disability benefits based on an industrial 
 
         disability of 25 percent.  The benefits commence on September 17, 
 
         1984, and defendants are entitled to a credit for benefits 
 
         already paid.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Claimant was born on October 16, 1939.
 
         
 
              2.  Claimant graduated from high school in 1958.
 

 
         
 
         
 
         
 
         BELLIS V. FIRESTONE TIRE & RUBBER COMPANY
 
         Page   6
 
         
 
         
 
         
 
              3.  Claimant was a sheet metal apprentice from 1958 through 
 
         1962.
 
         
 
              4.  Claimant obtained his journeyman card in 1962.
 
         
 
              5.  Subsequent to 1962, claimant worked as a sheet metal 
 
         worker.
 
         
 
              6.  In 1972, claimant went to work for Firestone as a sheet 
 
         metal worker.
 
         
 
              7.  In 1982, claimant lost his title as sheet metal worker 
 
         and was reclassified as a repairman.
 
         
 
              8.  Claimant is not currently able to do his "consolidated 
 
         jobO without the assistance of a coworker.
 
         
 
              9.  Claimant cannot currently do any production job at 
 
         Firestone without the assistance of a coworker.
 
         
 
             10.  Claimant currently has pain in his back, leg, and hip.
 
         
 
             11.  Claimant has had hip surgery.
 
         
 
             12.  Claimant's industrial disability is 25 percent.
 
         
 
             13. Claimant is not currently able to do his trade of sheet 
 

 
         
 
         
 
         
 
         BELLIS V. FIRESTONE TIRE & RUBBER COMPANY
 
         Page   7
 
         
 
         
 
         metal worker without assistance because of the physical 
 
         impairment resulting from his work-related injury of June 16, 
 
         1982.
 
         
 
              14.  Claimant's work-related injury of June 16, 1982 caused 
 
         a whole body permanent partial impairment of about 10 percent.
 
         
 
              15.  There is a causal connection between claimant's 
 
         work-related injury of June 16, 1982 and his approximate 10 
 
         percent whole body impairment.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              1.  Claimant need not show a change of condition in this 
 
         case in order to receive more than seventy-five (75) weeks of 
 
         permanent partial disability benefits.
 
         
 
              2.  Claimant's work-related injury of June 16, 1982 is 
 
         causally connected to his whole body permanent partial 
 
         impairment.
 
         
 
              3.  Claimant is entitled to one hundred twenty-five (125) 
 
         weeks of permanent partial disability benefits commencing on 
 
         September 17, 1984 at a weekly rate of two hundred ninety-two and 
 
         07/100 dollars ($292.07), and that defendants are entitled to a 
 
         credit for the seventy-five (75) weeks of such benefits already 
 
         paid.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Defendants pay a total of one hundred twenty-five (125) 
 
         weeks of permanent partial disability benefits at a weekly rate 
 
         of two hundred ninety-two and 07/100 dollars ($292.07) commencing 
 
         on September 17, 1984.
 
         
 
              Defendants pay accrued benefits in a lump sum, and pay 
 
         interest pursuant to section 85.30, The Code.
 
         
 
              Defendants be given credit for benefits already paid.
 
         
 
              Defendants pay the costs of this action pursuant to Division 
 
         of Industrial Services Rule 343-4.33.
 
         
 
         
 
         
 
              Defendants shall file claimant activity reports pursuant to 
 
         Division of Industrial Services Rule 343-3.1(2) as requested by 
 
         the agency.
 
         
 
         
 
              Signed and filed this 24th day of July, 1987.
 
         
 
         
 
                                         
 
         
 
                                         T. J. McSWEENEY
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
 
 

 
         
 
         
 
         
 
         BELLIS V. FIRESTONE TIRE & RUBBER COMPANY
 
         Page   8
 
         
 
         
 
                                        
 
         
 
         
 
         
 
         Copies to:
 
         
 
         Mr. David D. Drake
 
         Attorney at Law
 
         P.O. Box 367
 
         2141 Grand Avenue
 
         Des Moines, Iowa 50302
 
         
 
         Mr. Marvin Duckworth
 
         Attorney at Law
 
         Terrace Center, Suite 111
 
         2700 Grand Avenue
 
         Des Moines, Iowa 50312
 
         
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                      1402.40; 2905
 
                                                      Filed 7-15-87
 
                                                      T. J. McSweeney
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         LARRY BELLIS,
 
         
 
              Claimant,
 
                                                 File No. 706072
 
         VS.
 
         
 
         FIRESTONE TIRE & RUBBER                  R E V I E W -
 
         COMPANY,
 
                                                 R E 0 P E N I N G
 
              Employer,
 
                                                D E C I S I 0 N
 
         and
 
         
 
         CIGNA/INA,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1402.40; 2905
 
         
 
              Held in a review-reopening proceeding that claimant need not 
 
         show a change of condition merely because a memorandum of 
 
         agreement had been filed in the case.  The primary question 
 
         presented to the agency was the percentage of industrial 
 
         disability.  Claimant's industrial disability was determined to 
 
         be 25% after all relevant factors were weighed.
 
 
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JAMES E. BABE,                            File Nos. 706132
 
                                                             790714
 
              Claimant,
 
                                                     A P P E A L
 
         vs.
 
                                                   D E C I S I O N
 
         GREYHOUND LINES, INC.,
 
                                                      F I L E D
 
              Employer,
 
              Self-Insured,                          FEB 29 1988
 
              Defendant.
 
                                           IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Defendant appeals from an arbitration decision and a 
 
         review-reopening decision awarding permanent partial disability 
 
         benefits.
 
         
 
              The record on appeal consists of the transcript of the 
 
         arbitration proceeding; joint exhibits 1 through 16, 22 and 23; 
 
         and claimant's exhibits 17 through 21, with the exception of 
 
         exhibit 17(a), 18(a), 19(a), and 21(a).  Both parties filed 
 
         briefs on appeal, and defendant filed a reply brief.
 
         
 
                                    ISSUES
 
         
 
              Defendant states the following issues on appeal:
 
         
 
              1.  Whether claimant incurred a "gradual injury" or a 
 
         "cumulative injury" under the standards of McKeever Custom 
 
         Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985).
 
         
 
              2.  Whether claimant's injury, if it is a cumulative injury, 
 
         "occurred" when his employment terminated for reasons unrelated 
 
         to his injury.
 
         
 
              3.  Whether there is sufficient evidence to support an award 
 
         of 30 percent loss of earning capacity or industrial disability.
 
         
 
                            REVIEW OF THE EVIDENCE
 
         
 
              The arbitration decision adequately and accurately reflects 
 
         the pertinent evidence and it will not be totally reiterated 
 
         herein.
 
         
 
              Briefly stated, claimant was 36 years old at the time of the 
 
         hearing, with a high school education.  Claimant attempted 
 
         college but did not obtain passing grades.  Claimant was employed 
 
         by defendant Greyhound Lines in Sioux City, Iowa, from July 6, 
 
         1970 through November 30, 1984 as a ticket and baggage agent. 
 
                                                
 
                                                         
 
         Claimant's duties at Greyhound included ticket sales, and also 
 
         required him to lift baggage and freight items up to 100 pounds. 
 
         Claimant's duties remained the same the entire time he worked for 
 
         Greyhound.
 
         
 
              Claimant had no back problems prior to January 20, 1979. 
 
         Claimant was unloading 80 pound sacks of iron from a bus on 
 
         January 20, 1979 when he felt pain in his back and could not 
 
         stand up straight.  Claimant was off work for nine days.  
 
         Claimant was treated by R. L. Morgan, M.D., who found claimant to 
 
         have acute tenderness over the lumbosacral spine and over the 
 
         right sciatic notch.  X-rays of claimant's back were negative.  
 
         Claimant was paid workers' compensation benefits for this injury 
 
         pursuant to a memorandum of agreement.
 
         
 
              In October 1979, claimant was off work for five weeks due to 
 
         low back pain following lifting heavy freight at work.  Dr. 
 
         Morgan found a pelvic tilt to the right with an acute muscle 
 
         spasm on the right sciatic notch.  His x-rays were again 
 
         negative.
 
         
 
              He was also seen by Dr. Morgan in November 1980 for back 
 
         pain, as well as right leg and left arm pain, following lifting 
 
         heavy boxes at work.  Claimant indicated when his back pain was 
 
         severe, it would radiate into his arm or leg.  Claimant was 
 
         prescribed a low back support, but did not miss any work.
 
         
 
              On June 11, 1982, after lifting baggage weighing 30 to 40 
 
         pounds at work, claimant again experienced pain in his lower back 
 
         and legs.  Claimant missed eight days of work.  Defendant filed a 
 
         memorandum of agreement for the June 11, 1982 injury.  The last 
 
         date of payment of benefits was June 29, 1982.
 
         
 
              In November 1982, claimant slipped on stairs at home and was 
 
         off work.  Claimant was seen by Dr. Morgan again and referred to 
 
         A. D. Blenderman, M.D., who diagnosed a possible disc herniation 
 
         and restricted claimant's lifting activities.  Dr. Blenderman 
 
         concluded "It may very well be that the patient has a minimal 
 
         disc herniation at the level of L-4 on the right, which is not a 
 
         large bulging disc and therefore, responds to rest and inactivity 
 
         for a period of time."  (Claimant's Exhibit 7)  Dr. Blenderman 
 
         forwarded a letter to defendant advising that claimant should not 
 
         lift over 50 pounds.  (Cl. Ex. 7)  Claimant was off work for 
 
         approximately two weeks.
 
         
 
              On October 26, 1983, claimant felt a pull in his back while 
 
         lifting a package for a customer.  He later felt stiffness in his 
 
         back, and sought medical attention from Dr. Morgan.  Dr. Morgan 
 
         again found muscle spasm over the left sciatic notch.  Dr. Morgan 
 
         concluded that "[i]mpression is probably that of a chronic 
 
         myofasial [sic] strain although the possibility of discogenic 
 
         disease still must be entertained."  (Cl. Ex. 12)  Claimant was 
 
         off work for over one month as a result of the October 26, 1983 
 
         incident.
 
         
 
                                                
 
                                                         
 
              Claimant testified that throughout his employment with 
 
         Greyhound he suffered numerous additional incidents of back pain, 
 
         but only reported the incidents or sought medical attention when 
 
         the pain prevented him from working.  (Transcript, pages 48-49, 
 
         51)  Claimant also noticed incidents at home where he experienced 
 
         back pain while lifting his children.  (Tr., p. 50)  Claimant 
 
         testified that his fellow employees assisted him with loading or 
 
         unloading the heaviest packages and boxes because of his back.
 
         
 
              Claimant worked throughout 1984 without further report of 
 
         injury.  On November 30, 1984, claimant's employment was 
 
         terminated when the bus terminal changed over to a system using a 
 
         "commission" agent rather than Greyhound employees.  Claimant was 
 
         given an option to either transfer to another location or be 
 
         terminated and receive severance pay.  Claimant chose to be 
 
         terminated rather than transfer, based in part on his wife's 
 
         employment in the Sioux City area.  Claimant unsuccessfully 
 
         sought to be the commission agent, a position that would have 
 
         entailed many of the same lifting duties he was already 
 
         performing.  (Tr., p. 74)  He did not list any physical 
 
         restrictions on his application for that position, and claimant's 
 
         district manager stated his application was not denied due to any 
 
         physical restrictions.  Claimant indicated that if the terminal 
 
         system had not changed, he would probably still be employed by 
 
         defendant. (Tr., p. 71)  Claimant's district manager stated 
 
         claimant would have been able to work at the same duties in 
 
         another Greyhound facility. (Tr., p. 98)
 
         
 
              In March 1985, claimant reported to Dr. Morgan that he had 
 
         pain in his back after cutting firewood.  Claimant underwent a CT 
 
         scan in December 1985, which showed a "small posterior herniation 
 
         at L5-S1 which may not be of clinical significance."  (Cl. Ex. 
 
         14) Dr. Morgan opined on February 13, 1986 that:
 
         
 
              My feeling is that patient has a herniated disc at the level 
 
              of L5-S1 which is symptomatic.  I do feel that the disc 
 
              herniation is the result of the repeated traumatic events of 
 
              the low back, weakening the ligaments and the cartilages 
 
              which allow the disc to pop out and press the sacral nerve. 
 
              Patient has been advised that he should limit lifting to 25 
 
              lbs.; avoid the repetetive [sic] bending, squatting or trunk 
 
              twisting.
 
         
 
         (Cl. Ex. 16)
 
         
 
         In his opinion, claimant had a five percent permanent partial 
 
         impairment to the whole body.  (Cl. Ex. 15)
 
         
 
              Claimant filed a petition in arbitration for the injury 
 
         allegedly occurring on October 26, 1983 (File No. 790714), and a 
 
         petition for review-reopening for the injury alleged to have 
 
         occurred on June 11, 1982 (File No. 706131).  Claimant filed both 
 
         petition's on April 24, 1985.
 
         
 
              Claimant testified that his back condition has remained 
 
                                                
 
                                                         
 
         stable since his employment ended and he continues to suffer 
 
         pain. Claimant stated that prior to January 1979, he could lift 
 
         weight of 100-150 pounds, but now cannot comfortably lift over 25 
 
         to 30 pounds.  (Tr., p. 56)  Claimant presently does light duty 
 
         construction on a self-employed basis and cares for his children 
 
         so that his wife can work.
 
         
 
              The parties stipulated to the following:  Claimant's weekly 
 
         rate of compensation was $231.05; the commencement date of 
 
         permanent partial disability for the 1983 alleged injury would be 
 
         December 11, 1985, and for the alleged 1982 injury, June 26, 
 
         1982; and claimant last received a payment of weekly compensation 
 
         benefits for the October 26, 1983 injury on April 6, 1984.
 
         
 
                               APPLICABLE LAW
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that claimant received injuries on June 11, 1982 and 
 
         October 26, 1983 which arose out of and in the course of his 
 
         employment.  McDowell v. Town of Clarksville, 241 N.W.2d 904 
 
         (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 
 
         154 N.W.2d 128 (1967).
 
         
 
              The "cumulative injury" rule applies when disability 
 
         develops gradually or as a result of repeated trauma.  The 
 
 
 
                
 
                                                         
 
         compensable injury is held to occur at the later time.  For time 
 
         limitation purposes, the injury in such cases occurs when, 
 
         because of pain or physical disability, the claimant can no 
 
         longer work.  McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 
 
         (Iowa 1985).
 
         
 
              While a claimant is not entitled to compensation for the 
 
         results of a preexisting injury or disease, the mere existence at 
 
         the time of a subsequent injury is not a defense.  Rose v. John 
 
         Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2d 756, 760-761 
 
         (1956).  If the claimant had a preexisting condition or 
 
         disability that is aggravated, accelerated, worsened or lighted 
 
         up so that it results in disability, claimant is entitled to 
 
         recover.  Nicks v. Davenport Produce Co., 254 Iowa 130, 115 
 
         N.W.2d 812, 815 (1962).
 
         
 
              When an aggravation occurs in the performance of an 
 
         employer's work and a causal connection is established, claimant 
 
         may recover to the extent of the impairment.  Ziegler v. United 
 
         States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591, 595 
 
         (1960).
 
         
 
              The Iowa Supreme Court cites, apparently with approval, the 
 
         C.J.S. statement that the aggravation should be material if it is 
 
         to be compensable.  Yeager v. Firestone Tire & Rubber Co., 253 
 
         Iowa 369, 112 N.W.2d 299 (1961); 100 C.J.S. Workmen's 
 
         Compensation 555(17)a.
 
         
 
              When a worker sustains an injury, later sustains another 
 
         injury, and subsequently seeks to reopen an award predicated on 
 
         the first injury, he or she must prove one of two things:  (a) 
 
         that the disability for which he or she seeks additional 
 
         compensation was proximately caused by the first injury, or (b) 
 
         that the second injury (and ensuing disability) was proximately 
 
         caused by the first injury.  DeShaw v. Energy Manufacturing 
 
         Company, 192 N.W.2d 777, 780 (Iowa 1971).
 
         
 
                                   ANALYSIS
 
         
 
              Claimant maintains that the record shows a cumulative injury 
 
         to his back under McKeever Custom Cabinets v. Smith, 379 N.W.2d 
 
         368 (Iowa 1985).  Defendant argues that the January 20, 1979 
 
         incident was a preexisting condition, the subsequent incidents 
 
         represent only minimal aggravations of that condition, and any 
 
         award should be limited to the extent subsequent incidents 
 
         aggravated the January 20, 1979 injury.  Defendant also argues 
 
         that viewing claimant's condition as the result of a cumulative 
 
         injury in effect grants compensation for the January 20, 1979 
 
         injury, circumventing the statute of limitations under section 
 
         85.26, The Code.
 
         
 
              The McKeever case dealt with a situation where the employee 
 
         suffered two traumatic work injuries.  The first injury did not 
 
         result in any time off work, and the employee only missed 
 
         one-half day's work after the second injury.  He did not pursue a 
 
                                                
 
                                                         
 
         workers' compensation claim for either injury.  Subsequent to the 
 
         second injury, the employee in the McKeever case experienced 
 
         discomfort in his wrist caused by the repetitive use of a hammer 
 
         and power tools over the course of his employment.  He did not 
 
         seek medical attention or take time off work, "believing the 
 
         discomfort to be a normal result of the pounding and vibrating 
 
         which his job entailed."  Id. at 370.  The pain grew worse, and 
 
         eventually the employee sought medical attention, underwent 
 
         surgery, and quit his job because of his wrist condition.  In the 
 
         McKeever decision, the supreme court adopted the "cumulative 
 
         injury" rule for Iowa, and determined that liability could exist 
 
         for disability which gradually came about over a period of time.
 
         
 
              In the case sub judice, claimant suffered an injury on 
 
         January 20, 1979.  Unlike the first injury in McKeever, however, 
 
         claimant did miss time from work.  In McKeever, the repetitive 
 
         nature of claimant's work and the gradual worsening of the 
 
         condition meant that the employee had no single, identifying 
 
         event putting him on notice of a work-related injury.  The 
 
         supreme court held that such an employee would not be held to 
 
         have known he had a serious work-related injury until the pain 
 
         from the gradual injury increased to the point the employee was 
 
         compelled to leave work, at which time the statute of limitations 
 
         would start running.
 
         
 
              In the present case, by contrast, claimant can clearly 
 
         identify January 20, 1979 as the date on which he first suffered 
 
         a serious work-related injury to his back.  (Tr., pp. 45, 46)  He 
 
         missed nine days of work as a result of that incident.  Clearly, 
 
         he was on notice in January 1979 that he had suffered a serious 
 
         work-related injury.
 
         
 
              In October 1979, claimant again experienced an incident of 
 
         back pain after lifting heavy items and was off work for five 
 
         weeks.  This incident occurred as a result of a particular set of 
 
         circumstances--specifically the weight of the baggage claimant 
 
         was required to lift that day.  It was therefore a separate and 
 
         distinct injury or aggravation of a preexisting condition and not 
 
         a gradual worsening of the January 20, 1979 injury caused by 
 
         repetitive activity.  Again, since claimant missed a substantial 
 
         period of time off work, he was on notice that he had suffered a 
 
         serious work injury in October of 1979.
 
         
 
              In November 1980, claimant again suffered back pain after 
 
         heavy lifting at work.  There is no indication that claimant 
 
         missed any time off work as a result of this injury.
 
         
 
              On June 11, 1982, claimant suffered back pain and missed 
 
         eight days of work.  Claimant's pain was caused by a particular 
 
         set of circumstances, lifting the baggage or freight presented by 
 
         customers of the employer that day, and was not the result of a 
 
         gradual worsening of the original injury through repetitive 
 
         activity.  As such, it constitutes a separate and distinct injury 
 
         or aggravation of a preexisting condition.  A memorandum of 
 
         agreement was filed, and claimant received benefits.  Claimant 
 
                                                
 
                                                         
 
         was clearly on notice that he had received a serious work injury 
 
         on June 11, 1982.
 
         
 
              On October 26, 1983, claimant once again injured his back at 
 
         work by heavy lifting, indicating a separate and distinct injury 
 
         or aggravation of a preexisting condition.  His injury on that 
 
         date was not the gradual worsening of a prior injury caused by 
 
         repetitive activity, but a consequence of the heavy freight or 
 
         baggage he was required to lift on that particular day.  He 
 
         missed a month of work as a result.  Claimant's absence from work 
 
         constitutes knowledge that he had suffered a serious work 
 
         injury.
 
         
 
              Claimant also experienced an increase in back pain from 
 
         nonwork activities, such as lifting his children.  This suggests 
 
         that activity at work was not the sole cause of the back problems 
 
         he experienced.
 
         
 
              In addition, claimant continues to experience incidents of 
 
         back pain even after his employment with Greyhound has ceased. 
 
         This also tends to show that his present condition is not the 
 
         result of repetitive, gradual injuries while employed by 
 
         Greyhound.
 
         
 
              It is determined that claimant's back injuries of June 11, 
 
         1982 and October 26, 1983, the injuries involved in these two 
 
         actions, are not cumulative injuries.  The effect of these 
 
         injuries on his back was not gradual, but rather was traumatic. 
 
         They were not the results of repetitive small injuries, such as 
 
         the hammering in McKeever, but rather were caused by varying 
 
         activities that involved heavy weights on June 11, 1982 and 
 
         October 26, 1983.  The mere fact that the subsequent injuries 
 
         were numerous or that claimant was frequently required to lift 
 
         heavy weights does not make those injuries cumulative in nature.
 
         
 
              This conclusion is reached even though the opinion of Dr. 
 
         Morgan stated that claimant's back condition was caused by 
 
         "repeated traumatic events."  "Repetitive" has a particular legal 
 
         meaning in this context.  Dr. Morgan's opinion is read to mean 
 
         that numerous incidents caused claimant's condition.
 
         
 
              Even if the incidents of June 11, 1982 and October 26, 1983 
 
         are viewed as cumulative injuries, they are separate cumulative 
 
         injuries.  Thus, claimant would have suffered a cumulative injury 
 
         that culminated in an absence from work on June 11, 1982, and a 
 
         second cumulative injury that culminated in an absence from work 
 
         on October 26, 1983.
 
         
 
              The determination that the injuries of June 11, 1982 and 
 
         October 26, 1983 were not cumulative then poses the question 
 
         whether these incidents were separate injuries causing new 
 
         impairment, or whether they constitute aggravations of a 
 
         preexisting condition.  Prior to the June 11, 1982 incident, 
 
         claimant had injured his back on January 20, 1979, in October 
 
         1979, and in November 1980.  Prior to the October 27, 1983 
 
                                                
 
                                                         
 
         incident, claimant had suffered injuries to his back on January 
 
         20, 1979, in October 1979, in November 1980, on June 11, 1982, as 
 
         well as during a fall at home in November 1982.  Since claimant 
 
         acknowledges that he experienced limitations on his ability to 
 
         lift heavy items prior to both the June 11, 1982 incident and the 
 
         October 26, 1983 incident, claimant clearly had a preexisting 
 
         condition prior to June 11, 1982 and prior to October 26, 1983.
 
         
 
              Generally, all the injuries subsequent to January 20, 1979 
 
         resulted in pain and impairment to the same area of the body, 
 
         claimant's lower back, with occasional radiation to the arm and 
 
         leg.  Claimant did not indicate that the resulting pain of any of 
 
         the incidents extended to another part of the back other than 
 
         that which was involved in the January 20, 1979 injury.  Each 
 
         incident resulted in the same impairment, the inability to bend 
 
         or lift heavy weights.  Claimant's back condition appears to have 
 
         remained the same from January 20, 1979 onward.
 
         
 
              Claimant's own testimony relates his condition to his 
 
         January 20, 1979 injury.  His memory is vague on the other 
 
         alleged injuries, with the exception of the October 26, 1983 
 
         incident. Claimant refers to the January 20, 1979 incident as the 
 
         starting point of his condition:
 
         
 
              Q.  Now, after January of 1979 and the years that followed 
 
              right up through November 30th, 1984, do you find that there 
 
              are things that you can't do physically that you could do 
 
              before?
 
         
 
              A.  Just a lot of different types of lifting -- As far as 
 
              how it relates to me nowadays or just overall, general 
 
              picture of it?  You just don't lift the things you used to 
 
              lift.  You don't do the same, exact type of --
 
 
 
                                   
 
                                                         
 
         
 
              Q.  I mean, in what way?  Describe for us, Mr. Babe, some of 
 
              the things that you can't do now, if you want to talk about 
 
              it in the lifting, that you used to be able to do before 
 
              these incidents that began in '79?
 
         
 
              A.  I used to do roofing, roofed houses and stuff like that. 
 
              Now I can still roof houses, but I have -- you know, people 
 
              have to help me get the roofing up.  There's no way I can 
 
              carry up bundles of roofing on the roof.
 
         
 
         (Tr., p. 55)
 
         
 
              Q.  All right.  With respect to the lifting process that you 
 
              described at Greyhound, you were able to do that work before 
 
              1979?
 
         
 
              A.  Yeah. right.
 
         
 
              Q.  All right.  So after 1979 and after the period that 
 
              begins in 1979, do you find -- Will you describe whether or 
 
              not you're able to do that kind of bending and twisting now 
 
              that you used to be able to do?
 
         
 
              A.  I can still do that same bending and twisting, but in a 
 
              lot different light.  I didn't -- You had to be more careful 
 
              about sliding, you know, heavier objects instead of just 
 
              literally physically picking them up and literally 
 
              manhandling this freight.  It was a matter of -- just a more 
 
              controlled situation.  You'd have to be a lot more careful 
 
              the way you handle this.
 
         
 
         (Tr., pp. 58-59)
 
         
 
              Q.  Would this be the kind of work, however, that you could 
 
              do before 1979?
 
         
 
              A.  Before '79, I could -- In fact, I used to, years ago, do 
 
              concrete work.  I could do a sidewalk by myself.  I could 
 
              screen a sidewalk off.
 
         
 
         (Tr., p. 61)
 
         
 
              Q.  This condition in your back that -- that you presently 
 
              have, when it began in 19 -- Did it begin in 1979?
 
         
 
              A.  That's the first time I ever had any problems, right.
 
         
 
              Q.  And did it -- has it increased in -- in its effect upon 
 
              you -- and its adverse effect on you, or has it remained the 
 
              same?
 
         
 
              A.  The type of problem I have with my back is, sometimes 
 
              you can do work and not have any problems at all for a 
 
              period of time.  I'm talking about just regular type of 
 
                                                
 
                                                         
 
                   work, what anybody would do, yard work, lifting, even in 
 
              this small contracting stuff, as long as it isn't extremely 
 
              heavy, you know, just basic.
 
         
 
                   And, then all of a sudden, you'll lift something that's 
 
              not even a 25-or 30-pound object, and then it'll -- 
 
              sometimes that -- when you injure it at that time, it might 
 
              last two or three days; sometimes it might two or three 
 
              months.  It's just a matter of it's -- I can't say as it's 
 
              ever been a worse or better time to it.  It's not -- it's 
 
              not an all-entailing thing, where it's, you know, night and 
 
              day.  But then there's a lot of times where it lasts for a 
 
              long period of time.  I've had it for four or five months 
 
              easily.  And at that time you're just a lot more careful.
 
         
 
              Q.  Well, then will the symptoms of your back problems be 
 
              brought upon by all kinds of things, and sometimes not even 
 
              heavy?
 
         
 
              A.  Numerous things, right.  I've picked up stuff, sometimes 
 
              25 or 30 pounds -- It's just a matter of how that weight is. 
 
              It's -- The -- Boy, it's just hard to pinpoint any type of 
 
              -- I've had a lot of -- a lot of injury to it, you know, 
 
              when I was working for Greyhound, and since -- since I've 
 
              been unemployed by -- or not employed by Greyhound, you 
 
              know, I've had problems with my back.  It's just the same 
 
              thing.
 
         
 
                   Two or three times a year, you're going to have a 
 
              problem with it.  It's not anything that lasts all the time. 
 
              Sometimes, like I said, it's two or three days; sometimes it 
 
              continually nags at you for two or three months.
 
         
 
         (Tr., p. 62-63)
 
         
 
              Claimant acknowledged that his condition has gone basically 
 
         unchanged from the January 20, 1979 incident until the present 
 
         time:
 
         
 
              Q.  That injury stemmed from the 1979 incident?
 
         
 
              A.  Yeah.  Truthfully, I just never had too much trouble -- 
 
              in fact, I had no trouble at all doing physical activities, 
 
              and I can remember that '79 incident because I couldn't 
 
              believe it.  When you have some kind of traumatic incident, 
 
              you just remember it.  I mean, I have never been out where I 
 
              couldn't stand up straight or anything like that, and that's 
 
              when it -- in '79, that's the type of injury I had.
 
         
 
                   And I continued to have that injury from '79 until 
 
              present day, and I'll probably have it the rest of my life. 
 
              It's not -- at this time, hopefully, it's not a serious 
 
              injury, and hopefully, the rest of my life isn't -- who's to 
 
              say -- I'm 36 now -- that by the time I'm 46, I'll even be 
 
              walking around.
 
                                                
 
                                                         
 
         
 
              Q.  There isn't any significant difference between your 
 
              condition now and immediately following the injury, is 
 
              there?
 
         
 
              A.  I'd say, basically, it's the same type of -- It's just a 
 
              nagging, reoccurring type of deal where you can be walking 
 
              along the sidewalk or stoop to pick something up and that's 
 
              it.
 
         
 
              Q.  And it really wasn't any different in '82 than it was in 
 
              '79?
 
         
 
              A.  I would say, basically, it's the same - same thing, just 
 
              -- It's the same place in my back.  If it's worse, it's more 
 
              in my leg and hip; it's -- You look like Chester in --
 
         
 
              Q.  It was about the same in '83 as in '79?
 
         
 
              A.  Basically the same exact thing, all the same location, 
 
              all the same type of hurt and problem and inability to do 
 
              some -- some less inability to work, correct.
 
         
 
         (Tr., pp. 106-108)
 
         
 
              Thus, based on the above, it is determined that on June 11, 
 
         1982 claimant aggravated a preexisting back condition.  It is 
 
         also determined that on October 26, 1983 claimant aggravated a 
 
         preexisting back condition.
 
         
 
              Any award of benefits is limited to the extent the incidents 
 
         of June 11, 1982 and October 26, 1983 materially aggravated a 
 
         preexisting condition.  No award of benefits can be made in these 
 
         proceedings as the result of any injury received on January 20, 
 
         1979, in October 1979, and November 1980, as these actions are 
 
         not based on those incidents and because an action for those 
 
         incidents was not timely pursued under section 85.26 of the 
 
         Code.
 
         
 
              Claimant has not shown by a preponderance of the evidence 
 
         that the incident of June 11, 1982 materially aggravated a 
 
         preexisting condition.  Claimant was able to return to the same 
 
         duties he performed prior to that incident.  Five months after 
 
         his return to work, claimant slipped at home and was off work 
 
         again. It was only then that Dr. Blenderman diagnosed claimant's 
 
         possible disc herniation and assigned a lifting restriction.  The 
 
         record would indicate that the slip at home was the likely cause 
 
         of claimant's disc herniation and resulting lifting restrictions 
 
         rather than the June 11, 1982 work incident.
 
         
 
              Similarly, claimant has not shown by a preponderance of the 
 
         evidence that the incident of October 26, 1983 materially 
 
         aggravated a preexisting back condition.  Again, claimant was 
 
         able to return to the same duties he performed prior to that 
 
         incident. Over sixteen months later claimant injured his back 
 
                                                
 
                                                         
 
         cutting firewood, and at that point Dr. Morgan diagnosed a 
 
         herniated disc. The record would indicate that the wood cutting 
 
         injury was at least as likely a cause of claimant's back 
 
         condition as the incident at work over a year earlier.
 
         
 
              Claimant has failed to show that his present condition is 
 
         causally connected to the June 11, 1982 incident or the October 
 
         26, 1983 incident.
 
         
 
              Claimant testified that his back condition was virtually the 
 
         same from the injury of January 20, 1979 to the present. 
 
         Claimant's ability to lift and perform his job duties was the 
 
         same after he returned to work following the June 11, 1982 
 
         incident as it was before the incident.  Claimant's ability to 
 
         lift and perform his job duties was the same after he returned to 
 
         work following the October 26, 1983 incident as it was before the 
 
         incident.
 
         
 
              Thus, even if his present condition were proved related to 
 
         his work incidents and not to his fall at home, it does not 
 
         appear that claimant suffered any permanent impairment or 
 
         disability as a result of his June 11, 1982 injury or his October 
 
         26, 1983 injury. Although those injuries undoubtedly caused 
 
         claimant pain and discomfort on a temporary basis, they do not 
 
         appear to have increased his impairment from what it was before 
 
         those events.
 
         
 
              Claimant is entitled to temporary total disability benefits 
 
         from June 14, 1982 through June 27, 1982.  Claimant is also 
 
         entitled to temporary total disability benefits from October 27, 
 
         1983 through December 8, 1983.  Claimant is not entitled to any 
 
         permanent partial disability benefits from these proceedings as 
 
         he has failed to show by a preponderance of the evidence either a 
 
 
 
                                   
 
                                                         
 
         cumulative injury or a material aggravation of a preexisting 
 
         injury on either June 11, 1982 or October 26, 1983.
 
         
 
                              FINDINGS OF FACT
 
 
 
              1.  Claimant was employed by defendant Greyhound from July 
 
         6, 1970 until November 30, 1984.
 
         
 
              2.  Claimant's duties required him to lift freight and 
 
         baggage weighing from one pound up to 100 pounds.
 
         
 
              3.  Claimant first experienced back pain after lifting at 
 
         work on January 20, 1979.
 
         
 
              4.  Claimant was off work for nine days following the 
 
         January 20, 1979 incident.
 
         
 
              5.  Claimant's coworkers assisted him with lifting heavy 
 
         baggage and freight.
 
         
 
              6.  Claimant began experiencing back pain after lifting at 
 
         work in October 1979.
 
         
 
              7.  Claimant was off work approximately five weeks following 
 
         an October 1979 incident but did not miss work.
 
         
 
              8.  Claimant again experienced back pain after lifting at 
 
         work in November 1980 but did not miss work.
 
         
 
              9.  Claimant was prescribed back support.
 
         
 
              10.  Claimant again experienced back pain work on June 11, 
 
         1982.
 
         
 
              11.  Claimant was off work for eight days as a result of the 
 
         June 11, 1982 incident.
 
         
 
              12.  Claimant slipped and injured his back at home in 
 
         November 1982.
 
         
 
              13.  Claimant received a medical lifting restriction not to 
 
         lift over 50 pounds following the November 1982 incident.
 
         
 
              14.  Claimant again experienced back pain after lifting at 
 
         work on October 26, 1983.
 
         
 
              15.   Claimant was off work for approximately five weeks 
 
         following the October 26, 1983 incident.
 
         
 
              16.  Claimant's employment was terminated November 30, 
 
         1984.
 
         
 
              17.  Claimant was laid off because of a general layoff.
 
         
 
              18.  Claimant was not laid off because of his impairment.
 
                                                
 
                                                         
 
         
 
              19.  Claimant was diagnosed as having a herniated disc in 
 
         February 1986.
 
         
 
              20.  Claimant's back impairment did not materially change 
 
         following the January 20, 1979 incident.
 
         
 
              21.  Claimant does not have any permanent impairment as a 
 
         result of his June 11, 1982 injury.
 
         
 
              22.  Claimant does not have any permanent impairment as a 
 
         result of his October 26, 1983 injury.
 
         
 
                              CONCLUSIONS OF LAW
 
         
 
              Claimant has not shown by a preponderance of the evidence 
 
         that he has suffered a cumulative injury to his lower back that 
 
         arose out of and in the course of his employment with defendant.
 
         
 
              Claimant's injury of June 11, 1982 aggravated a preexisting 
 
         back impairment.
 
         
 
              Claimant's injury of October 26, 1983 aggravated a 
 
         preexisting back impairment.
 
         
 
              Claimant failed to show he has any permanent partial 
 
         disability as a result of the injury of June 11, 1982.
 
         
 
              Claimant failed to show he has any permanent partial 
 
         disability as a result of the injury of October 26, 1983.
 
         
 
              Claimant has not shown by a preponderance of the evidence 
 
         that his present condition is caused by the injury of June 11, 
 
         1982.
 
         
 
              Claimant has not shown by a preponderance of the evidence 
 
         that his present condition is caused by the injury of October 26, 
 
         1983.
 
         
 
              Claimant has shown entitlement to temporary total disability 
 
         benefits from June 11, 1982 through June 22, 1982, and from 
 
         October 27, 1983 through December 8, 1983.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed and 
 
         modified.
 
         
 
                                       ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That defendant shall pay claimant temporary total disability 
 
         benefits at the rate of two hundred thirty-one and 05/100 dollars 
 
         ($231.05) from June 11, 1982 through June 22, 1982, and from 
 
         October 27, 1983 through December 8, 1983.
 
         
 
                                                
 
                                                         
 
              That defendant is to pay the costs of this action.
 
         
 
              That defendant shall file activity reports on the payment of 
 
         this award as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
         
 
              Signed and filed this 29th day of February, 1988.
 
         
 
         
 
         
 
         
 
         
 
                                               DAVID E. LINQUIST
 
                                            INDUSTRIAL COMMISSIONER
 
          
 
         Copies To:
 
         
 
         Mr. Joe Cosgrove
 
         Attorney at Law
 
         400 Frances Building
 
         Sioux City, Iowa  51101
 
         
 
         Mr., Alan D. Hallock
 
         Mr. william K. Stoos
 
         Attorneys at Law
 
         830 Frances Building
 
         Sioux City, Iowa  51101
 
 
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            2209-2402-1108.50-1801
 
                                            Filed February 29, 1988
 
                                            DAVID E. LINQUIST
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JAMES E. BABE,
 
                                                    File Nos. 706132
 
              Claimant,                                       790714
 
         
 
         vs.                                          A P P E A L
 
         
 
         GREYHOUND LINES, INC.,                     D E C I S I 0 N
 
         
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         2209 - 2402
 
         
 
              Claimant failed to show a cumulative injury where he 
 
         suffered back injuries while lifting heavy baggage.  Claimant's 
 
         injuries were traumatic rather than repetitive.  Distinguished 
 
         from McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 
 
         1985) in that in McKeever claimant did not miss any compensable 
 
         period of time off work.  Claimant in this case did miss more 
 
         than three days from work following each injury and was therefore 
 
         on notice that he had suffered serious work-related injuries.  
 
         The statute of limitations ran from the date of the incidents 
 
         causing the lost work time.
 
         
 
         1108.50
 
         
 
              Claimant failed to show by a preponderance of the evidence 
 
         that his disability was causally connected to his work injuries, 
 
         where claimant had slipped and injured his back at home prior to 
 
         one doctor's examination and had injured his back chopping wood 
 
         prior to a second medical examination.  Claimant's non-work 
 
         injuries were as likely or more likely causes of his disability 
 
         as his work injuries.
 
         
 
         1801
 
         
 
              Claimant found to be entitled to temporary total disability 
 
         benefits for time off work following his injuries.