BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        JANET BRAGG,
 
        
 
            Claimant,
 
                                         File No. 720285
 
        vs .
 
                                         A P P E A L
 
        RALSTON PURINA COMPANY,
 
                                       D E C I S I O N
 
            Employer,
 
        
 
        and
 
        
 
        AETNA CASUALTY & SURETY,
 
        
 
           Insurance Carrier,
 
           Defendants.
 
        
 
        
 
                                 STATE OF THE CASE
 
                                                
 
        Claimant appeals from a review-reopening decision denying 
 
        permanent partial disability benefits as the result of an alleged 
 
        injury on November 24, 1982.
 
        
 
        The record on appeal consists of the transcript of the 
 
        review-reopening proceeding; claimant's exhibits A and B; and 
 
        defendants' exhibits 1 through 5.
 
        
 
        Both parties filed briefs on appeal.
 
        
 
                                      ISSUES
 
        
 
        Claimant states the following issues on appeal:
 
        
 
        1. Did the Deputy Industrial Commissioner err in finding that 
 
        there was no causal relationship between her November 24, 1982 
 
        injury and her present claim to permanent partial disability.
 
        
 
        2. If the Claimant has sustained an injury resulting in permanent 
 
        partial disability, what is the disability's percentage as to the 
 
        whole body and the benefits to be paid in accordance therewith?
 
        
 
                                 REVIEW OF THE EVIDENCE
 
        
 
        The review-reopening decision adequately and accurately reflects 
 
        the pertinent evidence and it will not be set forth herein.
 
        
 
        BRAGG V. RALSTON PURINA COMPANY
 
        Page 2
 
        
 
        
 
                                 APPLICABLE LAW
 
        
 
        The citations of law in the review-reopening decision are 
 
        appropriate to the the issues and the evidence.
 
        
 
                                      ANALYSIS
 
        
 
        The analysis of the evidence in conjunction with the law is 
 
        adopted.
 

 
        
 
 
 
 
 
        
 
                                 FINDINGS OF FACT
 
        
 
        1. Drs. D'Angelo, Sinning and Goettsch all felt, by late 1983 or 
 
        early 1984, that claimant should not have a permanent partial 
 
        impairment on account of her November 24, 1982 injury, but might 
 
        have occasional symptoms as she resumed full activity.
 
        
 
        2. As of early October 1983, Drs. D'Angelo and Sinning released 
 
        claimant for full duty, including return to work.
 
        
 
        3. As of September 29, 1983, claimant had full range of motion of 
 
        the neck, upper back and shoulders and did not have muscle 
 
        irritability or spasm. Strength was adequate and appropriate for 
 
        claimant's size and musculature and no neurological abnormalities 
 
        were present.
 
        
 
        4. As of September 29, 1983, X-rays of that date showed no change 
 
        as a result of trauma when compared with x-rays taken in December 
 
        1982.
 
        
 
        5. As of September 29, 1983, claimant tended to tighten her neck 
 
        and upper back muscles and hold her head and neck in a rigid 
 
        position making relaxation difficult.
 
        
 
        6. As of April 1, 1984, claimant had complaints of neck pain and 
 
        Dr. Davis diagnosed her condition as myofibrosis.
 
        
 
        7. Six months of neck guarding would be sufficient for 
 
        myofibrosis or muscle foreshortening to develop.
 
        
 
        8. Dr. Sinning prescribed gentle stretching of claimant's neck 
 
        and active range of motion as a means of combating her tightening 
 
        of her neck muscles.
 
        
 
        9. Claimant chose not to continue that program.
 
        
 
        10. Constant tightening of neck muscles could possibly induce 
 
        near-chronic or permanent neck soreness.
 
        
 
        11. Claimant has had symptoms consistent with ear, nose and 
 
        throat disorders which could account for her headaches.
 
        
 
        BRAGG V. RALSTON PURINA COMPANY
 
        Page 3
 
        
 
        
 
        12. Claimant has had diagnoses of possible temporamandibular 
 
        joint syndrome and hypoglycemia.
 
        
 
        13. Temporamandibular joint syndrome may account for headaches.
 
        
 
        14. Hypoglycemia is a systematic and not a traumatic disorder.
 
        
 
        15. Claimant has had a diagnosis of mild residual radiculopathy 
 
        in the C8-T1 intervertebral space.
 
        
 
        16. Claimant has had a diagnosis and treatment for carpal tunnel 
 
        syndrome.
 
        
 
        17. Claimant has a drug intolerance which has made it difficult 
 
        to ascertain to which drugs claimant might positively respond and 
 
        thereby diagnose her condition.
 
        
 
                                 CONCLUSION OF LAW
 
        
 

 
        
 
 
 
 
 
        Claimant has not established a causal relationship between her 
 
        November 24, 1982 injury and her current disability.
 
        
 
        WHEREFORE, the decision of the deputy is affirmed.
 
        
 
                                      ORDER
 
        
 
        THEREFORE, it is ordered:
 
        
 
        Claimant take nothing from these proceedings. Claimant and 
 
        defendants shall bear equally the costs of this action, but 
 
        claimant is to pay for the transcription of the hearing 
 
        proceeding.
 
        
 
        Signed and filed this 27th day of October, 1988.
 
        
 
        
 
                                        DAVID E. LINQUIST
 
                                     INDUSTRIAL COMMISSIONER
 
        
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         JANET BRAGG,
 
         
 
              Claimant,
 
         
 
                                                  File No. 720285
 
         vs.
 
         
 
                                                    A P P E A L
 
         RALSTON PURINA COMPANY,
 
         
 
                                                 D E C I S I 0 N
 
              Employer,
 
         
 
         and
 
         
 
         AETNA CASUALTY & SURETY,
 
         
 
               Insurance Carrier,
 
               Defendants.
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Claimant appeals from a review-reopening decision denying 
 
         permanent partial disability benefits as the result of an alleged 
 
         injury on November 24, 1982.
 
         
 
              The record on appeal consists of the transcript of the 
 
         review-reopening proceeding; claimant's exhibits A and B; and 
 
         defendants' exhibits 1 through 5.
 
         
 
              Both parties filed briefs on appeal.
 
         
 
                                      ISSUES
 
         
 
              Claimant states the following issues on appeal:
 
         
 
              1.  Did the Deputy Industrial Commissioner err in 
 
              finding that there was no causal relationship between 
 
              her November 24, 1982 injury and her present claim to 
 
              permanent partial disability.
 
         
 
         2.  If the Claimant has sustained an injury resulting in 
 
         permanent partial disability, what is the disability's 
 
         percentage as to the whole body and the benefits to be paid in 
 
         accordance therewith?
 
         
 
                            REVIEW OF THE EVIDENCE
 
         
 
              The review-reopening decision adequately and accurately 
 
         reflects the pertinent evidence and it will not be set forth 
 
         herein.
 

 
         
 
         
 
         
 
         BRAGG V. RALSTON PURINA COMPANY,
 
         PAGE   2
 
         
 
         
 
                                  APPLICABLE LAW
 
         
 
              The citations of law in the review-reopening decision are 
 
         appropriate to the the issues and the evidence.
 
         
 
                                     ANALYSIS
 
         
 
              The analysis of the evidence in conjunction with the law is 
 
         adopted.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Drs. D'Angelo, Sinning and Goettsch all felt, by late 
 
         1983 or early 1984, that claimant should not have a permanent 
 
         partial impairment on account of her November 24, 1982 injury, 
 
         but might have occasional symptoms as she resumed full activity.
 
         
 
              2.  As of early October 1983, Drs. D'Angelo and Sinning 
 
         released claimant for full duty, including return to work.
 
         
 
              3.  As of September 29, 1983, claimant had full range of 
 
         motion of the neck, upper back and shoulders and did not have 
 
         muscle irritability or spasm.  Strength was adequate and 
 
         appropriate for claimant's size and musculature and no 
 
         neurological abnormalities were present.
 
         
 
              4.  As of September 29, 1983, x-rays of that date showed no 
 
         change as a result of trauma when compared with x-rays taken in 
 
         December 1982.
 
         
 
              5.  As of September 29, 1983, claimant tended to tighten her 
 
         neck and upper back muscles and hold her head and neck in a rigid 
 
         position making relaxation difficult.
 
         
 
              6.  As of April 1, 1984, claimant had complaints of neck 
 
         pain and Dr. Davis diagnosed her condition as myofibrosis.
 
         
 
              7.  Six months of neck guarding would be sufficient for 
 
         myofibrosis or muscle foreshortening to develop.
 
         
 
              8.  Dr. Sinning prescribed gentle stretching of claimant's 
 
         neck and active range of motion as a means of combating her 
 
         tightening of her neck muscles.
 
         
 
              9.  Claimant chose not to continue that program.
 
         
 
             10.  Constant tightening of neck muscles could possibly 
 
         induce near-chronic or permanent neck soreness.
 
         
 
             11.  Claimant has had symptoms consistent with ear, nose and 
 
         throat disorders which could account for her headaches.
 
         
 
              12.  Claimant has had diagnoses of possible 
 
         temporamandibular joint syndrome and hypoglycemia.
 
         
 
              13.  Temporomandibular joint syndrome may account for 
 
         headaches.
 
         
 
              14.  Hypoglycemia is a systematic and not a traumatic 
 

 
         
 
         
 
         
 
         BRAGG V. RALSTON PURINA COMPANY,
 
         PAGE   3
 
         
 
         
 
         disorder.
 
         
 
              15.  Claimant has had a diagnosis of mild residual 
 
         radiculopathy in the C8-Tl intervertebral space.
 
         
 
              16.  Claimant has had a diagnosis and treatment for carpal 
 
         tunnel syndrome.
 
         
 
              17.  Claimant has a drug intolerance which has made it 
 
         difficult to ascertain to which drugs claimant might positively 
 
         respond and thereby diagnose her condition.
 
         
 
                                CONCLUSION OF LAW
 
         
 
              Claimant has not established a causal relationship between 
 
         her November 24,, 1982 injury and her current disability.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              Claimant take nothing from these proceedings.
 
         
 
              Claimant and defendants shall bear equally the costs of this 
 
         action, but claimant is to pay for the transcription of the 
 
         hearing proceeding.
 
         
 
         
 
              Signed and filed this 27th day of October, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                                DAVID E. LINQUIST
 
                                                INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         Copies to:
 
         
 
         Mr. David A. Millage
 
         Attorney at Law
 
         1989 Spruce Hills Dr
 
         Bettendorf, IA 52722
 
         
 
         Mr. Larry L. Shepler
 
         Attorney at Law
 
         Ste 102, Executive Sq
 
         400 Main St
 
         Davenport, IA 52801
 
         
 
 
            
 
 
 
 
 
 
 
                                                1108
 
                                                Filed October 27, 1988
 
                                                David E. Linquist
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JANET BRAGG,
 
         
 
              Claimant,
 
                                                 File No. 720285
 
         vs.
 
                                                  A P P E A L
 
         
 
         RALSTON PURINA COMPANY,
 
                                                D E C I S I 0 N
 
         
 
              Employer,
 
         
 
         and
 
         
 
         AETNA CASUALTY & SURETY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1108
 
         
 
              Claimant failed to prove a causal connection between her 
 
         present neck condition and her work injury where the medical 
 
         evidence showed the condition could have been caused by several 
 
         other factors, including claimant's tendency to guard and go 
 
         rigid and failing to follow a relaxation exercise program.
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         TOM 0. HAMMOND,
 
         
 
             Claimant,
 
         
 
         VS.
 
                                                       File No. 720739
 
         WALDINGER CORPORATION,
 
                                                        A P P E A L
 
              Employer,
 
                                                      D E C I S I 0 N
 
         
 
         and
 
         
 
         FIREMAN'S FUND INSURANCE CO.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Defendants appeal from an arbitration decision awarding 
 
         claimant 300 weeks of permanent partial disability under Iowa 
 
         Code section 85.34(2)(u) for an injury to claimant's right arm 
 
         and shoulder.
 
         
 
              The record on appeal consists of the hearing transcript; 
 
         claimant's exhibit A; and joint exhibits 1 through 4.  Only 
 
         claimant filed a brief on appeal.
 
         
 
                                      ISSUE
 
         
 
              No specific issues of alleged errors in the arbitration 
 
         decision were identified by appellant.
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              Review of the record discloses that the deputy thoroughly 
 
         and adequately set out the recitation of the evidence presented 
 
         in the arbitration decision.  Therefore a review will not be 
 
         repeated herein.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              Review of the record and arbitration decision discloses no 
 
         identifiable error.  The deputy correctly analyzed the facts in 
 
         relation to the applicable law.  Therefore the arbitration 
 
         decision will be adopted as the final agency decision.
 
                                 
 
                                 FINDINGS OF FACT
 
         
 
              1.  On December 2, 1982 claimant fell approximately 12 feet 
 
         from a ladder landing on a concrete floor.
 
         
 
              2.  The injury caused a dislocation fracture of claimantOs 
 

 
         
 
         
 
         
 
         HAMMOND V. WALDINGER CORPORATION
 
         Page   2
 
         
 
         
 
         right elbow, a fracture of claimant's left ankle and head 
 
         laceration.
 
         
 
              3.  The fracture of claimant's left ankle healed without 
 
         producing any permanent impairment or permanent loss of use.
 
         
 
              4.  The injury to claimant's right arm and the treatment 
 
         therefore produced an impairment in claimant's shoulder which 
 
         extended beyond the humerus, into the rotator cuff and articular 
 
         capsule of the shoulder joint.
 
         
 
              5.  The injury did not produce any permanent impairment or 
 
         disability in claimant's cervical spine, either lower extremity 
 
         or left upper extremity.
 
         
 
              6.  Following the injury claimant was medically incapable of 
 
         performing work in employment substantially similar to that he 
 
         performed at the time of the injury from December 2, 1982 until 
 
         June 20, 1983 when claimant reached the point that it was 
 
         medically indicated that further significant improvement from the 
 
         injury was not anticipated.
 
         
 
              7.  As a result of the injury claimant has experienced a 19 
 
         percent permanent partial impairment of the body as a whole, 
 
         which impairment involves loss of range of motion of his right 
 
         shoulder, right elbow and an impairment of the median and ulnar 
 
         nerves in his right upper extremity.
 
         
 
              8.  Claimant's impairment limits his ability to grasp 
 
         objects with his right hand and to move his right hand behind 
 
         himself or above his head without producing pain.
 
         
 
              9.  Claimant is 57 years of age, unmarried and has no 
 
         dependents.
 
         
 
             10.  At the time of injury claimant was earning an amount 
 
         which was not well defined by the evidence but appears to be 
 
         somewhere in the range of $12.00 to $18.00 per hour.
 
         
 
             11.  Claimant has an eighth grade education and has not 
 
         exhibited an aptitude for educational pursuits.
 
         
 
             12.  Claimant has skills in plumbing, carpentry, electrical 
 
         work and masonry work but his physical impairment severely limits 
 
         his ability to make gainful use of those skills.
 
              13.  Claimant has a reasonable expectation of obtaining 
 
         gainful employment in an area such as motel maintenance but in 
 
         doing so he will experience a reduction in rate of earnings to 
 
         approximately $5.00 per hour.
 
         
 
              14.  Claimant has not attempted to find any gainful 
 
         employment and is not motivated to do so.
 
         
 
              15.  Claimant had planned to retire upon reaching age 65.
 
         
 
              16.  Claimant will have difficulty in obtaining employment 
 
         of
 
         any type at any wage scale.
 
         
 

 
         
 
         
 
         
 
         HAMMOND V. WALDINGER CORPORATION
 
         Page   3
 
         
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              This agency has jurisdiction of the subject matter of this 
 
         proceeding and its parties.
 
         
 
              The injury which claimant sustained on December 2, 1982 was 
 
         a proximate cause of the disability which claimant presently 
 
         experiences in his right arm and right shoulder.
 
         
 
              Claimant is entitled to compensation for healing period from 
 
         December 2, 1982 until June 20, 1983 except for the part thereof 
 
         commencing March 21, 1983 when claimant was temporarily partially 
 
         disabled within the meaning of section 85.33.
 
         
 
              Claimant is entitled to have his disability evaluated 
 
         industrially as a disability of the body as a whole rather than 
 
         as a disability to the scheduled member where the impairment 
 
         effecting claimant's shoulder extends into the rotator cuff and 
 
         articular capsule.
 
         
 
              Claimant's disability is 60 percent of total disability.
 
         
 
              Claimant is entitled to receive 300 weeks of compensation 
 
         for permanent partial disability payable commencing June 21, 
 
         1983.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That defendants pay claimant twenty-eight and five-sevenths 
 
         (28 5/7) weeks of compensation for healing period at the rate of 
 
         three hundred twenty-four and 02/100 dollars ($324.02) per week 
 
         commencing December 2, 1982.
 
         
 
         
 
         
 
              That defendants pay claimant three hundred (300) weeks of 
 
         compensation for permanent partial disability payable commencing
 
         June 21, 1983.
 
         
 
              That defendants receive credit for all amounts previously 
 
         paid.  For the time when claimant was temporarily partially 
 
         disabled commencing March 21, 1983, claimantOs weekly 
 
         compensation shall be reduced to the amount provided by section 
 
         85.33(4) of the Code.
 
         
 
              That defendants shall pay interest on any amounts which were 
 
         unpaid at the time the same became due in accordance with section 
 
         85.30 of the Code.
 
         
 
              That defendants pay the costs of this action pursuant to 
 
         Division of Industrial Commissioner Rule 343-4.33 formerly, 
 
         Industrial Commissioner Rule 500-4.33.
 
         
 
              That defendants file claim activity reports as requested by 
 
         this agency pursuant to Rule 343-3.1 formerly, 500-3.1.
 

 
         
 
         
 
         
 
         HAMMOND V. WALDINGER CORPORATION
 
         Page   4
 
         
 
         
 
         
 
         
 
              Signed and filed this 24th day of March, 1987.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                                 ROBERT C. LANDESS
 
                                                 INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Mark T. Hedberg
 
         Attorney at Law
 
         840 Fifth Avenue
 
         Des Moines, Iowa 50309
 
         
 
         Mr. Steven L. Udelhofen
 
         Attorney at Law
 
         1000 Des Moines Bldg.
 
         Des Moines, Iowa 50309
 
         
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                   1803.1
 
                                                   Filed March 24, 1987
 
                                                   ROBERT C. LANDESS
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         TOM 0. HAMMOND,
 
         
 
             Claimant,
 
         
 
         VS.
 
         
 
                                                  File No. 720739
 
         WALDINGER CORPORATION,
 
         
 
                                                     A P P E A L
 
              Employer,
 
         
 
                                                   D E C I S I 0 N
 
         and
 
         
 
         FIREMAN'S FUND INSURANCE CO.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         
 
         1803.1
 
         
 
              Award of 300 weeks of permanent partial disability under 
 
         Iowa Code section 85.34(2)(u) for an injury to claimant's right 
 
         arm and shoulder affirmed as no specific issues of alleged errors 
 
         in the arbitration decision were identified by appellant.
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
         before the iowa industrial commissioner
 
         ____________________________________________________________
 
		                   :
 
         MARK E. MULVEHILL, 	   :
 
		                   :
 
              Claimant, 	   :
 
		                   :
 
		         vs.       :
 
                		   :      File No. 720875
 
         BUNKER WELDING & STEEL,   :
 
         CONSTRUCTION, INC.,       :
 
		                   :        A P P E A L
 
              Employer, 	   :
 
		                   :      D E C I S I O N
 
		         and       :
 
                		   :
 
         LIBERTY MUTUAL INSURANCE CO., :
 
                   		   :
 
              Insurance Carrier,   :
 
              Defendants.          :
 
         ___________________________________________________________
 
         The record, including the transcript of the hearing before the 
 
         deputy and all exhibits admitted into the record, has been 
 
         reviewed de novo on appeal.  The decision of the deputy filed 
 
         September 27, 1990 is affirmed and is adopted as the final agency 
 
         action in this case. 
 
         The costs of the review-reopening proceeding are assessed to 
 
         defendants and the costs of appeal shall be shared equally by 
 
         defendants and claimant.
 
         Signed and filed this ____ day of October, 1991.
 
         
 
         
 
         
 
         
 
                   ________________________________
 
                            BYRON K. ORTON
 
                        INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Michael J. Coyle
 
         Attorney at Law
 
         200 Security Bldg.
 
         Dubuque, Iowa 5200l
 
         
 
         Mr. Richard G. Book
 
         Attorney at Law
 
         500 Liberty Bldg.
 
         Des Moines, Iowa 50309-2421
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            9998
 
            Filed October 21, 1991
 
            Byron K. Orton
 
            BJO
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
		                      :
 
            MARK E. MULVEHILL,	      :
 
		                      :
 
                 Claimant, 	      :
 
		                      :
 
		            vs.       :
 
                		      :      File No. 720875
 
            BUNKER WELDING & STEEL,   :
 
            CONSTRUCTION, INC.,       :
 
		                      :        A P P E A L
 
                 Employer, 	      :
 
		                      :      D E C I S I O N
 
           		    and       :
 
                      		      :
 
            LIBERTY MUTUAL INSURANCE CO., :
 
                      		      :
 
                 Insurance Carrier,   :
 
                 Defendants.          :
 
            ___________________________________________________________
 
            
 
            9998
 
            
 
                 Summary affirmance of deputy's decision filed September 
 
            27, 1991.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            MARK E. MULVEHILL,            :
 
                                          :
 
                 Claimant,                :
 
                                          :        File No. 720875
 
            vs.                           :
 
                                          :
 
            BUNKER WELDING & STEEL,       :          R E V I E W -
 
            CONSTRUCTION, INC.,           :
 
                                          :        R E O P E N I N G
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERY MUTUAL INSURANCE CO.,  :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This case came on for hearing on August 30, 1990, in 
 
            Dubuque, Iowa.  This is a proceeding in review-reopening 
 
            wherein claimant seeks additional compensation for healing 
 
            period and permanent partial disability benefits as a result 
 
            of an alleged injury occurring on December 7, 1988, which 
 
            injury claimant contends was a result of claimant's November 
 
            21, 1982 injury.
 
            
 
                 On March 20, 1986, the parties entered into an 
 
            agreement for settlement in which the parties agreed that 
 
            claimant incurred a 30 percent industrial disability as a 
 
            result of his November 21, 1982 injury.
 
            
 
                                      issues
 
            
 
                 The issues for resolution are:
 
            
 
                 1.  Whether claimant's December 7, 1988 injury arose 
 
            out of and in the course of claimant's employment as a 
 
            result of his November 21, 1982 injury;
 
            
 
                 2.  Whether claimant's additional disability is 
 
            causally connected to claimant's December 7, 1988 injury, 
 
            and whether that injury is causally connected to his 
 
            November 21, 1982 injury;
 
            
 
                 3.  The nature and extent of claimant's disability and 
 
            entitlement to disability benefits;
 
            
 
                 4.  Whether claimant is entitled to 85.27 medical 
 
            benefits; and,
 
            
 
                 5.  Whether claimant is entitled to 86.13 penalty 
 
            benefits.
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy having heard the testimony and 
 
            considered all the evidence, finds that:
 
            
 
                 1.  Claimant is a 50-year-old who has obtained her GED.  
 
            Claimant also obtained an associate degree in 
 
            electromechanical technology at Southwest Wisconsin 
 
            Technical College.  Claimant testified at the hearing and 
 
            also through his deposition taken on November 20, 1989 
 
            (Joint Exhibit 9)
 
            
 
                 Claimant related his history since his settlement in 
 
            March of 1986 of his November 21, 1982 injury which arose 
 
            out of and in the course of claimant's employment with 
 
            defendant employer.  A complete work history is set out in 
 
            joint exhibit 12, pages 6, 7 and 8.  Claimant described the 
 
            nature of his job up to his fall on December 7, 1988.  
 
            Although claimant has electrical experience and is confident 
 
            at servicing such equipment at his current employer, 
 
            Watubo-Tek, Inc., claimant contends he has a long way to go 
 
            in electronics to be confident and competent.  Claimant 
 
            indicated that prior to December 7, 1988 and after his 1982 
 
            injury, he wasn't able to do production work and work 
 
            involving quotas.  Claimant has been laid off at least seven 
 
            times between December 1980 and May 1987 at John Deere.  He 
 
            is still subject to recall but is low in seniority.
 
            
 
                 Currently, claimant can do his job with the present 
 
            defendant employer, Watubo-Tek, but he has the opportunity 
 
            to change from one project to another if standing became 
 
            intolerable or he needs to sit.  His current title is plant 
 
            maintenance person.  He is to maintain the equipment and 
 
            perform whatever tasks are necessary.  Claimant began his 
 
            current job on November 20, 1989.
 
            
 
                 Claimant contends after Julian G. Nemmers, M.D., 
 
            performed surgery in December 1988, that he can do only 
 
            one-half of what he was able to do after his third surgery 
 
            in 1983.  Claimant said he started to notice some problems 
 
            in the late summer 1988 while on a camping trip.  He also 
 
            said his school and work environment began affecting him in 
 
            August 1987 through May 1988.  Claimant said his low back 
 
            was progressively getting worse throughout 1988 and his back 
 
            was giving out and feeling worse.
 
            
 
                 On December 7, 1988, claimant was walking down the 
 
            steps at the University of Wisconsin when his leg gave out, 
 
            he stumbled and fell forward and tried to catch himself with 
 
            his hand.  He also cut his hand in this fall.  Claimant said 
 
            that he had fallen before on stairs but he was always going 
 
            up the stairs when that occurred.
 
            
 
                 Claimant then went to Dr. Nemmers and Dr. Nemmers put 
 
            claimant in the hospital and performed surgery on him on 
 
            December 12, 1988.  Claimant acknowledged he was released on 
 
            February 8, 1989 by Dr. Nemmers without restrictions but he 
 
            has an underlying understanding as to what he can do.
 
            
 
                 Claimant said he did not incur any other injuries since 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            his November 1982 injury or settlement of that injury except 
 
            he did incur a sharp pain in March 1970 when he picked up 
 
            his daughter's suitcase of clothes.  After some therapy, he 
 
            was the same as before this incident.   Also, in May of 
 
            1990, claimant was working on a compressor with a wrench 
 
            when he felt a sharp pain.  After some physical therapy, 
 
            claimant was released without restrictions.
 
            
 
                 Claimant said that if a doctor put restrictions on him, 
 
            it would affect his ability to get a job.  Claimant 
 
            emphasized that he has learned to control his functions.  He 
 
            acknowledged that when he was interviewed for the Watubo-Tek 
 
            job, they asked about his prior back injuries in depth.  
 
            Claimant passed the pre-employment physical.  He also gave 
 
            Watubo-Tek a copy of the same release he received from Dr. 
 
            Nemmers when claimant returned to work at the University of 
 
            Wisconsin in February 1989 after his December 1988 surgery.  
 
            This release provided no restrictions.
 
            
 
                 Claimant's wife, Patricia, said she noticed differences 
 
            in claimant after his December 1988 incident.  Claimant no 
 
            longer cuts grass nor goes shopping with her.  His legs 
 
            bother him after twenty minutes of walking, he doesn't stand 
 
            straight, and he no longer can sleep in their waterbed so he 
 
            sleeps in another room.  She acknowledged that claimant had 
 
            serious back problems before the December 1988 fall but not 
 
            as severe as they are now.
 
            
 
                 Claimant also has received a 30 percent veteran 
 
            disability for a service-connected asthma (Jt. Ex. 12, p. 
 
            11).
 
            
 
                 Robert Kolodziej, plant supervisor for Watubo-Tek, has 
 
            been claimant's direct supervisor for five weeks and 
 
            indirect supervisor for 23 weeks.  He said claimant was 
 
            required to take a pre-employment physical and considered 
 
            any restrictions claimant has, which were none.  He said 
 
            claimant's current job was not designed for claimant and is 
 
            a basic job without special consideration.  Kolodziej said 
 
            claimant's current job required certain nonrepetitive 
 
            lifting, limited pushing, pulling, stooping, to reach an 
 
            area, nonfrequent climbing and use of hand tools.  Kolodziej 
 
            admitted that claimant is slow in certain aspects of his job 
 
            but his work is acceptable and above average.  Kolodziej 
 
            also commented that his own supervisor commented as to 
 
            claimant being slow but a good worker.  Kolodziej said 
 
            claimant is still learning his job.  Claimant's absence has 
 
            not been excessive and claimant has missed no pay raises.  
 
            He said Watubo-Tek is a financially successful business and 
 
            no layoffs are planned to his knowledge but the business 
 
            does fluctuate.
 
            
 
                 Julian G. Nemmers, M.D., an orthopedic surgeon, 
 
            testified by way of deposition on December 5, 1989 that he 
 
            has treated claimant since 1970 for various problems.  The 
 
            first time he saw claimant for his back was in 1972.  Dr. 
 
            Nemmers saw claimant twice, in 1984 and in 1987, between 
 
            claimant's 1982 injury and treatment and his December 7, 
 
            1988 alleged injury.  There is no necessity to set out Dr. 
 
            Nemmers' treatment of claimant  prior to March 1986 as 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            claimant's settlement on this condition related to his 1982 
 
            injury as the basis of the 30 percent industrial disability.  
 
            It appears claimant's problems in 1987 stem from his 1982 
 
            injury and impairment.  It is expected claimant will 
 
            continue to have some problems from his 30 percent 
 
            industrial disability.
 
            
 
                 Dr. Nemmers performed an L4 disc right side surgery on 
 
            claimant on December 12, 1988.  He treated claimant until 
 
            July 27, 1989.  Dr. Nemmers released claimant to return to 
 
            work on February 8, 1989.  Dr. Nemmers, in discussing back 
 
            fusion with claimant, agreed that with claimant's age and 
 
            the type of work he was doing, claimant would be better off 
 
            with his back pain and instability than having the fusion 
 
            (Jt. Ex. 2, p. 13).  Dr. Nemmers said if claimant elected to 
 
            have fusion, he would not perform it but would send claimant 
 
            to Iowa City or Minneapolis as it would be quite an 
 
            extensive fusion involving four levels.  Dr. Nemmers 
 
            indicated claimant has more restrictions now than he had in 
 
            1983, that he would put claimant on a 25 pound lifting 
 
            restriction and 25 to 40 pound pulling and pushing 
 
            restriction and a climbing restriction.  He acknowledged 
 
            that he released claimant on February 27, 1984 to return to 
 
            work at John Deere with no restriction (Jt. Ex. 2, p. 16).  
 
            He said John Deere would not hire him back with 
 
            restrictions.  He said claimant's impairment as a result of 
 
            claimant's 1982 injury was 25 percent less 10 percent from 
 
            his prior two operations totaling 25 percent impairment.
 
            
 
                 As to claimant's December 1988 injury and surgery, Dr. 
 
            Nemmers opined claimant did suffer permanent injury when he 
 
            ruptured his disc and incurred an additional 10 percent 
 
            impairment.  The doctor, without hesitation, opined the 
 
            December 1988 surgery was necessary.
 
            
 
                 Dr. Nemmers indicated that out of the many patients who 
 
            have had the number of surgeries claimant has had, many do 
 
            not return to work.  Dr. Nemmers emphasized he would not let 
 
            claimant return to work without restrictions but also 
 
            realized employers won't take a person back with 
 
            restrictions.
 
            
 
                 There is considerable questioning of Dr. Nemmers as to 
 
            what effect claimant's knee problems and his June 22, 1987 
 
            bilateral knee cartilage removal and his volleyball injury 
 
            had on his December 7, 1988 fall and ultimate alleged 
 
            injury.  The doctor indicated the knee giving out could also 
 
            be the result of claimant's back surgery in 1982 and his 
 
            quadriceps weakness on that side.  The doctor ultimately 
 
            concluded:  "I think it probably is quadriceps atrophy" and 
 
            it follows from his 1982 lower back surgery (Jt. Ex. 2, p. 
 
            24).
 
            
 
                 Claimant's physical examination work sheet signed by 
 
            claimant on November 14, 1989 regarding his seeking 
 
            employment with Watubo-Tek indicates he disclosed his back 
 
            surgery and injury.  The company doctor report of claimant's 
 
            physical exam revealed four surgeries, 1977, 1980, 1983 and 
 
            1988, and claimant denied current problems.  The exam 
 
            revealed or confirmed "no current limiting factor."  (Jt. 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            Ex. 3)  The report also indicated "individual is of slight 
 
            to modern increase risk of back problems."  Claimant appears 
 
            very motivated which affects the extent of claimant's 
 
            industrial disability just like one's lack of motivation 
 
            would affect one's industrial disability.  Claimant paints a 
 
            medical picture much more severe than the real picture 
 
            relates at this time.  Dr. Nemmers seems somewhat surprised 
 
            that claimant is working, but the fact is claimant is 
 
            working.  The undersigned is not going to speculate all the 
 
            possible employment consequences that could occur in the 
 
            future as to claimant's medical condition caused by his 1982 
 
            injury as that is what the law of review-reopening is 
 
            intended to cover.
 
            
 
                 The undersigned realizes the effect back surgery and 
 
            restrictions can have on one's employment.  Claimant 
 
            contends he has restrictions but there is nothing that is in 
 
            writing showing claimant has restrictions.  In fact, the 
 
            written reports indicate no restrictions.  Claimant insists 
 
            if he had written restrictions, he wouldn't be employed.  
 
            Therefore, he "convinced the doctor" not to place 
 
            restrictions.  Assuming Dr. Nemmers is competent and 
 
            credible, the undersigned presumes that the doctor would do 
 
            what is medically correct so as not to harm or mislead 
 
            claimant as to the real situation, particularly, with the 
 
            area of malpractice being so rampant.  If, in fact, claimant 
 
            becomes so bad as a result of his 1982 injury that he can't 
 
            work and restrictions must be placed on claimant and this 
 
            affects his job or jobs, then review-reopening again could 
 
            be available to the claimant.  The undersigned must consider 
 
            the current situation.
 
            
 
                 The undersigned finds that claimant has had a change of 
 
            circumstances causally connected to his 1982 injury which 
 
            resulted in claimant's December 12, 1988 surgery and 
 
            December 7, 1988 fall, all of which resulted in claimant 
 
            incurring 10 percent more impairment than he already had 
 
            prior to December 7, 1988.  Claimant already had agreed per 
 
            the settlement in March 1986 that he had a 30 percent 
 
            industrial disability.  He already had an impairment and 
 
            industrial disability.
 
            
 
                 Claimant contends that even though he is making 
 
            approximately the same income now that he did when he was 
 
            working for defendant employer, it is less when you consider 
 
            inflation.  Claimant has failed to show that claimant's 
 
            injury is why he is not working for defendant employer.
 
            
 
                 The undersigned finds that claimant's fall on December 
 
            7, 1988 was materially and substantially the result of the 
 
            work injury claimant suffered in 1982.  That the 1982 injury 
 
            left the claimant with such an impairment and disability 
 
            that the changing medical and health circumstances since the 
 
            injury caused a weakened condition and atrophy in claimant's 
 
            left leg which caused him to stumble and fall.  Therefore, 
 
            claimant's December 7, 1988 injury arose out of and in the 
 
            course of claimant's employment.
 
            
 
                 It is further found that claimant's additional December 
 
            1988 surgery to his low back was causally connected to his 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            December 7, 1988 fall, which is causally connected to his 
 
            1982 injury.  Claimant has incurred an additional 10 percent 
 
            impairment as a result of his December 7, 1988 fall which 
 
            resulted from claimant's 1982 injury.
 
            
 
                 Claimant was off work from December 7, 1988 to February 
 
            19, 1989.  Claimant was released to return to work on 
 
            February 8, 1989.  Because of the employer's scheduling and 
 
            not the fault of the claimant, claimant actually was not 
 
            able to return to work until February 19, 1989.  The 
 
            undersigned finds that claimant incurred a healing period 
 
            beginning December 7, 1988 to and including February 18, 
 
            1989, totaling 10.571 weeks.
 
            
 
                 Defendants denied liability as to claimant's December 
 
            7, 1988 injury and contended it was a separate injury not 
 
            arising out of and in the course of claimant's employment 
 
            with defendant employer and wasn't causally connected to his 
 
            1982 injury.  Defendants are in no position to contend 
 
            claimant must seek medical authorization when it denies 
 
            liability.  Defendants are responsible for all of claimant's 
 
            medical bills and expenses.
 
            
 
                 Considering claimant's age, education, prior settlement 
 
            for 30 percent industrial disability, prior impairment, 10 
 
            percent additional impairment, his motivation, and all other 
 
            criteria considered in determining a person's industrial 
 
            disability, the undersigned finds that claimant has an 
 
            additional 10 percent industrial disability and that there 
 
            was a change of condition which was not contemplated in the 
 
            prior settlement in March 1986 of claimant's November 21, 
 
            1982 injury.
 
            
 
                 Claimant amended his petition two and one-half months 
 
            before the hearing to raise the 86.13 penalty benefits 
 
            issue.  The undersigned can understand defendants' position 
 
            of denying liability under the facts herein.  This decision 
 
            and finding involved close issues and the final 
 
            determination was not easy.  Claimant's knee operation and 
 
            volleyball incidents give rise to facts which defendants 
 
            could support their position without violating 86.13.  The 
 
            undersigned finds that claimant is not entitled to 86.13 
 
            penalty benefits.
 
            
 
                                conclusions of law
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that he received an injury on December 7, 
 
            1988 which arose out of and in the course of his employment 
 
            and was caused by his November 21, 1982 injury.  McDowell v. 
 
            Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman 
 
            v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 
 
            (1967). 
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of December 7, 
 
            1988 is causally related to the disability and injury on 
 
            November 21, 1982 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 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            (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, 261 Iowa 352, 154 
 
            N.W.2d 128 (1967).
 
            
 
                 When a worker sustains an injury, later sustains 
 
            another injury, and subsequently seeks to reopen an award 
 
            predicated on the first injury, he or she must prove one of 
 
            two things: (a) that the disability for which he or she 
 
            seeks additional compensation was proximately caused by the 
 
            first injury, or (b) that the second injury (and ensuing 
 
            disability) was proximately caused by the first injury.  
 
            DeShaw v. Energy Manufacturing Company, 192 N.W.2d 777, 780 
 
            (Iowa 1971). 
 
            
 
                 If claimant has an impairment to the body as a whole, 
 
            an industrial disability has been sustained.  Industrial 
 
            disability was defined in Diederich v. Tri-City Railway Co., 
 
            219 Iowa 587, 593, 258 N.W.2d 899, 902 (1935) as follows: 
 
            "It is therefore plain that the legislature intended the 
 
            term `disability' to mean `industrial disability' or loss of 
 
            earning capacity and not a mere `functional disability' to 
 
            be computed in the terms of percentages of the total 
 
            physical and mental ability of a normal man."
 
            
 
                 Iowa Code section 85.34(1) provides that if an employee 
 
            has suffered a personal injury causing permanent partial 
 
            disability, the employer shall pay compensation for a 
 
            healing period from the day of the injury until (1) the 
 
            employee returns to work; or (2) it is medically indicated 
 
            that significant improvement from the injury is not 
 
            anticipated; or (3) until the employee is medically capable 
 
            of returning to substantially similar employment.
 
            
 
                 The case law relating to review-reopening proceedings 
 
            is rather extensive.
 
            
 
                 The opinion of the Iowa Supreme Court in Stice v. 
 
            Consolidated Ind. Coal Co., 228 Iowa 1031, 1035, 291 N.W. 
 
            452 (1940) stated "that the modification of...[an] award 
 
            would depend upon a change in the condition of the employee 
 
            since the award was made."  The court cited the law 
 
            applicable at that time which was "if on such review the 
 
            commissioner finds the condition of the employee warrants 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            such action, he may end, diminish, or increase the 
 
            compensation so awarded" and stated at 1038:
 
            
 
                 That the decision on review depends upon the 
 
                 condition of the employee, which is found to exist 
 
                 subsequent to the date of the award being 
 
                 reviewed.  We can find no basis for interpreting 
 
                 this language as meaning that the commissioner is 
 
                 to re-determine the condition of the employee 
 
                 which was adjudicated by the former award.
 
            
 
                 It is further concluded:
 
            
 
                 That claimant's December 7, 1988 fall and injury and 
 
            December 12, 1988 surgery is causally connected to 
 
            claimant's November 21, 1982 injury and that the worsening 
 
            of claimant's physical and medical condition since his 
 
            November 21, 1982 injury caused claimant to fall on December 
 
            7, 1988.  Claimant's injury arose out of and in the course 
 
            of his employment.
 
            
 
                 That claimant incurred an additional 10 percent 
 
            impairment as a result of his December 1988 fall and 
 
            surgery, all of which is causally connected to his November 
 
            21, 1982 injury.
 
            
 
                 That claimant incurred a healing period beginning 
 
            December 7, 1988 to and including February 18, 1989, as a 
 
            result of claimant's December 7, 1988 fall caused by his 
 
            November 21, 1982 injury.
 
            
 
                 That claimant incurred a change in condition not 
 
            contemplated by his March 1986 settlement, which settlement 
 
            was based on claimant having a 30 percent industrial 
 
            disability.
 
            
 
                 That claimant incurred an additional 10 percent 
 
            industrial disability as a result of his December 7, 1988 
 
            fall and December 1988 surgery, and all are proximately 
 
            caused by claimant's November 21, 1982 work injury.
 
            
 
                 That defendants are responsible for all of claimant's 
 
            medical bills as defendants denied liability and lost the 
 
            right to choose claimant's medical care.
 
            
 
                 That claimant is not entitled to any 86.13 penalty 
 
            benefits.
 
            
 
                           
 
            
 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            order
 
            
 
                 IT IS THEREFORE ORDERED:
 
            
 
                 That defendants shall pay unto claimant healing period 
 
            benefits at the rate of two hundred seventy-seven and 19/100 
 
            dollars ($277.19) for the period beginning December 7, 1988 
 
            to and including February 18, 1989, totaling ten point five 
 
            seven one (10.571) weeks.
 
            
 
                 That defendants shall pay unto claimant fifty (50) 
 
            additional weeks of permanent partial disability benefits at 
 
            the rate of two hundred seventy-seven and 19/100 dollars 
 
            ($277.19), commencing February 19, 1989.
 
            
 
                 That defendants shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against the award for 
 
            weekly benefits previously paid.  The record indicates that 
 
            defendants have not previously paid any benefits as to this 
 
            December 7, 1988 alleged injury and as it relates to 
 
            claimant's November 21, 1982 injury.
 
            
 
                 That defendants are responsible for all of claimant's 
 
            medical bills.
 
            
 
                 That claimant is not entitled to 86.13 penalty 
 
            benefits.
 
            
 
                 That defendants shall pay interest on benefits awarded 
 
            herein as set forth in Iowa Code section 85.30.
 
            
 
                 That defendants shall pay the costs of this action, 
 
            pursuant to Division of Industrial Services Rule 343-4.33.
 
            
 
                 That defendants shall file an activity report upon 
 
            payment of this award as required by this agency, pursuant 
 
            to Division of Industrial Services Rule 343-3.1
 
            
 
                 Signed and filed this _____ day of September, 1990.
 
            
 
            
 
                                          ______________________________
 
                                          BERNARD J. O'MALLEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            Copies to:
 
            
 
            Mr Michael J Coyle
 
            Attorney at Law
 
            200 Security Bldg
 
            Dubuque IA 52001
 
            
 
            Mr Richard G Book
 
            Attorney at Law
 
            500 Liberty Bldg
 
            Des Moines IA 50309
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          51803; 51100; 51108;
 
                                          52503; 54000
 
                                          Filed September 27, 1990
 
                                          Bernard J. O'Malley
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            MARK E. MULVEHILL,            :
 
                                          :
 
                 Claimant,                :
 
                                          :        File No. 720875
 
            vs.                           :
 
                                          :
 
            BUNKER WELDING & STEEL,       :          R E V I E W -
 
            CONSTRUCTION, INC.,           :
 
                                          :        R E O P E N I N G
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERY MUTUAL INSURANCE CO.,  :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            51803
 
            Found claimant's condition changed since his earlier injury, 
 
            which injury left claimant in a physical condition that led 
 
            to claimant's subsequent falling and injury.  Claimant 
 
            awarded 10% additional permanent partial disability benefits 
 
            in his review-reopening.
 
            
 
            51100; 51108
 
            Found claimant's injury arose out of and in the course of 
 
            his employment and his additional impairment and disability 
 
            was found to be causally connected to his original injury.
 
            
 
            52503
 
            Claimant awarded medical benefits.
 
            
 
            54000
 
            Claimant denied 86.13 penalty benefits.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         DEBORAH LIGHT,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                                      File No. 721376
 
         ECONOMICS LABORATORY, INC.,
 
                                                        A P P E A L
 
              Employer,
 
                                                        R U L I N G
 
         and
 
         
 
         WAUSAU INSURANCE COMPANIES,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
              On March 28, 1988 claimant filed a motion to dismiss 
 
         defendants' appeal in the above entitled action.  There being no 
 
         resistance by defendants, the same comes on for determination.
 
         
 
              Defendants have not filed an affidavit as required by 
 
         section 86.24 of the Code of Iowa.  From claimant's motion and 
 
         a review of the file it is also apparent that defendants have 
 
         not complied with Division of Industrial Services Rule 
 
         343-4.30.  Defendants have not made any indication as to why 
 
         they have failed to comply with the statute or rule.
 
         
 
              WHEREFORE, claimant's motion to dismiss is sustained.
 
         
 
         
 
              Signed and filed this 3rd day of June, 1988.
 
         
 
         
 
         
 
         
 
         
 

 
         
 
         
 
         
 
         LIGHT V. ECONOMICS LABORATORY, INC.
 
         Page   2
 
         
 
         
 
                                                  DAVID E. LINQUIST
 
                                                 INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Thomas N. Kamp
 
         Attorney at Law
 
         600 Davenport Bank Bldg.
 
         Davenport, Iowa 52801
 
         
 
         
 
         
 
         
 
         Mr. Larry L. Shepler
 
         Attorney at Law
 
         111 East Third Street
 
         600 Union Arcade Bldg.
 
         Davenport, Iowa 52801-1550
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER 
 
         _________________________________________________________________
 
         
 
         
 
         WAYNE E. OLESON,
 
         
 
              Claimant,
 
         VS.
 
                                                      File No. 721429
 
         GEO. A. HORMEL & COMPANY,
 
         
 
              Employer,
 
                                                    A R B I T R A T I 0 N
 
         and
 
                                                      D E C I S I 0  N
 
         LIBERTY MUTUAL INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         _________________________________________________________________
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Wayne E. 
 
         Oleson, claimant, against George A. Hormel & Company, employer, 
 
         and Liberty Mutual Insurance Company, insurance carrier, for 
 
         recovery of benefits as a result of an injury which occurred on 
 
         December 13, 1982.  The case was heard in Des Moines, Iowa, on 
 
         February 26, 1987.  The evidence consists of testimony from 
 
         claimant and from Roger Franklin Marquardt.  The evidence also 
 
         contains claimant's exhibits one through eleven and defendants' 
 
         exhibits one through four.  The depositions include all 
 
         deposition exhibits.  It was stipulated that an employer-employee 
 
         relationship existed between the claimant and the employer at the 
 
         time of the injury, that claimant did sustain an injury on 
 
         December 13, 1982 which arose out of and in the course of his 
 
         employment with the employer, that the injury was the cause of 
 
         some temporary disability for which claimant was entitled to 
 
         receive weekly compensation benefits, that all weekly 
 
         compensation benefits for which the employer is liable have been 
 
         paid, that, in addition, defendants have paid 127.571 weeks of 
 
         permanent partial disability through February 25, 1987 and that 
 
         any additional permanent disability compensation that may be 
 
         awarded should be commenced effective February 26, 1987.  The 
 
         rate of compensation was stipulated to be $321.18 per week.
 
         
 
                                      ISSUE
 
         
 
              The sole issue in this case is the degree of claimant's 
 
         permanent disability.
 
         
 
         
 
         
 
         
 
                                SUMMARY OF EVIDENCE
 
         
 
              The following is only a brief summary of pertinent evidence.  
 
         All evidence received at hearing was considered when deciding the 
 
         case.
 

 
                        OLESON V. GEORGE A. HORMEL & COMPANY                             age   2
 
         
 
              Wayne E. Oleson is a 34-year-old man who is a 1970 graduate 
 
         of Fort Dodge Senior High School and who has taken courses in 
 
         management and retailing at the Iowa Central Community College in 
 
         Fort Dodge.  Claimant testified that he did well in these 
 
         courses.  During high school, claimant had worked for Kinney 
 
         Shoes, Henry's Drive In and the Fort Dodge Food & Grocery.  
 
         Claimant served two years in the army as a battalion clerk where 
 
         he performed typing, kept battalion records and assisted a 
 
         colonel.  Following discharge from the service he returned to 
 
         Fort Dodge, obtained a job at the Hormel plant on October 29, 
 
         1974 (defendants' exhibit 4, page 9) and resumed taking college 
 
         courses.  Claimant studied law enforcement and additional general 
 
         business and management at the Iowa Central Community College.
 
         
 
              When the Fort Dodge plant closed, claimant transferred to 
 
         the Ottumwa, Iowa plant where he performed a variety of jobs.  On 
 
         December 13, 1982 he jerked while in the process of lifting a box 
 
         and felt a pop in his back.  After attempts at conservative 
 
         treatment by local physicians had failed, claimant came under the 
 
         treatment of Robert A. Hayne, M.D., a neurosurgeon, who diagnosed 
 
         claimant's problem as a disc protrusion.  A laminectomy was 
 
         performed on March 4, 1983 at which time the 4th and 5th lumbar 
 
         interspaces were explored and protruding discs were removed.  On 
 
         June 15, 1983 claimant returned to light work with a 35-pound 
 
         weight restriction.  Subsequently, he was rehospitalized in 
 
         September, 1983 where diagnostic studies failed to show any 
 
         evidence of recurring herniated discs.  Claimant was referred to 
 
         Joe Fellows, M.D., an orthopaedic surgeon, who felt that claimant 
 
         had mechanical instability in his back due to the surgery that 
 
         had been performed and recommended fusion of the affected levels 
 
         of claimant's spine (exhibit 5).  The medical authorities were 
 
         not unanimous in considering whether or not a fusion should be 
 
         performed and a fusion has not been performed.
 
         
 
              Claimant was treated at the Mercy Pain Clinic in 1983.  Upon 
 
         discharge from the program, James L. Blessman, M.D., the 
 
         director, indicated he expected that claimant would be able to 
 
         return to full-time, full-duty work (claimant's exhibit 7).
 
         
 
              Claimant worked intermittently at Hormel until January 24, 
 
         1985 when he took disability retirement (defendants' exhibit 4, 
 
         page 7).  It was necessary for claimant to have been employed by 
 
         the Hormel company for ten years in order to qualify for 
 
         disability retirement (defendants' exhibit 4, page 22).
 
         
 
         
 
         
 
              Claimant applied for social security disability and, on 
 
         January 24, 1986, a decision was issued which found claimant to 
 
         have been under a disability as defined in the Social Security 
 
         Act since December 13, 1982 and awarded him disability insurance 
 
         benefits under the Social Security Act (claimant's exhibit 10).
 
         
 
              Claimant has been treated by John C. VanGilder, a 
 
         neurosurgeon and professor at the University of Iowa Hospitals.  
 
         Dr. VanGilder attributed claimant's medical problem to the injury 
 
         of December 13, 1982 (claimant's exhibit 3, pages 9 and 14).  His 
 
         examinations revealed no neurological abnormalities, but did 
 

 
                        OLESON V. GEORGE A. HORMEL & COMPANY                             age   3
 
         discover the loss of normal spinal curvature and muscle spasm 
 
         (claimant's exhibit 3, pages 14-18).  Dr. VanGilder felt that the 
 
         herniated disc, which was initially caused by the 1982 injury, 
 
         produced damage to soft tissue structures and that the resulting 
 
         surgery produced damage to bony structures in claimant's spine 
 
         which are the cause of the pain of which claimant complains 
 
         (claimant's exhibit 3, pages 18 and 19).  Dr. VanGilder indicated 
 
         that claimant's primary problem is pain and that the pain is 
 
         supported by objective findings (claimant's exhibit 3, page 20). 
 
          Dr. VanGilder felt that there was not a psychological component 
 
         to claimant's perception of pain (claimant's exhibit 1e).  He 
 
         felt that claimant's condition is permanent and will not improve 
 
         (claimant's exhibit 1f; exhibit 3, page 11).
 
         
 
              Dr. VanGilder recommended that claimant lift no more than 20 
 
         pounds, avoid standing longer than one to two hours, limit 
 
         walking to no more than one hour and avoid all climbing.  He 
 
         recommended a relatively sedentary occupation (claimant's exhibit 
 
         3, pages 10 and 11).  Dr. VanGilder rated claimant as having a 
 
         20% permanent functional impairment to the body as a whole 
 
         (claimant's exhibit 3, page 9; exhibit lf).
 
         
 
              Claimant was evaluated by Thomas A. Carlstrom, M.D., a 
 
         neurosurgeon, on July 17, 1986.  Dr. Carlstrom found mild to 
 
         moderate muscle spasms, but his neurological examination was 
 
         normal (claimant's exhibit 3b, pages 7-12).
 
         
 
              Dr. Carlstrom indicated that claimant has chronic mechanical 
 
         low back pain and that claimant has a failed back with permanent 
 
         symptoms that need to be dealt with at their present levels.  He 
 
         recommended job rehabilitation but no further diagnostic tests or 
 
         further treatment (claimant's exhibit 3a).
 
         
 
              Dr. Carlstrom indicated that he would recommend an 
 
         occupation where claimant would not be required to lift more than 
 
         30-35 pounds.  He indicated that claimant could perform work 
 
         which did not require heavy lifting, prolonged sitting or 
 
         standing or work in any type of cramped posture.  He felt that 
 
         claimant could do factory jobs within the limitation such as 
 
         light custodial work and assembly work where he would not be 
 
         required to lift more than 10-15 pounds on a rapidly repetitive 
 
         basis.  The doctor
 
         
 
         indicated that he felt claimant should be active and engaged in 
 
         work (claimant's exhibit 3b, pages 20-21).  Dr. Carlstrom 
 
         assigned a permanent partial impairment rating of 10% of the body 
 
         as a whole (claimant's exhibit 3d, page 19).
 
         
 
              Claimant was evaluated by Van C. Owens, M.A., a clinical 
 
         psychologist.  IQ testing showed claimant to be functional in the 
 
         low average range.  There were indications of left hemisphere 
 
         disfunction adversely affecting his verbal skills.  An MMPI 
 
         produced results consistent with a neurotic condition.  Owens 
 
         indicated that claimant saw himself as a person who was ill, but 
 
         that he had accepted his disability status and that he would not 
 
         be a good candidate for medical treatment (claimant's exhibit 
 
         4).
 
         
 
              Claimant received the services of Clark H. Williams, a 
 

 
                        OLESON V. GEORGE A. HORMEL & COMPANY                             age   4
 
         vocational rehabilitation consultant, for approximately a year 
 
         beginning in March, 1985.  A work hardening effort with claimant 
 
         performing part-time volunteer typing and filing at his local 
 
         union office was terminated due to claimant's complaints of 
 
         increased symptoms.  Williams did not present claimant with any 
 
         actual job leads in the Ottumwa, Iowa area where claimant 
 
         resides.
 
         
 
              Williams concluded that it would be necessary for claimant 
 
         to be able to tolerate at least four hours of work in order to 
 
         become employed.  He felt that claimant was not a candidate for 
 
         returning to work (claimant's exhibit 9m; exhibit 9o).
 
         
 
              Roger Marquardt, a vocational rehabilitation specialist, 
 
         testified that he felt claimant could not return to any type of 
 
         work which he had previously performed on a repetitive basis.  
 
         Marquardt opined that claimant's condition was the same at the 
 
         time of hearing in this case as it was at the time of the Social 
 
         Security hearing and that claimant could not successfully seek 
 
         competitive employment.
 
         
 
              The record reflects that claimant was earning $11.32 per 
 
         hour when injured in December, 1982 (defendants' exhibit 4, page 
 
         45).  A series of collective bargaining contractual pay decreases 
 
         reduced claimant's rate of earnings to $8.91 per hour as of June 
 
         18, 1984 (defendants' exhibit 4, page 54).  Some contractual pay 
 
         increases had raised claimant's rate of earnings to $10.18 per 
 
         hour at the time of his retirement (defendants' exhibit 4, page 
 
         7).
 
         
 
              Claimant described his experiences when he attempted to 
 
         return to work.  He worked trimming fat from meat from August 2 
 
         until August 19, 1983 when he ceased because, as he stated, he 
 
         was hurting badly.  After going through the pain center course, 
 
         he returned to work in January, 1984 in a full-duty status on the 
 
         "fast and easy" bacon line where he worked until February 25, 
 
         1984.  He stated that he did so through use of a back brace,
 
         
 
         TENS unit and medication, but that he gradually worsened and was 
 
         taken off work again by Dr. Hayne.  On March 12, 1984 he returned 
 
         in a light-duty status on the "pick and fat" job where he worked 
 
         two weeks until laid off.  Claimant returned to work on May 30, 
 
         1984 in a light-duty status where he worked until July 11 or 12 
 
         when taken off by Dr. Gregory.  On October 29, 1984 he again 
 
         returned to light-duty work, four hours per day, in the "pick and 
 
         fat" job.  He testified that he handled it well and did not 
 
         reinjure himself.  After a visit with Dr. VanGilder on December 
 
         6, 1984, he changed to full-duty status until January 21, 1985 
 
         when Dr. VanGilder took him off work again.
 
         
 
              Claimant worked at the union hall from October 30 through 
 
         December 11, 1985 answering the phone, typing and filing for 
 
         approximately two or two and one-half hours per day.  He stated 
 
         that his condition gradually worsened and that he quit working at 
 
         the union hall with Dr. VanGilder's concurrence.  Claimant stated 
 
         that he has not sought work subsequently.
 
         
 
              Claimant testified that he would like to get his back cured 
 
         and get back to work in order to support his family.  He 
 

 
                        OLESON V. GEORGE A. HORMEL & COMPANY                             age   5
 
         currently takes prescription medication consisting of four or six 
 
         Darvons daily and occasionally uses prescription and 
 
         over-the-counter pain medications.  Claimant testified that he 
 
         becomes depressed and sometimes drinks alcoholic beverages.  He 
 
         stated that his alcohol consumption has increased since his 
 
         injury.  Claimant described a normal day as lying on the bed to 
 
         watch television.  He stated that he has experienced back spasms 
 
         on six or seven occasions with the last following an attempt to 
 
         use Windex to clean car windows.  He stated that when they 
 
         strike, his chest caves in, he can hardly breathe and he cannot 
 
         straighten up.
 
         
 
              Claimant testified that, when he left Hormel, he had a 
 
         little over ten years of seniority and that he has not applied 
 
         for any jobs since leaving Hormel.  He stated that, at the time 
 
         of injury, he was earning approximately $27,000 to $28,000 per 
 
         year.  He testified that his Hormel pension is offset by workers' 
 
         compensation.  Claimant testified that he would like to try to 
 
         return to work at Hormel, but is not optimistic about doing so.  
 
         He stated that his condition has not improved and is currently 
 
         about the same as it was in January, 1986, which is approximately 
 
         the time when he began receiving Social Security disability.
 
         
 
              On cross-examination, claimant related that he went to the 
 
         hospital emergency room on August 23, 1986 and has not seen a 
 
         physician since then.
 
         
 
         
 
                         APPLICABLE LAW AND ANALYSIS
 
         
 
              Since the occurrence of injury on December 13, 1982 which 
 
         arose out of and in course of employment has been stipulated, the 
 
         only issue to be resolved is the extent of permanent disability
 
         
 
         for which the stipulated injury is a proximate cause.
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of December 13, 1982 is causally 
 
         related to the disability on which he now bases his claim. Bodish 
 
         v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  Lindahl 
 
         v. L. 0. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A 
 
         possibility is insufficient; a probability is necessary. Burt v. 
 
         John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 
 
         (1955).  The question of causal connection is essentially within 
 
         the domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
         Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 

 
                        OLESON V. GEORGE A. HORMEL & COMPANY                             age   6
 
         
 
              Dr. VanGilder related claimant's spinal problems to the 
 
         injury.  Dr. Carlstrom, in his deposition, indicated that he 
 
         generally agreed with Dr. VanGilder's conclusions.  There is no 
 
         expert medical evidence in the record which indicates that 
 
         claimant's spinal condition is not related to the 1982 injury.  
 
         It is found that the 1982 injury is a substantial factor in 
 
         bringing about the disability which claimant currently 
 
         experiences in regard to his spine and that the injury is a 
 
         proximate cause of that disability.
 
         
 
              If claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
         593, 258 N.W. 8.99, 902 (1935) as follows: "It is therefore plain 
 
         that the legislature intended the term 'disability' to mean 
 
         'industrial disability' or loss of earning capacity and not a 
 
         mere 'functional disability' to be computed in the terms of 
 
         percentages of the total physical and mental ability of a normal 
 
         man
 
         
 
         
 
              Functional impairment is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted. Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 
 
         257 (1963).
 

 
                        OLESON V. GEORGE A. HORMEL & COMPANY                             age   7
 
         
 
              An odd-lot employee is one who an injury has made incapable 
 
         of obtaining employment in any well-known branch of the labor 
 
         market.  Such a worker is totally disabled if the only services 
 
         the worker can perform are so limited in quantity, quality or 
 
         dependability that a reasonably stable market for them does not 
 
         exist.  Guyton v. Irving Jensen Co., 373 N.W.2d 101 (Iowa 1985).
 
         
 
              This case is one that is replete with what appears to be 
 
         inconsistencies.  The psychologist, Van Owens, found claimant's 
 
         IQ test results to indicate a relatively low level of 
 
         intelligence, yet claimant went through high school and 
 
         successfully completed courses at the community college.  
 
         Claimant's trauma does not appear to have been particularly 
 
         severe, yet his physical ailment affected two levels of his 
 
         spine.  Claimant's symptoms are in excess of those that are 
 
         commonly seen following an injury and surgery of the type he has 
 
         undergone.  Claimant was able to work on the production line for 
 
         half days for a substantial period of time, but he was not able 
 
         to do light office work for an equal amount of time.  Claimant 
 
         and others have testified that he is highly motivated to return 
 
         to work, yet, exhibit 4 shows that, at the time of his last 
 
         attempt to work for Hormel in late 1984, he would have been 
 
         earning approximately $9.18 per hour which computes to gross 
 
         earnings before taxes of $367.20 for a 40-hour week.  At the same 
 
         time, his workers' compensation benefit, after taxes, is $321.00 
 
         per week, an amount that is certainly more than what the take 
 
         home wages from working would have been.  Exhibit 10 showed that 
 
         claimant's request for hearing on denial of his claim for Social 
 
         Security disability was filed on October 25, 1984.  The original 
 
         claim for disability insurance benefits was filed on October 31, 
 
         1983, a date approximately the same as the date when claimant 
 
         completed the Mercy Pain Center Clinic and Dr. Blessman indicated 
 
         that he expected claimant would return to work full duty, full 
 
         time.  From October of 1983 until January of 1986, claimant was 
 
         attempting to convince the Social Security Administration that he 
 
         was totally disabled.  Interestingly, the Social Security 
 
         disability decision found claimant's physical afflictions to not 
 
         be inherently disabling.  His disability was granted on the basis 
 
         that he was physically incapable of performing jobs that he had 
 
         previously held.  The Social Security determination appears to 
 
         have not considered claimant's clerical skills acquired from the 
 
         Army as a battalion clerk.  It did not consider claimant's 
 
         business management training because he had never worked in 
 
         business management.  Claimant testified regarding a desire to 
 
         return to work at Hormel, but he did not express any desire to 
 
         work elsewhere.
 
         
 
              When all the inconsistencies are considered, it is found 
 
         that claimant has failed to establish that his complaints and 
 
         abilities are more limited or restricted than the activity 
 
         restrictions imposed by Drs. Carlstrom and VanGilder.  The 
 
         activity restrictions and recommendations imposed by those 
 
         physicians are accepted as an accurate assessment of claimant's 
 
         physical capabilities.
 
         
 
              In accord with the Social Security determination, it is 
 
         found that claimant's physical ailments are not in and of 
 
         themselves totally disabling.  Both Drs. Carlstrom and VanGilder 
 

 
                        OLESON V. GEORGE A. HORMEL & COMPANY                             age   8
 
         have imposed activity restrictions which would be consistent with 
 
         claimant working in a clerical position similar to that he 
 
         performed in the Army.  His business management training should 
 
         be an additional asset to him in any such employment.  Although 
 
         claimant's verbal IQ test scores are relatively low, his 
 
         performance scores are well within the range of average.  The 
 
         physical restrictions imposed by the physicians, however, are 
 
         likely to exclude claimant from most of the relatively 
 
         high-paying manual labor jobs such as work at Hormel.  If he were 
 
         to return to work in a clerical position his rate of earnings 
 
         could probably be expected to be in the $4-$5 per hour range.  
 
         When all the applicable factors of industrial disability are 
 
         considered, it is determined that claimant has a 50% permanent 
 
         partial disability in industrial terms.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  On December 13, 1982 Wayne E. Oleson was a resident of 
 
         the state of Iowa employed at George A. Hormel & Company in 
 
         Ottumwa, Iowa.
 
         
 
              2.  On December 13, 1982 Oleson injured his back while 
 
         lifting a box of meat.
 
         
 
              3.  Following the injury, claimant was medically incapable 
 
         of performing work in employment substantially similar to that he 
 
         performed at the time of injury until September 15, 1984 when he 
 
         reached the point it was medically indicated that further 
 
         significant improvement from the injury was not anticipated.
 
              4.  Pursuant to the stipulation made by the parties, 
 
         claimant has been paid all temporary total or healing period 
 
         compensation to which he is entitled.  The parties further 
 
         stipulated that claimant has been paid 127.571 weeks of 
 
         compensation for permanent partial disability through February 
 
         25, 1987.  Based upon such stipulation, the healing period ended 
 
         September 15, 1984 and compensation for permanent partial 
 
         disability was due commencing September 16, 1984.
 
         
 
              5.  Wayne E. Oleson is a 34-year-old married man with two 
 
         dependent children.
 
         
 
              6.  Oleson is a high school graduate and has completed 
 
         college courses in management, retail marketing and criminal 
 
         justice.
 
         
 
              7.  Claimant has work experience outside the Hormel plant 
 
         selling shoes, working in a grocery store and working as a 
 
         battalion clerk in the army.  At the time of injury claimant was 
 
         earning $11.45 per hour.
 
         
 
              8.  Claimant's physical capabilities are in the range of the 
 
         limitations imposed by Drs. Carlstrom and VanGilder.
 
         
 
              9.  Claimant's credibility and motivation is compromised by 
 
         the inconsistencies previously noted in this decision, 
 
         particularly the difference between his own assessment of his 
 
         capabilities and that made by the physicians, the fact that he 
 
         had already applied for Social Security disability at the time 
 
         his attempts to return to work proved to be unsuccessful and the 
 

 
                        OLESON V. GEORGE A. HORMEL & COMPANY                             age   9
 
         fact that his income from disability is greater than the income 
 
         that could be expected if he were to perform clerical work.
 
         
 
              10.  There is no indication in the record that claimant is 
 
         incapable of performing clerical types of employment or of 
 
         successfully completing further advanced education which would 
 
         qualify him for sedentary employment.
 
         
 
              11.  Claimant's disability, when evaluated industrially, is 
 
         a 50% permanent partial disability.
 
         
 
              12.  Claimant failed to establish that the injury has made 
 
         him incapable of obtaining employment in any well-known branch of 
 
         the labor market or that the only services he can perform are so 
 
         limited in quantity, quality or dependability that a reasonably 
 
         stable market for them does not-exist.
 
         
 
              13.  Claimant's intelligence falls within the average 
 
         range.
 
         
 
                               CONCLUSIONS OF LAW
 
         
 
              1.  This agency has jurisdiction of the subject matter of 
 
         this proceeding and its parties.
 
         
 
              2.  The injury claimant sustained to his back on December 
 
         13, 1982 is a proximate cause of the disability with which he is 
 
         currently afflicted.
 
         
 
              3.  Claimant's disability is a 50% permanent partial 
 
         disability under the provisions of section 85.34(2)(u) which 
 
         provides him with a total entitlement of 250 weeks of 
 
         compensation at the stipulated rate of $321.18, and a remaining 
 
         balance of
 
         
 
              122.429 weeks after credit is given for the benefits 
 
         previously paid.
 
         
 
              4.  Claimant failed to make a prima facie showing of 
 
         permanent total disability.
 
         
 
                                    ORDER
 
         
 
              IT IS THEREFORE ORDERED that defendants pay claimant one 
 
         hundred twenty-two point four two nine (122.429) weeks of 
 
         compensation for permanent partial disability at the rate of 
 
         three hundred twenty-one and 18/100 dollars ($321.18) per week 
 
         commencing February 26, 1987.  Any amounts which are past due and 
 
         accrued shall be paid in a lump sum together with interest 
 
         pursuant to section 85.30.
 
         
 
              IT IS FURTHER ORDERED that costs of this proceeding are 
 
         assessed against defendants pursuant to Rule 343-4.33.
 
         
 
              IT IS FURTHER ORDERED that defendants file Claim Activity 
 
         Reports as requested by the division pursuant to Rule 343-3.1.
 
         
 
         
 
              Signed and filed this 31st day of August, 1987.
 

 
                        OLESON V. GEORGE A. HORMEL & COMPANY                             age  10
 
         
 
         
 
         
 
         
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
         Copies To:
 
         
 
         Mr. Roger Owens
 
         Attorney at Law
 
         840 Fifth Avenue
 
         Des Moines, Iowa 50309
 
         
 
         Mr. Walter F. Johnson
 
         Attorney at Law
 
         111 West second Street
 
         P.O. Box 716
 
         Ottumwa, Iowa 52501
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            1402.40, 1803
 
                                            Filed August 31, 1987
 
                                            MICHAEL G. TRIER
 
         
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         
 
         WAYNE E. OLESON,
 
         
 
               Claimant,
 
         
 
         VS.
 
                                                 File No. 721429
 
         GEO. A. HORMEL & COMPANY,
 
         
 
               Employer,
 
                                               A R B I T R A T I 0 N
 
         and
 
                                                 D E C I S I 0 N
 
         LIBERTY MUTUAL INSURANCE
 
         COMPANY,
 
         
 
               Insurance Carrier,
 
               Defendants.
 
         _________________________________________________________________
 
         
 
         
 
         1402.40, 1803
 
         
 
              Claimant's testimony was given less weight than that of the 
 
         medical experts in determining his physical capabilities.  His 
 
         clerical skills practiced while in the army were found to be a 
 
         sufficient basis for finding him to not be permanently and 
 
         totally disabled as he claimed.  The fact that his attempts to 
 
         return to work were unsuccessful was discounted since he was 
 
         seeking permanent total disability benefits from the Social 
 
         Security Administration at the time of the alleged attempts to 
 
         return to work.  His claimed inability to perform clerical work 
 
         was discounted in view of the fact that he had worked for a 
 
         substantial amount of time in the packing house itself.
 
         
 
              Nevertheless, claimant awarded permanent partial disability 
 
         of 50% where it appeared that his earning capacity had dropped 
 
         from the $10-$12 range at the packing house to clerical wages 
 
         which would probably be in the range of $5 per hour.