BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JOHN EHRICH,
 
         
 
              Claimant,                        File Nos.  712777
 
                                                          747588
 
         vs.
 
                                            A R B I T R A T I 0 N
 
         WILSON FOODS CORPORATION
 
                                               D E C I S I 0 N
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by John Ehrich, 
 
         claimant, against Wilson Foods Corporation, employer, 
 
         self-insured defendant, for benefits as the result of an injury 
 
         to the lower back which occurred on August 23, 1982 (file no. 
 
         712777) and another injury to the left shoulder which occurred on 
 
         October 11, 1983 (file no. 747588).  A hearing was held in Storm 
 
         Lake, Iowa, on November 2, 1988, and the case was fully submitted 
 
         at the close of the hearing.  The record consists of the 
 
         testimony of John Ehrich, claimant, Keith 0. Garner, M.D., 
 
         company physician, and joint exhibits 1 through 7 and defendant's 
 
         exhibit A.  Both attorneys submitted excellent briefs.
 
         
 
                                   STIPULATIONS
 
         
 
              The parties stipulated to the following matters:
 
         
 
              That an employer-employee relationship existed between 
 
         claimant and employer at the time of both injuries.
 
         
 
              That claimant did sustain an injury on August 23, 1982, and 
 
         another injury on October 11, 1983, and that both injuries arose 
 
         out of and in the course of his employment with employer.
 
         
 
             That for the injury of August 23, 1982, claimant was paid 
 
         temporary disability benefits from October 24, 1982 until 
 
         September 26, 1982 and again from September 28, 1982 until 
 
         October 31, 1982.
 
         
 
              That for the injury of October 11, 1983, claimant was paid 
 
         temporary disability benefits from October 12, 1983 to October 
 
         31, 1983.
 
         
 
              That claimant has been fully paid for his entitlement to 
 
         temporary disability benefits and that temporary disability 
 

 
         
 
         
 
         
 
         EHRICH V. WILSON FOODS CORPORATION
 
         PAGE   2
 
         
 
         benefits are no longer a matter of dispute in this case at this 
 
         time.
 
         
 
              That the type of permanent disability, if the injury is 
 
         found to be a cause of permanent disability, is industrial 
 
         disability to the body as a whole.
 
         
 
              That the commencement date for permanent partial 
 
         disability benefits, in the event of that such benefits are 
 
         awarded, is November 1, 1983, as to both injuries.
 
         
 
              That the rate of compensation, in the event of an award of 
 
         benefits, is $248 per week for the injury of August 23, 1982, 
 
         and $177.01 per week for the injury of October 11, 1983.
 
         
 
              That the medical bills are fair and reasonable and that 
 
         they were incurred for reasonable and necessary medical 
 
         treatment.
 
         
 
              That defendant makes no claim for credit for the payment 
 
         of employee nonoccupational group health plan benefits or 
 
         workers' compensation permanent partial disability benefits 
 
         prior to hearing.
 
         
 
              That there are no bifurcated claims.
 
         
 
                                       ISSUES
 
         
 
              The parties submitted the following issues for determination 
 
         at the time of the hearing.
 
         
 
              Whether either the injury of August 23, 1982, or the injury 
 
         of October 11, 1983, was the cause of any permanent disability.
 
         
 
              Whether claimant is entitled to permanent disability 
 
         benefits as the result of either injury, and if so, the nature 
 
         and extent of entitlement.
 
         
 
              Whether claimant is entitled to certain medical expenses 
 
         incurred with Lee A. Meylor, D.C.
 

 
         
 
         
 
         
 
         EHRICH V. WILSON FOODS CORPORATION
 
         PAGE   3
 
         
 
         
 
              Whether claimant is entitled to an order authorizing a 
 
         change of medical care.
 
         
 
                             SUMMARY OF THE EVIDENCE
 
         
 
              All of the evidence was examined and considered.  The 
 
         following is a summary of the evidence most pertinent to this 
 
         decision.
 
         
 
              Claimant testified that he is 6 foot 2 1/2 inches tall and 
 
         weighs 195 pounds.  He attended 12 years of high school, but was 
 
         short credits and subsequently obtained a G.E.D. from the State 
 
         of Iowa.  Past employments include:  mowing lawns, carrying 
 
         newspapers, grocery stock clerk and carryout boy, mixing feeds, 
 
         scooping manure and general construction work.  Claimant started 
 
         to work for employer on December 9, 1976.  Claimant testified 
 
         that he did not have any prior back or shoulder problems.  He did 
 
         say that he fell seven or eight feet from a scaffolding when he 
 
         worked for Sleezer Construction in 1975 and 1976, but claimant 
 
         did not state whether he was injured in this fall or not.  
 
         Claimant passed a preemployment physical examination for employer 
 
         showing no back or shoulder problems, however, no x-rays were 
 
         taken at that time on January 14, 1977 (Defendant's Exhibit A).
 
         
 
              Claimant testified that on August 23, 1982, he got under a 
 
         conveyor to move a heavy skinning machine.  While in an awkward 
 
         position, while attempting to move and lift the skinning machine, 
 
         he somehow injured his back.
 
         
 
              The plant nurse sent claimant to see Keith 0. Garner, M.D., 
 
         the company doctor.  Dr. Garner took claimant off work, 
 
         prescribed medication and physical therapy.  Claimant testified 
 
         that he also saw his own personal chiropractor without 
 
         authorization from the employer.  Claimant testified that after 
 
         he returned to work, he continued to have difficulty and. that 
 
         Dr. Garner then sent claimant to see Dr. Mark E. Wheeler, M.D., 
 
         an orthopedic surgeon.
 
         
 
              Dr. Wheeler saw claimant on October 13, 1982, for low and 
 
         mid back pain without any radiation.  Physical examination showed 
 
         some tenderness of L-5.  X-rays disclosed spina bifida, pars 
 
         interarticularis defect at L-5 and possibly two millimeters of 
 
         spondylolisthesis.  Dr. Wheeler diagnosed symptomatic 
 
         spondylolisthesis, prescribed a back brace, exercises and 
 
         anti-inflammatory doses of aspirin (Ex. 1, p. 1).
 
         
 
              Claimant testified that he returned to work on November 1, 
 
         1982.  He related that his back felt as good as it did before the 
 
         injury at the time he returned to work.  He was not having any 
 
         trouble with his back.
 
         
 
              Claimant testified that on October 11, 1983, a 
 
         superintendent passed behind where claimant was working and 
 
         bumped him, causing an injury to his left shoulder and upper 
 
         ribs.  The nurse sent claimant to Dr. Garner, who prescribed 
 
         medication and physical therapy and sent claimant to an osteopath 
 
         for osteopathic manipulative treatments.  Claimant also testified 
 
         that Dr. Garner sent him to see Dr. Wheeler, but claimant later 
 
         admitted that he was mistaken on this point when defendant's 
 

 
         
 
         
 
         
 
         EHRICH V. WILSON FOODS CORPORATION
 
         PAGE   4
 
         
 
         counsel showed claimant Dr. Wheeler's medical record (Ex. 1).
 
         
 
              Claimant testified that he decided to go see a chiropractor 
 
         again without any authorization from employer.
 
         
 
              A chiropractic case history dated November 7, 1983, shows 
 
         that claimant had pain in his left shoulder and could not raise 
 
         his arm over his head which injury originated on October 11, 1983 
 
         (Ex. 5).
 
         
 
              Claimant testified that chiropractors were the only ones who 
 
         could relieve his pain and therefore, he decided to see Lee 
 
         Meylor, D.C.  Dr. Meylor is the only one who gave claimant any 
 
         relief from pain.  Claimant admitted that he decided to see Dr.  
 
         Meylor without any authorization from employer, even though, 
 
         employer had previously permitted claimant to see a chiropractor, 
 
         but with a stipulation as to how many adjustments claimant would 
 
         receive beforehand.  Nevertheless, claimant testified that he did 
 
         not ask permission to see Dr. Meylor on this occasion.
 
         
 
              Dr. Meylor made a report that he saw claimant on May 21, 
 
         1984, for an injury of August 23, 1982.  He indicated that 
 
         claimant hurt himself again in August of 1983.  He diagnosed a 
 
         sprain/strain injury to the lumbar spine.  Prolonged standing, 
 
         bending and twisting continue to aggravate his low back condition 
 
         and he expected periods of pain and dysfunction to continue in 
 
         the future (Ex. 4).
 
         
 
              Claimant has incurred chiropractic medical expenses with Dr. 
 
         Lee A. Meylor in the amount of $1206 for 40 different treatment 
 
         dates beginning on May 21, 1984 and running through December 17, 
 
         1986 (Exs. 6 & 7).
 
         
 
              Claimant returned to see Dr. Wheeler for an evaluation on 
 
         October 21, 1985.  Dr. Wheeler stated that claimant does have a 
 
         spondylolisthesis of L-5 unilaterally.  He said that claimant 
 
         might have difficulty with his back, but he can pursue activities 
 
         as tolerated.  Dr. Wheeler stated claimant would have a permanent 
 
         partial impairment of 5 percent of the whole body.  Claimant 
 
         could return to see him as needed (Ex. 1, p. 2).
 
         
 
              On October 22, 1985, Dr. Wheeler wrote that claimant does 
 
         have a permanent back disability rated at 5 percent of the whole 
 
         person which might cause intermittent difficulty with work which 
 
         calls for prolonged bending, stooping or heavy lifting (Ex. 2).
 
         
 
              Dr. Wheeler wrote this additional clarification on August 
 
         21, 1987:  "In regards to your inquiries on John A. Ehrich, I 
 
         cannot specifically answer your question.  I do not feel the bony 
 
         defect or spondylolysis is probably do to his injury; however, I 
 
         feel his work injury probably aggravated this pre-existing 
 
         condition." (Ex. 3).
 
         
 
              Claimant stated that since his injuries, he now has 
 
         discomfort from bouncing when riding a motorcycle or a 
 
         snowmobile.  He is not able to hunt as much as he used to do.
 
         
 
              Claimant acknowledged that.since he has returned to work, he 
 
         has performed a number of jobs without any reduction in his 
 
         earnings.
 

 
         
 
         
 
         
 
         EHRICH V. WILSON FOODS CORPORATION
 
         PAGE   5
 
         
 
              Claimant testified that he was feeling perfectly fine until 
 
         just a few nights ago when he stepped in a hole in a yard and 
 
         since then his back pain has returned again.
 
         
 
              Dr. Keith Garner testified at the hearing, in person, that 
 
         he is the company doctor for employer.  He described spina 
 
         bifida, spondylolisthesis and pars interarticularis as primarily 
 
         congenital problems or problems that develop in early childhood.  
 
         The older a person becomes, the more likely they are to have a 
 
         problem with any one of these conditions.  All of these 
 
         conditions usually occur in the lumbar spine.  Dr. Garner noted 
 
         that Dr. Wheeler said that the slippage of the spondylolisthesis 
 
         had not increased in between when Dr. Wheeler saw claimant on 
 
         October 13, 1982, and when Dr. Wheeler saw him again on October 
 
         21, 1985 (Ex. 1, p. 2).  Dr. Garner examined Dr. Wheeler's 
 
         letters of October 22, 1985, and October 21, 1987.  Dr. Garner 
 
         opined that he believed that Dr. Wheeler meant that the 5 percent 
 
         permanent impairment was from the spondylolisthesis and not from 
 
         the aggravation of it.  Dr. Garner added that people with this 
 
         condition are more susceptible to back-pain, but not necessarily 
 
         injuries.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injuries of August 23, 1985 and October 11, 
 
         1983 are 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).
 
         
 
              Claimant did not sustain the burden of proof by a 
 
         preponderance of the evidence that the injury.of August 23, 1982, 
 
         to his low back or that the injury of October 11, 1983, to his 
 
         right shoulder was the cause of any permanent impairment.
 
         
 
              Dr. Meylor diagnosed a strain/sprain type of injury to the 
 
         lumbar spine.  He did not state that there was any permanent 
 
         functional impairment for this injury (Ex. 4).
 
         
 
              Dr. Wheeler stated that claimant has a permanent partial 
 
         impairment rating of 5 percent of the whole person for a 
 
         unilateral spondylolysis (Ex. 2).  He further explained that the 
 

 
         
 
         
 
         
 
         EHRICH V. WILSON FOODS CORPORATION
 
         PAGE   6
 
         
 
         injury of August 23, 1982, did not cause the spondylolysis (Ex. 
 
         3).  He does say that the injury aggravated this preexisting 
 
         condition (Ex. 3).  Dr. Wheeler did not say that the injury 
 
         caused the 5 percent permanent partial impairment.  On the 
 
         contrary, he said that the spondylolysis was the reason for this 
 
         rating.  The injury did not cause the spondylolysis.
 
         
 
              Dr. Garner, in his live testimony at the hearing, stated 
 
         that he interpreted this statement of Dr. Wheeler's that claimant 
 
         sustained a temporary aggravation of a pre-existing condition.
 
         
 
              This decision concurs with Dr. Garner.  Dr. Wheeler did not 
 
         state that the injury of August 23, 1982, was the cause of a 5 
 
         percent permanent partial impairment, which is the evidence that 
 
         is needed to prevail on this issue.
 
         
 
              As to the injury of October 11, 1983, there are no opinions 
 
         by any medical practitioner that claimant sustained a permanent 
 
         impairment.  Likewise, there is no permanent impairment rating 
 
         given by any medical practitioner in evidence.
 
         
 
              In addition, claimant said that when he returned to work on 
 
         November 1, 1982, his back was as good as it was before the 
 
         injury.  When asked if he had reinjured his back or not on 
 
         October 11, 1983, claimant testified that he did not know.  There 
 
         is no medical evidence that claimant reinjured his back on 
 
         October 11, 1983.  After returning to work, claimant performed 
 
         several jobs without any limitations or restrictions on his 
 
         physical activities and without any reduction in his pay.  He 
 
         also testified at the hearing that his back was just about 
 
         perfect, until he stepped in a hole in a yard just a few nights 
 
         prior to the hearing.  Consequently, it must be determined that 
 
         claimant did not sustain the burden of proof by a preponderance 
 
         of the evidence that either the injury of August 23, 1982, or the 
 
         injury of October 11, 1983, was the cause of any permanent injury 
 
         or disability.  Therefore, claimant is not entitled to permanent 
 
         partial disability benefits.
 
         
 
              Defendant admitted an injury arising out of and in the 
 
         course of employment as to both injury dates in its answer and 
 
         provided reasonable medical treatment for claimant pursuant to 
 
         Iowa Code section 85.27.  Defendant provided Dr. Garner, the 
 
         company medical doctor, for claimant's first and most immediate 
 
         needs at the plant.  Dr. Garner authorized an osteopath for 
 
         claimant and also sent claimant to an orthopedic surgeon.  Dr. 
 
         Garner prescribed physical therapy and medications.  Dr. Wheeler 
 
         prescribed a brace, medication and anti-inflammatory doses of 
 
         aspirin.  Claimant said that when he returned to work on November 
 
         1, 1982, his back was as good as it was before the injury 
 
         occurred.  Dr. Meylor did not say that his treatments were 
 
         necessitated by either of claimant's injuries.  It should be 
 
         noted that claimant did not even start these treatments with Dr. 
 
         Meylor until May 21, 1984.
 
         
 
              Claimant has three congenital or early development type of 
 
         back anomalies: (1) spina bifida, (2) spondylolisthesis, and (3) 
 
         pars interarticularis.  Dr. Garner testified that aging increases 
 
         the chances for discomfort from these three problems.  Dr. Garner 
 
         also stated that persons with these three particular back 
 
         conditions are more susceptible to back pain.
 

 
         
 
         
 
         
 
         EHRICH V. WILSON FOODS CORPORATION
 
         PAGE   7
 
         
 
         
 
              Claimant has not sustained the burden of proof by a 
 
         preponderance of the evidence that he should be paid for the 
 
         unauthorized chiropractic treatments and care.  Iowa Code section 
 
         85.27 grants claimant reasonable medical treatment and care, but 
 
         authorizes the employer to choose the care.. Defendant has 
 
         provided reasonable care.  They provided the care of Dr. Garner, 
 
         an osteopathic physician and an orthopedic surgeon.  The 
 
         chiropractic treatment apparently does provide some temporary 
 
         relief from pain, but at the same time they are not effective in 
 
         giving lasting relief judging from the number of treatments that 
 
         were given and received over a long period of time--claimant saw 
 
         the chiropractor 40 times between May 21, 1984, and December 17, 
 
         1986.  Therefore, it is determined that defendant provided 
 
         reasonable medical care and treatment pursuant to Iowa Code 
 
         section 85.27.  The care of Dr. Meylor admittedly was not 
 
         authorized, therefore, claimant is not entitled to payment for 
 
         Dr. Meylor's medical expenses.
 
         
 
              Likewise, claimant has not sustained the burden of proof by 
 
         a preponderance of the evidence or demonstrated sufficient reason 
 
         or cause for an order for a change of care.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              Wherefore, based upon the evidence presented the following 
 
         findings of fact are made.
 
         
 
              Dr. Wheeler did not award a permanent functional impairment 
 
         rating for the injury of August 23, 1982.
 
         
 
              Dr. Wheeler's rating of 5 percent of the body as a whole was 
 
         for claimant's preexisting condition of unilateral 
 
         spondylolysis.
 
         
 
              Dr. Wheeler's impairment rating of 5 percent of the body as 
 
         a whole was not a rating for an impairment which was caused by 
 
         the injury of August 23, 1982.
 
         
 
              There is no permanent impairment evidence or rating for the 
 
         injury of October 11, 1983.  Defendant provided claimant with a 
 
         medical doctor, an osteopathic physician and an orthopedic 
 
         surgeon x-rays, medications, physical therapy, and a back brace 
 
         until he returned to work on November 1, 1982.
 
         
 
              That claimant testified that when he returned to work after 
 
         the injury of August 23, 1982, on November 1, 1982, that his back 
 
         was in as good a condition as it was before the injury.
 
         
 
              That after claimant returned to work on November 1, 1982, he 
 
         performed various jobs for employer without any reduction in 
 
         pay.
 
         
 
              That since claimant returned to work on November 1, 1982, no 
 
         doctor has imposed any restrictions or limitations on his work 
 
         activities.
 
         
 
              That claimant testified that his back was perfect until just 
 
         a few days before hearing when he stepped in a hole in a yard.
 
         
 

 
         
 
         
 
         
 
         EHRICH V. WILSON FOODS CORPORATION
 
         PAGE   8
 
         
 
              That Dr. Meylor's medical expenses were not authorized by 
 
         employer or insurance carrier.
 
         
 
              That defendant, in its answer and at all times, has admitted 
 
         that claimant sustained an injury on August 23, 1982, and October 
 
         11, 1983.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              WHEREFORE, based upon the evidence presented and the 
 
         foregoing principles of law the following conclusions of law are 
 
         made.
 
         
 
              That claimant did not sustain the burden of proof by a 
 
         preponderance of the evidence that the injury of August 23, 1982, 
 
         or the injury of October 11, 1983, was the cause of any permanent 
 
         impairment or disability.
 
         
 
              That claimant is not entitled to permanent partial 
 
         disability benefits.
 
         
 
              That claimant's care by Dr. Meylor was not authorized, that 
 
         defendant has admitted their liability for both injuries and were 
 
         therefore, entitled to choose the care.  Therefore, claimant is 
 
         not entitled to recover the medical expenses incurred with Dr. 
 
         Meylor.
 
         
 
             That claimant did not sustain the burden of proof by a 
 
         preponderance of the evidence that he is entitled to an order for 
 
         a change in medical care for the reason that the care that had 
 

 
         
 
         
 
         
 
         EHRICH V. WILSON FOODS CORPORATION
 
         PAGE   9
 
         
 
         been provided was satisfactory.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              That no amounts are due from defendant to claimant for 
 
         either workers' compensation benefits or medical expenses.
 
         
 
              That the costs of this action are charged to claimant 
 
         pursuant to Division of Industrial Services Rule 343-4.33.
 
         
 
              That defendant file claim activity reports as requested by 
 
         this agency pursuant to Division of Industrial Services
 
         Rule 343-3.1.
 
         
 
         
 
              Signed and filed this 30th day of November, 1988.
 
         
 
         
 
         
 
         
 
                                        WALTER R. McMANUS, JR.
 
                                        DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         
 
         Copies to:
 
         
 
         Mr. Harry Smith
 
         Attorney at Law.
 
         P.O. Box 1194
 
         Sioux City, Iowa  51102
 
         
 
         Mr. David Sayre
 
         Attorney at Law
 
         233 Pine St.
 
         P.O. Box 535
 
         Cherokee, Iowa 51012
 
 
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 1401; 1402.40; 1803
 
                                                 1402.60; 2501
 
                                                 Filed November 30, 1988
 
                                                 WALTER R. McMANUS, JR.
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JOHN EHRICH,
 
         
 
              Claimant,                         File Nos.  712777
 
                                                           747588
 
         vs.
 
                                              A R B I T R A T I 0 N
 
         
 
         WILSON FOODS CORPORATION
 
                                                D E C I S I 0 N
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         
 
         1402; 1402.40; 1803
 
         
 
              Claimant did not sustain the burden of proof that he 
 
         sustained any permanent impairment or disability for either 
 
         injury and was not awarded any permanent partial disability.
 
         
 
         1402.60; 2501
 
         
 
              Claimant was not allowed $1206 in chiropractic bills which 
 
         were not authorized.  Claimant was not entitled to an order for 
 
         change of medical care.
 
 
 
         
 
 
        
 
 
 
 
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        BARBARA ELLEN HUFFMAN,
 
        
 
            Claimant,
 
        
 
        vs.                              File Nos. 713207/724360
 
        
 
        KEOKUK AREA HOSPITAL,              A P P E A L
 
        
 
            Employer,                   D E C I S I O N
 
        
 
        and
 
        
 
        ST. PAUL FIRE AND MARINE
 
        INSURANCE COMPANY,
 
        
 
            Insurance Carrier,
 
            Defendants.
 
        
 
        
 
                                 STATEMENT OF THE CASE
 
                                                
 
        Claimant appeals from an order granting defendants' motion for 
 
        summary judgment.
 
        
 
                                      ISSUE
 
        
 
        Claimant states the following issue on appeal:
 
        
 
        Whether the deputy industrial commissioner erred when he ruled 
 
        that the employer was entitled to a summary judgment for the 
 
        reason there was no genuine issue of material fact in existence 
 
        as to change in circumstances.
 
        
 
                                 REVIEW OF THE EVIDENCE
 
        
 
        The evidence consists of the exhibits attached to the defendants' 
 
        motion for summary judgment, and the affidavit attached to 
 
        claimant's resistance to the motion for summary judgment. 
 
        Defendants' exhibit A consists of the agreement for settlement 
 
        entered into by the parties, approved by the industrial 
 
        commissioner, and filed April 2, 1985. The agreement of 
 
        settlement awards claimant benefits equivalent to 14 percent 
 
        industrial disability. The agreement also recites that "claimant 
 
        would have to show a change of physical condition from the date 
 
        of this agreement for settlement in order to support reopening an 
 
        award."
 
        
 
        Defendants' exhibit B is a letter from claimant's attorney to 
 
        defendants' attorney, which acknowledges that claimant has
 
        
 
        HUFFMAN V. KEOKUK AREA HOSPITAL
 
        Page 2
 
        
 
        
 
        not suffered a physical change of condition since the agreement 
 
        of settlement.
 
        
 
        Defendants' exhibit C is claimant's letter of resignation from 
 
        her position with defendant Keokuk Area Hospital dated November 
 
        30, 1984. Exhibit C does not state a reason for claimant's 
 

 
        
 
 
 
 
 
        resignation.
 
        
 
        Defendants' exhibit D is a termination notice that recites that 
 
        claimant voluntarily terminated her employment to go into 
 
        self-employment, signed by claimant.
 
        
 
        Defendants' exhibit E is claimant's answers to interrogatories 
 
        and exhibit F consists of medical reports.
 
        
 
        Claimant's affidavit attached to the resistance for summary 
 
        judgment is signed by claimant, and states in part"...I was 
 
        denied employment to different positions for advancement at 
 
        Keokuk Area Hospital based upon my inability to perform such work 
 
        and my injury."
 
        
 
        Pursuant to Iowa Rule of Civil Procedure 237(c), the pleadings, 
 
        depositions, answers to interrogatories, admissions and 
 
        affidavits in this case were also considered in this decision.
 
        
 
                                 APPLICABLE LAW
 
        
 
        The citations of law in the ruling on motion for summary judgment 
 
        are appropriate to the issues and the evidence. In addition, the 
 
        following authorities are noted:
 
        
 
        Section 86.14(2) states: "In a proceeding to reopen an award for 
 
        payments or agreement for settlement as provided by section 
 
        86.13, inquiry shall be into whether or not the condition of the 
 
        employee warrants an end to, diminishment of, or increase of 
 
        compensation so awarded or agreed upon."
 
        
 
        Division of Industrial Services Rule 343-4.35 states:
 
        
 
        The rules of civil-procedure shall govern the contested case 
 
        proceedings before the industrial commissioner unless the 
 
        provisions are in conflict with these rules and Iowa Code 
 
        chapters 85, 85A, 85B, 86, 87 and 17A, or obviously inapplicable 
 
        to the industrial commissioner. In those circumstances, these 
 
        rules or the appropriate Iowa Code section shall govern. Where 
 
        appropriate, reference to the word "court" shall be deemed 
 
        reference to the "industrial commissioner."
 
        
 
        Iowa Rule of Civil Procedure 237(e), states, in part:
 
        
 
        When a motion for summary judgment is made and
 
        
 
        HUFFMAN V. KEOKUK AREA HOSPITAL
 
        Page 3
 
        
 
        
 
        supported as provided in this rule, an adverse party may not rest 
 
        upon the mere allegations or denials of his pleading, but his 
 
        response, by affidavits or as otherwise provided in this rule, 
 
        must set forth specific facts showing that there is a genuine 
 
        issue for trial. If he does not so respond, summary judgment, if 
 
        appropriate, shall be entered against him.
 
        
 
                                      ANALYSIS
 
        
 
        Claimant has the burden to show that a change of condition not 
 
        contemplated by the agreement of settlement has occurred. The 
 
        exhibits supporting defendants' motion for summary judgment 
 
        indicate that a physical change of condition has not occurred. 
 
        Claimant does not dispute this. Defendants point out that the 
 
        agreement of settlement requires a physical change in condition 
 
        before a reopening award. However, claimant may be entitled to 
 

 
        
 
 
 
 
 
        re-open an award if a non-physical change of condition has 
 
        occurred. Blacksmith v. All-American, Inc., 290 N.W.2d 348, 350 
 
        (Iowa 1980). An agreement between the parties that is contrary 
 
        to the law is a nullity. Claimant is not required to show a 
 
        physical change of condition.
 
        
 
        Claimant alleges a non-physical change of condition in the form 
 
        of loss of earnings. Claimant voluntarily quit her employment 
 
        with defendant. There is no indication, other than claimant's 
 
        unsubstantiated allegation, that her injury had any bearing on 
 
        her decision to terminate her employment to go into private 
 
        business.
 
        
 
        Even if claimant's assertion that she was unable to advance at 
 
        Keokuk Area Hospital due to her injury is taken as true, there is 
 
        no indication that that circumstance was not contemplated at the 
 
        time of the agreement of settlement. In order to establish a 
 
        change of condition, claimant must do more than merely show that 
 
        she has lost earnings subsequent to the agreement of settlement. 
 
        Claimant would need to show that that loss of earnings was not 
 
        contemplated by the settlement award of 14 percent industrial 
 
        disability.
 
        
 
        The fact that claimant subsequently did experience difficulty in 
 
        obtaining certain jobs merely confirms that she did in fact have 
 
        an industrial disability. Even when viewed in the light most 
 
        favorable to claimant, her affidavit and pleadings merely recite 
 
        factual circumstances--change of employment, loss of earnings, 
 
        inability to advance--that may very well have been contemplated 
 
        by the award of 14 percent industrial disability. Claimant does 
 
        not anywhere in her pleadings or affidavit allege that a loss of 
 
        earnings beyond that envisioned by the settlement has occurred. 
 
        Pursuant to Rule of Civil Procedure 237(e), claimant cannot rest 
 
        upon mere allegations. Rather, specific facts must be brought 
 
        forth showing a genuine issue for trial.
 
        
 
        HUFFMAN V. KEOKUK AREA HOSPITAL
 
        Page 4
 
        
 
        
 
        Defendants have shown that a genuine issue of fact does not exist 
 
        as to whether claimant has experienced a change of condition, 
 
        physical or non-physical, not contemplated by the settlement 
 
        agreement.
 
        
 
                                 FINDING OF FACT
 
        
 
        Claimant has failed to show that any evidence exists to support 
 
        her contention that there has been a material change of condition 
 
        that has occurred subsequent to the April 2, 1984 settlement for 
 
        which the injury in question was a proximate cause.
 
        
 
                                 CONCLUSION OF LAW
 
        
 
        Claimant has failed to show that any material issue of fact 
 
        exists with regard to whether there has been a change of 
 
        condition not contemplated by the agreement of settlement and 
 
        proximately caused by the original injuries.
 
        
 
        WHEREFORE, the decision of the deputy is affirmed.
 
        
 
                                      ORDER
 
                                                
 
        THEREFORE, it is ordered:
 
        
 
        That defendants' motion for summary judgment is sustained.
 

 
        
 
 
 
 
 
        
 
        That claimant take nothing from this proceeding.
 
        
 
        That costs of this proceeding are assessed against claimant
 
        
 
        Signed and filed this 25th day of August, 1988.
 
        
 
        
 
        
 
                                         DAVID E. LINQUIST
 
                                      INDUSTRIAL COMMISSIONER
 
        
 
        
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         BARBARA ELLEN HUFFMAN,
 
         
 
              Claimant,
 
         
 
         vs.                                 File Nos.  713207/724360
 
         
 
         KEOKUK AREA HOSPITAL,                     A P P E A L
 
         
 
              Employer,                          D E C I S I O N
 
         
 
         and
 
         
 
         ST. PAUL FIRE AND MARINE
 
         INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Claimant appeals from an order granting defendants' motion 
 
         for summary judgment.
 
                                      ISSUE
 
         
 
              Claimant states the following issue on appeal:
 
         
 
              Whether the deputy industrial commissioner erred when he 
 
         ruled that the employer was entitled to a summary judgment for 
 
         the reason there was no genuine issue of material fact in 
 
         existence as to change in circumstances.
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              The evidence consists of the exhibits attached to the 
 
         defendants, motion for summary judgment, and the affidavit 
 
         attached to claimant's resistance to the motion for summary 
 
         judgment.  Defendants' exhibit A consists of the agreement for 
 
         settlement entered into by the parties, approved by the 
 
         industrial commissioner, and filed April 2, 1985.  The agreement 
 
         of settlement awards claimant benefits equivalent to 14 percent 
 
         industrial disability.  The agreement also recites that "claimant 
 
         would have to show a change of physical condition from the date 
 
         of this agreement for settlement in order to support reopening an 
 
         award."
 
         
 
              Defendants' exhibit B is a letter from claimant's attorney 
 
         to defendants' attorney, which acknowledges that claimant has 
 
         not suffered a physical change of condition since the agreement 
 
         of settlement.
 
              Defendants' exhibit C is claimant's letter of resignation 
 

 
         
 
         
 
         
 
         HUFFMAN V. KEOKUK AREA HOSPITAL
 
         PAGE   2
 
         
 
         
 
         from her position with defendant Keokuk Area Hospital dated 
 
         November 30, 1984.  Exhibit C does not state a reason for 
 
         claimant's resignation.
 
         
 
              Defendants' exhibit D is a termination notice that recites 
 
         that claimant voluntarily terminated her employment to go into 
 
         self-employment, signed by claimant.
 
         
 
              Defendants' exhibit E is claimant's answers to 
 
         interrogatories and exhibit F consists of medical reports.
 
         
 
              Claimant's affidavit attached to the resistance for 
 
         summary judgment is signed by claimant, and states in part"...I 
 
         was denied employment to different positions for advancement at 
 
         Keokuk Area Hospital based upon my inability to perform such 
 
         work and my injury."
 
         
 
              Pursuant to Iowa Rule of Civil Procedure 237(c), the 
 
         pleadings, depositions, answers to interrogatories, admissions 
 
         and affidavits in this case were also considered in this 
 
         decision.
 
         
 
                                  APPLICABLE LAW
 
         
 
              The citations of law in the ruling on motion for summary 
 
         judgment are appropriate to the issues and the evidence.  In 
 
         addition, the following authorities are noted:
 
         
 
              Section 86.14(2) states:  "In a proceeding to reopen an 
 
         award for payments or agreement for settlement as provided by 
 
         section 86.13, inquiry shall be into whether or not the condition 
 
         of the employee warrants an end to, diminishment of, or increase 
 
         of compensation so awarded or agreed upon."
 
         
 
              Division of Industrial Services Rule 343-4.35 states:
 
         
 
                 The rules of civil procedure shall govern the 
 
              contested case proceedings before the industrial 
 
              commissioner unless the provisions are in conflict with 
 
              these rules and Iowa Code chapters 85, 85A, 85B, 86, 87 
 
              and 17A, or obviously inapplicable to the industrial 
 
              commissioner.  In those circumstances, these rules or 
 
              the appropriate Iowa Code section shall govern.  Where 
 
              appropriate, reference to the word "court" shall be 
 
     
 
         
 
         
 
         
 
         
 
         HUFFMAN V. KEOKUK AREA HOSPITAL
 
         PAGE   3
 
         
 
         
 
              deemed reference to the "industrial commissioner.  "
 
         
 
              Iowa Rule of Civil Procedure 237(e), states, in part:
 
         
 
              When a motion for summary judgment is made and 
 
              supported as provided in this rule, an adverse party 
 
              may not rest upon the mere allegations or denials of 
 
              his pleading, but his response, by affidavits or as 
 
              otherwise provided in this rule, must set forth 
 
              specific facts showing that there is a genuine issue 
 
              for trial.  If he does not so respond, summary 
 
              judgment, if appropriate, shall be entered against 
 
              him.
 
         
 
                                ANALYSIS
 
         
 
              Claimant has the burden to show that a change of condition 
 
         not contemplated by the agreement of settlement has occurred.  
 
         The exhibits supporting defendants' motion for summary judgment 
 
         indicate that a physical change of condition has not occurred.  
 
         Claimant does not dispute this.  Defendants point out that the 
 
         agreement of settlement requires a physical change in condition 
 
         before a reopening award.  However, claimant may be entitled to 
 
         re-open an award if a non-physical change of condition has 
 
         occurred.  Blacksmith v. All-American, Inc., 290 N.W.2d 348, 350 
 
         (Iowa 1980).  An agreement between the parties that is contrary 
 
         to the law is a nullity.  Claimant is not required to show a 
 
         physical change of condition.
 
         
 
              Claimant alleges a non-physical change of condition in the 
 
         form of loss of earnings.  Claimant voluntarily quit her 
 
         employment with defendant.  There is no indication, other than 
 
         claimant's unsubstantiated allegation, that her injury had any 
 
         bearing on her decision to terminate her employment to go into 
 
         private business.
 
         
 
              Even if claimant's assertion that she was unable to advance 
 
         at Keokuk Area Hospital due to her injury is taken as true, there 
 
         is no indication that that circumstance was not contemplated at 
 
         the time of the agreement of settlement.  In order to establish a 
 
         change of condition, claimant must do more than merely show that 
 
         she has lost earnings subsequent to the agreement of settlement. 
 
          Claimant would need to show that that loss of earnings was not 
 
         contemplated by the settlement award of 14 percent industrial 
 
         disability.
 
         
 
              The fact that claimant subsequently did experience 
 
         difficulty in obtaining certain jobs merely confirms that she did 
 
         in fact. have an industrial disability.  Even when viewed in the 
 
         light most favorable to claimant, her affidavit and pleadings 
 
         merely recite factual circumstances--change of employment, loss 
 
         of earnings, inability to advance--that may very well have been 
 
         contemplated by the award of 14 percent industrial disability.  
 
         Claimant does not anywhere in her pleadings or affidavit allege 
 
         that a loss of earnings beyond that envisioned by the settlement 
 
         has occurred.  Pursuant to Rule of Civil Procedure 237(e), 
 
         claimant cannot rest upon mere allegations.  Rather, specific 
 
         facts must be brought forth showing a genuine issue for trial.
 
         
 

 
         
 
         
 
         
 
         HUFFMAN V. KEOKUK AREA HOSPITAL
 
         PAGE   4
 
         
 
         
 
              Defendants have shown that a genuine issue of fact does not 
 
         exist as to whether claimant has experienced a change of 
 
         condition, physical or non-physical, not contemplated by the 
 
         settlement agreement.
 
         
 
                                 FINDING OF FACT
 
         
 
              Claimant has failed to show that any evidence exists to 
 
         support her contention that there has been a material change of 
 
         condition that has occurred subsequent to the April 2, 1984 
 
         settlement for which the injury in question was a proximate 
 
         cause.
 
         
 
                                CONCLUSION OF LAW
 
         
 
              Claimant has failed to show that any material issue of fact 
 
         exists with regard to whether there has been a change of 
 
         condition not contemplated by the agreement of settlement and 
 
         proximately caused by the original injuries.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That defendants' motion for summary judgment is sustained.
 
         
 
              That claimant take nothing from this proceeding.
 
         
 
              That costs of this proceeding are assessed against 
 
         claimant.
 
         
 
              Signed and filed this 25th day of August, 1988.
 
         
 
         
 
         
 
                                             DAVID E. LINQUIST
 
                                             INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. James P. Hoffman
 
         Attorney at Law
 
         Middle Road
 
         P.O. Box 1066
 
         Keokuk, Iowa 52632
 
         
 
         Mr. Greg A. Egbers
 
         Attorney at Law
 
         600 Union Arcade Bldg.
 
         111 East Third Street
 
         Davenport, Iowa 52801-1550
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                  2901 - 2905
 
                                                  Filed August 25, 1988
 
                                                  DAVID E. LINQUIST
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         BARBARA ELLEN HUFFMAN,
 
         
 
              Claimant,
 
         
 
         vs.                                  File Nos. 713207/724360
 
         
 
         KEOKUK AREA HOSPITAL,                     A P P E A L
 
         
 
              Employer,                          D E C I S I O N
 
         
 
         and
 
         
 
         ST. PAUL FIRE AND MARINE
 
         INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         2901 - 2905
 
         
 
              Affirmed deputy's granting of motion for summary judgment in 
 
         review-reopening where evidence viewed in light most favorable to 
 
         the claimant merely showed that claimant had lost earnings since 
 
         the original award of benefits.  The record was devoid of any 
 
         evidence or even allegation that claimant had suffered a loss of 
 
         earning power not contemplated by the original award.  Claimant 
 
         on review-reopening must show more than a change of circumstances 
 
         has occurred.  Claimant must show that the change of 
 
         circumstances was not contemplated by the original award.
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            ROBERT NICOLAUS,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 713224
 
            HINSON MANUFACTURING COMPANY, :
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            KEMPER GROUP,                 :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 Defendants appeal from an arbitration decision awarding 
 
            claimant permanent partial disability benefits based on an 
 
            industrial disability of 30 percent.
 
            
 
                 The record on appeal consists of the transcript of the 
 
            arbitration hearing and defendants' exhibits A through K.  
 
            Both parties filed briefs on appeal and defendants filed a 
 
            reply brief.
 
            
 
                                      issues
 
            
 
                 Defendants state the issues on appeal are:
 
            
 
                 1.  Whether the Claimant sustained his burden of 
 
                 proof by a preponderance of the evidence that the 
 
                 injury of September 2, 1982 was the cause of both 
 
                 temporary and permanent disability.
 
            
 
                 2.  Whether the Claimant is entitled to 104 weeks 
 
                 of healing period benefits for the period from 
 
                 September 2, 1982 to September 1, 1984.
 
            
 
                 3.  Whether the Claimant is entitled to 150 weeks 
 
                 of permanent partial disability benefits based 
 
                 upon an industrial disability rating of 30% of 
 
                 body as a whole.
 
            
 
                 4.  Whether the proper rate of compensation is 
 
                 $196.36 per week.
 
            
 
                              review of the evidence
 
            
 
                 The arbitration decision dated February 23, 1989 
 
            adequately and accurately reflects the pertinent evidence 
 
            and it will not be reiterated herein.
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                                  applicable law
 
            
 
                 The citations of law in the arbitration decision are 
 
            appropriate to the issues and evidence.
 
            
 
                                     analysis
 
            
 
                 The analysis of the evidence in conjunction with the 
 
            law in the arbitration decision is adopted.
 
            
 
                                 findings of fact
 
            
 
                 1.  Medical evidence establishes that claimant 
 
            sustained an injury to his left shoulder as a result of his 
 
            September 2, 1982 injury.
 
            
 
                 2.  Claimant's injury is not limited to his upper left 
 
            extremity but extends to the body as a whole.
 
            
 
                 3.  Claimant was 39 at the time of the hearing.
 
            
 
                 4.  Claimant completed the 11th grade, but has not 
 
            received his GED.
 
            
 
                 5.  Claimant is unable to work above chest level and is 
 
            not able to lift more than 5 to 10 pounds due to claimant's 
 
            September 2, 1982 injury.
 
            
 
                 6.  Claimant reached maximum medical improvement on 
 
            September 1, 1984.
 
            
 
                 7.  The work injury on September 2, 1982 was the cause 
 
            of twelve percent functional impairment to the body as a 
 
            whole according to Arnold E. Delbridge, M.D., and eleven 
 
            percent to the body as a whole according to W. John Robb, 
 
            M.D.
 
            
 
                 8.  Claimant's industrial disability is 30 percent.
 
            
 
                 9.  Claimant failed to prove entitlement to payment for 
 
            medical reports, prescription drugs or medical mileage.
 
            
 
                 10. The rate of compensation is $196.36 per week.
 
            
 
                 11. Defendants paid claimant 171 weeks of workers' 
 
            compensation benefits prior to the hearing at the rate of 
 
            $196.36 per week.
 
            
 
                                conclusions of law
 
            
 
                 Claimant established by a preponderance of the evidence 
 
            that the injury of September 2, 1982 was the cause of both 
 
            temporary and permanent partial disability.
 
            
 
                 Claimant established by preponderance of the evidence 
 
            that he is entitled to healing period benefits from 
 
            September 2, 1982 through September 1, 1984.
 
            
 
                 Claimant established that he is entitled to 150 weeks 
 
            of permanent partial disability benefits based upon an 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            industrial disability of 30 percent of the body as a whole.
 
            
 
                 Claimant did not prove entitlement to medical benefits.
 
            
 
                 Claimant's rate of compensation is $196.36 per week.
 
            
 
                 Defendants are entitled to a credit for 171 weeks of 
 
            workers' compensation benefits paid at the rate of $196.36 
 
            per week prior to hearing.
 
            
 
                 WHEREFORE, the decision of the deputy is affirmed.
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendants pay to claimant one hundred four (104) 
 
            weeks of healing period benefits for the period from 
 
            September 2, 1982 to September 1, 1984 at the rate of one 
 
            hundred ninety-six and 36/100 dollars ($196.36) per week.
 
            
 
                 That defendants pay to claimant one hundred fifty (150) 
 
            weeks of permanent partial disability benefits at the rate 
 
            of one hundred ninety-six and 36/100 dollars ($196.36) 
 
            commencing on September 2, 1984.
 
            
 
                 That these benefits are to be paid in a lump sum.
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
                 That defendants are entitled to a credit for one 
 
            hundred seventy one (171) weeks of workers' compensation 
 
            benefits paid at the rate of one hundred ninety-six and 
 
            36/100 dollars ($196.36).
 
            
 
                 That interest will accrue pursuant to Iowa Code section 
 
            85.30.
 
            
 
                 That defendants pay the cost of this action including 
 
            the cost of transcription of the arbitration hearing.
 
            
 
                 That defendants file claim activity reports pursuant to 
 
            Division of Industrial Services Rule 343-3.1(2).
 
            
 
                 Signed and filed this ______ day of February, 1990.
 
            
 
            
 
            
 
                                         ___________________________
 
                                              DAVID E. LINQUIST
 
                                           INDUSTRIAL COMMISSIONER
 
            
 
                 
 
            Copies To:
 
            
 
            Mr. John E. Behnke
 
            Attorney at Law
 
            Box F
 
            Parkersburg, Iowa 50665
 
            
 
            Mr. Michael A. McEnroe
 
            Attorney at Law
 
            3151 Brockway Rd.
 
            P.O. Box 810
 
            Waterloo, Iowa 50704
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          1106,1108.50,1401,1402.40
 
                                          1402.60,1403.20,1802,1803,
 
                                          3003,1700
 
                                          Filed February 28, 1990
 
                                          DAVID E. LINQUIST
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            ROBERT NICOLAUS,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 713224
 
            HINSON MANUFACTURING COMPANY, :
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            KEMPER GROUP,                 :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            1106,1108.50,1401,1402.40,1402.60,1403.20
 
            Claimant sustain his burden of proof by the greater weight 
 
            of the evidence that the injury of September 12, 1982 caused 
 
            permanent partial disability.
 
            1802
 
            Healing period benefits were awarded from the date of injury 
 
            until the date the treating physician said claimant reached 
 
            maximum medical recovery.
 
            1803
 
            Affirmed the deputy's decision awarding claimant 30 percent 
 
            industrial disability 
 
            3003
 
            Claimant failed to produce evidence that his hourly rate was 
 
            greater than the rate the insurance carrier used on Form 2A 
 
            to compute benefits paid.
 
            1700
 
            Insurance carrier was allowed a credit for benefits paid 
 
            prior to hearing based on the Form 2A.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            LARRY EGINOIRE,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 713369
 
            SUPER VALU STORES, INC.,      :
 
                                          :        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 an arbitration decision awarding 
 
            claimant 30 percent industrial disability as a result of a 
 
            work-related injury to his back on September 10, 1982.
 
            
 
                 The record on appeal consists of the transcript of the 
 
            arbitration hearing and joint exhibits 1 through 12.  Both 
 
            parties filed briefs on appeal.
 
            
 
                                      issues
 
            
 
                 Defendants state the issues on appeal are:
 
            
 
                 1.  The Deputy erred in her interpretation that 
 
                 Dr. Patrick's 20 percent impairment rating was as 
 
                 a result of the injury of September 10, 1982.
 
            
 
                 2.  The Deputy erred when she found that the 
 
                 claimant sustained a loss of earning capacity 
 
                 entitling him to an award of 30 percent industrial 
 
                 disability.
 
            
 
                              review of the evidence
 
            
 
                 The arbitration decision dated May 19, 1989 adequately 
 
            and accurately reflects the pertinent evidence and it will 
 
            not be reiterated herein.
 
            
 
                                  applicable law
 
            
 
                 The citations of law in the arbitration decision are 
 
            appropriate to the issues and evidence.
 
            
 
                                     analysis
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                 The analysis of the evidence in conjunction with the 
 
            law in the arbitration decision is adopted.
 
            
 
                                 findings of fact
 
            
 
                 1.  Claimant sustained an injury to his back which 
 
            arose out of and in the course of his employment on 
 
            September 10, 1982, when he fell while exiting his truck.
 
            
 
                 2.  Claimant was initially treated with epidural 
 
            steroid injections and then Chemonucleolysis and released to 
 
            return to work.
 
            
 
                 3.  Claimant returned to work, worked for a period of 
 
            time and began experiencing symptoms in his back.
 
            
 
                 4.  Claimant's treatment culminated in an L5-S1 
 
            bilateral laminectomy-discectomy on September 4, 1984.
 
            
 
                 5.  While recovering from surgery, claimant began 
 
            experiencing pain in his right hip.
 
            
 
                 6.  Claimant was released to return to work without 
 
            restrictions on February 11, 1985.
 
            
 
                 7.  Claimant worked at his regular job until undergoing 
 
            a total hip arthroplasty on December 10, 1985.
 
            
 
                 8.  The underlying cause for the arthroplasty was 
 
            degenerative arthritis of the hip, not caused by claimant's 
 
            employment.
 
            
 
                 9.  Claimant's employment did not aggravate, 
 
            accelerate, worsen or lighten up the degenerative arthritis 
 
            so as to cause disability.
 
            
 
                 10. Claimant's injury of September 10, 1982 is the 
 
            cause of permanent disability.
 
            
 
                 11. Claimant's injury of September 10, 1982 has caused 
 
            a permanent partial impairment, a loss of earning capacity, 
 
            and an actual loss of earnings.
 
            
 
                 12. Claimant was 48 years old at the time of the 
 
            hearing, with a ninth grade education and no other formal 
 
            training or education who has earned his living primarily as 
 
            a laborer and truck driver.
 
            
 
                 13. As a result of his injury, claimant is precluded 
 
            from engaging in at least some of the occupations for which 
 
            he is fitted.
 
            
 
                 14. Claimant has returned to work as a truck driver but 
 
            has had to modify his activities by bidding on shorter runs, 
 
            pallet loads and fewer hand unload runs.
 
            
 
                 15. Claimant's employer acknowledges claimant is not 
 
            capable of doing all the aspects of his job.
 
            
 
                 16. Claimant currently holds stable employment.
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
                 17. Claimant, as a result of the injury of September 
 
            10, 1982, has sustained an industrial disability of 30 
 
            percent.
 
            
 
                 18. Claimant sought treatment with a chiropractor prior 
 
            to defendants designating a physician for his treatment 
 
            although defendants were aware claimant had sustained an 
 
            injury arising out of and in the course of his employment.
 
            
 
                                conclusions of law
 
            
 
                 Claimant failed to establish a causal connection 
 
            between the total hip arthroplasty and his employment or 
 
            injury of September 10, 1982.
 
            
 
                 Claimant has shown that as a result of the injury of 
 
            September 10, 1982, he sustained a permanent partial 
 
            disability of 30 percent for industrial purposes.
 
            
 
                 Claimant has shown his entitlement to medical benefits.
 
            
 
                 WHEREFORE, the decision of the deputy is affirmed.
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
                 That defendants shall pay unto claimant one hundred 
 
            fifty (150) weeks of permanent partial disability benefits 
 
            at the stipulated rate of three hundred ten and 21/100 
 
            dollars ($310.21) per week commencing February 6, 1984.
 
            
 
                 That defendants shall receive full credit for all 
 
            disability benefits previously paid.
 
            
 
                 That defendants shall pay all disputed medical expenses 
 
            as found in joint exhibit 11.
 
            
 
                 That payments which have accrued shall be paid in a 
 
            lump sum together with statutory interest thereon pursuant 
 
            to Iowa Code section 86.30 
 
            
 
                 That defendants shall file a claim activity reports 
 
            purusant to Division of Industrial Services Rule 343-3.1(2).
 
            
 
                 That defendants pay the costs of this action including 
 
            the costs of transcription of the arbitration hearing.
 
            
 
                 Signed and filed this ______ day of May, 1990.
 
            
 
            
 
            
 
            
 
                                         _____________________________
 
                                               DAVID E. LINQUIST
 
                                            INDUSTRIAL COMMISSIONER
 
            
 
                 
 
            Copies To:
 
            
 
            Mr. Channing L. Dutton
 
            Attorney at Law
 
            1200 35th St., Ste. 500
 
            West Des Moines, Iowa 50265
 
            
 
            Ms. Patricia J. Martin
 
            Attorney at Law
 
            100 Court Ave., Ste. 600
 
            Des Moines, Iowa 50309
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          1108 - 1803
 
                                          Filed May 31, 1990
 
                                          DAVID E. LINQUIST
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            LARRY EGINOIRE,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 713369
 
            SUPER VALU STORES, INC.,      :
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            TRAVELERS INSURANCE COMPANY,  :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            1108 1803
 
            Affirmed the deputy industrial commissioner's decision which 
 
            held that claimant sustained an injury to his back which 
 
            arose out of and in the course of his employment which 
 
            culminated in a laminectomy-discectomy.  While recuperating, 
 
            claimant begain to experience hip pain.  Claimant returned 
 
            to his regular job and later underwent a total hip 
 
            arthroplasty as a result of degenerative arthritis in the 
 
            hip.  Claimant's hip condition was not causally connected to 
 
            his injury or employment.  Claimant awarded 30 percent 
 
            industrial disability.
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         LARRY EGINOIRE,
 
         
 
              Claimant,
 
                                             File No. 713369
 
         vs.
 
         
 
         SUPER VALU STORES, INC.,         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
 
         
 
         TRAVELERS INSURANCE COMPANY,           MAY 19 1989
 
         
 
              Insurance Carrier,        IOWA INDUSTRIAL COMMISSIONER
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Larry 
 
         Eginoire, claimant, against Super Valu, Inc., employer, and 
 
         Travelers Insurance Company, insurance carrier, to recover 
 
         benefits under the Iowa Workers' Compensation Act as a result of 
 
         an injury sustained on September 10, 1982.  This matter came on 
 
         for hearing before the undersigned deputy industrial commissioner 
 
         June 22, 1988.  The record was considered fully submitted at the 
 
         close of the hearing.  The record in this case consists of the 
 
         testimony of claimant, John Tierney, and Rhonda Watton; and joint 
 
         exhibits 1 through 12, inclusive.
 
         
 
                                      ISSUES
 
         
 
              Pursuant to the prehearing report and order submitted and 
 
         approved June 22, 1988, the parties have stipulated that on 
 
         September 10, 1982, claimant sustained an injury to his back 
 
         which arose out of and in the course of his employment and which 
 
         is the cause of both temporary and permanent disability.  On this 
 
         back claim, claimant seeks a determination of his entitlement to 
 
         permanent partial disability and Iowa Code section 85.27 medical 
 
         benefits.
 
         
 
              Claimant also makes a claim for a hip injury.  Defendants 
 
         contend that claimant's problems with his right hip did not arise 
 
         out of and in the course of his employment, are not causally 
 
         connected to the employment, and that claimant is not entitled to 
 
         weekly benefits or to medical benefits thereon.  Claimant makes 
 
         no claim for medical benefits on the hip claim.
 
         
 
              Defendants contend that they are entitled to a credit for 
 
         group disability benefits paid to claimant while he was 
 
         recovering from his hip surgery.  Because claimant was 
 
         potentially covered by two disability plans, the parties were 
 
         unable to stipulate to the exact credit involved at the present 
 
         time.  However, the matter of the amount of credit under Iowa 
 
         Code section 85.38(2) was not listed as an issue on the hearing 
 
         assignment order.  Pursuant to the industrial commissioner's 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         decision in Joseph Presswood v. Iowa Beef Processors, (Appeal 
 
         Decision filed November 14, 1986), which held that an issue not 
 
         noted on the hearing assignment order is an issue that is waived, 
 
         the undersigned is without jurisdiction to consider such an 
 
         issue.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                                 FACTS PRESENTED
 
         
 
              Claimant sustained an injury on September 10, 1982, which 
 
         arose out of and in the course of his employment when he slipped 
 
         on a fuel tank getting out of his truck.  Claimant recalled he 
 
         fell on his right side, felt discomfort in his lower back, told 
 
         his dispatcher about the incident and then went to see a 
 
         chiropractor, Dr. Baldwin.  Claimant stated he was off work for 
 
         approximately one week and when he returned he felt sore but not 
 
         "bad."  Claimant testified that in November of 1982, while 
 
         stepping off a truck, he experienced lower back pain and his 
 
         right leg was numb.  Claimant stated that after this incident he 
 
         went to the hospital, had x-rays, physical therapy, received some 
 
         pain medication and was released to return to work.  However, 
 
         claimant requested a second opinion and was sent to see Scott B. 
 
         Neff, D.O., by defendant insurance carrier who also released 
 
         claimant to return to work.  Claimant state he returned as 
 
         instructed although he was still stiff and sore and his leg and 
 
         foot were "tingly." Claimant recalled he saw Dr. Neff again in 
 
         June who, after some testing, recommended surgery.  Claimant 
 
         wanted a second opinion and was sent to see Kent Michael Patrick, 
 
         M.D., who administered a series of three "back injections" and 
 
         prescribed physical therapy. Claimant stated he returned to work 
 
         on or about February 5, 1984, with restrictions and was not 
 
         having "much" problem with regard to his symptoms until 
 
         approximately August of 1984 when his back again became painful.  
 
         Claimant recalled he underwent surgery in September of 1984 on 
 
         his lower back and that shortly after his release from the 
 
         hospital he rolled over in bed at home and his hip on the right 
 
         side began to hurt.  Claimant returned to work in February of 
 
         1985 and worked approximately nine months until he underwent a 
 
         total hip replacement in December of 1985.  Claimant testified he 
 
         was released to return to work in July 1986 with permanent 
 
         restrictions that defendant employer could not or would not 
 
         accommodate.  Claimant explained he then received benefits on a 
 
         disability policy until he was able to return to work in March of 
 
         1987.   Claimant testified he gets sore if he drives too long and 
 
         therefore tries to stay pretty close to Des Moines and bids on 
 
         all pallet runs.  Claimant stated that currently he gets "along 
 
         pretty good" with regard to his back experiencing soreness if he 
 
         unloads too much by hand, that he has no regular leg pain, and 
 
         that his hip is in good shape.  Claimant testified he is 
 
         currently in "good standing" with defendant employer and that 
 
         because he no longer can take the longer runs for the company, he 
 
         is not making as much money as prior to the injury.
 
         
 
              On cross-examination, claimant revealed that after his back 
 
         surgery in 1985, he returned to work on a full-time basis working 
 
         40 to 60 hours per week and driving between 1500 and 2000 miles 
 
         per week.  Claimant denied receiving any regular medical 
 
         treatment for his back since his return to work in February of 
 
         1985 and no regular medical treatment for his hip since his 
 
         release after surgery.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              John Tierney, who identified himself as defendant employer's 
 
         transportation manager and previous driver superintendent, 
 
         testified that when claimant was released to return to work with 
 
         the permanent restriction of "pallet loads only," the employer's 
 
         policy did not permit an employee to drive such loads exclusively 
 
         on a permanent basis.  Mr. Tierney explained the company was also 
 
         unable to comply with claimant's 30 pound lifting restriction 
 
         since even pallet loads can shift requiring a driver to pick up 
 
         product weighing more than 30 pounds.  Mr. Tierney denied any 
 
         knowledge of any current restrictions on claimant's 
 
         employability, testified that claimant has turned down one hand 
 
         unload trip since March of 1987, that as a union member claimant 
 
         has the protection of the collective bargaining agreement, that 
 
         of 73 full-time drivers claimant's seniority is right in the 
 
         middle, and that since 1988 "tonnage" is down and therefore so 
 
         are all drivers' average weekly wages.  Mr. Tierney opined the 
 
         company would have to lose over 50 percent of its business for 
 
         claimant to be affected by a reduction in force and that even if 
 
         affected, claimant could bid into other positions.
 
         
 
              On cross-examination, Mr. Tierney acknowledged claimant is 
 
         not capable of doing all aspects of the job but that he does do 
 
         the most he can do and that claimant has on occasion turned down 
 
         extra work.
 
         
 
              Rhonda Watton, who identified herself as defendant 
 
         employer's former personnel manager who is currently employed as 
 
         a manager with Fisher Controls, testified she was familiar with 
 
         claimant's case although "a little fuzzy."  Ms. Watton explained 
 
         defendant employer's collective bargaining contract prohibited a 
 
         permanently medically restricted individual from holding any 
 
         position that person could not completely perform and that in 
 
         July of 1986, claimant could not return to work since a truck 
 
         driving position required more lifting.  Ms. Watton explained 
 
         that it was a "stupid mistake" and a "foul up" that claimant had 
 
         been allowed to return to work on July 6, 1986 for one day.
 
         
 
              The medical records of Kent Michael Patrick, M.D., 
 
         orthopedic surgeon, revealed claimant was first seen on or about 
 
         July 25, 1983 for evaluation of low back and right leg pain. on 
 
         review of claimant's "films," Dr. Patrick found what appeared to 
 
         be a "disc protrusion at L5-Sl on the right....some narrowing of 
 
         the neuroforamina secondary to bony overgrowth off the facet 
 
         joints." Dr. Patrick stated that because claimant's symptoms were 
 
         "so mild" he was reluctant to recommend surgery but did recommend 
 
         a series of three epidural steroid injections which were 
 
         administered during August, September and October 1983.  
 
         Following the third injection, when claimant's symptoms had not 
 
         dissipated, Dr. Patrick treated claimant with Chemonucleolysis 
 
         after which claimant was noted to be doing "quite well" and 
 
         claimant was released to return to work with the restrictions 
 
         that:
 
         
 
              I would like to keep his lifting limited to less than 30 
 
              pounds, although he could lift up to 50 on occasion.  He 
 
              apparently is bidding on a new job which may involve more 
 
              unloading of pallets rather than manual lifting.  This would 
 
              certainly be my recommendations for Mr. Eginoire.  Even with 
 
              an excellent result from his Chemonucleolysis there is some 
 
              predisposition to rupture of a disc at another level and if 
 
              he can use a machine to unload pallets, it would certainly 
 
              be in his best interest.  This may be something we have to 
 
              consider as a permanent restriction, although for now we 
 
              will let him return to work with the above restrictions.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
         (Joint Exhibit 1, page 10)
 
         
 
              In a letter of February 21, 1984 to defendant employer, Dr. 
 
         Patrick stated these restrictions were "temporary" and may be 
 
         subject to change when claimant returned for follow-up care. 
 
         Claimant continued to show progress at follow-up visits with Dr. 
 
         Patrick throughout 1984 and on June 11, 1984, Dr. Patrick 
 
         released claimant to return to work with no restrictions.  Dr. 
 
         Patrick noted problems beginning in August 1984 and claimant 
 
         ultimately underwent an L5-Sl bilateral laminectomy-discectomy on 
 
         September 4, 1984.  On February 6, 1985, Dr. Patrick advised 
 
         defendant insurance carrier:
 
         
 
                   Mr. Eginoire returns today for follow-up of his 
 
              laminectomy-discectomy.  He is doing well as far as his back 
 
              and leg are concerned.  He continues to have the groin 
 
              discomfort....Again, today he shows no evidence of sciatic 
 
              irritation.  He has minimal stiffness in his lower back. 
 
              Strength is good.  I am discharging Mr. Eginoire to return 
 
              to work on 2/11/85....He may require treatment of his right 
 
              hip in the future.
 
         
 
         (Jt. Ex. 1, p. 23)
 
         
 
              Claimant returned to see Dr. Patrick April 3, 1985 with 
 
         complaints of "having as much trouble with his hip as his back." 
 
         Dr. Patrick scheduled claimant for a bone scan and on June 21, 
 
         1985, stated:
 
         
 
                   Mr. Eginoire has indeed returned to work.  He has had 
 
              to work under some limitations due to some continued back 
 
              and hip discomfort.  Some of his hip pain is coming from an 
 
              osteoarthritic hip, but some of it seems to be radiating 
 
              from his back as well.
 
         
 
                   Using the American Academy of Orthopaedic Surgeons 
 
              Guidelines, I feel he warrants a permanent partial 
 
              impairment rating of 20% of the body as a whole, since he 
 
              continues to have symptoms and needs to modify his 
 
              activities.
 
         
 
              .....Mr. Eginoire may need to continue with ongoing 
 
              treatment with regard to his hip, but this is a degenerative 
 
              hip, and his work is only an aggravating factor with his 
 
              underlying disease.
 
         
 
         (Jt. Ex. 1, p. 25)
 
         
 
              Dr. Patrick's notes reveal claimant continued to complain of 
 
         right hip pain and claimant ultimately underwent an uncemented 
 
         total hip arthroplasty on the right on December 10, 1985, after 
 
         which claimant was noted to do "very well."  Claimant was 
 
         released to return to work as a truck driver with pallet loads 
 
         only on July 6, 1986.  Dr. Patrick stated:
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              This pallet load only is a permanent restriction since I do 
 
              not want him doing any heavy lifting in regards to his hip 
 
              and also in regards to his back.  A total hip arthroplasty 
 
              carries a permanent partial impairment rating of 20% of the 
 
              right hip which extrapolates to 8% of the body as a whole. 
 
              This is not a work related condition, but is related to 
 
              degenerative arthritis of the right hip.
 
         
 
         (Jt. Ex. 1, pp. 40-41)
 
         
 
              Claimant was seen by Richard M. Moe, M.D., in "evaluation 
 
         regarding his potential for returning to work."  Dr. Moe advised:
 
         
 
                   It is my impression that Mr. Eginoire, based on the 
 
              findings of this examination, would be a poor risk to 
 
              continue in a manual labor type position.
 
         
 
              The instructions from Dr. Patrick would limit him to a 
 
              "pallet only" truck driver.  It is my impression that a 
 
              "pallet only" truck driver in Dr. Patrick's summation would 
 
              mean that he would do no heavy lifting, that is, no more 
 
              than 30 lbs.  I feel, in light of Mr. Eginoire's previous 
 
              back surgery as well as total hip replacement, both of which 
 
              suggest biomechanical limitation requirements, his 
 
              evaluation by Dr. Patrick with his proposed limitations, a 
 
              probable decreased overall fitness and his smoking history, 
 
              that Mr. Eginoire is a very poor risk to continue in manual 
 
              labor.  I would recommend that he not be restarted in a 
 
              regular working position.  Dr. Patrick has given him some 
 
              percentages for disability.  He states that a total hip 
 
              replacement extrapolates to an 8% disability.  I suspect 
 
              that that disability decision should be honored, and Mr. 
 
              Eginoire retrained or encouraged to look for other 
 
              employment.
 
         
 
         (Jt. Ex. 1, pp. 44-45)
 
         
 
              Claimant was seen by Ronald K. Bunten, M.D., orthopedic 
 
         surgeon, on January 7, 1987, who opined:
 
         
 
                   From a medical point of view, it would seem that he has 
 
              had successful laminectomy for degenerative disc disease and 
 
              disc herniation with sciatica, and has little or no residual 
 
              symptoms.  He also has had hip replacement for avascular 
 
              necrosis and secondary degenerative changes.  The opposite 
 
              hip seems unaffected and clinically seems normal.  His 
 
              activity level seems good.  He appears to be avoiding 
 
              significant aggravations.
 
         
 
                   I would feel it would be reasonable to allow him to 
 
              return to his usual work activities at this time.  I think 
 
              with exercise at just ordinary caution he should be able to 
 
              avoid significant aggravations or have a lot of missed work 
 
              time.  I would regard him as having an 18% permanent 
 
              impairment of his total body function, 8% on the basis of 
 
              his right hip replacement, as rated by Dr. Patrick, and 10% 
 
              impairment related to the disorder of his low back.  I do 
 
              not think there is any indication for additional medical 
 
              treatment at this time.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
         (Jt. Ex. 1, pp. 50-51)
 
         
 
              Dr. Bunten advised defendants' counsel:
 
         
 
                   Mr. Eginoire had avascular necrosis, right hip, with 
 
              secondary degenerative changes, for which he underwent 
 
              replacement surgery in December 1985.  The etiology of 
 
              aseptic necrosis is often unknown, but is not thought to be 
 
              due to trauma, and would not be related to his low back 
 
              injury.
 
         
 
         (Jt. Ex. 1, p. 49)
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
         employment.  Section 85.3(l).
 
         
 
              The parties do not dispute claimant sustained an injury to 
 
         his back on September 10, 1982 which arose out of and in the 
 
         course of his employment and which is the cause of both temporary 
 
         and permanent disability.  However, of first concern is whether 
 
         claimant's condition which resulted in a total hip arthroplasty 
 
         is causally connected to this injury or to his employment.
 
         
 
              The supreme court of Iowa in Almquist v. Shenandoah 
 
         Nurseries, 218 Iowa 724, 254 N.W. 35 (1934) at 731-32, discussed 
 
         the definition of personal injury in workers' compensation cases 
 
         as follows:
 
         
 
              While a personal injury does not include an occupational 
 
              disease under the workmen's Compensation Act, yet an injury 
 
              to the health may be a personal injury [Citations omitted.] 
 
              Likewise a personal injury includes a disease resulting from 
 
              an injury....The result of changes in the human body 
 
              incident to the general processes of nature do not amount to 
 
              a personal injury.  This must follow, even though such 
 
              natural change may come about because the life has been 
 
              devoted to labor and hard work.  Such result of those 
 
              natural changes does not constitute a personal injury even 
 
              though the same brings about impairment of health or the 
 
              total or partial incapacity of the functions of the human 
 
              body.
 
         
 
                 ....
 
         
 
              A personal injury, contemplated by the Workmen's 
 
              Compensation Law, obviously means an injury to the body, the 
 
              impairment of health, or a disease, not excluded by the act, 
 
              which comes about, not through the natural building up and 
 
              tearing down of the human body, but because of a traumatic 
 
              or other hurt or damage to the health or body of an 
 
              employee.  [Citations omitted.]  The injury to the human 
 
              body here contemplated must be something, whether an 
 
              accident or not, that acts extraneously to the natural 
 
              processes of nature and thereby impairs the health, 
 
              overcomes, injures, interrupts, or destroys some function of 
 
              the body, or otherwise damages or injures a part or all of 
 
              the body.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of September 10, 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).
 
         
 
              Expert medical evidence must be considered with all other 
 
         evidence introduced bearing on the causal connection.  Burt, 247 
 
         Iowa 691, 73 N.W.2d 732.  The opinion of experts need not be 
 
         couched in definite, positive or unequivocal language.  Sondag v. 
 
         Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, the expert 
 
         opinion may be accepted or rejected, in whole or in part, by the 
 
         trier of fact.  Id. at 907.  Further, the weight to be given to 
 
         such an opinion is for the finder of fact, and that may be 
 
         affected by the completeness of the premise given the expert and 
 
         other surrounding circumstances.  Bodish, 257 Iowa 516, 133 
 
         N.W.2d 867.  See also Musselman v. Central Telephone Co., 261 
 
         Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              While a claimant is not entitled to compensation for the 
 
         results of a preexisting injury or disease, the mere existence 
 
         at the time of a subsequent injury is not a defense.  Rose v. 
 
         John Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.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).
 
         
 
              There is no dispute, as claimant  freely  acknowledges, that 
 
         the underlying degeneration of the hip joint was not caused by 
 
         claimant's employment.  In addition, this fact is well 
 
         established by the reports of Drs.Patrick and Bunten.  Dr. Bunten 
 
         has opined that the etiology of aseptic necrosis is often 
 
         unknown, but that it is not thought to be due to trauma and would 
 
         not be related to claimant's low back injury.  In June of 1985, 
 
         Dr. Patrick stated claimant's work load is "only an aggravating 
 
         factor" in the underlying disease but one year later did not 
 
         relate claimant's condition in any way to his employment.  The 
 
         undersigned must conclude that the greater weight of evidence 
 
         fails to establish a causal connection between the total hip 
 
         arthroplasty and claimant's injury of September 10, 1982 or 
 
         claimant's employment. Claimant has failed to show his 
 
         employment-related injury aggravated, accelerated, worsened or 
 
         lightened up his condition so as to result in a disability.  As 
 
         the court stated in Almquist, supra, "the result of changes in 
 
         the human body incident to the general processes of nature do not 
 
         amount to a personal injury." The greater weight of evidence 
 
         would establish that the degeneration of claimant's hip joint was 
 
         an incident in the general process of nature and was not as a 
 
         result of claimant's employment.  Therefore, claimant is not 
 
         entitled to recovery as a result of these proceedings and the 
 
         other issues presented for resolution with regard to the 
 
         arthroplasty need not be addressed.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Attention is thus turned to the extent of claimant's 
 
         industrial disability arising as a result of the injury of 
 
         September 10, 1982. on June 21, 1985, Dr. Patrick, who was 
 
         claimant's primary treating physician prior to leaving his Des 
 
         Moines practice, opined that under the American Academy of 
 
         Orthopedic Surgeons Guidelines, claimant has a permanent partial 
 
         impairment of 20 percent of the body as a whole as a result of 
 
         the injury of September 10, 1982 "since he continues to have 
 
         symptoms and needs to modify his activities."  Although claimant 
 
         was released to return to work as a truck driver, Dr. Patrick 
 
         also imposed a permanent restriction of pallet loads only, giving 
 
         regards to both claimant's hip condition and his back.  Dr. 
 
         Bunten released claimant to return to his usual work activities 
 
         without restrictions and found claimant to have an 18 percent 
 
         permanent partial impairment of the body as a whole, 8 percent as 
 
         a result of his hip, and 10 percent related to the low back.  The 
 
         undersigned does not dispute that claimant sustained a permanent 
 
         partial impairment as a result of the work injury of September 
 
         10, 1982, or that the work injury has resulted in modification of 
 
         his activities.
 
         
 
              Functional impairment is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963). 
 
         Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961).
 
         
 
              A finding of impairment to the body as a whole found by a 
 
         medical evaluator does not equate to industrial disability.  This 
 
         is so as impairment and disability are not synonymous.  Degree of 
 
         industrial disability can in fact be much different than the 
 
         degree of impairment because in the first instance reference is 
 
         to loss of earning capacity and in the latter to anatomical or 
 
         functional abnormality or loss.  Although loss of function is to 
 
         be considered and disability can rarely be found without it, it 
 
         is not so that a degree of industrial disability is 
 
         proportionally related to a degree of impairment of bodily 
 
         function.
 
         
 
              Factors to be considered in determining industrial 
 
         disability include the employee's medical condition prior to the 
 
         injury, immediately after the injury, and presently; the situs of 
 
         the injury, its severity and the length of healing period; the 
 
         work experience of the employee prior to the injury, after the 
 
         injury and potential for rehabilitation; the employee's 
 
         qualifications intellectually, emotionally and physically; 
 
         earnings prior and subsequent to the injury; age; education; 
 
         motivation; functional impairment as a result of the injury; and 
 
         inability because of the injury to engage in employment for which 
 
         the employee is fitted.  Loss of earnings caused by a job 
 
         transfer for reasons related to the injury is also relevant.  
 
         These are matters which the finder of fact considers collectively 
 
         in arriving at the determination of the degree of industrial 
 
         disability.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              There are no weighting guidelines that indicate how each of 
 
         the factors are to be considered.  There are no guidelines which 
 
         give, for example, age a weighted value of ten percent of the 
 
         total value, education a value of fifteen percent of total, 
 
         motivation - five percent; work experience - thirty percent, etc. 
 
         Neither does a rating of functional impairment directly correlate 
 
         to a degree of industrial disability to the body as a whole.  In 
 
         other words, there are no formulae which can be applied and then 
 
         added up to determine the degree of industrial disability.  It 
 
         therefore becomes necessary for the deputy to draw upon prior 
 
         experience, general and specialized knowledge to make the finding 
 
         with regard to degree of industrial disability.  See Peterson v. 
 
         Truck Haven Cafe, Inc., (Appeal Decision, February 28, 1985); 
 
         Christensen v. Hagen, Inc., (Appeal Decision, March 26, 1985).
 
         
 
              At the time of hearing, claimant was 48 years old with a 
 
         ninth grade education.  Claimant testified he failed the tenth 
 
         grade and subsequently dropped out of school at age 17 and has 
 
         not since acquired his GED nor obtained any further formal 
 
         training or education.  Prior to his employment with defendant 
 
         employer, claimant earned his living as a laborer in the 
 
         construction industry, working on the railroad, in manufacturing, 
 
         as a mechanic, and as a truck driver over the road.  It is 
 
         accepted that as a result of the injury of September 10, 1982, 
 
         claimant is prohibited from engaging in at least some of these 
 
         occupations. While Dr. Bunten has released claimant to return to 
 
         his "usual work activities," no comment was made on claimant's 
 
         overall capabilities beyond his particular employment with 
 
         defendant employer.
 
         
 
              Claimant has returned to work for defendant employer in his 
 
         usual occupation.  Claimant testified that with his seniority, he 
 
         is able to bid on all the pallet runs thus allowing him to stay 
 
         pretty close to Des Moines.  Claimant stated that he becomes sore 
 
         if he drives too long (described as over 600 miles) and therefore 
 
         he no longer goes on the longer trips which would allow him to 
 
         earn additional income.  Claimant also experiences soreness if he 
 
         unloads by hand "too much."  This, too, somewhat reduces 
 
         claimant's income.  Although claimant has returned to his usual 
 
         occupation, the undersigned would conclude that claimant has 
 
         suffered an actual loss of earnings as a result of the work 
 
         injury and has also suffered a loss of earning capacity.
 
         
 
              The undersigned does not question claimant's motivation to 
 
         work.  Claimant has gone to some length to return to work and 
 
         retain his employment.  Claimant appears to have stable 
 
         employment with defendant employer at this time.  Although the 
 
         record would establish that claimant has had injuries prior to 
 
         the injury of September 10, 1982, the record does not establish 
 
         that those injuries in any way prohibited claimant from engaging 
 
         in all of his usual activities, both work and nonwork-related.  
 
         Claimant has not, however, sought nor been given any medical 
 
         treatment for his back since February of 1985.  Likewise, 
 
         claimant is not currently taking any medication for his back 
 
         condition.  Considering then, all the elements of industrial 
 
         disability enumerated in Olson, supra, it is concluded that as a 
 
         result of the work injury of September 10, 1982, claimant has 
 
         established he sustained a permanent partial disability of 30 
 
         percent for industrial purposes entitling claimant to 150 weeks 
 
         of permanent partial disability benefits.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Iowa Code section 85.27 provides:
 
         
 
                   The employer, for all injuries compensable under this 
 
              chapter or chapter 85A, shall furnish reasonable surgical, 
 
              medical, dental, osteopathic, chiropractic, podiatric, 
 
              physical rehabilitation, nursing, ambulance and hospital 
 
              services and supplies therefor and shall allow reasonably 
 
              necessary transportation expenses incurred for such 
 
              services.
 
         
 
              The final issue for resolution is claimant's entitlement to 
 
         payment for the bills of Donald Baldwin, D.C., found at joint 
 
         exhibit 11.  Claimant testified that after the incident on 
 
         September 10, 1982, he advised the appropriate person of the 
 
         incident, told that person of the discomfort in his back, and was 
 
         not advised where to seek medical attention.  The undersigned 
 
         cannot conclude claimant's actions in seeing Dr. Baldwin were 
 
         unauthorized, or unnecessary, and were not causally connected to 
 
         the injury.  Therefore, defendants are liable for the payment of 
 
         the bill in the total amount of $66.00 for the treatment claimant 
 
         received September 11, 14, and 17, 1982.  Claimant was aware by 
 
         the time he sought treatment with Dr. Baldwin in November 1982 
 
         that the employer had designated a physician for his treatment. 
 
         Therefore, those two charges would be considered unauthorized.
 
         
 
                                 FINDINGS OF.FACT
 
         
 
              Wherefore, based on all of the evidence presented, the 
 
         following findings of fact are made:
 
         
 
              1.  Claimant sustained an injury to his back which arose out 
 
         of and in the course of his employment on September 10, 1982, 
 
         when he fell while exiting his truck.
 
         
 
              2.  Claimant was initially treated with epidural steroid 
 
         injections and then Chemonucleolysis and released to return to 
 
         work.
 
         
 
              3.  Claimant returned to work, worked for a period of time 
 
         and began experiencing symptoms in his back.
 
         
 
              4.  Claimant's treatment culminated in an L5-Sl bilateral 
 
         laminectomy-discectomy on September 4, 1984.
 
         
 
              5.  While recovering from surgery, claimant began 
 
         experiencing pain in his right hip.
 
         
 
              6.  Claimant was released to return to work without 
 
         restrictions on February 11, 1985.
 
              
 
              7.  Claimant worked at his regular job until undergoing a 
 
         total hip arthroplasty on December 10, 1985.
 
              
 
              8.  The underlying cause for the arthroplasty was 
 
         degenerative arthritis of the hip, not caused by claimant's 
 
         employment.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              9.  Claimant's employment did not aggravate, accelerate, 
 
         worsen or lighten up the degenerative arthritis so as to cause 
 
         disability.
 
         
 
              10.  Claimant's injury of September 10, 1982 is the cause of 
 
         permanent disability.
 
         
 
              11.  Claimant's injury of September 10, 1982 has caused a 
 
         permanent partial impairment, a loss of earning capacity, and an 
 
         actual loss of earnings.
 
         
 
              12.  Claimant is 48 years old with a ninth grade education 
 
         and no other formal training or education who has earned his 
 
         living primarily as a laborer and truck driver.
 
                        
 
              13.  As a result of his injury, claimant is precluded from 
 
         engaging in at least some of the occupations for which he is 
 
         fitted.
 
         
 
              14.  Claimant has returned to work as a truck driver but has 
 
         had to modify his activities by bidding on shorter runs, pallet 
 
         loads and fewer hand unload runs.
 
         
 
              15.  Claimant's employer acknowledges claimant is not 
 
         capable of doing all the aspects of his job.
 
         
 
              16.  Claimant currently holds stable employment.
 
              
 
              17.  Claimant, as a result of the injury of September 10, 
 
         1982, has sustained an industrial disability of 30 percent.
 
         
 
              18.  Claimant sought treatment with a chiropractor prior to 
 
         defendants designating a physician for his treatment although 
 
         defendants were aware claimant had sustained an injury arising 
 
         out of and in the course of his employment.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Therefore, based on the principles of law previously stated, 
 
         the following conclusions of law are made:
 
         
 
              1.  Claimant has failed to establish a causal connection 
 
         between the total hip arthroplasty and his employment or injury 
 
         of September 10, 1982.
 
         
 
              2.  Claimant has shown that as a result of the injury of 
 
         September 10, 1982, he sustained a permanent partial disability 
 
         of 30 percent for industrial purposes.
 
         
 
              3.  Claimant has shown his entitlement to medical benefits.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Defendants shall pay unto claimant one hundred fifty (150) 
 
         weeks of permanent partial disability benefits at the stipulated 
 
         rate of three hundred ten and 21/100 dollars ($310.21) per week 
 
         commencing February 6, 1984.
 
         
 
              Defendants shall receive full credit for all disability 
 
         benefits previously paid.
 
         
 
              Defendants shall pay all disputed medical expenses as found 
 
         in Joint exhibit 11.
 
         
 
              Defendants shall file a claim.activity report upon payment 
 
         of this award.
 
         
 
              Costs of this action are assessed against defendants 
 
         pursuant to Division of Industrial Services Rule 343-4.33.
 
         
 
              Signed and filed this 19th day of May, 1989.
 
         
 
         
 
         
 
         
 
         
 
                                            DEBORAH A. DUBIK
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies to:
 
         
 
         Mr. Channing L. Dutton
 
         Attorney at Law
 
         1200 35th St, Ste 500
 
         West Des Moines, IA  50265
 
         
 
         Ms. Patricia J. Martin
 
         Attorney at Law
 
         100 Court Ave, Ste 600
 
         Des Moines, IA  50309
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
                                            
 
 
 
 
 
 
 
 
 
 
 
                                            1108; 1803
 
                                            Filed May 19, 1989
 
                                           Deborah A. Dubik
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         LARRY EGINOIRE,
 
         
 
              Claimant,
 
                                                File No. 713369
 
         vs.
 
         
 
         SUPER VALU STORES, INC.,            A R B I T R A T I 0 N
 
         
 
              Employer,                         D E C I S I 0 N
 
         
 
         and
 
         
 
         TRAVELERS INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1108; 1803
 
         
 
              Claimant sustained an injury to his back which arose out of 
 
         and in the course of his employment which culminated in a 
 
         laminectomy-discectomy.  While recuperating therefrom, claimant 
 
         began to experience hip pain.  Claimant returned to his regular 
 
         job and later underwent a total hip arthroplasty as a result of 
 
         degenerative arthritis in the hip.  Held claimant's hip condition 
 
         was not causally connected to his injury or employment.  Claimant 
 
         awarded 30% industrial disability.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
                      51100 51800 51802 52501 52502
 
                      Filed July 1, 1991
 
                      Marlon D. Mormann
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            GINGER SPIKE,  :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :      File No.  913731
 
            AALFS MANUFACTURING,     :
 
                      :  A R B I T R A T I O N
 
                 Employer, :
 
                      :      D E C I S I O N
 
            and       :
 
                      :
 
            AETNA CASUALTY AND SURETY,    :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            51100
 
            Claimant sustained a repetitive trauma injury to both arms 
 
            as result of sewing 2880 zippers per day.
 
            
 
            51800 51802
 
            Claimant found entitled to 5 percent permanent partial 
 
            disability under section 85.34(2)(s).  Healing period 
 
            awarded.
 
            
 
            52501 52502
 
            Authorization defense accepted during period employer paid 
 
            benefits and admitted paragraph four of petition.
 
            Section 85.27 benefits payable during period causation 
 
            proven.
 
            Section 85.39 benefits awarded.
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         SANDRA K. VAUGHAN,
 
         
 
              Claimant,                  File No. 714449
 
         
 
          VS.                            A P P E A L
 
         
 
         OSCAR MAYER FOODS               D E C I S I O N
 
         CORPORATION,
 
         
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
                                        
 
              Claimant appeals from an arbitration decision denying death 
 
         benefits.
 
         
 
              The record on appeal consists of the transcript of the 
 
         arbitration hearing; joint exhibits 1 through 20; and defendant's 
 
         exhibit 22.  Both parties filed briefs on appeal.
 
         
 
                                      ISSUES
 
         
 
              Claimant states the issues on appeal are:
 
         
 
              1. Did the preponderance of the evidence show the death of 
 
              Richard Vaughan a natural incident or rational consequence 
 
              arising out of and in the course of his employment?
 
              
 
              2. Was the health condition or pre-existing health 
 
              impairment accelerated or aggravated by some aspect of the 
 
              employment, including the failure to treat?
 
              
 
              3. Was the decision of the Deputy supported by substantial 
 
              evidence in the record made before the agency when the 
 
              record is reviewed as a whole?
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              The arbitration decision filed September 14, 1988 adequately 
 
         and accurately reflects the pertinent evidence and it will not be 
 
         reiterated herein.
 
         
 
         
 
         
 
         VAUGHAN v. OSCAR MAYER FOODS CORPORATION
 
         Page 2
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
                                  APPLICABLE LAW
 
         
 
              The citations of law in the arbitration decision are 
 
         appropriate to the issues and evidence.
 
         
 
                                     ANALYSIS
 
         
 
              The analysis of the evidence in conjunction with the law in 
 
         the arbitration decision is adopted.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.Decedent's death occurred as a result of the normal 
 
         progressive nature of coronary atherosclerosis.
 
         
 
              2. Decedent's employment was not a substantial factor in 
 
         producing the atherosclerosis disease.
 
         
 
              3. Decedent's employment may have possibly, on occasion, 
 
         aggravated the preexisting atherosclerosis disease, but any such 
 
         aggravation was temporary in nature and did not substantially 
 
         alter the course of the disease.
 
         
 
              4. It is not possible to determine whether decedent's 
 
         shoulder complaints were due to an orthopaedic condition in the 
 
         shoulder itself, his now-documented coronary condition, or both.
 
         
 
              5. Dr. From's opinion that decedent's employment with Oscar 
 
         Mayer Foods Corporation aggravated the preexisting condition and 
 
         hastened decedent's death is rejected since the evidence fails to 
 
         show whether or not any of the pain decedent experienced was 
 
         angina rather than shoulder pain, and the evidence fails to show 
 
         that pain from an orthopaedic condition in decedent's shoulder 
 
         masked any angina pain which may have been present.
 
         
 
              6. Decedent and claimant were separated at the time of 
 
         decedent's death, but decedent provided support for claimant and 
 
         their children and the pending dissolution of marriage action had 
 
         not become final through any decree or ruling by the court.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              This agency has jurisdiction of the subject matter of this 
 
         proceeding and its parties.
 
         
 
              Claimant has failed to prove, by a preponderance of the 
 
         evidence, that decedent's employment with Oscar Mayer Foods 
 
         Corporation was in any manner a proximate cause of his death.
 
         
 
              Claimant was decedent's lawful wife at the time of his 
 
         death.
 
         
 
         
 
         
 
         VAUGHAN v. OSCAR MAYER FOODS CORPORATION
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         Page 3
 
         
 
         
 
              WHEREFORE, the decision of the deputy is affirmed.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That claimant take nothing from this proceeding.
 
         
 
              That the costs of this proceeding are assessed against the 
 
         claimant including the costs of the transcription of the hearing 
 
         proceeding pursuant to Division of Industrial Services Rule 
 
         343-4.33.
 
         
 
         
 
              Signed and filed this 29th day of December, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                         DAVID E. LINQUIST
 
                                         INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. E. W. Wilcke
 
         Attorney at Law
 
         P.O. Box 455
 
         Spirit Lake, Iowa 51360
 
         
 
         Mr. Harry W. Dahl
 
         Attorney at Law
 
         974 73rd St., Suite 16
 
         Des Moines, Iowa 50312
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                         1108.10 - 1402.30 - 2202
 
                                         Filed December 29, 1989
 
                                         David E. Linquist
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         SANDRA K. VAUGHAN,
 
         
 
              Claimant,                   File No. 714449
 
         
 
         VS.                             A P P E A L
 
          
 
          OSCAR MAYER FOODS              D E C I S I 0 N
 
          CORPORATION,
 
          
 
               Employer,
 
               Self-Insured,
 
               Defendant.
 
          
 
          
 
         1108.10 - 1402.30 - 2202
 
         
 
              Claimant's decedent died approximately six weeks after 
 
         resigning from employment with the employer.  The cause of death 
 
         was coronary artherosclerosis.  Claimant's theories were (1) that 
 
         repeated episodes of angina which occurred at the decedent's work 
 
         hastened the death and (2) that an orthopaedic condition 
 
         affecting the decedent's shoulder masked the symptoms of the 
 
         cardiac condition thereby delaying treatment and hastening death.  
 
         The evidence failed to show whether the symptoms of shoulder pain 
 
         were from an orthopaedic condition or from angina.  Accordingly, 
 
         it was held that the claimant had failed to carry the burden of 
 
         proving that the death arose out of and in the course of 
 
         employment.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         SANDRA K. VAUGHAN,
 
         
 
              Claimant,                           File No. 714449
 
         
 
         vs.                                   A R B I T R A T I O N
 
         
 
         OSCAR MAYER FOODS CORPORATION,           D E C I S I O N
 
         
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Sandra K. 
 
         Vaughan against Oscar Mayer Foods Corporation, the self-insured 
 
         former employer of Richard Vaughan.  Sandra K. Vaughan 
 
         participates in this proceeding individually as surviving spouse 
 
         of Richard Vaughan and also as conservator for Sara K. Vaughan, a 
 
         minor child of Richard and Sandra Vaughan.  Sandra K. Vaughan 
 
         seeks weekly compensation and burial benefits under the 
 
         provisions of Iowa Code sections 85.28 and 85.31, based upon the 
 
         death of Richard Vaughan which occurred on July 23, 1983.
 
         
 
              The case was heard and fully submitted at Des Moines, Iowa 
 
         on November 19, 1987.  The record in this proceeding consists of 
 
         testimony from William Joy, Sandra K. Vaughan, Leann Vaughan and 
 
         Phil Schumacher.  The record also contains joint exhibits 1 
 
         through 20 and defendant's exhibit 22.  The case was well-tried 
 
         by counsel for both parties.
 
         
 
                                      ISSUES
 
         
 
              The issues presented by the parties at the time of hearing 
 
         are whether Richard Vaughan's death is a result of an injury 
 
         which arose out of and in the course of employment and whether 
 
         Sandra K. Vaughan was Richard Vaughan's spouse at the time of his 
 
         death.  It was stipulated that, in the event the death is found 
 
         to have arisen out of and in the course of employment, the weekly 
 
         rate of compensation is $276.93.  It was further stipulated that, 
 
         in the event the death is found to be compensable, the employer 
 
         will pay the statutory $1,000 burial expense.
 
         
 
                               SUMMARY OF EVIDENCE
 
         
 
              The following is a summary of evidence presented in this 
 
         case.  Only the evidence most pertinent to this decision is 
 
         discussed, but all of the evidence received at the hearing was 
 
         considered in arriving at this decision.  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.
 
         
 
              Richard Vaughan died on July 23, 1983.  The cause of death 
 
         as listed on the Certificate of Death was acute cardiac 
 
         decompensation due to severe coronary artherosclerosis (exhibits 
 
         14 and 15).
 

 
         
 
         
 
         
 
         VAUGHAN V. OSCAR MAYER FOODS CORPORATION
 
         PAGE   2
 
         
 
         
 
         
 
              Sandra K. Vaughan testified that she and Richard were 
 
         married on July 1, 1961 and remained married until his death.  
 
         Sandra stated that a dissolution of marriage action was pending 
 
         and that they had been separated since the summer of 1982.  
 
         Sandra testified that, during the separation, Richard had 
 
         provided support for her and their children.
 
         
 
              Phil Schumacher, the personnel manager for the Oscar Mayer 
 
         Foods plant at Perry, Iowa, testified that Richard Vaughan chose 
 
         to retire from Oscar Mayer (after 20 years of service) in May of 
 
         1983 rather than return to work under a new union contract which 
 
         provided reduced pay and benefits.  Schumacher stated that 
 
         Vaughan received approximately $20,000 in accrued leave, benefits 
 
         and severance pay.  According to Schumacher, the last day Vaughan 
 
         actually worked was May 10, 1983.
 
         
 
              Exhibit 16 contains records of Richard's employment with 
 
         Oscar Mayer.  Page 37 indicates that he commenced employment on 
 
         December 11, 1962 and quit effective May 20, 1983.  The document 
 
         also indicates that he had worked boning hams or butts since 
 
         1974.  According to Phil Schumacher, the job of boning butts 
 
         involves handling a product which weighs approximately 5-8 pounds 
 
         while hams weigh 14-26 pounds.  Either job involves using a knife 
 
         with the right hand and handling the product with the left 
 
         (exhibit 18, pages 9-12).  Exhibit 16, page 43 indicates that 
 
         Richard complained to the company first aid department of a sore 
 
         back on March 29, 1982.  The following entry in the records is of 
 
         a sore shoulder on July 7, 1982.  Thereafter, and on page 44 of 
 
         exhibit 16, a great deal of the record refers to the shoulder 
 
         complaints and light-duty assignments.
 
         
 
              Richard was seen by the company physician, Robert F. 
 
         Deranleau, M.D., in July and August of 1982 for his shoulder 
 
         complaints.  Richard was referred to Robert A. Hayne, M.D., a 
 
         neurosurgeon, Stephen G. Taylor, M.D., an orthopaedic surgeon, 
 
         and Peter Wirtz, M.D., an orthopaedic surgeon.  Extensive testing 
 
         was performed.  A myelogram under the direction of Dr. Hayne was 
 
         normal (exhibit 1, page 7).  Dr. Taylor arranged an arthrogram 
 
         which was normal (exhibit 8, page 9).  Dr. Wirtz suspected carpal 
 
         tunnel syndrome, but EMG tests were normal (exhibit 4, pages 7 
 
         and 8).  Richard also obtained treatment from John A. Grant, 
 
         M.D., an orthopaedic surgeon in Ames, Iowa, and from the Zortman 
 
         Chiropractic Center (exhibits 10 and 13).
 
         
 
              When Richard Vaughan was treated by the various physicians, 
 
         he complained of pain in his left shoulder and arm which he 
 
         associated with his employment activities.  He did not complain 
 
         of pain in the chest or pain with exertion other than at his 
 
         employment.  When he was hospitalized under the direction of Dr. 
 
         Hayne, all tests, including a blood workup, electrocardiogram, 
 
         chest x-rays and blood pressure were interpreted as being normal 
 
         (exhibit 3).  Dr. Hayne expressed the opinion that Richard's 
 
         shoulder symptoms did not originate in his heart, but that part 
 
         of his pain was probably due to the coronary problem (exhibit 1, 
 
         pages 17-21).  Dr. Hayne also stated that the shoulder problem 
 
         did not cause Richard's coronary problem, but that a shoulder 
 
         injury could possibly accelerate death from coronary 
 
         artherosclerosis (exhibit 1, pages 16, 24 and 25).  Dr. Hayne 
 
         indicated that there was no causal connection between Richard's 
 
         work and his heart condition (exhibit 2, pages 7-10).
 
         
 
              Dr. Taylor treated Richard commencing in November, 1982.  
 

 
         
 
         
 
         
 
         VAUGHAN V. OSCAR MAYER FOODS CORPORATION
 
         PAGE   3
 
         
 
         
 
         The history he received was of shoulder pain present since March, 
 
         1982.  Dr. Taylor noted crepitation in the left shoulder and a 
 
         slightly narrowed joint space (exhibit 8, pages 7 and 8).  Dr. 
 
         Taylor's diagnosis was of inflammation or tendonitis of the 
 
         rotator cuff tendon (exhibit 8, page 10).  Dr. Taylor stated that 
 
         there was no relationship between Richard's shoulder and his 
 
         coronary condition (exhibit 8, pages 15 and 16).  He felt that 
 
         Richard's symptoms were more consistent with a shoulder problem 
 
         than with a coronary problem (exhibit 8, pages 21 and 22).  Dr. 
 
         Taylor went on to state that it was unlikely that Richard 
 
         suffered from both tendonitis and cardiac pain at the same time, 
 
         that cardiac pain is not generally aggravated by the type of 
 
         activities which aggravated Richard's shoulder and that cardiac 
 
         pain usually includes pain in the chest (exhibit 8, page 33).
 
         
 
              Dr. Grant felt that all of Richard's symptoms were 
 
         consistent with an orthopaedic shoulder problem and that there 
 
         was nothing to indicate that Richard's work had caused a heart 
 
         attack (exhibit 13, page 8).
 
         
 
              Dr. Wirtz stated that Richard's symptoms were not from his 
 
         heart when he was examined on February 9, 1983 and that the 
 
         symptoms were not masking any coronary condition (exhibit 4,
 
         pages 12-14).  Dr. Wirtz went on to state that Richard's 
 
         orthopaedic condition did not accelerate his coronary disease and 
 
         that the work at Oscar Mayer did not aggravate Richard's coronary 
 
         disease (exhibit 4, pages 11-14).  Dr. Wirtz felt that the type 
 
         of pain Richard described was not consistent with heart pain, but 
 
         that it is possible it may have been from his heart and that both 
 
         tendonitis and a heart condition could have existed 
 
         simultaneously so that the heart condition would have produced 
 
         symptoms in the shoulder (exhibit 4, pages 15 and 28).
 
         
 
              Dr. Deranleau indicated that, when he first saw  Richard, 
 
         that Richard could relate no specific injury and that the 
 
         diagnosis made was of a muscle strain of the upper arm (exhibit 
 
         6, page 13).  Dr. Deranleau stated that he would expect a person 
 
         with a heart condition to experience pain from climbing steps at 
 
         the plant and that Richard either did not have pain or did not 
 
         disclose pain from his daily activities at the plant of going up 
 
         and down the stairs (exhibit 6, pages 14 and 16).  Dr. Deranleau 
 
         expressed the opinion that Richard's work at Oscar Mayer did not 
 
         contribute to his death (exhibit 6, page 26).
 
         
 
              Paul From, M.D., a specialist in internal medicine, examined 
 
         Richard's medical records for purposes of presenting evidence in 
 
         this case.  Dr. From stated that statistically, in a group of 
 
         people who had coronary artery blockages such as Richard's, 
 
         one-third would have pain, approximately one-third would 
 
         experience sudden death as the first symptom of the condition and 
 
         the remaining one-third would experience a myocardial infarction, 
 
         but survive, is the first symptom of the condition (exhibit 11, 
 
         page 9).  Dr. From stated that angina is most commonly found in 
 
         the chest, but can radiate into the shoulder or upper extremity.  
 
         He explained that there are many variations as to the onset and 
 
         place of cardiac pain (exhibit 11, pages 17-21).
 
         
 
              Dr. From expressed the opinion that Richard Vaughan's 
 
         shoulder pain was probably related to his heart, but possibly 
 
         also to a musculoskeletal condition.  He explained that he based 
 
         his opinion primarily on the fact that the pain occurred with 
 
         exertion and that the studies conducted by Drs. Wirtz, Taylor and 
 
         Hayne had found nothing to explain Richard's shoulder pain 
 

 
         
 
         
 
         
 
         VAUGHAN V. OSCAR MAYER FOODS CORPORATION
 
         PAGE   4
 
         
 
         
 
         complaints (exhibit 11, pages 28, 29, 34 and 35).  Dr. From 
 
         stated that Richard had coronary artery disease which had been 
 
         present for many years and that it was difficult to determine 
 
         whether any aggravation of the disease accelerated Richard's 
 
         death (exhibit 11, pages 32-34 and 35-37).  Dr. From stated that 
 
         claimant's normal work activity was more strenuous than normal, 
 
         everyday nonemployment life and that performing the work produced 
 
         angina (exhibit 11, pages 14, 32, 33 and 34).  He explained that 
 
         repeated angina periods can hasten death (exhibit 11, pages 37, 
 
         38, 75, 76 and 77).  He indicated that Richard's life could 
 
         likely have been prolonged if Richard had received medical 
 
         treatment for his cardiac condition (exhibit 11, pages 39, 40 and 
 
         83).  Dr. From was unable to state whether Richard's shoulder 
 
         pain was from a shoulder problem or from the heart, but did state 
 
         that musculoskeletal pains most likely mask angina and delay 
 
         diagnosis of a cardiac problem and treatment for a cardiac 
 
         problem (exhibit 11, pages 41, 47, 48 and 66).
 
         
 
              Leann Vaughan indicated that her father, Richard, had been 
 
         quite physically active prior to early 1982, but that he then 
 
         decreased his levels of activity and progressed to a point where 
 
         he had no energy and just wanted to sleep.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              Sandra K. Vaughan has the burden of proving, by a 
 
         preponderance of the evidence, that Richard's death arose out of 
 
         and in the course of 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).
 
         
 
              While a claimant is not entitled to compensation for the 
 
         results of a preexisting injury or disease, the mere existence at 
 
         the time of a subsequent injury is not a defense.  Rose v. John 
 
         Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2d 756, 760-761 
 
         (1956).  If the claimant had a preexisting condition or 
 
         disability that is aggravated, accelerated, worsened or lighted 
 
         up so that it results in disability, claimant is entitled to 
 
         recover.  Nicks v. Davenport Produce Co., 254 Iowa 130, 115 
 
         N.W.2d 812, 815 (1962).
 
         
 
              The Iowa Supreme Court cites, apparently with approval, the 
 
         C.J.S. statement that the aggravation should be material if it is 
 
         to be compensable.  Yeager v. Firestone Tire & Rubber Co., 253 
 
         Iowa 369, 112 N.W.2d 299 (1961); 100 C.J.S. Workmen's 
 
         Compensation SS555(17)a.
 
         
 
              However, a disease which is likely to progress and to 
 
         finally disable an employee does not become a personal injury 
 
         merely because it reaches a point of disablement while work for 
 
         an employer is being performed.  It is only when there is a 
 
         direct causal connection between exertion of the employment and 
 
         the injury that a compensation award can be made.  Littell v. 
 
         Lagomarcino Grupe Co., 235 Iowa 523, 529, 17 N.W.2d 120 (1945).  
 
         The requirement for an injury to arise out of the employment 
 
         means that the employment must have produced or proximately 
 
         caused the injury, in this case, the death.  Briarcliff College 
 
         v. Campolo, 360 N.W.2d 91, 94 (Iowa 1984).
 
         
 
              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).
 
         
 

 
         
 
         
 
         
 
         VAUGHAN V. OSCAR MAYER FOODS CORPORATION
 
         PAGE   5
 
         
 
         
 
              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 ex,pert 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, 237 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
         Co., 261 Iowa 352, 154 N.W. 2d 128 (1967).  The mere possibility 
 
         of a causal connection does not support an award.  Nellis v. 
 
         Quealy, 237 Iowa 507, 21 N.W.2d 584 (1946).  A cause is proximate 
 
         if it is a substantial factor in bringing about the result; it 
 
         need not be the only cause.  Blacksmith v. All American, Inc., 
 
         290 N.W.2d 348, 354 (Iowa 1980).
 
         
 
              Anyone afflicted by severe coronary artherosclerotic disease 
 
         is in a very fragile state of health.  As the disease progresses, 
 
         the amount of exertion necessary to produce death gradually 
 
         diminishes.  It can become so minimal that the actual causative 
 
         exertion may not be discernable or identifiable when death 
 
         occurs.  Death from coronary artherosclerosis can be idiopathic.  
 
         The law has developed two methods by which death, in a case such 
 
         as this, can be compensable.  The first is that the work 
 
         ordinarily requires heavy exertions which aggravate the 
 
         preexisting heart condition resulting in compensable injury.  In 
 
         such cases, the test is whether the ordinary exertions of the 
 
         employment are greater than the exertions of nonemployment life.  
 
         The comparison is between the exertion alleged to have produced 
 
         the injury and the exertions of normal, nonemployment life of the 
 
         employee or any other person.  Briarcliff College v. Campolo, 360 
 
         N.W.2d 91 (Iowa 1984); IA Larson's Workmen's Compensation Law, 
 
         section 38.83.  The second situation where compensation may be 
 
         awarded is where medical evidence shows an instance of unusually 
 
         strenuous employment exertion.  Sondag v. Ferris Hardware, 220 
 
         N.W.2d 903 (Iowa 1974); Guyton v. Swift & Co., 229 Iowa 625, 295 
 
         N.W. 185 (1940).
 
         
 
              The second approach to compensability is not applicable to 
 
         this case since it clearly appears that Richard's recent 
 
         employment exertions were not unusual in comparison to what his 
 
         employment exertions had customarily been over the years.
 
         
 
              Dr. From expressed the opinion that the pain of which 
 
         Richard complained was angina pain related to his heart disorder 
 
         and that repeated episodes of angina pain hastened Richard's 
 
         death.  Dr. From also indicated that the exertions of Richard's 
 
         employment were greater than the exertions of normal, 
 
         nonemployment life.  It is also noted, however, that the mere 
 
         physical examinations performed by the various physicians 
 
         likewise produced pain upon simply lifting Richard's left arm.  
 
         The job of boning butts was not a particularly heavy job, 
 
         although it appears that it required rapid movement.  The 
 
         exertion of the job is found to have been more strenuous than 
 
         exertions of normal, nonemployment life.  It is also found to be 
 
         likely that obtaining medical treatment for Richard's coronary 
 
         condition would have prolonged his life and that the delay in 
 
         diagnosis and treatment hastened his death.  Where a work-related 
 
         condition masks the symptoms of a coronary condition, thereby 
 
         delaying diagnosis and accelerating death, the resulting death is 
 
         compensable. 1 Larson's Workmen's Compensation Law, section 13.
 

 
         
 
         
 
         
 
         VAUGHAN V. OSCAR MAYER FOODS CORPORATION
 
         PAGE   6
 
         
 
         
 
         
 
              The difficult question in this case is whether or not 
 
         Richard Vaughan actually injured his shoulder.  As was previously 
 
         indicated, no solid, objective evidence of an actual shoulder 
 
         injury was found through any of the diagnostic tests and 
 
         procedures that were employed.  The condition did not respond to 
 
         any of the treatment that was employed, including injections in 
 
         or about the shoulder itself with medications which normally 
 
         relieve pain and inflammation.  It is certainly possible that all 
 
         of the pain of which Richard complained was angina.  According to 
 
         Dr. From's statements, it is likewise possible, however, that all 
 
         of the pain in the shoulder was due to an orthopaedic problem 
 
         such as inflammation or tendonitis, as such conditions normally 
 
         are not disclosed in a myelogram, arthrogram or x-ray type of 
 
         procedures.  It is, of course, possible that both a cardiac and 
 
         an orthopaedic condition were working at the same time.  From the 
 
         evidence in this case, it is not possible to determine the source 
 
         or sources of the pain for which Richard Vaughan sought medical 
 
         care.
 
         
 
              There is no medical support for the claimant's contention 
 
         that Richard's work activities were a direct proximate cause of 
 
         his fatal heart attack.  The only two plausible theories are (1) 
 
         that an orthopaedic injury to his shoulder masked the symptoms of 
 
         his heart condition and thereby delayed treatment or (2) that the 
 
         repeated episodes of angina hastened Richard's death.  Since it 
 
         is not possible to determine whether Richard's shoulder pain was 
 
         orthopaedic in nature, coronary in nature, or both, the 
 

 
         
 
         
 
         
 
         VAUGHAN V. OSCAR MAYER FOODS CORPORATION
 
         PAGE   7
 
         
 
         
 
         claimant's claim must fail on both grounds.  When dealing with a 
 
         preexisting condition, the aggravation must be material.  Injury 
 
         is something more than the normal cumulative effect of life.  
 
         Dillingham v. United States Gypsum Co., 34th Biennial Report, 
 
         Iowa Industrial Commissioner, 92 (1980).
 
         
 
              Defendants contention that Sandra K. Vaughan was not 
 
         Richard's spouse is without merit.  If the death had been found 
 
         to have been compensable, she would clearly be conclusively 
 
         presumed dependent within the provisions of section 85.42 since 
 
         they were still legally married.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Richard Vaughan's death occurred as a result of the 
 
         normal progressive nature of coronary artherosclerosis.
 
         
 
              2.  Richard Vaughan's employment was not a substantial 
 
         factor in producing the artherosclerotic disease.
 
         
 
              3.  Richard Vaughan's employment may have possibly, on 
 
         occasion, aggravated the preexisting arthelosclerotic disease, 
 
         but any such aggravation was temporary in nature and did not 
 
         substantially alter the course of the disease.
 
         
 
              4.  It is not possible to determine whether Richard 
 
         Vaughan's shoulder complaints were due to an orthopaedic 
 
         condition in the shoulder itself, his now-documented coronary 
 
         condition, or both.
 
         
 
              5.  Dr.  From's opinion that Richard Vaughan's employment 
 
         with Oscar Mayer Foods Corporation aggravated the preexisting 
 
         condition and hastened Richard's death is rejected since the 
 
         evidence fails to show whether or not any of the pain Richard 
 
         experienced was angina, rather than shoulder pain, and the 
 
         evidence fails to show that pain from an orthopaedic condition in 
 
         Richard's shoulder masked any angina pain which may have been 
 
         present.
 
         
 
              6.  Richard Vaughan and Sandra K. Vaughan were separated at 
 
         the time of Richard's death, but Richard provided support for 
 
         Sandra and their children and the pending dissolution of marriage 
 
         action had not become final through any decree or ruling by the 
 
         court.
 
         
 
                                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 Richard Vaughan's employment with Oscar Mayer 
 
         Foods Corporation was in any manner a proximate cause of his 
 
         death.
 
         
 
              3.  Sandra K. Vaughan was Richard Vaughan's lawful wife at 
 
         the time of his death.
 
         
 
                                      ORDER
 
         
 
              IT IS THEREFORE ORDERED that claimant take nothing from this 
 
         proceeding.
 
         
 

 
         
 
         
 
         
 
         VAUGHAN V. OSCAR MAYER FOODS CORPORATION
 
         PAGE   8
 
         
 
         
 
              IT IS FURTHER ORDERED that the costs of this proceeding are 
 
         assessed against the claimant pursuant to Division of Industrial 
 
         Services Rule 343-4.33.
 
         
 
              Signed and filed this 24th day of September, 1988.
 
         
 
         
 
         
 
         
 
                                         MICHAEL G. TRIER
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies To:.
 
         
 
         Mr. Gary L. McMinimee
 
         Attorney at Law
 
         805 North Main
 
         P.O. Box 883
 
         Carroll, Iowa 51401
 
         
 
         Mr. Harry W. Dahl
 
         Attorney at Law
 
         974 73rd Street, Suite 16
 
         Des Moines, Iowa 50312
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            1108.10, 1402.30, 1805
 
                                            2202, 2206
 
                                            Filed September 14, 1988
 
                                            MICHAEL G. TRIER
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         SANDRA K. VAUGHAN,
 
         
 
              Claimant,                           File No. 714449
 
         
 
         vs.                                   A R B I T R A T I O N
 
         
 
         OSCAR MAYER FOODS CORPORATION,           D E C I S I O N
 
         
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         
 
         1108.10, 1402.30, 1805, 2202, 2206
 
         
 
              Claimant's decedent died approximately six weeks after 
 
         resigning from employment with the employer.  The cause of death 
 
         was coronary artherosclerosis.  Claimant's theories were (1) that 
 
         repeated episodes of angina which occurred at the decedent's work 
 
         hastened the death and (2) that an orthopaedic condition 
 
         affecting the decedent's shoulder masked the symptoms of the 
 
         cardiac condition thereby delaying treatment and hastening death.  
 
         The evidence failed to show whether the symptoms of shoulder pain 
 
         were from an orthopaedic condition or from angina.  Accordingly, 
 
         it was held that the claimant had failed to carry the burden of 
 
         proving that the death arose out of and in the course of 
 
         employment.
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         
 
         MICHAEL D. MALENOSKY,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                                 FILE NO. 714964
 
         THOMPSON ELECTRIC,
 
                                               A R B I T R A T I 0 N
 
              Employer,
 
                                                 D E C I S I 0 N
 
         and
 
         
 
         GENERAL CASUALTY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         _________________________________________________________________
 
         
 
         
 
                                  INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Michael D. 
 
         Malenosky, claimant, against Thompson Electric Company, employer, 
 
         and General Casualty Companies, insurance carrier, defendants, 
 
         for benefits as the result of an injury that occurred on July 15, 
 
         1982.  A hearing was held in Sioux City, Iowa on July 22, 1986 
 
         and the case was fully submitted at the close of the hearing.  
 
         The record consists of claimant's exhibits A and B; joint 
 
         exhibits 1 through 10; and the testimony of Michael D. Malenosky 
 
         (claimant).
 
         
 
                                 STIPULATIONS
 
         
 
              The parties stipulated to the following matters at the time 
 
         of the hearing:
 
         
 
              That an employer/employee relationship existed between the 
 
         claimant and the employer at the time of the alleged injury.
 
         
 
              That the claimant sustained an injury that arose out of and 
 
         in the course of his employment with the employer on July 15, 
 
         1982.
 
         
 
              That the injury was the cause of both temporary and 
 
         permanent disability.
 
         
 
              That the claimant is entitled to temporary disability 
 
         benefits for 101 weeks from September 24, 1982 to November 29, 
 
         1982 and again from February 21, 1984 to November 22, 1985.
 
         
 
              That the weekly rate of compensation in the event of an 
 
         additional award is $365.18 per week.
 
         
 
              That all of the claimant's medical expenses have been or 
 
         will be paid by the defendants.
 
         
 

 
              That the defendants are entitled to a credit for benefits 
 
         paid to the claimant for 120.8 weeks of compensation at the rate 
 
         of $365.18 per week and that the defendants have paid 101 weeks 
 
         of healing period benefits and 19.8 weeks of permanent partial 
 
         disability benefits based upon a nine percent impairment of the 
 
         right lower extremity.
 
         
 
                                   ISSUES
 
         
 
              The issues presented by the parties for determination at the 
 
         time of the hearing are as follows:
 
         
 
              Whether there is a causal relationship between the injury 
 
         and any additional permanent disability.
 
         
 
              Whether the claimant is entitled to any additional permanent 
 
         disability benefits and in particular whether the claimant is 
 
         entitled to permanent total disability benefits.
 
         
 
              Whether the claimant is an odd-lot employee and entitled to 
 
         permanent total disability benefits as an odd-lot employee.
 
         
 
                            PRELIMINARY MATTERS
 
         
 
              In his opening statement claimant's counsel stated that the 
 
         position of his client and the only dispute in this case was 
 
         whether the claimant is entitled to more than the statute allows.  
 
         He conceded that the defendants had paid 100 percent of what the 
 
         workers' compensation statute allows for disability and medical 
 
         benefits.  He acknowledged he had several legal mountains to 
 
         climb.  However, the claimant was employed as a journeyman 
 
         electrician making $15.00 per hour at the time of the injury.  
 
         Now he only earns a fraction of that amount as an 
 
         estimator-trainee for the same employer.  This has placed the 
 
         claimant and his family in a very distressful economic situation.  
 
         Claimant requests the agency to determine if the claimant is 
 
         entitled to any additional permanent disability benefits under 
 
         the law.  The prehearing report states that the dispute in this 
 
         case is whether the claimant is permanently and totally disabled 
 
         and whether the odd-lot doctrine applies to this situation.
 
         
 
                           SUMMARY OF THE EVIDENCE
 
         
 
              Claimant testified that he is married and has six children 
 
         ages 14, 13, 11, 8 , 6 and 1 1/2 years.  At the time of the 
 
         injury he only had five children.  He is 36 years old, five feet 
 
         ten inches tall, and weighs approximately 225 pounds.  He 
 
         graduated from high school in 1969 and worked at odd jobs for 
 
         four years.  He started with Thompson Electric in 1973 as an 
 
         apprentice electrician.  He has worked there ever since and is 
 
         now employed there at the present time as an estimator-trainee.  
 
         At the time of the injury on july 15, 1982, he was earning 
 
         approximately $14.00 or $15.00 per hour as a journeyman 
 
         electrician and his take home pay was in excess of $400 per week.  
 
         Now as an estimator-trainee he earns about $8.50 per hour and his 
 
         take home pay is about half of what it was at the time of the 
 
         injury.
 
         
 
              When the injury occurred claimant was working in an attic on 
 
         a junction box where the roof rafters meet the ceiling rafters.  
 
         An apprentice was down below shoving up a piece of greenfield.  
 
         He saw the greenfield start dropping down.  He reached back and 
 
         turned and tried to grab it, but his foot was caught in the 
 
         overhang of the building and this movement injured his right 
 

 
         
 
         
 
         
 
         MALENOSKY V. THOMPSON ELECTRIC
 
         Page   3
 
         
 
         
 
         knee.
 
         
 
              As an estimator-trainee he is learning to use a computer to 
 
         do blueprint estimating for electrical work.  Claimant testified 
 
         that he was no longer able to do the job of a journeyman 
 
         electrician.  He did consult with a vocational rehabilitation 
 
         specialist at the request of his employer's insurance carrier.  
 
         Claimant testified he realized this agency was bound by the 
 
         workers' compensation laws of this state and that he had received 
 
         the maximum amount of disability the law allows, and that all of 
 
         his medical bills have been paid, but he wanted the agency to 
 
         determine if he is entitled to any additional permanent 
 
         disability benefits.  Claimant also testified that he has been 
 
         employed as an instructor at Western Iowa Tech for three or four 
 
         years in the evenings teaching apprentice electricians.
 
         
 
              The medical evidence shows that the claimant received 
 
         arthroscopic surgery three times at St. Luke's Hospital in Sioux 
 
         City performed each time by Alan Pechacek, M.D., an orthopedic 
 
         surgeon.  The dates of the arthroscopic surgeries are September 
 
         24, 1982, February 21, 1984 and October 24, 1984.  Claimant was 
 
         also independently examined for the employer by E. M. Mumford, 
 
         M.D., another orthopedic surgeon (Joint Exhibit 5).  Both 
 
         physicians agreed that the claimant has had an inordinate amount 
 
         of trouble from this knee injury.  Dr. Pechacek is the only 
 
         doctor to comment in depth or to give an impairment 
 
         rating(Jt.Ex.7 & 10).
 
         
 
              In his letter of December 16, 1985 to claimant's counsel, 
 
         Dr. Pechacek relates that one arthroscopy showed an incomplete 
 
         peripheral detachment of the medial meniscus but a subsequent 
 
         arthroscopy revealed it had healed itself.  Claimant also had a 
 
         torn ligament in the center of his joint, however, this has not 
 
         resulted in any significant joint instability.  Claimant has also 
 
         developed some intra-articular adhesions but these were removed 
 
         by arthroscopic means.  Dr. Pechacek explains that he cannot make 
 
         a very exacting, clear or accurate diagnosis at this time as to 
 
         the cause of the claimant's ongoing knee pain.  The doctor states 
 
         that after three years of difficulty and three arthroscopic 
 
         procedures claimant is still very symptomatic with his knee and 
 
         leg and that his prognosis at this time is very poor (Jt.  Ex. 
 
         10).
 
         
 
              Dr. Pechacek rates that injury as follows:
 
         
 
              ... Based on Mr. Malenosky's range of motion on October 
 
              18th, 1985, and based on the AMA Guides to the 
 
              Evaluation of Permanent Impairment, he has an 
 
              impairment rating of 9% of the right lower extremity, 
 
              which would equate to a 4% impairment of the whole man.  
 
              This impairment rating does not take into consideration 
 
              the severity of pain nor any functional problems that 
 
              he might have in trying to use his leg.
 
         
 
              Mr. Malenosky is quite functionally disabled because of 
 
              his knee.  He can only tolerate limited amounts of 
 
              standing and walking.  He is also bothered by prolonged 
 
              periods of sitting or other inactivity because it makes 
 
              his knee stiffen up.  Also, from time to time, his knee 
 

 
         
 
         
 
         
 
         MALENOSKY V. THOMPSON ELECTRIC
 
         Page   4
 
         
 
         
 
              spontaneously buckles or collapses from beneath him, 
 
              resulting in increased amounts of pain.  He also has 
 
              periodic swelling of his knee. (Jt.  Ex. 10)
 
         
 
              Dr. Pechacek adds that the claimant is totally disabled from 
 
         the type of electrician work he was doing prior to the injury 
 
         because he cannot physically perform the work activities 
 
         involved.  He explains it as follows:
 
         
 
              ... He is unable to kneel, squat, or crawl on his knees 
 
              and leg.  He should not be going up and/or down stairs, 
 
              ladders, or scaffolding.  He should not do heavy 
 
              lifting or carrying using his right leg.  He should 
 
              avoid using his right leg for pushing or pulling of 
 
              heavy objects.  Also, because of the tendency for his 
 
              knee to buckle or collapse, he should not be in work 
 
              situations where if this should occur, he would fall 
 
              and reinjure himself or Possibly some other person.  As 
 
              you can see with these restrictions, the type of 
 
              electrical work that he has done in the past is not 
 
              possible now. (Jt. Ex. 10)
 
         
 
              Defendants' exhibits A and B are reports of a vocational 
 
         rehabilitation specialist who interviewed the claimant.  She 
 
         found a number of job titles which he could do with his 
 
         limitations (Def. Ex. A), but she harbored the personal opinion 
 
         that in his case there was a lack of employment options for him 
 
         (Def. Ex. B).
 
         
 
                        APPLICABLE LAW AND ANALYSIS
 
         
 
              In an attempt to avoid controversy concerning the amount of 
 
         payment for injury to certain body members the Iowa Legislature 
 
         adopted a fixed schedule of benefits with a specific number of 
 
         weeks of compensation for injury to a specific body member.  Iowa 
 
         Code section 85.34(2). Knees are considered a portion of the leg.  
 
         Wichers v. McKee Co., 223 Iowa 853, 273 N.W. 892 (1937); Burkhead 
 
         v. The Gold Buffet Franchise, I Iowa Industrial Commissioner 
 
         Report 39, (1981).
 
         
 
              The Iowa Supreme Court has recognized the legislature's 
 
         privilege to draw definite lines in scheduled injury cases, which 
 
         are necessarily arbitrary, and these guidelines are not subject 
 
         to the discretion of the Industrial Commissioner.  Graves v. 
 
         Eagle Iron Works, 331 N.W.2d 116 (Iowa 1983); Blizek v.Eagle 
 
         Signal Co., 164 N.W.2d 84, 85 (Iowa 1969); Starcevich v. Central 
 
         Iowa Fuel Co., 208 Iowa 790, 793, 226 N.W. 138, 140 (1929).
 
         
 
              The legislated amount for specific injuries includes both 
 
         payment for functional impairment and the reduced capacity to 
 
         labor and make earnings.  Schell v. Central Engineering Co., 232 
 
         Iowa 421, 424, 4 N.W.2d 399, 401 (1942).
 
         
 
              The schedule specifically fixing the amount to be paid on 
 
         account of disability from a single injury must be construed as 
 
         exclusive of all other provisions of the act.  Moses v. National 
 
         Union C. M. Co., 194 Iowa 819, 824, 184 N.W. 746, 748 (1921).
 
         
 
              It has been argued that the schedule results in windfalls to 
 

 
         
 
         
 
         
 
         MALENOSKY V. THOMPSON ELECTRIC
 
         Page   5
 
         
 
         
 
         some employees and disaster to others.  For instance, a loss of a 
 
         foot by a clerical worker may not have the same significance as a 
 
         loss of a foot by a ballet dancer; yet both recover the same 
 
         amount of compensation.  Lawyer & Higgs, Iowa Workers' 
 
         Compensation -- Law and Practice, section 13-4, page 111.  The 
 
         supreme court has acknowledged some unfairness in these 
 
         situations; however, it has consistently refused to judicially 
 
         legislate.  Instead, it has recognized that any change should 
 
         come from the legislature itself.  Brugioni v. Saylor Coal Co., 
 
         198 Iowa 135, 138, 197 N.W. 470, 471 (1924).  Accord Graves v. 
 
         Eagle Iron Works, 331 N.W.2d 116 (1983); Soukup v. Shores Co., 
 
         222 Iowa 268 N.W. 598 (1936).
 
         
 
              An injury to a scheduled member which, because of 
 
         aftereffects (or compensatory change), creates impairment to the 
 
         body as a whole entitles claimant to industrial disability.  
 
         Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 
 
         (1961). Dailey v. Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 569 
 
         (1943).
 
         
 
              An injury is the producing cause; the disability, however, 
 
         is the result, and it is the result which is compensated. Barton, 
 
         253 Iowa 285, 110 N.W.2d 660 (1961); Dailey, 233 Iowa 758, 10 
 
         N.W.2d 569 (1943).
 
         
 
              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.  Kellog V. Shute and Lewis Coal Co., 
 
         256 Iowa 1257, 130 N.W.2d 667 (1964).
 
         
 
              In this case, the injury was to the right knee.  The knee is 
 
         part of the leg.  All of the claimant's complaints and all of the 
 
         doctor's treatments had been to the right knee.  The impairment 
 
         and the disability, according to the medical evidence, is in the 
 
         right knee and its effect on the right leg.  The claimant has not 
 
         sustained the burden of proof by a preponderance of the evidence 
 
         that the injury, the impairment or the disability extend beyond 
 
         the right knee and leg.  Thus, the claimant is only entitled by 
 
         the existing law to scheduled member benefits.
 
         
 
              Claimant does not feel that this is adequate compensation 
 
         because his earning capacity has been cut in half from what it 
 
         was at the time of the injury.  His feelings are very 
 
         understandable.  This agency, however, is limited to 
 
         administering the law as it exiSts at the time of any given 
 
         decision.  Even the supreme court has recognized the 
 
         inadequencies of the law that arise out of compensating scheduled 
 
         member injuries only according to the schedule.  In Dailey, cited 
 
         above, the court was careful to note that because of lack of 
 
         training, age or other circumstances, in a particular employee, a 
 
         scheduled member injury might result in even permanent total 
 
         disability; yet, such an injury is "arbitrarily compensable 
 
         according to the schedule."
 
         
 
              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, N.W.2d 116 
 

 
         
 
         
 
         
 
         MALENOSKY V. THOMPSON ELECTRIC
 
         Page   6
 
         
 
         
 
         (Iowa 1983); Simbro v. DeLong's Sportswear, 332 N.W.2d 886, 887 
 
         (Iowa 1983).
 
         
 
              In this case, based on Dr. Pechacek's reports and all of the 
 
         other evidence, there is no choice other than to compensate this 
 
         injury by the functional method according to the schedule.
 
         
 
              When the loss of a scheduled member is something less than 
 
         total loss of function, benefits are paid for the number of weeks 
 
         that the percentage of functional loss bears to the total loss of 
 
         the member.  Lawyer & Higgs, Iowa Workers' Compensation -- Law 
 
         and Practice, section 13.4, page 112.  In this case Iowa Code 
 
         section 85.32(2)(o) compensates the lower extremity with 220 
 
         weeks of compensation.  Dr. Pechacek assessed that claimant has 
 
         an impairment of nine percent of the right lower extremity.  
 
         Therefore, the statutory compensation for this injury is 19.8 
 
         weeks of compensation (220 x .09).
 
         
 
              Dr. Pechacek said claimant is totally disabled from working 
 
         as a journeyman electrician as he was doing at the time of the 
 
         injury.  However, claimant is not permanently and totally 
 
         disabled.  The vocational rehabilitation specialist could name a 
 
         number of types of work that the claimant could do.  Claimant is 
 
         employed at this time as an estimator-trainee.  He also teaches 
 
         apprentice electricians at the area community college in the 
 
         evenings.  Also, Dailey, states that if claimant were permanently 
 
         and totally disabled, this is all the compensation which the law 
 
         allows for a scheduled member injury.
 
         
 
              Claimant asserts that the odd-lot doctrine should apply to 
 
         him.  The odd-lot doctrine is a concept of industrial disability 
 
         and as such has no application to scheduled member injuries.  
 
         Furthermore, the claimant did not make out a prima facie case 
 
         because he is currently employed as an estimator-trainee and as 
 
         an instructor at the area community college.
 
         
 
              The amount of temporary disability benefits are not in 
 
         dispute at this time and it was stipulated that they had been 
 
         paid.
 
         
 
                               FINDINGS OF FACT
 
         
 
              WHEREFORE, based upon the evidence presented, the following 
 
         findings of fact are made:
 
         
 
              That the claimant was employed by the employer as a 
 
         journeyman electrician on July 15, 1982.
 
         
 
              That the claimant sustained an injury to his right knee on 
 
         July 15, 1982 which arose out of and in the course of his 
 
         employment with the employer.
 
         
 
              That the injury, the impairment and the disability are 
 
         located in the right knee and the right lower extremity.
 
         
 
              That the claimant did not prove by a preponderance of the 
 
         evidence that the injury, impairment or disability extends beyond 
 
         the right upper extremity.
 
         
 

 
         
 
         
 
         
 
         MALENOSKY V. THOMPSON ELECTRIC
 
         Page   7
 
         
 
         
 
              That Dr. Pechacek rated the impairment as nine percent of 
 
         the right lower extremity.
 
         
 
              That the parties have stipulated that the claimant has 
 
         already been paid 19.8 weeks of permanent partial disability for 
 
         the injury to the right lower extremity.
 
         
 
         
 
         
 
                             CONCLUSIONS OF LAW
 
         
 
              WHEREFORE, based upon the evidence presented and the 
 
         principles of law previously stated, the following conclusions of 
 
         law are made:
 
         
 
              Claimant has not proven that the injury of July 15, 1982 was 
 
         the cause of any additional compensable disability.
 
         
 
              That the claimant has not proven by a preponderance of the 
 
         evidence that he is entitled to permanent total disability 
 
         benefits, that the odd-lot doctrine applies to him,,or that he is 
 
         entitled to any additional permanent partial disability 
 
         benefits.
 
         
 
                                    ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 

 
         
 
         
 
         
 
         MALENOSKY V. THOMPSON ELECTRIC
 
         Page   8
 
         
 
         
 
              That no additional amounts are due from the defendants to 
 
         the claimant.
 
         
 
              That each party pay their own respective costs for this 
 
         action and that the defendants will pay the cost of the 
 
         attendance of the court reporter at the hearing.
 
         
 
              That the defendants file any reports required by Division of 
 
         Industrial Services Rule 343-4.33, formerly Iowa Industrial 
 
         Commissioner Rule 500-4.33.
 
         
 
         
 
              Signed and filed this 24th day of December, 1986.
 
         
 
         
 
         
 
         
 
         
 
                                        WALTER R. McMANUS, JR.
 
                                        DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies To:
 
         
 
         Mr. E. A. Hutchison
 
         Attorney at Law
 
         1131 Badgerow Bldg.
 
         Sioux City, Iowa 51101
 
         
 
         Mr. James E. Thorn
 
         Attorney at Law
 
         Fifth Floor - Park Bldg.
 
         P. 0. Box 398
 
         Council  Bluffs, Iowa 51502-0398
 
 
 
 
            
 
 
 
 
 
 
 
                                                  1803; 1804; 4100
 
                                                  Filed December 24, 1986
 
                                                  WALTER R. McMANUS, JR.
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         
 
         MICHAEL D. MALENOSKY,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                                 FILE  NO. 714964
 
         THOMPSON  ELECTRIC,
 
                                               A R B I T R A T I 0 N
 
              Employer,
 
                                                 D E C I S I 0 N
 
         and
 
         
 
         GENERAL CASUALTY,
 
         
 
              Insurance  Carrier,
 
              Defendants.
 
         _________________________________________________________________
 
         
 
         
 
         1803; 1804
 
         
 
              The injury, the impairment and the disability were all in 
 
         the right knee.  Thus, even though claimant suffered a 50% wage 
 
         cut, he was only entitled to scheduled member benefits.
 
         
 
         4100
 
         
 
              Odd-lot doctrine does not apply to scheduled member injury.  
 
         Besides claimant was employed by same employer as an 
 
         estimator-trainee.