1803
 
                                          Filed May 9, 1990
 
                                          DAVID E. LINQUIST
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            IRVING A. MERRILL,            :
 
                                          :
 
                 Claimant,                :      File No. 707565
 
                                          :
 
            vs.                           :        A P P E A L
 
                                          :
 
            EATON CORPORATION,            :      D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            1803
 
            Claimant, aged 68, chose to retire after his injury.  There 
 
            was no medical evidence to substantiate his claim that his 
 
            injury forced him to retire.  Claimant's age and proximity 
 
            to normal retirement age were factors in determining 
 
            industrial disability regardless of whether claimant 
 
            actually retired or not.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         IRVING A. MERRILL,                         File No. 707565
 
         
 
              Claimant,                          A R B I T R A T I O N
 
         
 
         vs.                                        D E C I S I O N
 
         
 
         EATON CORPORATION,                            F I L E D
 
         
 
              Employer,                               FEB 13 1989
 
              Self-Insured,  
 
              Defendant.                      IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is an arbitration proceeding brought by Irving A. 
 
         Merrill, claimant, against the Eaton Corporation, self-insured 
 
         employer, defendant.  The case was heard by the undersigned in 
 
         Storm Lake, Iowa on August 19, 1988.
 
         
 
              The record consists of the testimony of claimant.  Also 
 
         testifying for claimant are Stanley Thorpe, Frank Rose and 
 
         Darlene Merrill.  The record further consists of defendant's 
 
         witness, Linda Maurer.  The record also contains claimant's 
 
         exhibits A, B and D, as well as defendant's exhibits 1 through 
 
         4.
 
         
 
                                   ISSUE
 
         
 
              As a result of the prehearing report and order submitted and 
 
         approved on May 18, 1988, the sole issue presented by the parties 
 
         is whether claimant is entitled to permanent partial or permanent 
 
         total disability benefits.
 
         
 
                               FACTS PRESENTED
 
         
 
              Claimant commenced his employment with defendant on December 
 
         5, 1977. on July 7, 1982, a 500 pound compressor fell 
 
         approximately 30 feet onto claimant.  Claimant sustained various 
 
         injuries to his hips, lower back, neck, both knees and legs, 
 
         right ankle, right foot, right shoulder, right arm, wrist and 
 
         hand, buttock and pelvis.  Claimant eventually returned to work 
 
         at defendant's place of business after one year and five months. 
 
         Claimant was placed on the night shift calibrating equipment as 
 
         of December 1, 1983.  Claimant continued in that position until 
 
         November 18, 1985, the last day he worked.  After November 18, 
 
         1985, claimant began receiving his retirement benefits, although 
 
         he maintained he did not retire.
 
         
 
              Subsequent to the date of his injury, claimant and defendant 
 
                                                
 
                                                         
 
         entered into a written agreement which stated the following:
 
         
 
              This form constitutes the final statement of agreement 
 
              reached between Irving Merrill and Eaton Corporation 
 
              relating to his Workers Compensation injury sustained on 
 
              July 7, 1982.
 
         
 
              Mr. Merrill is awarded a permanent partial disability of 20% 
 
              of the shoulder which equates to 12% of the body as a whole 
 
              from Dr. Donald C. Campbell, II, M.D./Mayo Clinic.
 
         
 
              Mr. Merrill is awarded a permanent partial disability of 7% 
 
              of the leg which equates to 3% of the body as a whole from 
 
              Dr. Donald C. Campbell, II, M.D./Mayo Clinic.
 
         
 
              Mr. Merrill is awarded an industrial disability.of 5% of the 
 
              body as a whole from Eaton Corporation.
 
         
 
              The total of these disabilities equals a final settlement 
 
              amounting to a 20% disability of the body as a whole or 100 
 
              weeks of permanent partial disability compensation at the 
 
              weekly rate of $271.64 to be paid weekly.
 
         
 
              THIS STATEMENT WAS READ AND AGREED TO BY THE FOLLOWING 
 
              PARTIES ON THURSDAY, JANUARY 12, 1984.
 
         
 
              The above written agreement has never been submitted to the 
 
         Division of Industrial Services for approval pursuant to section 
 
         86.13, The Code.  Claimant has been paid 208 weeks of 
 
         compensation at the rate of $271.62 per week.  Seventy-three 
 
         weeks have been for healing period benefits.  One hundred 
 
         thirty-five weeks have been for other weekly benefits.  Because 
 
         the above agreement has not been formally approved by the 
 
         Industrial Commissioner, the aforesaid agreement is not 
 
         recognized as an agreement for settlement.  Consequently, this 
 
         proceeding is considered an arbitration proceeding rather than a 
 
         review-reopening proceeding. The undersigned is not bound by any 
 
         agreements between the respective parties to these proceedings.
 
         
 
              In the case at hand, there are discrepancies with respect to 
 
         the degree of functional impairment that has been attributed to 
 
         the claimant's current condition.  Claimant's family physician, 
 
         E. 0. Schlichtemeier, M.D., referred claimant to J. W. Follows, 
 
         M.D., an orthopedic surgeon.  Dr. Follows performed surgery for a 
 
         torn deltoid ligament, an anteroinferior tibiofibular ligament, 
 
         and a fractured lateral malleolus.  Surgery was also performed on 
 
         the right rotator cuff of the shoulder.
 
         
 
              Subsequent to the date of the surgery, claimant sought the 
 
         medical opinion of specialists at Mayo Clinic.  Claimant was seen 
 
         by Donald C. Campbell, II, M.D.  Dr. Campbell wrote the following 
 
         concerning claimant's condition:  "In my opinion, Mr. Merrill has 
 
         a permanent partial impairment rating of 20% of the right upper 
 
         extremity as a result of difficulties involving his shoulder."
 
         
 
                                                
 
                                                         
 
              In order to conform to the worker's compensation regulations 
 
         of the State of Iowa, Mr. Merrill's rating of 10 percent 
 
         permanent partial physical impairment of the right ankle should 
 
         be converted to seven percent permanent partial physical 
 
         impairment of the right leg.
 
         
 
              As of August 9, 1984, Dr. Campbell opined the following:
 
         
 
              Mr. Irving Merrill returned to see me on August 6, 1984, for 
 
              further evaluation of his right shoulder and his right foot. 
 
              The right foot problem seems to me to be very much the same 
 
              as it has been in the past and it relates directly to his 
 
              ankle fracture.  Each time Mr. Merrill comes, he asks me 
 
              about his ankle and seems to imply that he expects that 
 
              something can be done about this, or that there must be some 
 
              explanation why it is still causing trouble.  Each time, I 
 
              point out to him that he sustained a very serious injury to 
 
              his ankle and that under the circumstances, the difficulties 
 
              he is experiencing are not unexpected.  There are, I 
 
              believe, similar expectations regarding his right shoulder.  
 
              Mr. Merrill has returned to work and tells me he is doing 
 
              maintenance work which requires the use of wrenches and 
 
              other tools.  He has more recently noted more pain in the 
 
              medial aspect of his arm beginning in the area of the 
 
              axilla, and asked whether the staples in his shoulder might 
 
              be causing his pain.
 
         
 
              Examination reveals a range of motion which is still limited 
 
              and not greatly improved over his last examination.  He 
 
              appears to have less muscle atrophy, however.  There is an 
 
              area of tenderness along the course of the long head of the 
 
              biceps muscle and tendon, and a small area of tenderness in 
 
              the extensor musculature of the forearm.  In addition, Mr. 
 
              Merrill was concerned about a soft tissue lump over the 
 
              lateral margin of the right scapula.  This appears to be a 
 
              benign lipoma and I would not recommend any treatment for 
 
              it. I felt that some of the pain that Mr. Merrill is 
 
              experiencing in his shoulder might represent a biceps 
 
              tendinitis and this area was injected with a mixture of 
 
              Marcaine and Celestone. Hopefully, this will give him some 
 
              relief.
 
         
 
              I see no reason to add any restrictions to Mr. Merrill's 
 
              activities beyond those already recommended.  Mr. Merrill is 
 
              unlikely to improve much beyond his present status.  I 
 
              believe that he has difficulty accepting this, but I don't 
 
              believe there is much point in my seeing him on a regular 
 
              basis to simply reaffirm this opinion.  Mr. Merrill has 
 
              reached a point where he must decide what he is able to do. 
 
              If he extends himself too far and experiences pain, then he 
 
              will simply have to back off a bit.  I see no reason for him 
 
              not to work, however.
 
         
 
              Later, claimant became dissatisfied with the progress he was 
 
         making.  He requested permission from defendant to consult with 
 
                                                
 
                                                         
 
         Robert R. Giebink, M.D.  That permission was granted by 
 
         defendant. Claimant was first seen by Dr. Giebink on August 27, 
 
         1985 for evaluation on his right shoulder and on his right 
 
         ankle.
 
         
 
              Dr. Giebink wrote in his progress notes the following:
 
         
 
              EXAM:  Mr. Merrill is 64, 6'1", 240#.  He appears to be in 
 
              excellent health.  He is very pleasant and very cooperative 
 
              and does not appear to be in any acute distress at the 
 
              present time.  He is a big man and his stance & gait are 
 
              normal.  Pelvis is level.  Shoulders are symmetrical.  The 
 
              pt. has a well healed S-shaped scar over the anterior aspect 
 
              right shoulder joint where the surgery was done.  He has 2 
 
              scars about an inch long on the anterior of each knee where 
 
              he lacerated his knees bar on the fork-lift and he has two 
 
              scars on his right ankle.  One longitudinal scar about 2 
 
              1/2" long on the anteromedial aspect of the right ankle and 
 
              another scar about 4" long over the lateral aspect of his 
 
              right ankle.  The patient is able to walk on his tiptoes & 
 
              his heels without any difficulty.  When he stands the motion 
 
              of his lower back is not particularly restricted or painful. 
 
              On examining the upper extremities and shoulders the patient 
 
              does have a restricted motion of his right shoulder.  He has 
 
              some atrophy of the right trapezious muscle but the 
 
                               
 
                                                
 
                                                         
 
              scapulohumeral motion in the right shoulder is restricted 
 
              about 50%.  When he brings his arm out to the side he can 
 
              raise it to about 60 degrees and then he can raise it up 
 
              over his head and get his hand on top of his head but he has 
 
              about 1/3 loss of the ability to abduct and externally 
 
              rotate his right shoulder.  He can get his right arm behind 
 
              his back.  I would say that abduction is restricted about 35 
 
              or 40%, external rotation and internal rotation about 30%.  
 
              However, the shoulder is stable.  He has some tenderness 
 
              about the right shoulder joint but not a great deal.
 
         
 
                   ...
 
         
 
              CONCLUSIONS:  This pt. had a severe injury to his right 
 
              shoulder and his right ankle.  Dr. Follows did an excellent 
 
              job in repairing the right ankle.  The ankle mortise is very 
 
              good but he does have a restricted ROM.  But there is good 
 
              function of the ankle joint.  Also, the shoulder injury 
 
              apparently was a partial dislocation of the shoulder and the 
 
              repair also has been excellent giving him a good stable 
 
              shoulder.  However, the pt. does have some mild irregularity 
 
              of the glenohumeral joint and some bone spurs present over 
 
              the anterior aspect of the glenoid consistent with low grade 
 
              traumatic arthritis involving the right shoulder joint and 
 
              although he has good ability to forward flex and raise the 
 
              arm up over his head in a lying down position, when he 
 
              stands abduction is considerably restricted.  Motion at the 
 
              glenohumeral joint is restricted both actively and passively 
 
              to about 50% of normal.
 
         
 
                   ...
 
         
 
              As far as the disability is concerned, the patient tells me 
 
              the Mayo Clinic had examined the shoulder with him lying 
 
              down and that he was able to raise his arm up over his head 
 
              quite well which he does very well but in the standing 
 
              position the abduction of the right shoulder is considerably 
 
              more restricted.  Using the Journal of The American Medical 
 
              Association standards for disability evaluation for 
 
              impairment of function, I feel the patient has a 25% 
 
              impairment of function of his right upper extremity which is 
 
              the equivalent of a 15% impairment of function of the whole 
 
              body.  He has an impairment of function of his right lower 
 
              extremity due to the fracture-dislocation of the ankle joint 
 
              of 10% which is the equivalent of a 7% impairment of 
 
              function of his whole body so that adding the 15 and the 7% 
 
              would give a 22% impairment of function of the patient's 
 
              whole body as a result of the injury to his shoulder and to 
 
              his right ankle and foot.
 
         
 
              Later, Dr. Giebink, in his office notes for May 12, 1987, 
 
         determined claimant had sustained the following functional 
 
         impairment:
 
         
 
              PROGNOSIS:  I think as a result of the accident the patient 
 
                                                
 
                                                         
 
                   had a 5% impairment of function of the cervical spine and a 
 
              5% impairment of function of the lower extremity from his 
 
              knee injury.  This would give him a total of 10% impairment 
 
              of function of his right lower extremity due to the ankle, 
 
              5% impairment of function of the left lower extremity due to 
 
              his left knee.  He has no change in the 25% impairment of 
 
              function of his right upper extremity from the rotator cuff 
 
              injury and subsequent repair and restricted ROM.  However, 
 
              he has an addition [sic] 5% impairment of function of his 
 
              spine as a result of the aggravation of the degenerative 
 
              cervical disc disease by the fall.  So then in summary I 
 
              feel as a result of the fall he has a 30% impairment of 
 
              function of his whole body combining the injuries to his 
 
              shoulder, his knees, his right ankle and his cervical 
 
              spine.
 
         
 
              Subsequent to the above rating, Dr. Giebink wrote in his 
 
         letter of August 16, 1988:
 
         
 
              ...It is my opinion that the impairment of function which I 
 
              outlined which I stated was between 40 and 45% impairment of 
 
              the patient's whole body is a result of the accident or 
 
              accidents that he sustained while working for Eaton 
 
              Corporation.  Also, I feel that this impairment of function 
 
              is permanent in nature.  It is my opinion and my findings 
 
              are within a reasonable degree of medical certainty.
 
         
 
              Claimant was subsequently seen by a vocational 
 
         rehabilitation specialist.  Mr. Stanley Thorpe is a vocational 
 
         worker certified by the National Rehabilitation Association.  He 
 
         interviewed claimant on August 16, 1988 in anticipation of this 
 
         hearing.  Mr. Thorpe determined claimant was not a candidate for 
 
         employment because:
 
         
 
              My opinion is that because of the pain that seems to be so 
 
              encompassing and because of the past work history and in 
 
              review of the physical reports it seems very apparent that 
 
              this individual is not a candidate for employment.  I note 
 
              that he's been active in seeking employment.
 
         
 
         (Transcript page 71, lines 10-14)
 
         
 
              At the hearing, Ms. Linda Maurer testified.  She stated she 
 
         worked in the personnel department at defendant's place of 
 
         business and that she was instrumental in assisting defendant 
 
         with claimant's return to work.  Ms. Maurer reported claimant 
 
         returned to work for approximately one and one-half years.  (Ms. 
 
         Maurer testified claimant was not laid off or terminated by 
 
         defendant. Furthermore, during this year and a half period, 
 
         claimant received his regular pay raises.)  According to Ms. 
 
         Maurer, claimant retired at age 65.  Then on January 1, 1986, 
 
         claimant began receiving his retirement benefits from defendant.
 
         
 
                              APPLICABLE LAW
 
         
 
                                                
 
                                                         
 
              An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
         employment.  Section 85.3(1).
 
         
 
              The sole issue to address in this matter is the extent of 
 
         permanency, if any.  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).
 
         
 
              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).
 
         
 
              In Diederich v. Tri-City R. Co., 219 Iowa 587, 258 N.W. 899 
 
         (1935) the court, addressing the issue of the meaning of 
 
         disability stated:
 
         
 
                   What is "permanent total disability"?  Does this clause 
 
              refer to "functional disability" or to "industrial 
 
              disability"?
 
         
 
                   For clearness we shall use the term 'industrial 
 
              disability" as referring to disability from carrying on a 
 
              gainful occupation--inability to earn wages.  By "functional 
 
              disability" we shall refer to the disability to perform one 
 
              or more of the physical movements which a normal human being 
 
              can perform.
 
         
 
                   ...
 
         
 
                   It is obvious that "disability" as here used cannot 
 
              refer to mere "functional disability',...
 
         
 
                   It is...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 terms of percentages of the total physical 
 
              and mental ability of a normal man.
 
         
 
                   ...
 
         
 
              .....[T]he Compensation Law was passed for the purpose of 
 
              compensating the working man when injured.  The loss which 
 
              this claimant suffered due to the injury which he received 
 
              while in the employ of the company is the inability to carry 
 
              on the work he was doing prior to the time of the injury, or 
 
              any work which he could perform.  This man at fifty-nine 
 
              years of age, after thirty years as a street car motorman, 
 
              with little education, cannot find or hold a position that 
 
              would not require some manual labor, and, of course, due to 
 
                                                
 
                                                         
 
                   the condition of his back, he cannot perform such work.  To 
 
              say that he might become a stenographer or a lawyer or a 
 
              clerk or a bookkeeper is to suppose the impossible, for a 
 
              fifty-nine-year old man, with no education, is not capable 
 
              of securing or filling any such position.  His disability 
 
              may be only a twenty-five or thirty per cent disability 
 
              compared with the one hundred per cent perfect man, but, 
 
              from the standpoint of his ability to go back to work to 
 
              earn a living for himself and his family, his disability is 
 
              a total disability, for he is not able again to operate the 
 
              street car and perform the work which the company demanded 
 
              of him prior to the time of the accident.
 
         
 
                                 ANALYSIS
 
         
 
              The sole issue to address is the extent of permanent 
 
         disability which claimant has sustained as the result of his work 
 
         injury on July 7, 1982.  Claimant alleges he has a permanent 
 
         total disability.  Defendant maintains claimant has been paid 
 
         "permanent partial disability benefits."  Claimant has received 
 
         weekly benefits in the amount of 135 weeks.  Defendant states 
 
         this sum represents a "permanent partial disability and/or 
 
         industrial disability of 27% of the body as a whole."  The record 
 
         reveals the "27% disability rating" is really a functional 
 
         impairment rating provided by one medical expert.  The figure is 
 
         not binding on the undersigned.  It is not a conclusive finding 
 
         of an industrial disability.
 
         
 
              There is no question claimant has been functionally 
 
         impaired. The following opinions summarize the extent of 
 
         functional impairment:
 
         
 
              1)  Dr. Campbell - 20% of the right upper extremity, 7% of 
 
                                 
 
                                 
 
                                                         
 
                  the right leg;
 
         
 
              2)  Dr. Giebink - 8-27-85, 22% of the whole body,
 
                                5-12-87, 30% of the whole body,
 
                                8-16-88, 40 to 45% of the whole body.
 
         
 
              3)  Dr. Follows - 20% of the right upper extremity and 10% 
 
                  of the ankle.
 
         
 
              The opinion of Dr. Giebink as to claimant's functional 
 
         impairment is accorded great weight.  While he was not the 
 
         surgeon who performed the surgeries on claimant, he did examine 
 
         claimant on several occasions.  The medical reports kept by Dr. 
 
         Giebink indicate he performed extensive tests not only on 
 
         claimant's ankle and shoulder but on other portions of claimant's 
 
         body as well. Additionally, Dr. Giebink referred to the Guides to 
 
         The Evaluation of Permanent Impairment by the American Medical 
 
         Association in evaluating claimant.  Defendant apparently relied, 
 
         in part, upon the opinions of Dr. Giebink when defendant prepared 
 
         the proposed agreement and then defendant made voluntary payments 
 
         pursuant to that proposed agreement.
 
         
 
              Dr. Campbell, on the other hand, only rendered an opinion 
 
         concerning the condition of claimant's right shoulder and right 
 
         foot.  Dr. Campbell did not state whether he had relied upon the 
 
         AMA Guidelines when he provided his opinion.  Furthermore, 
 
         defendant did not make voluntary payments according Campbell's 
 
         opinion.  Rather defendant acquiesced in allowing claimant 
 
         another independent medical examination.
 
         
 
              Finally, there is the opinion of Dr. Follows.  While he was 
 
         the surgeon who performed the surgeries, he did not attend to 
 
         claimant's condition from July 29, 1983 to April 25, 1988.  No 
 
         functional impairment rating was even given by Dr. Follows until 
 
         he was deposed on August 12, 1988.  It appears Dr. Follows was 
 
         not consulted when defendant entered into the proposed agreement 
 
         with claimant.  It is the opinion of the undersigned that Dr. 
 
         Follows was only re-involved because a hearing was pending and 
 
         his testimony was anticipated by defendant.  Very little weight 
 
         has been assigned to the evaluation of Dr. Follows.
 
         
 
              Claimant alleges he is permanently and totally disabled as a 
 
         result of his work injury, and that as a result of that injury, 
 
         he is unable to earn wages.  In support of his position, claimant 
 
         states he has been forced to leave his position because of his 
 
         pain.  Claimant also states defendant was unwilling to create a 
 
         second position for him once he had returned to work.
 
         
 
              Claimant returned to work after 18 months in the healing 
 
         period.  The record indicates defendant created a different 
 
         position for claimant based upon the restrictions imposed by Dr. 
 
         Campbell.  Claimant held this position for one and one-half 
 
         years. The record is clear that claimant was not terminated, nor 
 
         was claimant forced to retire.  After claimant's return to work, 
 
         he received his regular wage increases.
 
                                                
 
                                                         
 
         
 
              The record is clear that claimant left his employment once 
 
         he had reached age 65.  It is undisputed claimant has been 
 
         receiving his pension since January l, 1986.  While claimant 
 
         vehemently denies he voluntarily retired, there is no medical 
 
         evidence to indicate claimant was unable to continue in his 
 
         employment.  No medical practitioner had recommended retirement 
 
         to claimant.  The decision to retire was purely a voluntary 
 
         decision by claimant, based upon his subjective pain symptoms and 
 
         upon his inability to adjust his life around working an afternoon 
 
         shift as opposed to working a day shift.  Claimant also revealed 
 
         under cross-examination that he was entitled to additional 
 
         compensation because he was unable to enjoy his retirement.
 
         
 
              Since claimant's last day of work at defendant's plant, he 
 
         has sought employment on several occasions.  However, in those 
 
         few instances, claimant has not been refused employment.  
 
         Claimant, rather, has determined he is incapable of handling the 
 
         position sought.  Again, there is no medical evidence to 
 
         establish claimant is incapable of clerking in a hardware store.
 
         
 
              In the case at hand, claimant has established he has a 
 
         permanent partial disability of 50 percent.
 
         
 
                   FINDINGS OF FACT AND CONCLUSIONS OF LAW
 
         
 
              WHEREFORE, based on the evidence presented and the 
 
         principles of law previously stated, the following findings of 
 
         fact and conclusions of law are made:
 
         
 
         FINDING 1.  Claimant sustained various injuries arising out of 
 
         and in the course of his employment on July 7, 1982.
 
         
 
         FINDING 2.  As a result of the July 7, 1982 injury, claimant had 
 
         surgery on his right shoulder and right ankle.
 
         
 
         CONCLUSION A.  As a result of the July 7, 1982 injury, claimant 
 
         is functionally impaired.
 
         
 
         FINDING 3.  Claimant returned to work on December 1, 1983 after 
 
         his injury on July 7, 1982 and he continued his employment until 
 
         November 18, 1985.
 
         
 
         FINDING 4.  Claimant voluntarily retired on November 18, 1985, at 
 
         the age of 65.
 
         
 
         CONCLUSION B.  Claimant has met his burden of proving he has a 50 
 
         percent permanent partial disability.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, defendant is to pay unto claimant two hundred 
 
         fifty (250) weeks of permanent partial disability benefits at the 
 
         rate of two hundred seventy-one and 62/100 dollars ($271.62) per 
 
         week.
 
                                                
 
                                                         
 
         
 
              Payments that have accrued shall be paid in a lump sum 
 
         together with statutory interest thereon pursuant to Iowa code 
 
         section 85.30.
 
         
 
              Defendant is to take credit for benefits previously paid 
 
         claimant.
 
         
 
              Costs of this action are assessed against the defendant 
 
         pursuant to Division of Industrial Services Rule 343-4.33.
 
         
 
              Defendant shall file a claim activity report upon payment of 
 
         this award.
 
         
 
         
 
              Signed and filed this 13th day of February, 1989.
 
         
 
         
 
         
 
         
 
         
 
                                            MICHELLE A. McGOVERN
 
                                            DEPUTY INDUSTRIAL 
 
                                            COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Paul W. Deck, Sr.
 
         Attorney at Law
 
         635 Frances Bldg.
 
         Sioux City, Iowa  51101
 
         
 
         Mr. Dick H. Montgomery
 
         Attorney at Law
 
         P. 0. Box 7038
 
         Spencer, Iowa  51301
 
         
 
                   
 
                   
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            1303; 1803
 
                                            Filed February 13, 1989
 
                                            MICHELLE A. McGOVERN
 
         
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         IRVING A. MERRILL,
 
         
 
              Claimant,
 
                                                 File No. 707565
 
         vs.
 
                                              A R B I T R A T I 0 N
 
         EATON CORPORATION,
 
                                                 D E C I S I 0 N
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         
 
         1303
 
         
 
              A written agreement which was not approved by a deputy 
 
         industrial commissioner was not deemed an agreement for 
 
         settlement.
 
         
 
         
 
         1803
 
         
 
              Claimant awarded a 50 percent permanent partial disability 
 
         to the body as a whole as a result of an injury to claimant's 
 
         right shoulder, right foot, right ankle, right arm, wrist and 
 
         hand, buttock and pelvis, lower back and both knees.
 
         
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                
 
 
                                                           
 
 
 
 
 
                                                           
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         HARRY L. GIBSON III,
 
         
 
              Claimant,
 
         
 
         vs.                                    File No. 707659
 
         
 
         CITY OF CLIVE,                      A R B I T R A T I 0 N
 
         
 
              Employer,                         D E C I S I 0 N
 
         
 
         and                                         F I L E D
 
         
 
         U. S. INSURANCE GROUP,                     AUG 25 1989
 
              Insurance Carrier,
 
              Defendants.                       INDUSTRIAL SERVICES
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Harry L. 
 
         Gibson III against the city of Clive, Iowa, his former employer, 
 
         and its insurance carrier, the U. S. Insurance Group.  The case 
 
         was heard and fully submitted at Des Moines, Iowa on January 26, 
 
         1989.  The record in the proceeding consists of jointly offered 
 
         exhibits 1 through 14 and testimony from Harry L. Gibson III, 
 
         Thomas Morris Jr., Jody Gibson, Ray Allen, Willard Ray Jr., and 
 
         Marguerite Cecilia Blaskovich.
 
         
 
                                      ISSUES
 
         
 
              The issues identified for determination are:  Determination 
 
         of claimant's entitlement to compensation for healing period; 
 
         determination of claimant's entitlement to compensation for 
 
         permanent disability benefits; and, determination of the 
 
         claimant's claim for payment of medical expenses under section 
 
         85.27 of The Code.  A substantial part of the dispute in the case 
 
         revolves upon whether the injury of July 12, 1982 is limited in 
 
         its effect to claimant's left leg or whether it also includes his 
 
         right wrist and back.
 
         
 
                               SUMMARY OF EVIDENCE
 
         
 
              The following is a summary of evidence presented in this 
 
         case.  Of all the evidence received at the hearing, only that 
 
         considered most pertinent to this decision is discussed. 
 
         Conclusions about what the evidence showed are inevitable with 
 
         any summarization.  The conclusions in the following summary 
 
         should be considered to be preliminary findings of fact.
 
         
 
              Harry L. Gibson III was run over by a tractor which he was 
 
         operating for the city of Clive, his employer, on July 12, 
 
         1982. He was admitted to Mercy Medical Center on that date and 
 
         underwent open reduction and fixation of a fracture-dislocation 
 
         of the mid-tarsal joint with a comminuted fracture of the talus 
 
         of his left ankle (exhibit 4, page 15).  The emergency room 
 
         record found at page 9 of exhibit 4 indicates that the history 
 

 
 
 
 
 
 
 
         which claimant provided at that time was that the rear wheel of 
 
         a tractor ran over his left leg, and the left side of his 
 
         abdomen and chest.  The records note abrasions on claimant's 
 
         chest, upper arms, back, abdomen and left knee.  Claimant's 
 
         treating physician was Marshall Flapan, M.D., a Des Moines 
 
         orthopaedic surgeon.
 
 
 
              Claimant then went through an extended course of 
 
         recuperation.  On July 21, 1983, Dr. Flapan suggested that 
 
         claimant attempt to return to work (exhibit 9, page 11).  
 
         Claimant did so, but experienced a great deal of pain.  At that 
 
         point, it was decided that further surgery would be performed 
 
         (exhibit 9, page 12).  On August 31, 1983, claimant was admitted 
 
         to Mercy Medical Center and triple arthrodesis surgery was 
 
         performed on his left foot due to traumatic arthritis which had 
 
         developed and the general lack of satisfactory recovery from the 
 
         original injury (exhibit 5).  Thereafter claimant again went 
 
         through an extended period of recuperation.  The recuperative 
 
         period was deemed by Dr. Flapan to have ended on February 5, 1985 
 
         (exhibit 9, pages 22 and 23).  Dr. Flapan rated claimant as 
 
         having a 25 percent permanent impairment of his left lower 
 
         extremity as a result of the injury.
 
         
 
              Dr. Flapan's records indicate that, on January 19, 1984, 
 
         Gibson reported that in the accident he had reinjured his neck 
 
         and that claimant also complained of numbness and tingling in his 
 
         right hand (exhibit 9, page 17).  Electrodiagnostic studies were 
 
         conducted which were consistent with carpal tunnel syndrome in 
 
         his right hand.  Carpal tunnel release surgery was performed in 
 
         September, 1984.  Dr. Flapan's notes indicate that claimant 
 
         expressed relief of the symptoms following the surgery (exhibit 
 
         9, page 21).
 
         
 
              During the following months, claimant was evaluated by Scott 
 
         B. Neff, D.O., another Des Moines orthopaedic surgeon.  Dr. Neff 
 
         found claimant to have no permanent impairment of his right hand, 
 
         arm or wrist as a result of the carpal tunnel syndrome.  He 
 
         agreed with Dr. Flapan's rating of a 25 percent permanent 
 
         impairment of the left ankle and foot (exhibit 10; exhibit 11, 
 
         pages 8 and 15).
 
         
 
              Dr. Neff stated that he was unable to relate claimant's 
 
         carpal tunnel syndrome to the July 12, 1982 accident (exhibit 11, 
 
         pages 11 and 19).  Dr. Neff also stated that during the times he 
 
         evaluated claimant, the claimant had made no complaint regarding 
 
         his back and that he saw nothing to indicate that claimant was 
 
         suffering from any back trouble.  Dr. Neff was unable to relate 
 
         any back problems which claimant may have to the July 12, 1982 
 
         accident (exhibit 11, pages 12, 14 and 18).
 
         
 
              Claimant was evaluated by Walter B. Eidbo, M.D., a Des 
 
         Moines general surgeon.  Dr. Eidbo stated that claimant had 
 
         suffered a strain of his lumbosacral spine in the July 12, 1982 
 
         accident and that it would be inconceivable, in view of the 
 
         nature of the injury that had occurred, that claimant would not 
 
         have wrenched his back in some manner.  Dr. Eidbo stated that the 
 
         accident either caused or aggravated a ruptured disc which he 
 
         diagnosed at claimant's L4-5 level and the hypertrophic changes 
 
         which existed at that level of claimant's spine (exhibit 1, page 
 
         3).
 
         
 

 
         
 
 
 
 
 
              On March 24, 1987, Dr. Eidbo was deposed and confirmed the 
 
         earlier report.  The doctor also indicated that claimant's carpal 
 
         tunnel syndrome was causally connected to the accident, but the 
 
         opinion was based on the history given (exhibit 12, pages 34-38 
 
         and 45-46).
 
         
 
              Dr. Eidbo also diagnosed claimant as having an anxiety 
 
         reaction to the accident (exhibit 12, pages 9, 12, 23-25, 40-45).
 
         
 
              Dr. Eidbo rated claimant as having a 35 percent permanent 
 
         partial disability of the body as a whole attributed as follows: 
 
         Left foot and ankle, 12-18 percent; carpal tunnel syndrome, right 
 
         wrist, 3-5 percent; anxiety reaction, 5-10 percent; lumbosacral 
 
         spine, 5-10 percent.  The total equals 25-43 percent.  Dr. Eidbo 
 
         then averaged the range to come up with a final rating of 35 
 
         percent of the body as a whole.  Dr. Eidbo explained that the 
 
         average of the disability rating for claimant's left foot and 
 
         ankle would be 15 percent of the body as a whole, an amount 
 
         equivalent to approximately 30 percent of the leg (exhibit 1; 
 
         exhibit 12, page 12).
 
         
 
              Claimant completed high school in 1968, attended one 
 
         semester of junior college and then became employed in early 
 
         1969.
 
         
 
              Claimant moved to Alaska where he was employed until 
 
         approximately 1979 or 1980 when he returned to Des Moines, 
 
         Iowa. While in Alaska, claimant injured his back on one 
 
         occasion in 1974.  He injured his cervical spine, resulting in 
 
         fusion surgery, when a truck which he was driving overturned in 
 
         June, 1978. Following that incident, the available medical 
 
         records show continuing complaints regarding claimant's low 
 
         back (exhibit 2). A myelogram of claimant's low back which was 
 
         conducted on October 31, 1978 was interpreted as being normal 
 
         (exhibit 8, page 19). The medical treatment records also show 
 
         that claimant was given a prescription for a lumbosacral corset 
 
         on December 27, 1978 and that on March 30, 1979, claimant 
 
         requested a new lumbosacral support (exhibit 2).
 
              
 
              The records from Alaska also indicate that on April  13, 
 
         1979, claimant made complaints of numbness affecting the 
 
         dorso-radial aspect of his right hand.  The condition was 
 
         diagnosed as thoracic outlet syndrome.  Conservative treatment in 
 
         the nature of exercises was employed (exhibit 2, pages 1-4).  
 
         When he was deposed, Dr. Neff stated that symptoms of carpal 
 
         tunnel syndrome and thoracic outlet syndrome sometimes mimic one 
 
         another (exhibit 11, page 10).
 
         
 
              Claimant, his wife, and Thomas Morris Jr. stated that 
 
         claimant's back and leg cause him a great deal of difficulty in 
 
         performing the normal activities of everyday life.
 
         
 
              Marguerite Cecilia Blaskovich, a qualified vocational 
 
         consultant, was employed by the defendants.  During the course of 
 
         her activity in the case, she provided claimant with 
 
         approximately 1,200 job leads, but that he did not investigate 
 
         any of the leads. Blaskovich testified that claimant told her 
 
         that he did not want her help, that he could obtain a job at any 
 
         time that paid $15,000 per year and that he was waiting for a 
 
         settlement in this case before finding a job.
 

 
         
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received an injury on July 12,1982 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 "arising out of" requirement refers to the cause and 
 
         origin of the injury.  Sheerin v. Holin Co., 380 N.W.2d 415, 417 
 
         (Iowa 1986).
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of July 12, 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.O. Boggs, 236 Iowa 296, 18.N.W.2d 607 (1945).  A possibility is 
 
         insufficient; a probability is necessary.  Burt v. John Deere 
 
         Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
         question of causal connection is essentially within the domain of 
 
         expert testimony.  Bradshaw v. Iowa Methodist Hospital, 251 Iowa 
 
         375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected,by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
         Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              An aggravation of a preexisting condition is one form of 
 
         injury for which compensation can be recovered.  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.2nd 756 (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 (1962).
 
         
 
              The injury affecting claimant's left leg is well established 
 
         and is not subject to dispute.  It is only the claims regarding 
 
         the carpal tunnel syndrome and claimant's back which are in 
 
         dispute in this case.  From the description of the injury that 
 
         was given, it would be possible that some injury to claimant's 
 
         back, and even to his right wrist, might have occurred.  The 
 
         evidence does not, however, show that claimant's back problems 
 
         and right carpal tunnel syndrome, or either of them, had their 
 
         origin in the July 12, 1982 injury or that they were 
 
         substantially aggravated during the July 12, 1982 injury.
 

 
         
 
 
 
         
 
              Claimant has a long history of back troubles going back to 
 
         the time that he was living in the state of Alaska.  The fact 
 
         that he had several doctor visits wherein back complaints were 
 
         voiced and the fact that he was prescribed a lumbosacral support 
 
         all clearly show the existence of some significant back trouble 
 
         at the time.  The degenerative changes which were identified by 
 
         Dr. Eidbo were the type of things which usually are not of 
 
         relatively recent origin and could have easily had their origin 
 
         when claimant was in Alaska.  The evidence fails to corroborate 
 
         claimant's claim of continuing back complaints following the 1982 
 
         injury.  It is therefore determined that claimant has failed to 
 
         prove, by a preponderance of the evidence, that he sustained any 
 
         permanent injury to his back in the July 12, 1982 incident.  
 
         While he certainly may have aggravated his back, there is no 
 
         showing that any such.aggravation was permanent or that it 
 
         extended beyond February 8, 1985, the date which Dr. Flapan 
 
         placed as the end of claimant's healing period.
 
         
 
              Claimant also made claim for carpal tunnel syndrome 
 
         affecting his right hand or arm.  The evidence shows similar 
 
         symptoms and complaints having been made when claimant resided in 
 
         Alaska.  The possibility of an incorrect diagnosis having been 
 
         made at that time certainly exists.  Further, and perhaps more 
 
         importantly, the record does not contain any indication of those 
 
         complaints being made to Dr. Flapan until January of 1984, 
 
         approximately one and one-half years following the date of the 
 
         accident.  As admitted by Dr. Eidbo in his deposition, a delay of 
 
         that long is an indication that the accident is not a cause for 
 
         the carpal tunnel syndrome condition.  It is therefore determined 
 
         that claimant has failed to prove, by a preponderance of the 
 
         evidence, that the carpal tunnel syndrome affecting his right 
 
         hand resulted from the July 12, 1982 accident or that it was 
 
         permanently aggravated in that July 12, 1982 accident.  Claimant 
 
         also at one time voiced complaints regarding carpal tunnel-like 
 
         symptoms affecting his.left upper extremity.  The diagnostic 
 
         studies which were conducted were negative and no further 
 
         diagnosis or treatment was indicated.  Whatever those symptoms 
 
         may have been, there is likewise no showing that they were 
 
         proximately caused by the July 12, 1982 accident.  Pilcher v. 
 
         Penick & Ford, file number 618597, (App. Decn., October 21, 
 
         1987).
 
         
 
              Dr. Eidbo diagnosed claimant as having an anxiety reaction 
 
         to the accident.  While it is certainly to be expected that any 
 
         serious injury produces some emotional stress or upset, there is 
 
         no showing that the anxiety which claimant has experienced rises 
 
         to the level of being a medically diagnosable condition within 
 
         the realm of mental health practitioners or that the condition is 
 
         in any manner disabling.  Claimant has therefore failed to prove 
 
         that he sustained any psychological injury as the result of the 
 
         July 12, 1982 accident.
 
         
 
              It is therefore determined that, while the claimant does 
 
         have a well-established severe injury to his left leg, the injury 
 
         is limited to the leg and the disability should therefore be 
 
         determined under the provisions of Code section 85.34(2)(o). 
 
         Claimant has failed to carry the burden of proving that the 
 
         disability extends beyond the scheduled member of his left leg. 
 
         Lauhoff Grain Co. v. McIntosh, 395 N.W.2d 834 (Iowa 1986); 
 
         Kellogg v. Shute & Lewis Coal Co., 256 Iowa 1257, 130 N.W.2d 667 
 
         (1964); Dailey v. Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 569 
 
         (1943).
 

 
         
 
 
 
         
 
              Drs.  Flapan and Neff both rated claimant as having a 25 
 
         percent impairment of the left leg.  Dr. Eidbo's rating was 30 
 
         percent of the leg, an amount which is not greatly divergent.  
 
         The ratings from Drs. Neff and Flapan are preferred over that 
 
         from Dr. Eidbo because they are orthopaedic specialists and Dr. 
 
         Flapan was the treating physician.  Accordingly, claimant is 
 
         entitled to recover 55 weeks.of compensation for permanent 
 
         partial disability.
 
         
 
              Claimant's healing period under the provisions of Code 
 
         section 85.34(l) was identified as an issue.  The healing period 
 
         ends at the time when the injured employee returns to work, 
 
         becomes medically capable of performing work substantially 
 
         similar to that in which he was engaged at the time of injury, or 
 
         when his medical recovery has progressed to the point that 
 
         further significant recuperation is not anticipated.  It is at 
 
         the point of maximum substantial recuperation that physicians 
 
         normally provide an impairment rating.  Thomas v. William Knudson 
 
         & Son, Inc., 394 N.W.2d 124, 126 (Iowa App. 1984); Armstrong Tire 
 
         & Rubber Co. v. Kubli, 312 N.W.2d 60 (Iowa App. 1981).  Dr. Neff 
 
         deferred to Dr. Flapan's assessment of the end of the period of 
 
         substantial recuperation.  There is no evidence in the record of 
 
         this case which indicates that claimant has made any substantial 
 
         recovery or recuperation since early 1985.  Dr. Flapan's 
 
         assessment is therefore adopted as correct.  Claimant's 
 
         entitlement to healing period ended February 8, 1985 and his 
 
         entitlement to compensation for permanent partial disability 
 
         commences February 9, 1985.  The healing period is interrupted by 
 
         claimant's brief return to work of July 25 through August 3, 
 
         1983. According to the issues identified by the parties, the only 
 
         claim for additional healing period was for that period 
 
         subsequent to February 8, 1985.  Claimant's claim for additional 
 
         healing period compensation is therefore denied as the full 
 
         entitlement has been paid.  Claimant's claim for additional 
 
         permanent partial disability compensation is likewise denied as 
 
         the same has been fully paid.
 
         
 
                                 FINDINGS OF FACT
 
              
 
              1.  The injury which Harry L. Gibson III suffered on July 
 
         12, 1982 produced a 25 percent permanent partial disability of 
 
         his left leg.
 
         
 
              2.  Gibson has failed to introduce sufficient evidence 
 
         showing that it is probable that the July 12, 1982 accident 
 
         produced any permanent disability affecting any part of his body 
 
         or mental state other than his left leg.
 
         
 
              3.  Following the injury, Harry L. Gibson III was medically 
 
         incapable of performing work in employment substantially similar 
 
         to that he performed at the time of injury from July 12, 1982 
 
         until February 8, 1985 when it was medically indicated that 
 
         further significant improvement from the injury was not 
 
         anticipated, except for claimant's brief return to work running 
 
         from July 25, 1983 through August 3, 1983.
 

 
         
 
 
 
 
 
         
 
              4.  All the physical abnormalities affecting claimant's back 
 
         at the present time are as likely a result of injuries he 
 
         sustained in the 1970's as they are a result of the July 12, 1982 
 
         accident.
 
         
 
              5.  It is unlikely that the carpal tunnel syndrome which 
 
         affected claimant's right hand and arm resulted from the July 12, 
 
         1982 accident.
 
         
 
              6.  While claimant undoubtedly suffered strains, scrapes and 
 
         abrasions on parts of his body other than his left leg in the 
 
         July 12, 1982 accident, the evidence fails to show that it is 
 
         likely or probable that any of those other injuries were 
 
         permanent in nature.
 
         
 
              7. Claimant's complaints regarding his back lack 
 
         credibility.
 
         
 
              8. Claimant is not motivated to resume gainful employment.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              1.  This agency has jurisdiction of the subject matter of 
 
         this proceeding and its parties.
 
         
 
              2.  Claimant has failed to prove, by a preponderance of the 
 
         evidence, that he sustained any injuries in the July 12, 1982 
 
         accident of a permanent nature which affect any part of his body 
 
         other than his left leg.
 
           
 
              3.  Claimant's entitlement to compensation for permanent 
 
         partial disability is to be computed under the provisions of Code 
 
         section 85.34(2)(o).
 
              
 
              4.  Claimant is entitled to recover 55 weeks of compensation 
 
         for permanent partial disability representing a 25 percent 
 
         permanent partial disability of his left leg.
 
              
 
              5.  Claimant's entitlement to healing period compensation 
 
         under the provisions of Code section 85.34(1) ended on February 
 
         8, 1985.
 
              
 
              6.  Claimant has been fully paid all benefits which he is 
 
         entitled to receive under the Iowa worker's compensation laws.
 
           
 
                                       ORDER
 
           
 
              IT IS THEREFORE ORDERED that claimant take nothing from this 
 
         proceeding.
 
              
 
              IT IS  FURTHER ORDERED that the costs of this action are 
 
         assessed against claimant pursuant to Division of Industrial 
 
         Services Rule 343-4.33.
 
              
 

 
 
 
 
 
 
 
 
 
              Signed and filed this 25th day of August, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                           MICHAEL G. TRIER
 
                                           DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Robert J. Kromminga
 
         Mr. Joseph G. Bertogli
 
         Attorneys at Law
 
         Suite 270, The Plaza
 
         300 Walnut
 
         Des Moines, IA  50309
 
         
 
         Ms. Dorothy L. Kelley
 
         Attorney at Law
 
         500 Liberty Building
 
         Des Moines, IA  50309
 
              
 
         
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
                                            
 
 
 
 
 
 
 
 
 
 
 
                                            1803. 1
 
                                            Filed August 25, 1989
 
                                            MICHAEL G. TRIER
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         HARRY L. GIBSON III,
 
              Claimant,
 
         vs                                   File  No. 707659
 
         CITY OF CLIVE,                    A R B I T R A T I 0 N
 
              Employer,                       D E C I S I 0 N
 
         and
 
         U. S. INSURANCE GROUP,
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         1803.1
 
         
 
              Claimant sustained a severe crush type injury to his left 
 
         ankle.  He underwent two surgeries and was left with a 25 percent 
 
         impairment of the left leg.  Claimant also unsuccessfully 
 
         attempted to recover for a carpal tunnel syndrome affecting his 
 
         right wrist and for a back condition.  Claimant had a history of 
 
         preexisting problems affecting both his right hand and low back. 
 
         The greater weight of the evidence failed to support claimant's 
 
         claim.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            PAM MOORHEAD (Willis O.,      :
 
            Moorhead, Deceased),          :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 707893
 
            FISHER TRUCKING,              :
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            TRAVELERS INSURANCE COMPANY,  :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 Defendants appeal from a partial commutation decision 
 
            awarding claimant a partial commutation of benefits 
 
            previously awarded.  Claimant cross-appeals.
 
            
 
                 The record on appeal consists of the transcript of the 
 
            commutation proceeding; claimant's exhibits A through M; and 
 
            defendants' exhibits 1 through 4.  Both parties filed briefs 
 
            on appeal.
 
            
 
                                      ISSUES
 
            
 
                 Defendants state the following issue on appeal:
 
            
 
                 Whether a partial commutation is in claimant's best 
 
            interests.
 
            
 
                 Claimant states the following issues on cross-appeal:
 
            
 
                 Whether the deputy industrial commissioner erred in 
 
            ruling that the contingent fee contract is violative of 
 
            public policy.
 
            
 
                 Whether the deputy industrial commissioner erred in 
 
            reducing the amount of partial commutation.
 
            
 
                  
 
            
 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            REVIEW OF THE EVIDENCE
 
            
 
                 The commutation decision adequately and accurately 
 
            reflects the pertinent evidence and it will not be set forth 
 
            herein.
 
            
 
                                  APPLICABLE LAW
 
            
 
                 Iowa Code section 85.45 states, in part:
 
            
 
                    Future payments of compensation may be commuted 
 
                 to a present worth lump sum payment on the 
 
                 following conditions:
 
            
 
                    ....
 
            
 
                    2.  When it shall be shown to the satisfaction 
 
                 of the industrial commissioner that such 
 
                 commutation will be for the best interest of the 
 
                 person or persons entitled to the compensation, or 
 
                 that periodical payments as compared with a lump 
 
                 sum payment will entail undue expense, hardship, 
 
                 or inconvenience upon the employer liable 
 
                 therefor.
 
            
 
                 A commutation may be ordered when the commutation is 
 
            shown to be in the best interests of the person or persons 
 
            entitled to the compensation or that periodical payments as 
 
            compared to a lump sum payment will entail undue expense on 
 
            the employer. Diamond v. The Parsons Co., 256 Iowa 915, 129 
 
            N.W.2d 608 (1964).
 
            
 
                 Factors relied on in determining if a commutation is in 
 
            the claimant's best interests include:  the claimant's age, 
 
            education, mental and physical condition, and actual life 
 
            expectancy; the claimant's family circumstances, living 
 
            arrangements, and responsibilities to dependents; the 
 
            claimant's financial condition, including all sources of 
 
            income, debts, living expenses; and the reasonableness of 
 
            claimant's plans for the commuted funds and claimant's 
 
            ability to manage the funds or arrange for someone else to 
 
            manage them. Dameron v. Neumann Bros., Inc., 339 N.W.2d 160 
 
            (Iowa 1983).
 
            
 
                                     ANALYSIS
 
            
 
                 Defendant appeals the deputy's determination that a 
 
            partial commutation is not in her best interests.  Under the 
 
            workers' compensation law, when a commutation is sought, the 
 
            claimant's best interests are controlling.  Weekly benefits 
 
            are the norm, a lump sum payment of benefits is the 
 
            exception.  Before even a partial commutation can be 
 
            granted, it must be determined that claimant's best 
 
            interests will be served by the commutation. 
 
            
 
                 Claimant's past history of financial management is 
 
            highly relevant to the question of whether a lump sum 
 
            distribution to claimant is appropriate.  Claimant has 
 
            invested her past income not needed for her living expenses 
 
            in three areas:  real estate, a video business, and horses.
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
                 Claimant contributed one-half of the down payment on 
 
            each of two tracts of farmland, and is currently paying 
 
            one-half of the payments on these purchases, in conjunction 
 
            with Dennis Fisher.  Claimant lives with Dennis Fisher and 
 
            has for some time.  Claimant states she has no plans to 
 
            marry Fisher.  Claimant's name does not appear on the title 
 
            of one of the tracts and her name was added to the title of 
 
            the second tract only after some time had passed since the 
 
            purchase.  Claimant acknowledges that she is not in a 
 
            partnership with Dennis Fisher and that if he asked her to 
 
            move out, she would have to go to court to secure her 
 
            interest in these properties.
 
            
 
                 Claimant's past actions in investing a substantial sum 
 
            in real estate without even seeing that the property was put 
 
            into her name casts significant doubt on her business 
 
            acumen.  Claimant has risked these sums by relying on her 
 
            personal relationship with Dennis Fisher.  Legally, she has 
 
            no present ownership rights to one of these properties, and 
 
            would have to successfully sue Fisher to obtain her share of 
 
            the property if their relationship should sour.  This does 
 
            not display wise investment planning.
 
            
 
                 In addition, claimant's use of this farmland displayed 
 
            a less than maximum potential.  Claimant sold hay off the 
 
            ground generating about $1000 per year.  The record shows 
 
            that rental of the ground for grazing would have produced 
 
            significantly more income.
 
            
 
                 Claimant also invested a substantial sum in a video 
 
            business.  The business has shown a monthly profit only 
 
            recently and only for one month at the time of the hearing.  
 
            Claimant's share was $200 for that month although claimant 
 
            had invested over $6000 six months earlier.  This is a 
 
            modest return on her investment especially since claimant 
 
            also works at the video store.  Although the losses of the 
 
            business were not set out in the record, claimant described 
 
            them as less than $10,000.
 
            
 
                 It is not unusual for a new business to operate at a 
 
            loss for a time before generating a profit.  However, it is 
 
            fair to say that claimant's decision to invest her money in 
 
            this business has not met with glowing financial success 
 
            after half a year.
 
            
 
                 Claimant also invested money in registered 
 
            quarterhorses.  Claimant indicated this was more of a hobby 
 
            than an investment and that she thought the horses would 
 
            make money from the sale of foals, but that was not the main 
 
            purpose in buying them.  Claimant has not made any money off 
 
            these horses as the one foal produced died.  Claimant 
 
            invested nearly one fourth of her excess income in what she 
 
            herself describes as a hobby.
 
            
 
                 Claimant desires a commutation in part to invest in a 
 
            cattle operation.  However, claimant acknowledges she has 
 
            little experience in this area, having only raised three 
 
            hogs and three calves in the past.  Claimant has 
 
            investigated the costs of this investment, including the 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            cost of the livestock, fencing, and trailer.  However, 
 
            defendants have put into the record evidence that the cattle 
 
            industry is a volatile one, and that the risks are numerous 
 
            even for those experienced in the industry.
 
            
 
                 Another intended use of the commuted funds would be to 
 
            set up a trust for claimant's daughter's education.  
 
            Claimant has commendably consulted two financial advisers on 
 
            the amounts that would be needed to meet her child's 
 
            educational needs, and has consulted an attorney on the type 
 
            of trust that would guarantee that the funds were restricted 
 
            to this purpose.  However, it was brought out on 
 
            cross-examination of claimant that she could, by saving her 
 
            workers' compensation benefits, produce the same amount of 
 
            money in approximately two years.  Claimant has been able to 
 
            save $19,000 from workers' compensation and social security 
 
            benefits above her living expenses in the past, and has 
 
            invested them in real estate, her video business and horses 
 
            rather than her daughter's education plans.
 
            
 
                 Finally, claimant plans to use the remainder of the 
 
            commuted funds to invest in certificates of deposit or zero 
 
            coupon bonds.  Again, however, it was brought out that none 
 
            of the proposed investments yield over ten percent, the 
 
            current discount rate a commutation would require.
 
            
 
                 Taking into account all of the above, although claimant 
 
            does have some money management experience and does have a 
 
            specific plan for the commuted funds, her past actions speak 
 
            loudly to her apparent willingness to invest large sums of 
 
            money less than prudently.  Her actions in investing in real 
 
            estate to which she has no legal title, in a business which 
 
            shows little profit, and in a hobby which generates no 
 
            income casts doubt on her ability to invest in a cattle 
 
            business which is by its nature financially risky and with 
 
            which she has no experience.  Since her workers' 
 
            compensation benefits provide claimant with discretionary 
 
            income, claimant can provide for her daughter's future 
 
            educational needs by periodically investing those funds into 
 
            a trust.  A commutation of benefits is not in claimant's 
 
            best interests.
 
            
 
                 On cross-appeal, claimant urges that the contingent fee 
 
            arrangement in this case was not void as violating public 
 
            policy and should be reinstated, or, in the alternative, 
 
            that the commuted amount should not be reduced by the amount 
 
            of the fee since claimant will now need to pay her attorney 
 
            from the proceeds of the commutation on a quantum merit 
 
            basis.  Since a commutation has been denied, these issues 
 
            are now moot.  However, it is noted that under Rickett v. 
 
            Hawkeye Building Supply Co., (Appeal Decision June 28, 
 
            1988), a contingent fee in a commutation proceeding is 
 
            improper.  Claimant has already been awarded compensation.  
 
            Claimant's attorney does not obtain further compensation for 
 
            claimant in a commutation proceeding.  For this reason, a 
 
            contingent fee in a commutation proceeding violates public 
 
            policy.
 
            
 
                                 FINDINGS OF FACT
 
            
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                 1.  Pam Moorhead, widow of Willis O. Moorhead, is 
 
            single and has one child of her marriage to Willis Moorhead:  
 
            Jessica, born May 31, 1982.
 
            
 
                 2.  Claimant is receiving weekly benefits based on the 
 
            death of Willis Moorhead in the amount of $227.54, and has 
 
            been receiving those benefits since Mr. Moorhead's death on 
 
            July 14, 1982.
 
            
 
                 3.  Claimant has monthly income (including her 
 
            daughter's Social Security benefits), even without counting 
 
            workers' compensation benefits, in excess of $1,200.
 
            
 
                 4.  Claimant has monthly expenses of approximately 
 
            $1,300.
 
            
 
                 5.  Claimant desires to commute benefits to her 
 
            daughter's 18th birthday, or 587 weeks at the time of 
 
            hearing.
 
            
 
                 6.  Claimant intends to use $25,000 of the proposed 
 
            $80,000 commutation to set up a cow/calf cattle operation on 
 
            her rural property, $20,000 to fund her daughter's college 
 
            education costs, $8,000 for payment of attorney fees, and 
 
            $27,000 for investment.
 
            
 
                 7.  There are certain risks to the proposed use to 
 
            which claimant intends to put the proceeds of her 
 
            commutation; in particular, the cattle market is volatile, 
 
            particularly for a small operator.
 
            
 
                 8.  Claimant's video business operated at a loss for 
 
            six months and has only shown a profit for one month.
 
            
 
                 9.  Claimant has invested in two tracts of real estate, 
 
            but has failed to cause her name to be reflected in the 
 
            title of one tract and only had her name added to the second 
 
            tract sometime after its purchase.
 
            
 
                 10. Claimant is not married to or in partnership with 
 
            Dennis Fisher.
 
            
 
                 11. Claimant has not demonstrated good financial 
 
            planning in her real estate investments.
 
            
 
                 12. Claimant has not demonstrated good financial 
 
            planning in her business investments.
 
            
 
                 13. Claimant has not demonstrated good financial 
 
            planning in her livestock investments.
 
            
 
                 14. Claimant has little experience in the cattle 
 
            raising industry.
 
            
 
                 15. Claimant is capable of meeting her child's future 
 
            educational needs without a commutation of her workers' 
 
            compensation benefits.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
                 A commutation of workers' compensation benefits is not 
 
            in claimant's best interests.
 
            
 
                 WHEREFORE, the decision of the deputy is reversed.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That claimant's application for partial commutation is 
 
            denied.
 
            
 
                 That each party pay their own costs in this proceeding, 
 
            including one-half of the costs of the appeal.
 
            
 
                 Signed and filed this ______ day of April, 1990.
 
            
 
            
 
            
 
            
 
                                         _____________________________
 
                                               DAVID E. LINQUIST
 
                                            INDUSTRIAL COMMISSIONER
 
            
 
                 
 
            Copies To:
 
            
 
            Mr. Robert A. Burnett, Jr.
 
            Attorney at Law
 
            300 Walnut, Suite 270
 
            Des Moines, Iowa 50309
 
            
 
            Mr. William D. Scherle
 
            Attorney at Law
 
            803 Fleming Building
 
            Des Moines, Iowa  50309
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          1000 - 3303.20
 
                                          Filed April 19, 1990
 
                                          DAVID E. LINQUIST
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            PAM MOORHEAD (Willis O.,      :
 
            Moorhead, Deceased),          :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 707893
 
            FISHER TRUCKING,              :
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            TRAVELERS INSURANCE COMPANY,  :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            1000
 
            A contingent attorney's fee for seeking a partial 
 
            commutation of benefits previously awarded was disapproved 
 
            as violating public policy, citing Rickett v. Hawkeye 
 
            Building Supply Co., Appeal Decision, June 28, 1988.
 
            
 
            3303.20
 
            Petition for partial commutation denied where claimant had 
 
            demonstrated questionable financial practices in the past, 
 
            e.g. claimant invested in real property with her live-in 
 
            partner without having her name put on the title to the 
 
            property; claimant planned to use commuted funds to invest 
 
            in a cattle operation, although claimant had no experience 
 
            in this business and the business was conceded to be risky; 
 
            claimant had invested in horses in the past but had made no 
 
            money on the venture; claimant desired to invest part of the 
 
            proceeds in securities that would yield less than the 
 
            discount she would suffer by a commutation;  claimant was a 
 
            partner in a video business that had failed to turn a profit 
 
            until recently; and it was demonstrated that claimant could 
 
            provide for her daughter's educational needs with periodic 
 
            savings from her workers' compensation proceeds as well or 
 
            better than with commuted funds without suffering the 
 
            discount of a commutation.  
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
 
 
 
 
          PAM MOORHEAD (Willis 0.
 
          Moorhead, Deceased),
 
 
 
               Claimant,                              File No. 707893
 
 
 
          vs.                                         D E C I S I 0 N
 
 
 
          FISHER TRUCKING,                                  0 N
 
 
 
               Employer,                               P A R T I A L
 
 
 
          and                                      C 0 M M U T A T I 0 N
 
 
 
          TRAVELERS INSURANCE COMPANY,                    F I L E D
 
 
 
               Insurance Carrier,                        FEB 20 1989
 
               Defendants.
 
                                                     INDUSTRIAL SERVICES
 
 
 
 
 
                             STATEMENT OF THE CASE
 
 
 
               This is a proceeding filed by Pam Moorhead, widow of 
 
          decedent Willis 0. Moorhead, claimant, against defendant employer 
 
          Fisher Trucking and defendant insurance carrier Travelers 
 
          Insurance Company for partial commutation of benefits under the 
 
          Iowa Workers' Compensation Act based upon the death of Willis 0. 
 
          Moorhead on July 14, 1982.  This matter came on for hearing 
 
          before the undersigned deputy industrial commissioner in Des 
 
          Moines, Iowa, on February 14, 1989, and was considered fully 
 
          submitted on that date.  Claimant appeared by attorney Robert 
 
          Burnett, Jr. Defendants appeared by attorney William Scherle.
 
 
 
               The evidence in this case consists of claimant's exhibits A 
 
          through M, defendants' exhibits I through IV and the testimony of 
 
          the following witnesses:  Claimant, Harold Whipple and Jeff 
 
          Miller.
 
 
 
               Claimant's petition in this case sought commutation of 629 
 
          weeks of benefits from the first part of the remaining period.  An 
 
          amendment to that petition was allowed at the hearing, whereby 
 
          claimant seeks commutation of only 587 weeks.  The amendment did 
 
          not materially change any issues, but only took into account the 
 
          time that had elapsed since the filing of the petition.  
 
          Defendants have continued paying death benefits to claimant and do 
 
          not challenge her entitlement to death benefits.
 
 
 
                                     ISSUE
 
 
 
               The issue presented by the parties at the time of the 
 
          hearing is whether or not it is in claimant's best interest to 
 
          grant a partial commutation of death benefits up to the 18th 
 
                                                               
 
                                                               
 
                    birthday of Jessica Moorhead, daughter of Pam Moorhead and Willis 
 
          0. Moorhead.
 
 
 
                              REVIEW OF THE EVIDENCE
 
 
 
               Claimant testified that she is the widow of Willis 0. 
 
          Moorhead and that there is one child of that marriage, Jessica, 
 
          who was born on May 31, 1982 and is now six and one-half years of 
 
          age.  Claimant is currently 28 years of age and resides on a farm 
 
          near Bradford, Arkansas.  She testified that she has been 
 
          receiving weekly benefits of $227.54 since her husband's death. 
 
          She has not remarried, does not plan to remarry and has no other 
 
          children.
 
 
 
               At the time of Mr. Moorhead's death, claimant was also 
 
          employed by Fisher Trucking as office manager.  She continued 
 
          that employment until March 1, 1985, when the business closed.  
 
          By that time, claimant had developed a dating relationship with 
 
          Dennis Fisher, the owner of the business.  This relationship 
 
          began in December, 1984.  Claimant testified that she and Dennis 
 
          Fisher moved to the state of Arkansas when the business closed 
 
          and continued to live together on the rural property.  Mr. Fisher 
 
          is currently the owner/operator of a truck and claimant still 
 
          keeps his books.  Although this relationship is of some duration, 
 
          Ms. Moorhead and Mr. Fisher have no plans to marry, presumably in 
 
          part because claimant would lose Social Security and workers' 
 
          compensation benefits upon remarriage.
 
 
 
               The property purchased by Ms. Moorhead and Mr. Fisher is in 
 
          two contiguous tracts of, respectively, 120 and 160 acres.  The 
 
          property was purchased at different times.
 
 
 
               The 120-acre parcel was purchased first, in April, 1985.  It 
 
          has been improved with a two-bedroom ranch home and various 
 
          outbuildings.  The purchase price was $85,000, with a down payment 
 
          of $10,000.  Claimant paid one-half of the down payment and pays 
 
          one-half of the annual lump sum contract payment of $13,000.  The 
 
          property was purchased on a ten-year contract.  Although claimant 
 
          considers herself to own a one-half undivided interest in this 
 
          property, the contract is solely in the name of Dennis Fisher.  
 
          The property is approximately seven miles from Bradford, Arkansas, 
 
          a town of approximately 1,000 residents located in north central 
 
          Arkansas (Jackson County).
 
 
 
               The contiguous parcel of 160 acres was purchased on April 
 
          24, 1986.  Sale price was $44,000, and the property was again 
 
          purchased on the basis of a real estate contract.  Sale price was 
 
          $44,000, $5,000 being paid down.  Monthly payments are $300. 
 
          Claimant paid one-half of the down payment and is responsible for 
 
          one-half of each monthly payment.  This contract will run for 
 
          seven years.  The property is unimproved and has no access, 
 
          except through the contiguous 120-acre parcel.  The land is fit 
 
          for grazing, hay and timber harvest.  Although this property was 
 
          originally purchased solely in the name of Dennis Fisher, an 
 
          amendment to the contract of sale was executed on February 10, 
 
                                                               
 
                                                               
 
                    1989, to include claimant as a party.
 
 
 
               Claimant further testified that she is a one-half owner (with 
 
          Martha McCall) of a business known as Bradford Video, a video 
 
          rental business.  The business was begun in June, 1988.  Claimant, 
 
          to date of hearing, has invested approximately $6,600 in the 
 
          business, primarily for the purchase of videotapes for rental.  
 
          The business has one part-time employee working for claimant and 
 
          Ms. McCall.  The video business requires gross revenues of 
 
          approximately $2,200 to break even; the break even point was first 
 
          reached in December, 1988.  Claimant's share of the January, 1989 
 
          profits was $200; claimant testified that the business is 
 
          continuing to grow.
 
 
 
               Claimant also testified as to her monthly budget, which is 
 
          largely set forth in exhibits "D" and "E."  Her income consists 
 
          of monthly Social Security payments of $496 each to herself and 
 
          to Jessica (taking into account a cost of living increase 
 
          effective January, 1989).  Her income from Bradford Video will 
 
          presumably be variable, but was $200 in January.  In addition, 
 
          claimant receives weekly workers' compensation benefits of 
 
          $227.54.  Claimant's budget expenses are set forth in exhibit "E" 
 
          and total $807 plus claimant's share of the annual payment on the 
 
          120-acre parcel; thus, her monthly expenses are approximately 
 
          $1,300.
 
 
 
               Claimant testified that she has no debts, except for the 
 
          farm property.
 
 
 
               Claimant purchased seven horses for $5,000 in 1987.  
 
          Although this purchase was primarily as a hobby, by reason of her 
 
          love of horses, claimant anticipates future profits from the sale 
 
          of colts (five of her horses are brood mares).  So far, only one 
 
          colt has been born of the brood mares, and it died of pneumonia.  
 
          Claimant anticipates selling colts at one to two years of age at 
 
          prices ranging from $1,000 apiece.  Claimant testified to limited 
 
          experience in raising calves, pigs, chickens, dogs and cats.  On 
 
          a very small scale, some of these animals have been raised for 
 
          sale.
 
 
 
               Claimant further testified to her desire to commute 587 
 
          weeks of benefits from the first part of her remaining benefit 
 
          period (to the date of hearing), the commuted value of which is 
 
          $80,013.62.  The 587 weeks is based upon Jessica's 18th 
 
          birthday.
 
 
 
               Claimant testified also as to her reasons for desiring 
 
          commutation.  She anticipates investing approximately $25,000 in 
 
          a cow/calf raising operation, the details of which are set forth 
 
          in exhibit "G."  For Jessica's college education, she intends to 
 
          invest approximately $20,000 in zero-coupon United States bonds 
 
          yielding from 8.32%-8.36% and to mature in the four years from 
 
          1999 through 2002, with maturity values from $12,000-$15,000 per 
 
          year.  In addition, claimant proposes to set up a trust agreement 
 
          to guarantee the corpus of this trust.  The trust is to be 
 
                                                               
 
                                                               
 
                    irrevocable with claimant as trustee.
 
 
 
               Claimant also testified to her expectation of paying $8,000 
 
          in attorney fees if the commutation be granted (on a contingent 
 
          fee contract) and of her wish to invest the remaining $27,000 in 
 
          investment vehicles such as certificates of deposit and bonds.
 
 
 
               Claimant is a self-described "tightwad."  She has saved 
 
          enough money from her weekly workers' compensation benefits since 
 
          the death of her husband to make a $5,000 down payment on the 
 
          120-acre parcel, a $2,500 down payment of the 160-acre parcel, to 
 
          invest $6,600 in the video business and to purchase horses for 
 
          $5,000.  This is a total of $19,100 in less than seven years and 
 
          would appear to justify claimant's self-characterization.
 
 
 
               Claimant testified further to being a high school graduate 
 
          who married at 21, and worked until her husband's death only at a 
 
          state hospital, as a data clerk and mail room employee at a Des 
 
          Moines department store and as office manager of Fisher Trucking, 
 
          which then employed only approximately 10-12 employees.  She 
 
          testified that she has had no investments "go bad" in the last 
 
          ten years.  However, it was brought out on cross-examination that 
 
          these "investments" have not, to date, been an unalloyed 
 
          success.
 
                              
 
                                                               
 
                                                               
 
               The purchase of the property was, of course, largely for 
 
          personal residence.  However, the land is also income-producing. 
 
          Approximately 100 acres of the 160-acre parcel is "hay" ground, 
 
          which can rent for approximately $20 per acre, per year.  Ms. 
 
          Moorhead and Mr. Fisher have sold approximately $4,000 of hay 
 
          from this land (at $1.00 per bale) and have approximately 3,000 
 
          bales stored in the barn at present.
 
 
 
               The video business has only just reached the break-even 
 
          point, but it is clear that claimant anticipates further profits 
 
          in the future.
 
 
 
               No returns have materialized from the horse purchase of 
 
          November, 1987.  As noted, one colt was born, but died.  However, 
 
          claimant believes that her horses are now worth approximately 
 
          $3,000-$5,000 apiece.
 
 
 
               Claimant further noted that Jessica would be protected in 
 
          the event the commutation is granted by a $50,000 life insurance 
 
          policy on her life, by continued Social Security benefits, and by 
 
          the irrevocable trust she intends to set up.
 
 
 
               Harold Whipple testified that he is president of Hawkeye 
 
          Bank and Trust Company in Centerville, Iowa.  He has worked as a 
 
          banker and loan officer for some 22 years, with particular 
 
          concentration on farm loans.  He also has personal experience in 
 
          the livestock business of approximately 15 years' duration, both 
 
          in field lot and cow/calf operations.
 
 
 
               Mr. Whipple testified that land values in the state of 
 
          Arkansas have been volatile in the past ten years and that 
 
          following the boom/bust/recovery in land prices over the last ten 
 
          years, land in Jackson County has failed to recover to the degree 
 
          Arkansas land in general has recovered.  Claimant's land is of 
 
          below average value, and such land tends to be more stable in 
 
          value than more valuable rural properties.
 
 
 
               Mr. Whipple further testified that the cattle market is of 
 
          "tremendous" volatility and that most operators, particularly 
 
          cow/calf operators, are at substantial risk and have little 
 
          latitude against market forces.
 
 
 
               Jeff Miller testified that he is a structured settlement 
 
          consultant and that periodic death benefit payments under the 
 
          workers' compensation act are a form of "structured settlement." 
 
          He testified as to the advantage of structured settlements as 
 
          providing greater benefits over time and because investments are 
 
          undertaken by experienced third parties.  Further, he testified 
 
          that a large number of individuals who receive a lump sum, such 
 
          as is provided in a commutation of benefits, dissipate the funds 
 
          within a few years.
 
 
 
                         APPLICABLE LAW AND ANALYSIS
 
 
 
               Section 85.45, Code of Iowa, provides in relevant part:
 
                                                               
 
                                                               
 
 
 
               Future payments of compensation may be commuted to a present 
 
               worth lump sum payment on the following conditions:
 
 
 
               1.  When the period during which compensation is payable can 
 
               be definitely determined.
 
 
 
               2.  When it shall be shown to the satisfaction of the 
 
               industrial commissioner that such commutation will be for 
 
               the best interest of the person or persons entitled to the 
 
               compensation, or that periodical payments as compared with a 
 
               lump sum payment will entail undue expense, hardship, or 
 
               inconvenience upon the employer liable therefor.
 
 
 
               . . .
 
 
 
               4.  When a person seeking a commutation is a surviving 
 
               spouse/ a permanently and totally disabled employee, or a 
 
               dependent who is entitled to benefits as provided in section 
 
               85.31, subsection 1, paragraphs "c" and "d", the future 
 
               payments which may be commuted shall not exceed the number 
 
               of weeks which shall be indicated by probability tables 
 
               designated by the industrial commissioner for death and 
 
               remarriage, subject to the provisions of chapter 17A.
 
 
 
               . . .
 
 
 
               Although this is a death benefits case, the period during 
 
          which compensation is payable can be definitely determined in a 
 
          partial commutation up to the 18th birthday of claimant's child, 
 
          since that period is subject to definite determination.  Paulsen 
 
          v. Central States Power, Ltd., II Iowa Industrial Commissioner's 
 
          Report, 304 (1982).  The future payments which are sought to be 
 
          commuted in this case do not exceed the number of weeks set forth 
 
          in probability tables designated by the industrial commissioner 
 
          for death and remarriage and set forth in Division of Industrial 
 
          Services Rule 343-6.3.  Therefore, the issue to be determined 
 
          here is whether it has been shown that the proposed commutation 
 
          will be for the best interest of that person or persons entitled 
 
          to the compensation, or that periodical payments will entail 
 
          undue expense, hardship or inconvenience upon the employer.  The 
 
          employer is not seeking commutation, so that question is not an 
 
          issue here.  The remaining issue is the "best interest" 
 
          determination.
 
 
 
               The Iowa Supreme Court set forth bases for granting 
 
          commutations in Diamond v. Parsons Company, 256 Iowa 915, 129 
 
          N.W.2d 608 (1964).  The Court noted that the adjudicator should 
 
          not act as an "unyielding conservator" of claimant's property and 
 
          disregard claimant's desires or reasonable plans merely because 
 
          future success is not assured.
 
 
 
               The principles set forth in Diamond v. Parsons Company, were 
 
          reconsidered by the Iowa Court in Dameron v. Neumann Brothers, 
 
          Inc., 339 N.W.2d 160 (Iowa 1983).  After reviewing the Diamond 
 
                                                               
 
                                                               
 
                    decision, the Court readopted its principles and commented:
 
 
 
               In summary, Diamond held that the decision whether to allow 
 
               commutation must turn on the statutory guideline, best 
 
               interest of the claimant, and the focus should be on the 
 
               worker's personal, family, and financial circumstances, and 
 
               the reasonableness of the worker's plans for using the lump 
 
               sum proceeds.  Consequently, factors which can be distilled 
 
               from the Diamond analysis include the following:
 
 
 
                         1.  The worker's age, education, mental and 
 
                    physical condition, and actual life expectancy (as 
 
                    contrasted with information provided by actuarial 
 
                    tables).
 
 
 
                         2.  The worker's family circumstances, living 
 
                    arrangements, and responsibilities to dependents.
 
 
 
                         3.  The worker's financial condition, including 
 
                    all sources of income, debts and living expenses.
 
 
 
                         4.  The reasonableness of the worker's plan for 
 
                    investing the lump sum proceeds and the worker's 
 
                    ability to manage invested funds or arrange for 
 
                    management by others (for example, by a trustee or 
 
                    conservator).
 
 
 
               Ultimately, the Diamond analysis involves a 
 
               benefit-detriment balancing of factors, with the worker's 
 
               preference and the benefits to the worker of receiving a 
 
               lump sum payment weighed against the potential detriments 
 
               that would result if the worker invested unwisely, spent 
 
               foolishly, or otherwise wasted the fund so it no longer 
 
               provided the wage-substitute intended by our worker's 
 
               compensation law.  Under the last two paragraphs quoted 
 
               above from the Diamond opinion, however, a request for 
 
               commutation is approved on the best-interest balancing test 
 
               unless the potential detriments to the worker outweigh the 
 
               worker's expressed preference and the demonstrated benefits 
 
               of commutation.
 
 
 
               The Court noted that Professor Larson advocated on policy 
 
          grounds a much more stringent test, 3A Larson's Workmen's 
 
          Compensation Law, section 82.71, but noted that the General 
 
          Assembly has retained "best interest of the claimant" as the 
 
          fundamental touchstone for deciding commutation cases, despite a 
 
          change in the section subsequent to the Diamond decision.  The 
 
          Dameron Court stated its belief that, had the legislature 
 
          intended a more restrictive approach, tougher requirements would 
 
          have been enacted when section 85.45 was amended to shift from 
 
          the courts to the industrial commissioner the responsibility to 
 
          make the initial "best interest" determination in contested 
 
          cases.  This deputy notes in passing that the Dameron decision 
 
          was handed down on October 19, 1983, and that the legislature has 
 
          still not changed that "fundamental touchstone."
 
                                                               
 
                                                               
 
 
 
               Therefore, it is the responsibility of the deputy to 
 
          consider the factors distilled from the Diamond analysis and 
 
          apply the best-interest balancing test set forth in the above 
 
          quotation.
 
 
 
               Claimant is 28 years of age, has a high school education, 
 
          has no apparent health or physical problems appearing of record, 
 
          and gave every indication during her testimony of being a 
 
          rational and intelligent person.
 
 
 
               Claimant lives with one daughter and has a long-term and 
 
          presumably fairly stable relationship with Dennis Fisher.  The 
 
          plans she has made with regard to her responsibilities to her 
 
          daughter appear reasonable and appropriate.
 
 
 
               Claimant's financial condition appears at this time to be 
 
          very good.  Her monthly expenses are approximately $1,300.  
 
          Social Security payments to Ms. Moorhead and Jessica are $1,000.  
 
          In January, claimant realized a profit of $200 from her video 
 
          business and, while there is of course no guarantee that any 
 
          small business will continue growth or profitability, claimant 
 
          does have a reasonable expectation of growing profits from her 
 
          video store. She has a small additional source of income from the 
 
          rental of hay land or sale of hay, and has a not unrealistic 
 
          expectation of future profits from the sale of colts.  That is to 
 
          say, claimant's expenses and income are very nearly in balance, 
 
          even without the receipt of weekly workers' compensation death 
 
          benefits.
 
 
 
               Because claimant has no acute need for the benefits she is 
 
          currently receiving, she is in a position to accept a certain 
 
          degree of risk with regard to her proposal.  As Mr. Whipple's 
 
                         
 
                                                               
 
                                                               
 
          testimony made clear, the cattle business is not without risk.  
 
          One can scarcely live in the state of Iowa without recognizing 
 
          that Mr. Whipple's opinion as to the volatility of that market has 
 
          some validity.  Of course, as Diamond and Dameron point out, 
 
          claimant's desires and reasonable plans are not to be disregarded 
 
          simply because future success is not assured.  While a cow/calf 
 
          operation is subject to the vagaries of market prices, claimant's 
 
          plans appear well thought out and reasonable.  After all, the 
 
          proposed disposition of the funds obtained from this commutation 
 
          include an investment of some $27,000 in financial instruments.  
 
          This provides a certain cushion against the possibility of a "bad 
 
          year" afflicting claimant during the early stages of her planned 
 
          cattle operation.
 
 
 
               Claimant has clearly demonstrated the ability to be frugal 
 
          by managing to save some $19,000 in less than seven years for 
 
          investment in her residence/income property, hobby/income horses 
 
          and video business.  She has shown an ability to manage funds 
 
          and, in this case, has also planned to arrange for management of 
 
          the funds set aside for Jessica's education by an irrevocable 
 
          trust and the purchase of zero-coupon U. S. Government 
 
          securities.
 
 
 
               One important consideration in the Dameron case is no longer 
 
          valid.  When Dameron was handed down, the statutory discount rate 
 
          applicable to commutations was 5% and the record there showed 
 
          that 12%-14% investments were both prudent and available.  Now, 
 
          the discount rate is 10%, and the record reflects that 
 
          investments in which claimant intends to invest are of a lesser 
 
          return.  The early years of this decade were a time of high 
 
          interest rates, much more so than is today the case.  It can 
 
          scarcely be argued that prudent 12%-14% investments are much less 
 
          commonly available than was the case in 1983.
 
 
 
               Nonetheless, this writer does not feel it appropriate to 
 
          deny a commutation simply on the basis that the current statutory 
 
          discount rate may exceed the return on commonly available prudent 
 
          investments.  Under the Dameron test it does not appear that 
 
          "best interest" necessarily means the "best" or most remunerative 
 
          investment vehicle possibly available anywhere.  Rather, the test 
 
          is whether the potential detriments to the worker outweigh the 
 
          worker's expressed preference and the demonstrated benefits of 
 
          commutation.  In this case, the demonstrated benefits of 
 
          commutation include the potential for large profits from a cattle 
 
          operation and also tie in to claimant's personal preferences. 
 
          Claimant has some experience in raising animals and desires to do 
 
          so.  She has clearly opted for a rural existence, with whatever 
 
          psychological and personal benefits that such an existence may 
 
          provide to a given individual.  The detriments in this case 
 
          include the very real possibility that claimant's investments 
 
          will fail to exceed the statutory discount rate, the loss of 
 
          assured income to claimant and her daughter until Jessica's 18th 
 
          birthday, and the potential for catastrophic loss in the cattle 
 
          raising business.  While these detriments are serious, this 
 
          deputy does not feel that they overweigh claimant's expressed 
 
                                                               
 
                                                               
 
                    preference and the demonstrated benefits of commutation, at least 
 
          from the perspective of one who has been admonished by the Iowa 
 
          Court not to "act as an unyielding conservator of claimant's 
 
          property."
 
 
 
               However, the portion of this proposed commutation which is 
 
          planned to pay attorney fees cannot be approved.  The industrial 
 
          commissioner has in the past held a contingent fee agreement to 
 
          be void as a matter of public policy in a situation such as this 
 
          because the contract creates "differing interests" between 
 
          attorney and client and permits counsel to obtain a contingent 
 
          proprietary interest in the present property of claimant which 
 
          rests upon litigation or settlement which may be unnecessary for 
 
          claimant's benefit.  Rickett v. Hawkeye Building Supply Co., file 
 
          number 739306 (Decisions on partial commutation, rehearing 
 
          and.appeal, February 5, 1987, November 21, 1986 and June 28, 
 
          1988, respectively).  This is the case where the attorney's 
 
          representation does not gain for claimant any property to which 
 
          she is not already entitled, but merely changes the time frame in 
 
          which benefits are payable.
 
 
 
               The deputy wishes to make it clear that his unwillingness to 
 
          approve the portion of the commutation to be used for attorney 
 
          fees has nothing whatsoever to do with the quality of 
 
          representation claimant has received, but is mandated by the 
 
          Rickett case.  Claimant can of course elect to pay her attorney 
 
          whatever she may wish, but the contingent nature of the fee is 
 
          not subject to approval due to its voidness as against public 
 
          policy; therefore, allowance of that portion of the commutation 
 
          would not be in claimant's best interest.  Counsel did perform 
 
          valuable services for claimant for which he is entitled to be 
 
          compensated, and has every right to seek approval of a reasonable 
 
          fee on a quantum meruit basis.
 
 
 
               As claimant intended to pay $8,000 in attorney fees, the 
 
          commutation shall be approved only to a sum approximately 
 
          $72,000. Based on a compensation rate of $227.54, a commutation 
 
          of 489 weeks reflects in the 10% discount table published in 
 
          Division of Industrial Services Rule 343-6.3, a commutation 
 
          factor of 316.7682, which yields a commuted sum of $72,077.44.  
 
          Therefore, partial commutation of 489 weeks shall be allowed.
 
 
 
                              FINDINGS OF FACT
 
 
 
               THEREFORE, based on the evidence presented, the following 
 
          ultimate facts are found:
 
 
 
               1.  Pam Moorhead, widow of Willis 0. Moorhead, is single and 
 
          has one child of her marriage to Willis Moorhead:  Jessica, born 
 
          May 31, 1982.
 
 
 
               2.  Claimant is receiving weekly benefits based on the death 
 
          of Willis Moorhead in the amount of $227.54, and has been 
 
          receiving those benefits since Mr. Moorhead's death on July 14, 
 
          1982.
 
                                                               
 
                                                               
 
 
 
               3.  Claimant has monthly income (including her daughter's 
 
          social Security benefits), even without counting workers' 
 
          compensation benefits, in excess of $1,200 with reasonable 
 
          expectations of an increase by reason of her video, hay and horse 
 
          concerns.
 
 
 
               4.  Claimant has monthly expenses of approximately $1,300.
 
 
 
               5.  Claimant desires to commute benefits to her daughter's 
 
          18th birthday, or 587 weeks at the time of hearing.
 
 
 
               6.  Claimant intends to use $25,000 of the proposed $80,000 
 
          commutation to set up a cow/calf cattle operation on her rural 
 
          property, $20,000 to fund her daughter's college education costs, 
 
          $8,000 for payment of attorney fees, and $27,000 for investment.
 
 
 
               7.  Claimant has established herself as a frugal person by 
 
          saving in excess of $19,000 from her workers' compensation 
 
          benefits since the death of her husband.
 
 
 
               8.  Claimant is a rational and intelligent person.
 
 
 
               9.  There are certain risks to the proposed use to which 
 
          claimant intends to put the proceeds of her commutation; in 
 
          particular, the cattle market is volatile, particularly for a 
 
          small operator.
 
 
 
               10.  Claimant's plans for the use of the proposed funds from 
 
          this commutation are reasonable, except as to attorney fees. 
 
          Further, they are appropriate to the rural lifestyle which she 
 
          now leads.
 
 
 
                              CONCLUSIONS OF LAW
 
 
 
               WHEREFORE, based upon the principles of law previously 
 
          cited, the following conclusions are made:
 
 
 
               1.  The potential detriments of the proposed commutation do 
 
          not outweigh claimant's expressed preference and the demonstrated 
 
          benefits of commutation.
 
 
 
               2.  The claimant has established that the proposed 
 
          commutation will be in her best interests, except as to attorney 
 
          fees, which requires a reduction in the weeks commuted.
 
 
 
                                 ORDER
 
 
 
               THEREFORE, IT IS ORDERED:
 
 
 
               That defendants pay unto Pam Moorhead, widow of Willis 0. 
 
          Moorhead, the sum of seventy-two thousand seventy-seven and 
 
          44/100 dollars ($72,077.44) as partial commutation of four 
 
          hundred eighty-nine (489) weeks for the first part of the 
 
          remaining period of death benefits, using a commuted value factor 
 
                                                               
 
                                                               
 
                    of three one six point seven six eight two (316.7682) times the 
 
          weekly benefit rate of two hundred twenty-seven and 54/100 
 
          dollars ($227.54).
 
 
 
               That the costs of this action are taxed to the defendants 
 
          pursuant to Division of Industrial Services Rule 343-4.33.
 
 
 
               That defendants shall file a final payment report upon 
 
          completion of this award.
 
 
 
               Signed and filed this 20th day of February, 1989.
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                             DAVID RASEY
 
                                             DEPUTY INDUSTRIAL 
 
                                             COMMISSIONER
 
 
 
          Copies To:
 
 
 
          Mr. Robert A. Burnett, Jr.
 
          Attorney at Law
 
          300 Walnut, Suite 270
 
          Des Moines, Iowa  50309
 
 
 
          Mr. William D. Scherle
 
          Attorney at Law
 
          803 Fleming Building
 
          Des Moines, Iowa  50309
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                               
 
                                                               
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                               
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    
 
                                            1001, 3303.20
 
                                            Filed February 20, 1989
 
                                            DAVID RASEY
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         PAM MOORHEAD (Willis 0.
 
         Moorhead, Deceased),
 
         
 
              Claimant,                              File No. 707893
 
         
 
         vs.                                         D E C I S I O N
 
         
 
         FISHER TRUCKING,                                  O N
 
         
 
              Employer,                               P A R T I A L
 
         
 
         and                                      C 0 M M U T A T I O N
 
         
 
         TRAVELERS INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1001
 
         
 
              Contingent attorney fee not allowed in partial commutation 
 
         of death benefits as void and not in claimant's best interest.
 
         
 
         3303.20
 
         
 
              Contested case partial commutation granted, but weeks 
 
         commuted were reduced from petition because contingent attorney 
 
         fee disallowed.
 
         
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         PEGGY ROBINSON,
 
         
 
              Claimant,
 
                                                   File No. 708497
 
         vs.
 
         
 
         MEREDITH CORPORATION,                       A P P E A L
 
         
 
              Employer,                            D E C I S I 0 N
 
         
 
         and
 
         
 
         CIGNA,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Claimant appeals from an arbitration decision denying 
 
         further permanent partial disability benefits.
 
         
 
              The record on appeal consists of the transcript of the 
 
         arbitration proceeding; claimant's exhibits 1 through 25, 27 
 
         through 35, and 37 through 61; and defendants' exhibits 1, 1A, 
 
         A-1, A-2, B through Z, 2, 3, 4, 5 and 9.  There were no briefs on 
 
         appeal as claimant failed to timely file her brief.
 
         
 
                                      ISSUES
 
         
 
              Pursuant to the commissioner's ruling filed March 8, 1988, 
 
         this appeal will be considered generally without specified 
 
         errors.
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              The arbitration 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 record as a whole is considered generally without 
 
         specified errors.  The deputy's analysis of the evidence in 
 
         conjunction with the law is adopted.  The record shows that 
 
         claimant is not entitled to further compensation for her right 
 
         knee.  The record also shows a lack of medical evidence to 
 
         establish that claimant suffers a permanent lower back injury or 
 

 
         injury to her right foot, or that any such injury is caused by 
 
         her treatment to her knee.  Claimant has failed to carry her 
 
         burden to show a causal relationship between her claimed 
 
         disability involving her back and right foot and the treatment 
 
         stemming from her right knee injury.
 
         
 
                             FINDINGS OF FACT
 
         
 
              1.  Claimant was employed by the employer on July 13, 1982 
 
         when she injured her right knee.
 
         
 
              2.  Claimant was paid healing period benefits for the right 
 
         knee injury.
 
         
 
              3.  Dr. Grant assessed a 12 percent impairment of the lower 
 
         right extremity and Dr. Neff assessed a 16 percent impairment of 
 
         the lower right extremity.
 
         
 
              4.  Claimant was paid 35 2/7 weeks of permanent partial 
 
         disability benefits for this injury based on a 16 percent 
 
         impairment of the right lower extremity.
 
         
 
              5.  Claimant alleged that she injured her back, right leg 
 
         and right foot while performing exercises on an orthotron machine 
 
         in the course of her physical therapy treatments on January 14, 
 
         1983.
 
         
 
              6.  Claimant failed to clearly report such an injury as an 
 
         injury to the physical therapist at the time of the alleged 
 
         injury.
 
         
 
              7.  Claimant failed to report this injury to either one of 
 
         the treating orthopedic surgeons, Dr. Grant or Dr. Neff, at the 
 
         time of the injury or the next time she saw them or within a 
 
         reasonable time after the alleged injury.
 
         
 
              8.  Claimant saw her own personal physician, Dr. Odland, the 
 
         same day for low back pain after taking physical therapy 
 
         treatments but did not report an injury, as such, or a pull or a 
 
         pop in her back as she testified to at the hearing.
 
         
 
              9.  Claimant did not seek any additional treatments for her 
 
         back with her own personal physician, Dr. Odland, for over a year 
 
         after January 14, 1983 until March 28, 1984.
 
         
 
             10. Claimant did not report this injury to therapist Bower 
 
         according to his records when she saw him on February 7, 1983.
 
         
 
             11. Claimant did not seek medical treatment for the alleged 
 
         back injury through the employer until September of 1983 which 
 
         was approximately nine months after the injury allegedly 
 
         occurred.
 
         
 
              12.  Dr. Neff testified that there was no causal 
 
         relationship between the orthotron machine exercises and the 
 
         claimant's lower back, right leg and right foot complaints.
 
         
 
              13.  The alleged injury to the back was never reported to 
 
         Dr. Grant and, therefore, could not and did not give an opinion 
 
         on causal connection.
 
         
 
              14.  Dr. Young, Dr. Friedgood, Dr. Stein, Dr. Daube and Dr. 
 
         Emerson did not give a professional medical opinion on causation 
 

 
         
 
         
 
         
 
         ROBINSON V. MEREDITH CORPORATION
 
         Page   3
 
         
 
         
 
         between the orthotron machine exercises and the claimant's lower 
 
         back, right leg and right foot complaints.
 
         
 
              15.  Dr. Carlstrom and Dr. Hefty acknowledged that it was 
 
         possible for the lower back, right leg and right foot complaints 
 
         to have occurred as the claimant described but that neither one 
 
         of them gave a professional medical opinion that it was probable 
 
         that these complaints occurred in that manner or actually 
 
         occurred in that manner.
 
         
 
              16.  Dr. Moore was the only doctor who expressed a definite 
 
         opinion on the cause of the lower back, right leg and right foot 
 
         complaints and he stated that her pain syndrome was secondary to 
 
         childhood and marital problems.
 
         
 
              17.  That none of the many medical doctors, general 
 
         practitioners, orthopedic surgeons or neurologists could explain 
 
         the claimant's symptoms of pain in her lower back, right leg and 
 
         right foot and could not find an organic or physical cause for it 
 
         after numerous diagnostic tests.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant failed to prove by a preponderance of the evidence 
 
         that she is entitled to additional permanent partial disability 
 
         benefits for the injury to her right knee on July 13, 1982.
 
         
 
              Claimant failed to prove by a preponderance of the evidence 
 
         that her lower back condition or her right foot condition are 
 
         causally connected to her injury to her right knee on January 14, 
 
         1983, or to the subsequent treatment for that injury.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That no additional permanent partial disability, temporary 
 
         total disability, or medical benefits are due claimant.
 
         
 
              That costs of the appeal including the transcription of the 
 
         hearing proceeding are charged to claimant.
 
         
 
              That defendants file any reports that may be required by 
 
         Division of Industrial Services Rule 343-3.1.
 
         
 
         
 
              Signed and filed this day of April, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                              DAVID E. LINQUIST
 
                                              INDUSTRIAL COMMISSIONER
 
         
 
         
 

 
         
 
         
 
         
 
         ROBINSON V. MEREDITH CORPORATION
 
         Page   4
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Patrick B. Chambers
 
         Attorney at Law
 
         P.O. Box 516
 
         718 Des Moines Street
 
         Webster City, Iowa 50595
 
         
 
         Mr. Marvin E. Duckworth
 
         Attorney at Law
 
         Terrace Center, Suite 111
 
         2700 Grand Avenue
 
         Des Moines, Iowa 50312
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                             
 
                                                1402.20-1402.40-1402.60
 
                                                Filed April 25, 1988
 
                                                DAVID E. LINQUIST
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         PEGGY ROBINSON,
 
         
 
              Claimant,
 
                                                   File No. 708497
 
         vs.
 
         
 
         MEREDITH CORPORATION,                       A P P E A L
 
         
 
              Employer,                            D E C I S I 0 N
 
         
 
         and
 
         
 
         CIGNA,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1402.20 - 1402.40 - 1402.60
 
         
 
              Claimant failed to show by a preponderance of the evidence 
 
         that she suffered any permanency or that her medical treatment 
 
         for an injury to her knee resulted in an injury to her back.
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         PEGGY ROBINSON,
 
         
 
              Claimant,
 
         
 
         vs.
 
         
 
         MEREDITH CORPORATION,                       File No. 708497
 
         
 
              Employer,                                R U L I N G
 
         
 
         and
 
         
 
         CIGNA,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
              Appellant's failure to timely file its appeal brief does not 
 
         constitute grounds for dismissal.  An untimely filed brief which 
 
         is objected to, however, will not receive consideration.  The 
 
         appeal will be considered generally without any specified errors 
 
         to determine its compliance with the law.
 
         
 
              Signed and filed this 8th day of March, 1988.
 
         
 
         
 
         
 
         
 
         
 
                                               DAVID E. LINQUIST
 
                                               INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Patrick B. Chambers
 
         Attorney at Law
 
         718 Des Moines Street
 
         P.O. Box 516
 
         Webster City, Iowa 50595
 
         
 
         Mr. Marvin E. Duckworth
 
         Attorney at Law
 
         2700 Grand Ave., Suite 111
 
         Des Moines, Iowa 50312
 
 
 
         
 
 
        
 
 
 
 
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        DEBRA L. HANSON,
 
        
 
            Claimant,
 
        
 
        vs.                              File No. 709232
 
        
 
        MERCY HOSPITAL MEDICAL           A P P E A L
 
        CENTER,
 
                                       D E C I S I O N
 
            Employer,
 
        
 
        and
 
        
 
        AETNA CASUALTY AND SURETY
 
        COMPANY,
 
        
 
            Insurance Carrier,
 
            Defendants.
 
        
 
                                 STATEMENT OF THE CASE
 
        
 
        Claimant appeals from a review-reopening decision denying 
 
        compensation because she failed to establish a causal connection 
 
        between her work injury and her present condition.
 
        
 
        The record on appeal consists of the transcript of the 
 
        review-reopening hearing and joint exhibits A through Y. Both 
 
        parties filed briefs on appeal.
 
        
 
                                      ISSUE
 
        
 
        The issue on appeal is whether claimant has established that her 
 
        herniated disc is causally related to her work injury of July 18, 
 
        1982.
 
        
 
                                 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 contained in the review-reopening decision 
 
        are appropriate to the issues and evidence.
 
        
 
        HANSON V. MERCY HOSPITAL MEDICAL CENTER
 
        Page 2
 
        
 
        
 
                                      ANALYSIS
 
        
 
        The deputy's analysis of the evidence in conjunction with the 
 
        evidence is adopted.
 
        
 
        Although claimant has presented evidence that would allow one to 
 
        conclude a causal connection exists between her back problem and 
 
        her work injury on July 18, 1982, the deputy's decision quite 
 
        adequately explains why he found otherwise. Thomas A. Carlstrom, 
 
        M.D., opined that the herniated disc is not related to the work 
 
        injury and testified as to his reasons: l) that the herniated 
 

 
        
 
 
 
 
 
        disc did not appear on the myelogram taken on October 5, 1982, 2) 
 
        that claimant's low back and right leg problem had resolved when 
 
        he saw her in February 1983; and 3) that a herniated disc is not 
 
        indicated by intermittent symptoms such as claimant described to 
 
        him. Dr. Carlstrom's opinion is adopted because the greater 
 
        weight of evidence presented is more consistent with his opinion.
 
        
 
                                 FINDINGS OF FACT
 
        
 
        1. Claimant testified that the condition of her low back and 
 
        right leg worsened in August 1984.
 
        
 
        2. Claimant was first diagnosed as having a "fairly large 
 
        herniated lumbar disc, L5-Sl" in January 1985 by Dr. Bashara.
 
        
 
        3. Claimant underwent a lumbar myelogram on October 5, 1982 which 
 
        revealed no abnormalities.
 
        
 
        4. Claimant's low back and right leg problems had resolved when 
 
        Dr. Carlstrom examined her in February 1983.
 
        
 
        5. A herniated disc is not indicated by intermittent symptoms.
 
        
 
        6. Claimant's herniated disc, L5-S1 is not related to her July 
 
        18, 1982 work injury.
 
        
 
                                 CONCLUSION OF LAW
 
        
 
        Claimant failed to establish a causal connection between her 
 
        herniated disc and her work injury of July 18, 1982.
 
        
 
        Claimant failed to prove a change in her physical condition which 
 
        was causally connected to her work injury of July 18, 1982.
 
        
 
        WHEREFORE, the decision of the deputy is affirmed.
 
        
 
        HANSON V. MERCY HOSPITAL MEDICAL CENTER
 
        Page 3
 
        
 
        
 
                                      ORDER
 
        
 
        THEREFORE, it is ordered:
 
        
 
        That claimant take nothing further from this proceeding.
 
        
 
        That claimant pay the costs of this appeal including the costs of 
 
        the transcription of the hearing proceeding and each party pay 
 
        their own costs of the hearing proceeding with the defendants 
 
        paying the costs of the certified shorthand reporter at the time 
 
        of hearing all pursuant to Division of Industrial Services Rule 
 
        343-4.33.
 
        
 
        
 
        
 
        Signed and filed this 17th day of August, 1988.
 
        
 
        
 
        
 
                                         DAVID E. LINQUIST
 
                                      INDUSTRIAL COMMISSIONER
 
        
 
        
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         DEBRA L. HANSON,
 
         
 
              Claimant,
 
         
 
         vs.                                   File No. 709232
 
         
 
         MERCY HOSPITAL MEDICAL                  A P P E A L
 
         CENTER,
 
                                               D E C I S I O N
 
              Employer,
 
         
 
         and
 
         
 
         AETNA CASUALTY AND SURETY
 
         COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Claimant appeals from a review-reopening decision denying 
 
         compensation because she failed to establish a causal connection 
 
         between her work injury and her present condition.
 
         
 
              The record on appeal consists of the transcript of the 
 
         review-reopening hearing and joint exhibits A through Y.  Both 
 
         parties filed briefs on appeal.
 
         
 
                                      ISSUE
 
         
 
              The issue on appeal is whether claimant has established that 
 
         her herniated disc is causally related to her work injury of July 
 
         18, 1982.
 
         
 
                              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 contained in the review-reopening 
 
         decision are appropriate to the issues and evidence.
 
         
 
         ANALYSIS
 
         
 
              The deputy's analysis of the evidence in conjunction with 
 
         the evidence is adopted.
 
         
 
              Although claimant has presented evidence that would allow 
 
         one to conclude a causal connection exists between her back 
 

 
         
 
         
 
         
 
         HANSON V. MERCY HOSPITAL MEDICAL CENTER
 
         PAGE   2
 
         
 
         problem and her work injury on July 18, 1982, the deputy's 
 
         decision quite adequately explains why he found otherwise.  
 
         Thomas A. Carlstrom, M.D., opined that the herniated disc is not 
 
         related to the work injury and testified as to his reasons:  1) 
 
         that the herniated disc did not appear on the myelogram taken on 
 
         October 5, 1982; 2) that claimant's low back and right leg 
 
         problem had resolved when he saw her in February 1983; and 3) 
 
         that a herniated disc is not indicated by intermittent symptoms 
 
         such as claimant described to him.  Dr. Carlstrom's opinion is 
 
         adopted because the greater weight of evidence presented is more 
 
         consistent with his opinion.
 
         
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Claimant testified that the condition of her low back 
 
         and right leg worsened in August 1984.
 
         
 
              2.  Claimant was first diagnosed as having a "fairly large 
 
         herniated lumbar disc, L5-S1" in January 1985 by Dr. Bashara.
 
         
 
              3.  Claimant underwent a lumbar myelogram on October 5, 1982 
 
         which revealed no abnormalities.
 
         
 
              4.  Claimant's low back and right leg problems had resolved 
 
         when Dr. Carlstrom examined her in February 1983.
 
         
 
              5.  A herniated disc is not indicated by intermittent 
 
         symptoms.
 
         
 
              6.  Claimant's herniated disc, L5-S1 is not related to her 
 
         July 18, 1982 work injury.
 
         
 
         
 
                                CONCLUSION OF LAW
 
         
 
              Claimant failed to establish a causal connection between her 
 
         herniated disc and her work injury of July 18, 1982.
 
         
 
              Claimant failed to prove a change in her physical condition 
 
         which was causally connected to her work injury of July 18, 
 
         1982.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed.
 
         
 
         
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That claimant take nothing further from this proceeding.
 
         
 
              That claimant pay the costs of this appeal including the 
 
         costs of the transcription of the hearing proceeding and each 
 
         party pay their own costs of the hearing proceeding with the 
 
         defendants paying the costs of the certified shorthand reporter 
 
         at the time of hearing all pursuant to Division of Industrial 
 
         Services Rule 343-4.33.
 
         
 

 
         
 
         
 
         
 
         HANSON V. MERCY HOSPITAL MEDICAL CENTER
 
         PAGE   3
 
         
 
              Signed and filed this 17th day of August, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                                  DAVID E. LINQUIST
 
                                                  INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Arvid D. Oliver
 
         Attorney at Law
 
         2635 Hubbell Avenue
 
         Des Moines, Iowa 50317
 
         
 
         Mr. Hugh Cain
 
         Attorney at Law
 
         404 Equitable Bldg.
 
         604 Locust
 
         Des Moines, Iowa 50309
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                  1402.40
 
                                                  Filed August 17, 1988
 
                                                  David E. Linquist
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DEBRA L. HANSON,
 
         
 
              Claimant,
 
                                                  File No. 709232
 
         vs.
 
                                                    A P P E A L
 
         MERCY HOSPITAL MEDICAL
 
         CENTER,                                  D E C I S I O N
 
         
 
              Employer,
 
         
 
         and
 
         
 
         AETNA CASUALTY AND SURETY
 
         COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1402.40
 
         
 
              Claimant failed to establish that her herniated disc was 
 
         causally related to her work injury.
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         DEBRA L. HANSON,
 
         
 
              Claimant,
 
                                                    FILE NO. 709232
 
         VS.
 
                                                     R E V I E W -
 
         MERCY HOSPITAL MEDICAL
 
         CENTER,                                   R E 0 P E N I N G
 
         
 
             Employer,                               D E C I S I 0 N
 
         
 
          and
 
          
 
          AETNA CASUALTY AND SURETY
 
          COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in review-reopening brought by Debra L. 
 
         Hanson, claimant, against Mercy Hospital Medical Center, 
 
         employer, and Aetna Casualty and Surety Company, insurance 
 
         carrier, for further benefits as a result of an injury which 
 
         occurred on July 18, 1982.  An earlier decision filed May 18, 
 
         1984 found that claimant did receive an injury which arose out of 
 
         and in the course of her employment with the employer and awarded 
 
         temporary total disability benefits from July 19, 1982 to October 
 
         18, 1982.  A review-reopening hearing was held on November 21, 
 
         1986 at Des Moines, Iowa and the case was fully submitted at the 
 
         close of the hearing.  The record consists of joint exhibits A 
 
         through Y and the testimony of Debra L. Hanson, claimant.
 
         
 
                               STIPULATIONS
 
         
 
              The parties stipulated to the following matters:
 
         
 
              That an employer/employee relationship existed between the 
 
         claimant and the employer on the date of the injury.
 
         
 
              That the claimant did sustain an injury on July 18, 1982 
 
         which arose out of and in the course of her employment with the 
 
         employer.
 
         
 
              That the rate of compensation in the event of an award is 
 
         $199.19 per week.
 
         
 
              That the provider of medical services would testify that the 
 
         fees charged were reasonable and that the defendants are not 
 
         offering contrary evidence.
 
         
 
              That the medical expenses were incurred for reasonable and 
 
         necessary medical treatment.
 

 
         
 
         
 
         
 
         HANSON V. MERCY HOSPITAL MEDICAL CENTER
 
         Page   2
 
         
 
         
 
         
 
              That defendants are entitled to a credit under Iowa Code 
 
         section 85.38(2) for disability income and medical expenses paid 
 
         under an employee non-occupational group plan but that the amount 
 
         of these benefits is undetermined.
 
         
 
              That the defendants paid certain benefits to the claimant 
 
         prior to the earlier decision filed May 18, 1984 as shown in the 
 
         attachment to the prehearing report.
 
         
 
              That the issue of permanent disability is bifurcated.
 
         
 
                                      ISSUES
 
         
 
              The issues presented by the parties for determination at the 
 
         time of the hearing are as follows:
 
         
 
              Whether the injury of July 18, 1982 is the cause of any 
 
         additional temporary disability during a period of recovery.
 
         
 
              Whether the claimant is entitled to any additional temporary 
 
         total or healing period disability benefits.
 
         
 
              Whether claimant is entitled to medical benefits under Iowa 
 
         Code section 85.27.
 
         
 
                             SUMMARY OF THE EVIDENCE
 
         
 
              All of the evidence was examined and considered.  The
 
         following is a summary of the pertinent evidence.
 
         
 
              Claimant was employed as an intensive care nurse for the 
 
         employer on July 18, 1982.  Claimant testified that on that date 
 
         she tried to reposition a disoriented patient.  The woman grabbed 
 
         her around the neck.  Claimant then felt pain in her low back and 
 
         down the inside of her right leg.  Claimant was seen by a number 
 
         of physicians after the injury including H. W. Halling, M.D.; 
 
         John Zittergruen, D.O.; Marvin H. Dubansky, M.D.; Robert C. 
 
         Jones, M.D.; Steven R. Adelman, D.O.; G. Bradley Klock, D.O.; and 
 
         Thomas A. Carlstrom, M.D.
 
         
 
              A workers' compensation contested case hearing was held on 
 
         April 5, 1984.  Deputy Industrial Commissioner Steven E. Ort 
 
         issued a decision on May 18, 1985.  Official notice is taken of 
 
         that decision (Iowa Administrative Procedure Act section 
 
         17A.14(4)). He found that claimant did sustain an injury that 
 
         arose out of and in the course of her employment as to her low 
 
         back and right leg pain.  He allowed temporary total disability 
 
         benefits from July 19, 1982 to October 18, 1982.  He found that 
 
         there was no evidence of permanent impairment due to the low back 
 
         and right leg.  Deputy Ort found that a neck and left arm 
 
         complaint that arose approximately two months after July 18, 1982 
 
         were not causally connected to the injury of July 18, 1982 (Ort 
 
         Decision, pages 7 & 8).
 
         
 
              Deputy Ort mentioned that Dr. Jones, a neurosurgeon to whom 
 
         claimant was eventually referred for low back care, performed a 
 
         lumbar myelogram which failed to show any abnormalities (Exhibit 
 
         P-1).  Dr. Jones released claimant from his care of the low back 
 

 
         
 
         
 
         
 
         HANSON V. MERCY HOSPITAL MEDICAL CENTER
 
         Page   3
 
         
 
         
 
         and right leg pain and directed claimant to return to work on 
 
         October 18, 1982.  It was then that claimant for the first time 
 
         complained of the neck and left arm symptoms (Ort Decn., p. 4).  
 
         Claimant has always denied in both of her depositions and at both 
 
         hearings that Dr. Jones had released her from his care in October 
 
         of 1982.  She asserts that she was actively taking physical 
 
         therapy at his direction at that time.
 
         
 
              Deputy Ort also commented that Dr. Carlstrom, who saw 
 
         claimant primarily for the neck and left arm complaints, noted 
 
         that claimants' low back pain resolved rather promptly after the 
 
         injury (Ort Decn., p. 5; Ex. M-1; Ex. X, pp. 5, 6 & 7).  Claimant 
 
         has always denied in both of her depositions and at both hearings 
 
         that she ever made such a statement to Dr. Carlstrom.
 
         
 
              Claimant's consistent testimony has been that she has had 
 
         persistent low back pain from the date of the injury on July 18, 
 
         1982 until the present time.  She denied any intervening 
 
         accidents or injuries which might have caused or contributed to 
 
         this pain.  She did admit to one miscarriage in March of 1983 
 
         (Ex. M-2) and the birth of a child on March 17, 1984 (Ex. D-1 & 
 
         D-2).  She stated that the second stage of labor pain hurt her 
 
         back so bad that she requested and received a cesarean section.  
 
         Ross J. Valone, M.D., stated that during the second stage of 
 
         labor claimant had significant discomfort in her back and could 
 
         feel the muscles pulling away from their attachments.  She knew 
 
         she was doing serious injury to her back by continuing the second 
 
         stage of labor (Ex. D-1).
 
         
 
              Claimant testified at this hearing that her low back and 
 
         right leg pain gradually began to get worse in August of 1984.  
 
         She went to see Dr. Adelman on September 18, 1984.  Dr. Adelman 
 
         said that he did not feel that she could work when he saw her in 
 
         September, 1984.  He did not say whether the cause of her 
 
         disability was or was not the injury of July 18, 1982 (Ex. K-8). 
 
          Dr. Adelman referred claimant to Jerome G. Bashara, M.D., an 
 
         orthopedic surgeon.
 
         
 
              Dr. BasharaOs office notes  corroborated  claimant's  
 
         testimony that she saw him on December 11, 1984 (Ex. A-4).  Dr. 
 
         Bashara said he examined thoracic and cervical x-rays from the 
 
         Des Moines Osteopathic School of Medicine dated December 15, 
 
         1982.  He recorded that claimant had a mild thoracic scoliosis 
 
         and a reversal of the normal cervical lordotic curve.  A full set 
 
         of spine x-rays from Dr. England (full name unknown), a 
 
         chiropractor dated September 18, 1984 showed a mild double curve 
 
         lumbar scoliosis which was compensated.  No mention was made of a 
 
         herniated disc for either of those dates (Cl. Ex. A-4).  Dr. 
 
         Bashara then ordered a CT scan of the lumbar spine and recorded 
 
         on January 22, 1985 that it showed a fairly large herniated disc 
 
         at L-5, S-1 centrally and to the right (Cl. Ex. A-5).
 
         
 
              Claimant's testimony and Dr. BasharaOs office records are in 
 
         agreement that conservative treatment of medication, physical 
 
         therapy and epidural Cortisone injections were not successful.  
 
         Dr. Bashara noted on August 27, 1985 that claimant was to be 
 
         admitted to Mercy Hospital for an EMG/NCV test, a lumbar 
 
         myelogram and a lumbar laminectomy (Ex. A-6).  On September 11, 
 
         1985 a lumbar laminectomy and a discectomy was performed on the 
 

 
         
 
         
 
         
 
         HANSON V. MERCY HOSPITAL MEDICAL CENTER
 
         Page   4
 
         
 
         
 
         right side at L-5, S-1 for a herniated disc and L4-L5 on the 
 
         right was explored but appeared normal (Ex. A-6).  Nevertheless, 
 
         on January 31, 1986, Dr. BasharaOs office notes show that 
 
         claimant was again complaining of low back pain and left leg pain 
 
         (Ex. A-7).  On February 7, 1986, his office notes reflect a 
 
         diagnosis of (1) recurrent disc herniation L5-Sl, and (2) 
 
         possible herniated disc L4-L5.  Claimant was to be readmitted to 
 
         Mercy Hospital for a lumbar myelogram, enhanced CT scan, EMG/NCV 
 
         test and another possible lumbar laminectomy (Ex. A-7).  Dr. 
 
         Bashara stated that after a consultation with Robert Hayne, M.D., 
 
         and Bill Boulden, M.D., a diagnosis of recurrent disc herniation 
 
         with some development of mechanical instability was made.  A 
 
         second lumbar laminectomy and a lumbar fusion of L5-Sl was 
 
         performed on July 9, 1986 (Ex. A-2).  Prior to the first 
 
         laminectomy on April 5, 1985, Dr. Bashara wrote the following 
 
         letter relative to causal connection to claimant's attorney:
 
         
 
              Dear Mr. Oliver:
 
         
 
              Enclosed are the medical records on the patient, Debra L. 
 
              Hanson.
 
         
 
              My final diagnosis is a herniated lumbar disc, L5-Sl, 
 
              centrally and to the right.  It is my opinion that this is 
 
              directly related to her work injury at the Mercy Hospital on 
 
              July 19, 1982.
 
         
 
              I have recommended surgery to include a lumbar laminectomy 
 
              to relieve the patient's symptoms.
 
         
 
                   Hoping this will be of some help to you.
 
         
 
                   Thanking you,
 
         
 
         
 
         
 
                   Jerome G. Bashara, M.D.
 
                   (Ex. A-1)
 
         
 
              The evidence in this case did not include any written 
 
         material from Dr. Boulden but there is a report from Dr. Hayne 
 
         dated June 10, 1986 to the insurance carrier.  The letter reviews 
 
         claimant's medical history but is silent on whether the injury of 
 
         July 18, 1982 was the cause of her worsened condition in August 
 
         of 1984 or the herniated disc that was first diagnosed after the 
 
         first hearing by Dr. Bashara on January 22, 1985 (Ex. B-1).
 
         
 
              Claimant was examined by S. L. Danielson, M.D., on December 
 
         12, 1985 after the first laminectomy and before the second one.  
 
         He performed a very detailed examination of the claimant and his 
 
         report very carefully reviewed claimant's medical history.  He 
 
         thought her back pain was ligamentous in nature rather than 
 
         discogenic or neurogenic.  Dr. Danielson was silent on whether 
 
         the injury of July 12, 1982 was or was not the cause of the 
 
         claimant's worsened condition in August of 1984 or the herniated 
 
         disc problem (Ex. C-1).
 
         
 
              Claimant was also seen at the Institute for Low Back Care in 
 
         Minneapolis by Charles Burton, M.D., on March 21, 1986 after the 
 

 
         
 
         
 
         
 
         HANSON V. MERCY HOSPITAL MEDICAL CENTER
 
         Page   5
 
         
 
         
 
         first laminectomy and before the second one.  He commented that 
 
         claimant was born with significant structural difficulties 
 
         regarding her back.  He stated that she has poor support of the 
 
         spine, a transitional S-1 vertebra, hyperdordosis and scoliosis. 
 
          He stated that these conditions were aggravated by the work 
 
         related injury.  In association with this there has probably been 
 
         longstanding degenerative disc disease at L4-L5 and L5-Sl.  With 
 
         respect to the disc herniation he stated that her work related 
 
         injury may have produced the disc herniation at L5-Sl which 
 
         required the surgery (Ex. E-1).
 
         
 
              Dr. Carlstrom, a board certified neurosurgeon, examined 
 
         claimant in February of 1983 prior to the first hearing in regard 
 
         to her neck and left arm complaints (Ex. M-1 through M-6) and 
 
         then again in October of 1986 prior to the second hearing in 
 
         regard to her low back and right leg pain (Ex. X, p. 4).  Dr. 
 
         Carlstrom testified that he examined a lumbar myelogram done by 
 
         Dr. Jones which was taken on approximately October 5, 1982. it 
 
         was his recollection that this myelogram showed no extradural 
 
         defect, that is no herniated disc.  He did not write it down but 
 
         he felt his recollection was reliable because he was concerned 
 
         about whether Dr. Jones' myelogram covered the cervical area or 
 
         not (Ex. X, pp. 8 & 9).  Dr. Carlstrom ordered a cervical 
 
         myelogram for himself on April 12, 1983 (Ex. M-2).  Dr. Carlstrom 
 
         was confronted with the question of causal connection for the low 
 
         back and right leg pain and the following colloque transpired:
 
         
 
              Q.  Doctor, within a reasonable degree of medical certainty, 
 
              do you have an opinion as to whether Mrs. Hanson's present 
 
              complaints of low back pain are caused by the incident of 
 
              July 1982 at Mercy Hospital?
 
         
 
              A.  Yes.
 
         
 
              Q.  Can you tell us what that opinion is?
 
         
 
              A.  I don't think they are caused by that incident.
 
         
 
              Q.  Why do you think that, Doctor?
 
         
 
              A.  Well, you didn't ask me about the myelogram that was 
 
              done by Doctor Bashara in O85, but --
 
         
 
              Q.  Does that play a part in your answer?
 
         
 
              A.  Yes, it does, because that study showed a large 
 
              herniated disk, and it would be my opinion that a large 
 
              herniated disk would not have been missed on that initial 
 
              myelogram, even if it had been there, and I think that she 
 
              developed the herniated disk between the time of the initial 
 
              myelogram and the second myelogram.  And so I believe that 
 
              taking that into consideration along with the history that I 
 
              obtained that her back was not really bothering her anymore, 
 
              I think she probably resolved the initial complaint before 
 
              my exam in February of 1983 and sometime between then and 
 
              1984 or 1985 developed the herniated disk. (Ex. X, pp. 8 & 
 
              9)
 
         
 
              Dr. Carlstrom may be mistaken in his statement that Dr. 
 

 
         
 
         
 
         
 
         HANSON V. MERCY HOSPITAL MEDICAL CENTER
 
         Page   6
 
         
 
         
 
         Bashara diagnosed claimant's herniated disc by a myelogram.  Dr. 
 
         Bashara diagnosed claimant's herniated disc by a CT scan 
 
         initially (Ex. A-5).  However, Dr. Bashara did order a lumbar 
 
         myelogram and EMG/NCV test prior to the first surgery (Ex. A-5) 
 
         and Dr. Bashara did indicate that all three tests -- the CT scan, 
 
         the myelogram and the EMG/NCV test -- led him to a definitive 
 
         diagnoses of a herniated lumbar disc at the L5, Sl space centerly 
 
         and to the right (Ex. A-2)
 
         
 
              Dr. Carlstrom further testified that the pregnancy could
 
         result in a low back problem or even a herniated disc (Ex. X, p. 
 
         9).  He estimated claimant's physical impairment as 10 percent of 
 
         the body as a whole according to the AMA criteria (Ex. X, p. 
 
         10).
 
         
 
         
 
              Claimant's counsel challenged Dr. Carlstrom on his statement 
 
         that the low back was resolved at the time Dr. Carlstrom first 
 
         saw her (Ex. X, p. 6) and the following dialogue occurred:
 
         
 
              Q.  Doctor, of what significance is it to you, if any, that 
 
              Mrs. Hanson reported to you back in 1983 that she was still 
 
              having pain in the low back and in the thigh areas and had 
 
              had an incident of pain at least approximately one week 
 
              before she saw you at that time?
 
         
 
              A.  Well, it depends on what you're asking.
 
         
 

 
         
 
         
 
         
 
         HANSON V. MERCY HOSPITAL MEDICAL CENTER
 
         Page   7
 
         
 
         
 
              Q.  Is it of any significance to you that she had ongoing 
 
              symptomology of pain in the low back area?
 
         
 
              A.  I guess the best way to answer that is that yes, it is, 
 
              and in particular when discussing a problem which has been 
 
              diagnosed as a herniated disk, it is very unusual for a 
 
              patient to have a herniated disk which comes up one day, 
 
              goes away and comes back a week later, or something like 
 
              that, and the fact that she was having pain at that time 
 
              does not diagnose a herniated disk by any means.  We all 
 
              have our back pains, and fortunately most of us don't have 
 
              herniated disks.
 
         
 
              Q.  Unusual, Doctor, but not unheard of, I take it?
 
         
 
              A.  What's unusual?
 
         
 
              Q.  I believe your statement was that it's unusual to have a 
 
              person with complaint of pain and not find some immediate 
 
              evidence of herniated disk?
 
         
 
              A.  I would say that it is rare for a patient to have a 
 
              herniated disk and have intermittent symptoms.
 
         
 
              (Ex. X, pp. 12 & 13).
 
         
 
              Claimant testified that she is still recovering from the 
 
         second surgery.  She has not been able to work since the original 
 
         injury on July 18, 1982.  She looked at a number of jobs through 
 
         her employer's personnel director and also through a vocational 
 
         rehabilitation specialist.  None of these jobs were within her 
 
         limitations.  She did however work as a bartender in a family 
 
         operated tavern four hours a day, three or four times a week, 
 
         from November of 1984 to November of 1985.  She could do this job 
 
         while sitting on a chair.  The job involved no lifting or
 
         
 
         
 
         
 
         
 
         
 
         standing.  Claimant admitted that she has lifted her small 
 
         children on some occasions.  Claimant conceded in her testimony 
 
         that the myelogram done by Dr. Jones in October of 1982 did not 
 
         show a herniated disc.  Claimant testified that she thought Dr. 
 
         Hayne did give an opinion of causal connection, but after 
 
         examining exhibit B-1, she admitted that Dr. Hayne did not relate 
 
         her low back pain to the July 18, 1982 work incident.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              The earlier decision of Deputy Ort filed May 18, 1984 found 
 
         that claimant sustained an injury to her low back and right leg 
 
         which arose out of and in the course of her employment; however, 
 
         it also found that claimant suffered no permanent physical 
 
         impairment due to this injury at that time (Ort Decn., pp. 7 & 
 
         8). This is a review-reopening proceeding under Iowa Code section 
 
         86.14. Claimant must demonstrate a change of condition subsequent 
 
         to the earlier decision which is a result of the original injury 
 
         of July 18, 1982.  See Lawyer & Higgs, Iowa Workers' Compensation 
 

 
         
 
         
 
         
 
         HANSON V. MERCY HOSPITAL MEDICAL CENTER
 
         Page   8
 
         
 
         
 
         -- Law & Practice, section 20-2, p. 158 and the cases cited 
 
         there.
 
         
 
              Claimant has established that her low back condition became 
 
         worse.  On January 22, 1985, Dr. BasharaOs CT scan of her lumbar 
 
         spine revealed for the first time that claimant had a fairly
 
         large herniated disc at L5, Sl, centrally and to the right (Ex.
 
          A-5).
 
         
 
              Claimant did not, however, sustain the burden of proof by a 
 
         preponderance of the evidence that her worsened condition in 
 
         August of 1984 and the herniated disc that was discovered in 
 
         January of 1985 were caused by the injury which occurred on July 
 
         18, 1982.
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of July 18, 1982 is causally related 
 
         to the disability on which she now bases her claim.  Bodish v. 
 
         Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. 
 
         L. 0. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A possibility 
 
         is insufficient; a probability is necessary.  Burt v. John Deere 
 
         Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955)., The 
 
         question of causal connection is essentially within the domain of 
 
         expert testimony.  Bradshaw v. Iowa Methodist Hospital, 251 Iowa 
 
         375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that,
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
         Co., 261 Iowa 352, 154 N.W.2d l28 (1967).
 
         
 
              The lumbar myelogram of Dr. Jones in October of 1982 failed 
 
         to show any abnormalities (Ex. P-1; Ort Decn., P. 4).  Dr. 
 
         Carlstrom reviewed this myelogram and testified that this 
 
         myelogram showed no lumbar herniated disc (Ex. X, pp. 7 & 8).  
 
         The full set of spine x-rays taken by Dr. England, the 
 
         chiropractor, on September 18, 1984, did not disclose a lumbar 
 
         herniated disc of any size, large or small (Ex. A-4).
 
         
 
              It is true that Dr. Bashara wrote to claimant's counsel on 
 
         April 5, 1985 and stated that the herniated lumbar disc at L5-Sl 
 
         was directly related to the work injury on July 18, 1982.  
 
         However, Dr. Bashara did not say that the injury of July 18, 1982 
 
         actually caused the lumbar herniated disc.  Dr. Bashara did not 
 
         say that there was a cause and effect relationship.  What Dr. 
 
         Bashara means by directly related to the work injury is not 
 
         explained by him.  No supporting factual or medical basis is 
 
         offered for his opinion.  Nor does he give any reasoning process 
 
         leading up to it.  He did not explain why it did not show up on 
 
         prior x-rays or the prior myelogram.  He did not explain why it 
 
         did not show up until his CT scan revealed it on January 22, 
 

 
         
 
         
 
         
 
         HANSON V. MERCY HOSPITAL MEDICAL CENTER
 
         Page   9
 
         
 
         
 
         1985, approximately two and one-half years after the injury of 
 
         July 18, 1982.  He did not explain how a patient grabbing the 
 
         claimant around the neck would cause a herniated disc in her 
 
         lumbar spine at L5, Sl which could not be proven radiographically 
 
         for two and one-half years and then be fairly large when it could 
 
         be seen for the first time.  Dr. Bashara's statement stands as an 
 
         opinion without any supporting basis either factually or 
 
         medically and it raises more questions then it answers.
 
         
 
              Although Dr. Bashara consulted with Dr. Boulden after the 
 
         first surgery and before the second one, there is no medical 
 
         evidence introduced from Dr. Boulden (Ex. A-2).  Dr. Hayne, Dr. 
 
         BasharaOs other consultant, made a report but he offered no 
 
         opinion on whether the worsened condition or the herniated disc 
 
         was or was not causally related to the injury of January 18, 1982 
 
         (Ex. A-2; Ex. B-1).  Dr. Danielson examined claimant extensively 
 
         between the two laminectomies and he gave no opinion on whether 
 
         the worsened condition or the herniated disc was or was not 
 
         caused by the injury of July 18, 1982.  Dr. Burton at the 
 
         Institute for Low Back Care stated that the injury of July 18, 
 
         1982 may have produced the herniation at L5-Sl which required 
 
         surgery.  He also pointed out that claimant was born with very 
 
         significant structural liabilities regarding her back.  He also 
 
         stated that there has probably been longstanding degenerative 
 
         disc disease at L4, L5 and L5, Sl (Ex. E-1).
 
         
 
              Dr. Carlstrom gave his professional medical opinion within a 
 
         reasonable degree of medical certainty that the herniated disc 
 
         problem was not caused by the injury of July 18, 1982 for the 
 
         reason that it was a fairly large bulge but did not show up on 
 
         the myelogram of Dr. Jones done in October of 1982.  Therefore, 
 
         he concluded that the herniated disc occurred sometime after 
 
         October of 1982 and before January of 1985 (Ex. X, pp. 8 & 9).  
 
         Furthermore, claimant told him in February of 1983 that her low 
 
         back problem was resolved.  Dr. Carlstrom said that a herniated 
 
         disc does not have intermittent symptoms (Ex. X, pp. 12 & 13).  
 
         Dr. Carlstrom further testified that pregnancy and child birth 
 
         could cause a herniated disc (Ex. X, p. 9).  Therefore, based 
 
         upon the foregoing considerations, it is determined that claimant 
 
         did not sustain the burden of proof by a preponderance of the 
 
         evidence that the alleged worsened condition in August of 1984 
 
         and the herniated disc discovered in January of 1985 by Dr. 
 
         BasharaOs CT scan were caused by the injury of July 18, 1982.  
 
         Accordingly, claimant is not entitled to temporary or medical 
 
         benefits for the alleged worsened conditions or the herniated 
 
         disc condition.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              WHEREFORE, based upon the evidence presented, the following 
 
         findings of fact are made:
 
         
 
              That claimant testified that the condition of her low back 
 
         and right leg worsened in August of 1984.
 
         
 
              That Dr. Bashara determined in January of 1985 that claimant 
 
         had a fairly large herniated disc.
 
         
 
              That Dr. Bashara said that the herniated disc was directly 
 

 
         
 
         
 
         
 
         HANSON V. MERCY HOSPITAL MEDICAL CENTER
 
         Page  10
 
         
 
         
 
         related to her work injury on July 18, 1984, but that he did not 
 
         say there was a cause and effect relationship; he did not explain 
 
         why it did not appear on earlier radiographic studies and he did 
 
         not explain why it did not manifest itself until his CT scan 
 
         which was two and one-half years after the initial injury.
 
         
 
              That Dr. Hayne and Dr. Danielson examined claimant but gave 
 
         no opinion as to whether her worsened condition or herniated disc 
 
         was or was not caused by the injury of July 18, 1982.
 
         
 
              That Dr. Carlstrom testified that within a reasonable degree 
 
         of medical certainty it was his opinion that the injury of July 
 
         18, 1982 did not cause claimant's subsequent herniated disc 
 
         because (l) her low back and right leg problem had resolved when 
 
         he first saw her in February of 1983, (2) the herniated disc did 
 
         not appear on the myelogram taken by Dr. Jones on October 5, 
 
         1982, and (3) a herniated disc is not indicated by intermittent 
 
         symptoms such as the claimant described to him.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              WHEREFORE, based upon the evidence presented and the 
 
         principles of law previously discussed, the following conclusion 
 
         of law is made:
 
         
 
              That claimant failed to sustain the burden of proof by a 
 
         preponderance of the evidence that the alleged worsened condition 
 
         she noticed in August of 1984 and the subsequent herniated disc 
 
         problems she experienced after that were caused by the injury of 
 
         July 18, 1982.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              That no amounts are due from the defendants to the claimant 
 
         for disability or medical expenses.
 
         
 
              That each party pay their own costs of this proceeding, 
 
         except that defendants will pay the cost of the certified 
 
         shorthand reporter at the hearing pursuant to Division of 
 
         Industrial Services Rule 343-4.33.
 
         
 
              That the defendants file any reports requested by this 
 
         agency pursuant to Division of Industrial Services Rule 343-3.1.
 
         
 
         
 
              Signed and filed this 28th day of May, 1987.
 
         
 
         
 
         
 
         
 
              
 
                                         WALTER R. McMANUS,JR.
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
            
 

 
         
 
         
 
         
 
         HANSON V. MERCY HOSPITAL MEDICAL CENTER
 
         Page  11
 
         
 
         
 
         
 
         COPIES TO:
 
         
 
         Mr. Arvid D. Oliver
 
         Attorney at Law
 
         2635 Hubbell Avenue
 
         Des Moines, Iowa 50317
 
         
 
         Mr. Hugh J. Cain
 
         Attorney at Law
 
         4th Floor, Equitable Bldg.
 
         Des Moines, Iowa 50309
 
         
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                     1108.50; 1402.40
 
                                                     1801; 1802
 
                                                     Filed May 28, 1987 
 
                                                     WALTER R. McMANUS, JR.
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DEBRA L. HANSON,
 
          
 
              Claimant,
 
                                                        FILE NO. 709232
 
          VS.
 
                                                         R E V I E W -
 
          MERCY HOSPITAL MEDICAL
 
          CENTER,                                     R E 0 P E N I N G
 
          
 
              Employer,                                D E C I S I 0 N
 
          
 
          and
 
          
 
          AETNA CASUALTY AND SURETY
 
          COMPANY,
 
          
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         
 
         1108.50; 1402.40; 1801; 1802
 
         
 
              In review-reopening from a prior award, claimant failed to 
 
         prove that the original injury caused a herniated disc which was 
 
         not discovered until two and one half years later.  Claimant's 
 
         doctor said it was work related but made no explanation as to how 
 
         and why.  One doctor who examined claimant made no report.  Two 
 
         other doctors who examined claimant made no comment on whether 
 
         the original injury caused the herniated disc.  One doctor said 
 
         claimant had several congenital back problems that were 
 
         aggravated and that the original injury may have caused the 
 
         herniated disc.  Defendants' doctor dogmatically testified that 
 
         there was no causal connection between the original injury and 
 
         the herniated disc.  He examined claimant after the original 
 
         injury and again prior to this hearing.  He said claimant told 
 
         him that, (1) her low back pain had resolved itself shortly after 
 
         the original injury; (2) a myelogram after the original injury 
 
         did not show a herniated disc; and, (3) a herniated disc does not 
 
         have intermittent symptoms like claimant described to him.  Held: 
 
         causal connection was not proven.  Therefore, no benefits were 
 
         awarded.
 
         
 
         
 
                                                         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               1803; 2500; 4000
 
                                               Filed March 23, l990
 
                                               MICHELLE A. McGOVERN
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            CHRISTINE LANMAN,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :    File Nos. 793562 & 710341
 
            EVERCO INDUSTRIES,            :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            WESTCHESTER FIRE & MARYLAND   :
 
            CASUALTY CO.,                 :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            2500
 
            Defendants were not liable for medical benefits for a 1982 
 
            work injury when there was an intervening work injury in 
 
            April of 1985.
 
            Defendants liable for medical benefits and mileage because 
 
            of work injury which occurred in April of 1985 and which 
 
            aggravated preexisting condition.
 
            
 
            1803
 
            Claimant was awarded a 10 percent permanent partial 
 
            disability attributable to an April of 1985 work injury.  
 
            Claimant returned to work as a laborer.  According to her 
 
            own testimony she was "getting along fairly well."  Claimant 
 
            had a lighter position than the one she had on the day of 
 
            the April 1985 injury.  Claimant was earning greater wages 
 
            and a bonus upon her return to work and she had received all 
 
            raises pursuant to the collective bargaining agreement.
 
            
 

 
            
 
 
 
 
 
 
 
 
 
 
 
            
 
            
 
            4000
 
            Benefits under section 86.13 were awarded to claimant from a 
 
            defendant insurance carrier.  The carrier had unreasonably 
 
            withheld benefits after the only physician involved modified 
 
            his opinion and found a causal relationship between the 
 
            April 1985 work injury and claimant's alleged condition.