1402, 1803, 3800
 
                                                   Filed April 11, 1988
 
                                                   MICHAEL G. TRIER
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         KEN WATSON,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                    File No. 726062
 
         GETTY OIL COMPANY,
 
                                                 A R B I T R A T I 0 N
 
              Employer,
 
                                                    D E C I S I 0 N
 
         and
 
         
 
         TRAVELERS INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1402, 1803, 3800
 
         
 
              Claimant, a 46-year-old truck driver at the time of hearing, 
 
         injured his neck in 1983.  He then resumed employment with the 
 
         same employer without any loss of earnings until the employer's 
 
         business operations changed and claimant elected to terminate 
 
         employment with severance pay concurrent with a change in 
 
         ownership of the company.  He subsequently resumed truck driving, 
 
         but at reduced earnings.  It was found that the change in 
 
         employment was the primary factor in claimant's reduced earnings 
 
         rather than the physical ailments regarding his neck.  He was, 
 
         however, awarded five percent permanent partial disability.
 
         
 
              Interest was held to commence at the end of the healing 
 
         period, pursuant to Teel v. McCord.  It was held that, in the 
 
         event the employer sought to avoid prompt payment, it was 
 
         necessary to show that the fact of permanent disability could not 
 
         have been discovered through the exercise of reasonable diligence 
 
         and that the record in this case did not show reasonable 
 
         diligence to have been exercised, since defendants had not so 
 
         much as requested that the doctor state whether any permanency 
 
         had resulted.
 
 
 
         
 
 
            
 
 
 
 
 
 
 
           
 
                    
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         THOMAS E. BUSSEY,
 
         
 
              Claimant,                              File No. 726465
 
         
 
         vs.                                      A R B I T R A T I O N
 
         
 
         SATURN TOOL & DIE COMPANY,                  D E C I S I O N
 
         
 
              Employer,
 
                                                        F I L E D
 
         and
 
                                                       JAN 17 1990
 
         WEST BEND MUTUAL INSURANCE CO.
 
                                                   INDUSTRIAL SERVICES
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Thomas E. 
 
         Bussey, claimant, against Saturn Tool and Die Company, employer, 
 
         and West Bend Mutual Insurance Company, insurance carrier, for 
 
         benefits as the result of an alleged injury that occurred in 
 
         December 1982, according to the original notice and petition.  A 
 
         hearing was held in Des Moines, Iowa, on April 18, 1988, and the 
 
         case was fully submitted at the close of the hearing.  Claimant 
 
         was represented by Robert C. Andres.  Defendants were represented 
 
         by John Bickel and Kevin Collins.  The record consists of the 
 
         testimony of Thomas E. Bussey, claimant; Suzzann Bussey, 
 
         claimant's wife; Thomas J. Harrold, claimant's witness; Reverend 
 
         Miles M. Grismore, claimant's witness; Jack Hendershot, 
 
         defendants' witness; Jacques Benoit, employer; Dennis Riter, 
 
         employer; claimant's exhibits 1 through 14 and defendants' 
 
         exhibits A through H.  Claimant's exhibit 1 and defendants' 
 
         exhibit C, television video tapes, were placed in the custody of 
 
         claimant's counsel to be held in safekeeping until all appeal 
 
         periods have expired.   Defendants' exhibits G and H, each of 
 
         which is a heavy metal object, were placed in the custody of 
 
         defendants' counsel to be held in safekeeping until all appeal 
 
         periods have expired.  In addition, defendants' counsel was 
 
         ordered to photograph, describe, weigh and measure exhibits G and 
 
         H, substitute the photographs with a written description for each 
 
         of these two exhibits and furnish a copy of the photographs with 
 
         descriptions to opposing counsel and to the industrial 
 
         commissioner's file.  The deputy ordered a transcript of the 
 
         hearing.  Both attorneys submitted outstanding briefs.
 
         
 
                           PRELIMINARY MATTERS
 
         
 
              Defendants agreed to two extensions of the posthearing brief 
 
                                                
 
                                                         
 
         date, at claimant's request, but did not agree to claimant's third 
 
         request for an extension.  Claimant's brief is, nevertheless, 
 
         accepted and was considered in the determination of this case.  
 
         The reason for asking for briefs is to obtain input before making 
 
         a decision.  Defendants were not prejudiced even though claimant's 
 
         brief was later than the last agreed upon extension.
 
         
 
                                STIPULATIONS
 
         
 
              The parties stipulated to the following matters at the time 
 
         of the hearing:
 
         
 
              That an employer-employee relationship existed between 
 
         claimant and employer at the time of the injury.
 
         
 
              That the type of permanent disability, if the alleged injury 
 
         is found to be a cause of permanent disability, is industrial 
 
         disability to the body as a whole.
 
         
 
              That defendants make no claim for benefits paid prior to 
 
         hearing under an employee nonoccupational group health plan.
 
         
 
              That defendants are entitled to a credit for 4 4/7 weeks of 
 
         workers' compensation benefits paid prior to hearing at the rate 
 
         of $295.63 per week.
 
         
 
              That there are no bifurcated claims.
 
         
 
                                      ISSUES
 
         
 
              The parties submitted the following issues for determination 
 
         at the time of the hearing:
 
         
 
              Whether claimant sustained an injury in either September 
 
         1982 or December 1982, which arose out of and in the course of 
 
         employment with employer.
 
         
 
              Whether the alleged injury was the cause of either temporary 
 
         or permanent disability.
 
         
 
              Whether claimant is entitled to either temporary or 
 
         permanent disability benefits, and if so,.the nature and extent 
 
         of benefits to which he is entitled.
 
         
 
              What is the proper rate of compensation.
 
         
 
              Whether claimant is entitled to certain medical benefits.
 
         
 
                             SUMMARY OF THE EVIDENCE
 
         
 
              Claimant, born October 10, 1945, was approximately 37 years 
 
         old at the time of the injury and he was 42 years old at the time 
 
         of the hearing.  He is married and has four dependant children.  
 
         He graduated from high school in 1963.  He finished a tool and die 
 
         apprenticeship and became a journeyman tool and die maker in 1972. 
 
                                                
 
                                                         
 
         He has attended some night classes on general interest subjects 
 
         and has earned three college credits for a new teacher workshop.  
 
         He served four years in the navy from October 1963 to November 
 
         1967 as a machinists mate in the engine room and received an 
 
         honorable discharge.  He served in combat in Viet Nam and received 
 
         several awards and decorations for his service.  His first 
 
         employment after he left the navy was as an apprentice tool and 
 
         die maker and all of his past employments have been tool and die 
 
         work for a number of employers and he has worked for some of them 
 
         more than once.
 
         
 
              Claimant started working full time for employer in June of 
 
         1979.  He had worked there part-time before that because he had 
 
         become a friend of the two owner-employers who are partners, 
 
         Jacques (Benny) Benoit and Dennis Riter, while working in other 
 
         shops before they opened their own business.  Claimant denied any 
 
         prior injuries to his back, neck or shoulder, except one minor 
 
         injury to his low thoracic spine in 1977 or 1978 while working 
 
         for another employer.  On that occasion he saw the plant 
 
         physician and performed light duty for two days.  He lost no time 
 
         from work and was not paid workers' compensation benefits.  It 
 
         did not affect his ability to do his job after that.
 
         
 
              Claimant testified that he first started to experience pain 
 
         from his job at the end of September 1982, or the first part of 
 
         October, while working on a rotary table (transcript pages 69 & 
 
         70).  The work orders showed claimant had 94 1/2 hours on the 
 
         rotary table from August 25, 1982 until September 24, 1982 
 
         (exhibit 5, pages 1-5).  Claimant explained his injury was caused 
 
         by building fixtures out beyond the rotary table for long periods 
 
         of time (tr. p. 73).
 
         
 
              Claimant could not recall the dates, but stated that he 
 
         first experienced pain between his shoulder blades where his neck 
 
         starts and he fatigued easily while performing these job orders 
 
         and doing these operations.  He added,that he erroneously 
 
         testified in a deposition given in September of 1985 that the 
 
         injury occurred in December of 1982 (tr. pp. 81 & 82).
 
         
 
              A video tape was then shown by claimant of Thomas J. Harrold 
 
         milling on a rotary table (ex. 1).  Claimant related that pain 
 
         just appeared between his shoulder blades during the long tedious 
 
         process of standing there and cranking the table (tr. p. 86). 
 
         Claimant testified the video accurately depicted the job he was 
 
         doing and the amount of exertion performed when the injury 
 
         occurred (tr. p. 86).  These were rough cuts which required more 
 
         exertion and the use of both hands (tr. pp. 88 & 89).  It takes a 
 
         lot of pressure to turn the crank and push the drill (tr. pp. 90 
 
         & 91).  At first, claimant did nothing about it thinking it would 
 
         go away, but instead it got worse and worse (tr. p. 93).  
 
         Claimant estimated he reported the pain to his employers in 
 
         November and that he first sought treatment with O.D. Bacon, 
 
         D.C., on November 18, 1982, for pain in his upper shoulder from 
 
         working long hours (tr. pp. 91-97).
 
         
 
                                                
 
                                                         
 
              Dr. Bacon treated claimant on November 18, 1982, for aching 
 
         across his back and shoulder, stiff muscles, really sore this 
 
         week, some before.  On January 2, 1983, Dr. Bacon recorded 
 
         returned, lame, interscapular space and lower dorsal and lumbar 
 
         area.  In the course of claimant's treatment on four different 
 
         dates, November 18, 1982; December 1, 1982; December 6, 1982 and 
 
         January 3, 1983, Dr. Bacon manipulated his cervical, dorsal and 
 
         lumbar area (ex. 6).  Claimant identified the location of his 
 
         pain as D1, D2, D3 at the base of the neck between his shoulder 
 
         (tr. p. 99).
 
         
 
              Claimant discussed his problem with Riter in January of 
 
         1983. On Riter's recommendation, claimant saw Benjamin R. Walter, 
 
         D.C. Claimant testified that Riter had claimant complete a first 
 
         report of injury and told claimant to show the injury date as 
 
         December 1982.  Benoit suggested to claimant that he take a 
 
         couple of weeks off and get himself healed.  Claimant related 
 
         this to Dr. Walter and the doctor took him off work.  Also, at 
 
         Riter's suggestion, claimant saw his family physician, John W. 
 
         Keiser, M.D.
 
         
 
              Dr. Keiser reported he saw claimant on February 4, 1983 for 
 
         back complaints with a month's history after using the rotary 
 
         table.  Dr. Keiser noted that his posture demonstrated slumping 
 
         of the upper shoulders and neck.  Claimant was examined and 
 
 
 
                                
 
                                                         
 
         released without any medications prescribed (ex. 7, pp. 6- 8).  
 
         On a report, Dr. Keiser showed an injury date of "12-82" and 
 
         described, "Low back pain started after he had to use a rotary 
 
         table in part of his work, this necessitated alot [sic] of extra 
 
         turning with the arms.  [L]ow back pain, stiffness of the upper 
 
         shoulder girdle."  (ex. 7, p. 1).
 
         
 
              Dr. Walter's records show an injury date of "12-82" and 
 
         described, "pain between shoulders just gradually developed and 
 
         got worse especially while executing one particular job."  (ex. 
 
         8, p 1).  He diagnosed intervertebral neuritis.  He saw claimant 
 
         several times each month beginning on January 10, 1982 until 
 
         "patient discontinued treatment" on July 25, 1983.  He took 
 
         claimant off work on February 2, 1983, and returned him to work 
 
         on March 7, 1983, but continued to give treatments through July 
 
         25, 1983.  Dr. Walter said, "In my opinion the condition is a 
 
         result of his work.  There was a fixation of the second and third 
 
         dorsal vertebrae."  (ex. 8, p. 4).  On June 14, 1983, Dr. Walter 
 
         said, "I expect full, recovery and plan to release him very soon 
 
         if we get a favorable check on his next visit or two."  On the 
 
         same date he reported, "... an unrelated complaint of back pain 
 
         at this time which was caused by playing with his son."  (ex. 8, 
 
         p. 9).  He anticipated no permanent disability (ex. 8, pp. 13 & 
 
         14).  He checked a block on a medical form to indicate that work 
 
         exposure directly caused the disability (ex. 8, p. 2).  Claimant 
 
         said that when he returned to work on March 7, 1983, pursuant to 
 
         Dr. Walter's release, that he was terminated by employer.
 
         
 
              Claimant testified that when he did not get well under 
 
         chiropractic care he acceded to the insurance representative's 
 
         repeated requests to see an orthopedic surgeon, Martin F. Roach, 
 
         M.D.  (tr. p. 107).  Dr. Roach postponed his appointment for a 
 
         month and claimant wanted help so he went to see Dale G. Phelps, 
 
         M.D., another orthopedic surgeon, at the suggestion of Dr. Keiser 
 
         (tr. p. 108).
 
         
 
              Dr. Phelps examined claimant on August 10, 1983, and took 
 
         x-rays of the cervical and lumbar spine.  On July 17, 1984, Dr. 
 
         Phelps said, "By history it was felt that this probably was a 
 
         cervical strain which was definitely work related.  He also had a 
 
         lumbar disc syndrome which was not definitely work related."  
 
         (ex. 11, p. 3).
 
         
 
              On May 16, 1985, Dr. Phelps wrote to claimant's counsel, "I 
 
         have reviewed Mr. Bussey's Veterans Administration chart and I 
 
         feel that his surgical treatment was, in fact, for the same 
 
         problem which I was seeing him for which was neck and shoulder 
 
         pain, and which I felt was job related."  (ex. 11, p. 4).  On 
 
         August 12, 1985, Dr. Phelps wrote to claimant's counsel that he 
 
         saw claimant again that day and assessed a "... permanent 
 
         disability of approximately 20 percent of the whole body as he 
 
         has persistent pain, numbness and some weakness following the 
 
         anterior cervical fusion."  (ex. 11, p. 5).
 
         
 
              This entry appears in Dr. Phelps' office notes under the 
 
                                                
 
                                                         
 
         date September 3, 1985:
 
         
 
              Conference with Atty. Bickel.  Was shown a tape of the 
 
              rotary machine which Mr. Bussey was reported to be working 
 
              on when he injured himself.  This was major lifting.  He was 
 
              lifting about a 20-25 lb. piece of equipment to about 
 
              shoulder level and manipulating it.  This was not done 
 
              repetitively but once every four or five hours.  I did tell 
 
              the lawyer that I did not feel this was a probable cause of 
 
              this sort of disability but was a possible cause.
 
         
 
         (ex. 11, p. 12)
 
         
 
              Dr. Phelps' wrote this letter to defendants' counsel on 
 
         October 10, 1985:
 
         
 
              On 9-3-85 I reviewed a videotape showing the type of machine 
 
              Mr. Bussey was reportedly working on when he injured his 
 
              neck and arm.  This was not an extremely heavy piece of 
 
              equipment and did not require repetitive lifting.
 
         
 
              After viewing this film, with the film depicting the type of 
 
              work, I think that I could state with a fair degree of 
 
              medical certainty that this is an unlikely cause of the 
 
              patient's illness, that is, it is not a probable cause.  
 
              There is always a chance that this could be caused by such an 
 
              activity but it is unlikely.
 
         
 
         (ex. 11, p. 7)
 
         
 
              On April 2, 1987, Dr. Phelps wrote this letter to claimant's 
 
         counsel:
 
         
 
              On March 25, 1987, I viewed a videotape which according to 
 
              Mr. Bussey accurately reflected the work activities which he 
 
              was performing at the time he noticed onset of his symptoms. 
 
              It is my opinion that the work activities shown would be the 
 
              probable cause of pain and disability which led to Mr. 
 
              Bussey seeking my advice on August 10, 1983.  It also is the 
 
              reason why he sought further treatment including an anterior 
 
              cervical fusion on November 27, 1984.
 
         
 
         (ex. 11, p. 8)
 
         
 
              On July 10, 1987, Dr. Phelps wrote this letter to 
 
         defendants' counsel:
 
         
 
              In response to your letter dated June 30, 1987, if I assume 
 
              that Mr. Bussey first experienced pain in December 1982 and 
 
              assume that the work performed by Mr. Bussey on the rotary 
 
              table depicted on the video tape was performed more than 2 
 
              1/2 months prior to the onset of pain, furthermore, I assume 
 
              there was no pain experienced by Mr. Bussey from the date of 
 
              use of the rotary table in September until the onset of pain 
 
              in 1982, it would be my opinion that the neck and back pain 
 
                                                
 
                                                         
 
                   which Mr. Bussey complained of were probably unrelated to 
 
              the use of the rotary table.  That is to say, that Mr. 
 
              Bussey did not use the rotary table from that period 2 1/2 
 
              months prior until the onset of pain.
 
         
 
         (ex. 11, p. 9)
 
         
 
              Dr. Roach saw claimant on August 25, 1983 and gave this 
 
         history:
 
         
 
              He was working on a rotary table cranking it with his arms. 
 
              He indicates that the forces were quite large as the item 
 
              was being cut on the milling machine. Subsequent to that he 
 
              developed back pain starting in the interscapular region and 
 
              back of the neck and subsequently involving the lower lumbar 
 
              spine more on the right than on the left....Patient does not 
 
              have any significant neurologic complaints involving the 
 
              upper or lower extremities."
 
         
 
         (ex. 10, p. 2)
 
         
 
              Dr. Roach said claimant has high arches which may be causing 
 
         his lower back pain, but purchased well fitting high arched boots 
 
         to remedy this situation.  He said claimant was somewhat 
 
         overweight.  He gave this conclusion:
 
         
 
              IMPRESSION:  Residuals of mild dorsal scoliosis with 
 
              degenerative changes of the disc spaces mentioned including 
 
              D-8, 9, D-5, 6, D-4, 5 on the right side.  I would say this 
 
              process has probably been long standing, [sic] may have been 
 
              aggravated by the type of maneuver he was performing that 
 
              week in December....We addressed the question regarding 
 
              aggravating a pre-existing condition and that is probably 
 
              what the case is here regarding his dorsal spine.
 
         
 
         (ex. 10, p. 3)
 
         
 
              Dr. Roach suggested weight reduction, a good exercise 
 
         program and anti-inflammatory medication.  He also gave claimant 
 
         two prescriptions for physical therapy (ex. 10, pp. 3 & 4).  He 
 
         said claimant's healing had plateaued when he saw him and that he 
 
         anticipated no permanent disability as a result of this 
 
         aggravation (ex. E, p. 3).  Claimant contended that Dr. Roach 
 
         only spent 15 minutes with him and that he did not sign the 
 
         prescriptions for physical therapy.  Claimant said there was no 
 
         follow-up on Dr. Roach's instructions (tr. pp. 111-114).
 
         
 
              Dr. Roach examined claimant again on May 21, 1984 and found 
 
         he was essentially unchanged since his previous examination.  He 
 
         encouraged claimant to get his legal situation settled and to 
 
         consult the Veteran's Hospital with regard to his lower back 
 
         complaints.  He found no permanency.  His scoliosis is not work 
 
         related.  He indicated that his tests showed his condition was of 
 
         a nonorganic etiology (ex. E, pp. 5 & 6).
 
         
 
                                                
 
                                                         
 
              Claimant contended he was unable to work from March 1983 up 
 
         until he saw Dr. Roach on August 25, 1983, and that he received 
 
         no more medical treatment to enable him to return to work after 
 
         seeing Dr. Roach (tr. p. 114).  Claimant said the pain was not 
 
         always in the same place.  It moved up and down his spine. 
 
         Vibration like mowing the lawn would affect his upper back which 
 
         in a day or two would affect his lower back.  He said he could 
 
         not mow or rake the yard, but walked three miles at night for 
 
         exercise.  Claimant's attorney set up an appointment for him with 
 
         Arnold E. Delbridge, M.D., an orthopedic surgeon, on January 24, 
 
         1984.  Unemployment compensation had run out and Dr. Delbridge 
 
         signed a statement so he could get incapacitated parent payments 
 
         (tr. p. 117).
 
         
 
              Dr. Delbridge reported on the January 24, 1984 examination 
 
         on February 27, 1984.  He adopted the same history used by Dr. 
 
         Roach and Dr. Phelps of a December 1982 rotary table injury of 
 
         pain between his shoulder blades.  He said his x-rays and 
 
         findings were similar to Dr. Roach and Dr. Phelps except claimant 
 
         had some minor loss of motion in both the cervical and lumbar 
 
         spine which indicate a 6 percent impairment of the thoracolumbar 
 
         spine and also a 2 percent impairment of the whole man 
 
         considering the cervical area.  He suggested physical therapy 
 
         including a neuroprobe and possibly a trial of a TENS unit to 
 
         reduce his symptomology.  He said claimant's complaints were 
 
         consistent with his description of the December 1982 accident 
 
         (ex. 12, pp. 1-3).
 
         
 
              On November 4, 1985, Dr. Delbridge wrote to defendants' 
 
         counsel that the work on the rotary table would correlate with 
 
         claimant's mid and upper back complaints, but he did not think 
 
         they would be delayed a period of months.  He said, "Certainly 
 
         there could be a delay of a day or two or even a week or two 
 
 
 
                                
 
                                                         
 
         after the machine was utilized but certainly not a two or three 
 
         month delay."  (ex. 12, p. 4).
 
         
 
              On May 23, 1987, Dr. Delbridge wrote to claimant's counsel 
 
         that after seeing that Dr. Bacon treated claimant on November 18, 
 
         1982, brought the treatment closer to September 1982 and makes it 
 
         "... more likely, and even probable, that Mr. Bussey's injury was 
 
         due to his operation of the machine in question, in September of 
 
         1982."  (ex. 12, p. 5).
 
         
 
              Claimant said that neither Dr. Roach, Dr. Phelps or Dr. 
 
         Delbridge were allowed to provide treatment for him and his 
 
         condition continued to get worse, depression set it, and he was 
 
         without hope.  The insurance company had him see Dr. Roach again, 
 
         but he did not receive any treatment.  He had trouble with his 
 
         leg, his back and had difficulty either standing or sitting (tr. 
 
         pp. 118 & 119).  Claimant said he didn't think he could work, but 
 
         tried to find work anyway.  He received ADC and food stamps and 
 
         they subtracted his wife's part-time wages from the ADC.  He was 
 
         three years behind on his real estate taxes and six months behind 
 
         on his house payment and they were going to repossess his home. 
 
         Claimant said he was not physically able to do his own job 
 
         duties, but he would have done them anyway (tr. pp. 120 & 121).
 
         
 
              Next claimant went to the Veteran's Hospital where he gave 
 
         the same history of the rotary table and an onset of pain in 
 
         December of 1982.  They took a CAT scan, myelogram and an EMG.  
 
         The myelogram showed a problem at C5, C6; surgery was performed; 
 
         and he got relief from his symptoms.  Claimant denied that he had 
 
         been in any accidents or other situations that could have injured 
 
         his neck, shoulder or back after he left employer up to the time 
 
         of the surgery (tr. pp. 122-127).  Claimant returned to work in 
 
         March of 1985 making molds at $6 per hour and got raised to $8 per 
 
         hour.  He changed jobs in January 1986 to return to tool and die 
 
         making at $12 per hour and he kept that job until August of 1987.  
 
         He was able to perform these jobs except they made him tired and 
 
         he had some kinks in his back (tr. pp. 128-134).
 
         
 
              Claimant then took a job at Hawkeye Institute of Technology 
 
         as a tool and die instructor because it was less fatiguing and it 
 
         was an opportunity where he could use his brains rather than his 
 
         upper and lower back.  Claimant stated a number of times that he 
 
         would first feel pain in his upper back and in a few days it would 
 
         then be in his lower back.  He was earning $13.40 per hour when he 
 
         left his last tool and die maker job (tr. pp. 135 & 136).  
 
         Teaching pays less and is only for nine months.  He hopes to do 
 
         tool and die work in the summer and may return to it in the fall 
 
         (tr. pp. 137 & 138).
 
         
 
              Claimant was admitted to the Veteran's Administration 
 
         Hospital from October 31, 1984.to November 7, 1984 and again from 
 
         November 26, 1984 to December 5, 1984.  His diagnosis was 
 
         cervical spondlysis.  A cervical myelogram was performed on 
 
         November 2, 1984 and a thoracal lumbar myelogram was performed on 
 
         November 5, 1984 (ex. 14, pp. 1 & 11).  Patrick Hitchon, M.D., 
 
                                                
 
                                                         
 
         assisted by Marshall Poor, M.D., performed an anterior interbody 
 
         cervical fusion at C5, 6 on November 26, 1984.  The surgeon 
 
         commented that claimant's condition was of a chronic and 
 
         longstanding nature (ex. 14, pp. 11, 32, 33).  Dr. Hitchon 
 
         indicated claimant was able to return to work in March of 1986 
 
         (ex. 13, p. 1).  Neither Dr. Hitchon nor Dr. Poor commented on 
 
         causal connection of claimant's condition to his work (exs. 13, 
 
         p. 1; 14, p. 32).
 
         
 
              Joseph M. Doro, D.O., a neurosurgeon and an evaluator for 
 
         claimant, did not examine claimant personally, but only his 
 
         records, and wrote these conclusions to claimant's counsel on 
 
         November 3, 1987:
 
         
 
              I have reviewed the medical records regarding Thomas E. 
 
              Bussey.
 
         
 
              I have formed an opinion based upon a reasonable degree of 
 
              medical certainty regarding the need for the surgery that 
 
              Mr. Bussey underwent as well as for the resulting physical 
 
              impairment as set forth by Dr. Phelps.
 
         
 
              My opinion is based upon the assumption that his symptoms 
 
              arose during September of 1982 and had persisted to the 
 
              degree that it was necessary for him to be seen by Dr. Bacon 
 
              in November.
 
         
 
              I feel that Mr. Bussey's difficulties were due to his 
 
              activities of September, 1982 when his symptoms first 
 
              appeared.
 
         
 
         (ex. 13, p. 3)
 
         
 
              Dr. Doro then wrote to defendants' counsel on February 2, 
 
         1988:
 
         
 
              This is in regards to your letter of January 26, 1988 
 
              regarding Thomas E. Bussey.  As you remember, as you 
 
              indicated in your letter, I previously rendered an opinion 
 
              regarding Mr. Bussey with the assumption that his symptoms 
 
              arose during September of 1982.
 
         
 
              At this time, you are asking me to assume a different date 
 
              of onset of his symptoms in rendering an opinion.
 
         
 
              Based upon a scenario in which his symptoms began during the 
 
              week of November 8, 1982, approximately seven weeks after 
 
              the last time he worked on the rotary table, my opinion, 
 
              based upon a reasonable degree of medical certainty, would 
 
              be that his pain was not due to his working on the table.
 
         
 
              Again, I need to emphasize that this is an assumption based 
 
              upon his symptoms having developed in November.  Before, as 
 
              you know, I have assumed that his symptoms had developed in 
 
              September of 1982.
 
                                                
 
                                                         
 
         
 
         (ex. 13, p. 4)
 
         
 
              Claimant's direct testimony concluded as follows:
 
         
 
              Q.  Dr. Phelps in his July 10, 1987, medical report 
 
              indicated that --
 
         
 
              ***
 
         
 
              Q.  -- indicated that your neck and back pain were probably 
 
              unrelated to the use of the rotary table if you did not use 
 
              the rotary table from that period two-and-a-half months 
 
              until the onset of pain.  Was it two-and-a-half months 
 
              before you had an onset of pain?
 
         
 
              A.  No.
 
         
 
              Q.  When was your onset of pain?
 
         
 
              A.  During the time I used the rotary table.  I didn't 
 
              recognize it as pain.  I recognized it as stiffness of 
 
              muscle.  The pain didn't come, I mean actual per se pain. 
 
              General weakness.  I could not lift a gallon of milk to pour 
 
              it at the table so I would prop my arm up on it.  The 
 
              general pain per se didn't happen until December, late 
 
              November, early December, if you're talking about physical 
 
              pain.
 
         
 
         (tr. pp. 140 & 141)
 
         
 
              Claimant conceded that he completed the portion of the first 
 
         report of injury which shows that the injury date was December 
 
         1982.  He said it is his handwriting which states employer first 
 
         knew of the condition "right away". (tr. pp. 143 & 144).  
 
         Claimant granted that when he saw his family physician, Dr. 
 
         Keiser, in February 1983, that he told Dr. Keiser that he hurt 
 
         his back about a month ago and that could mean December of 1982 
 
         and that Dr. Keiser also shows December 1982 as an injury date 
 
         (tr. pp. 145-151).  Claimant agreed that he told Dr. Walter that 
 
         he was injured in December 1982 (tr. pp. 151 & 152).  Claimant 
 
         acknowledged that in his deposition that he said the injury 
 
         occurred in December 1982 (tr. pp. 158 & 159).  Claimant said he 
 
         did not recall the date he first experienced pain, but he recalls 
 
         it by what job he was doing at the time it occurred (tr. p. 
 
         161).
 
         
 
              Claimant agreed that he collected unemployment compensation 
 
         after he was laid off in March 1983 until February 1984 and that 
 
         in order to do so he represented that he was able and available 
 
         for work (tr. pp. 168 & 189).  Claimant admitted that he snow 
 
         skied after the onset of shoulder pain in the winter of 1982-83 
 
         (tr. pp. 169 & 190).  Claimant admitted that his first job after 
 
         his surgery was more physical than the one he performed for 
 
         employer and that he lost no time from work on account of it (tr. 
 
                                                
 
                                                         
 
         pp. 170 & 171).  Claimant again said that working on the rotary 
 
         table was the job where he experienced trouble and that all of 
 
         his time during that period was not spent on the rotary table 
 
         (tr. pp. 178 & 179).
 
         
 
              Claimant said he got a lawyer when his workers' compensation 
 
         check in March was marked final and he was released by Dr. Walter 
 
         to return to work (tr. p. 182).  Claimant said that when the 
 
         doctors asked him when he felt discomfort he related it to when 
 
         he was running the rotary table (tr. p. 185).  Claimant admitted 
 
         that he made about 15 picture frames while he was off work and it 
 
         bothered his shoulder, but he could walk away from it when it 
 
         hurt (tr. pp. 170 & 190).
 
         
 
              Suzzann Bussey testified that claimant had always been 
 
         healthy.  In the fall of 1982, his neck and shoulder hurt.  She 
 
         did not recall the precise date or any specific event.  She 
 
         estimated it was four to six weeks before he saw Dr. Bacon.  It 
 
         was continuous from the time it started until the surgery.  She 
 
         took employment in December 1983 part-time as a secretary.  She 
 
         said her husband became very depressed and Dr. Keiser suggested 
 
         psychiatric treatment, but instead claimant went to the VA 
 
         hospital.  His recovery from the surgery was very difficult and 
 
         beginning work again was exhausting for him.  Claimant no longer 
 
         blows snow, mows or rakes the yard because vibrations are too 
 
         hard on his body.  He told her his pain started while working on 
 
         the rotary table.  She had no explanation why the doctor's notes 
 
         did not mention claimant's back and neck pain when Dr. Keiser saw 
 
         claimant different times in 1983 and 1984.
 
         
 
              Thomas Harrold testified he is a machinist who worked with 
 
         claimant after the surgery.  Claimant was slow when he started, 
 
         but improved greatly as he went along.  He was the machine 
 
 
 
                                
 
                                                         
 
         operator in claimant's video (ex. 1).  It was a large cut and it 
 
         took a good amount of pull to drill that.  It was a strain.  He 
 
         indicated there are several ways to do this job.  The 
 
         demonstrated way is not necessarily the most efficient way.  It 
 
         is the method one might use to do the job quickly.  Harrold 
 
         watched defendants' video, exhibit C.  A different machine was 
 
         used and a different method of doing the same jobs.
 
         
 
              Miles Grismore testified he is claimant's pastor. He is 
 
         aware claimant had a general back problem and later developed 
 
         financial problems.  He seemed better after the surgery, but not 
 
         as good as he was before the injury.
 
         
 
              Jack Hendershot, operator of H & H Tool and Die, hired 
 
         claimant to perform tool and die work in January 1986 without any 
 
         restrictions or limitations due to a neck or back problem.  He 
 
         never learned of any back problems while claimant worked for him. 
 
         Later he heard he had a back problem.  Claimant was punctual for 
 
         work and lost less time than the average employee.
 
         
 
              Jacques (Ben, Benny) Benoit testified that he is one of the 
 
         owners of employer business.  He was a personal friend of 
 
         claimant and knew him socially.  He never placed any time 
 
         constraints on claimant, but it is understood that a job is to be 
 
         done as quickly as possible.  The year 1982 was a bad year.  He 
 
         indicated claimant should have used a saw or a milling machine 
 
         instead of making such a large cut.  He testified that all of the 
 
         rotary table work was done in September 1982.
 
         
 
              Benoit said claimant was not rehired in March 1983 because 
 
         he did not get along with other employees, he was careless with 
 
         equipment and due to poor workmanship some of his work had to be 
 
         redone.  Claimant also had emotional problems that he refused to 
 
         discuss.
 
         
 
              In September 1982, claimant did not say he was hurt.  The 
 
         witness first learned that claimant's back was hurting in 
 
         December 1982 and that it was possibly due to running the rotary 
 
         table. Benoit said that claimant's attitude became bad about a 
 
         year before December 1982 and he also noticed it at the time of a 
 
         wage cut on July 1, 1982.  When claimant said his back was sore, 
 
         Benoit said that he did not discuss it with him or ask him any 
 
         questions on when or how it may have happened.
 
         
 
              Dave Riter is the other co-owner of the employer's business. 
 
         They have eight employees.  He and Benoit.had known claimant for 
 
         several years and they had all been coemployees at a number of 
 
         other tool and die companies.  Claimant started to work for 
 
         employer in 1979.  He was their first employee.  He observed 
 
         claimant's video and he felt the job was not being done the most 
 
         efficient way and he thought there was a certain amount of acting 
 
         to show how tough it was.  He also stated that in his opinion 
 
         claimant was careless with equipment.  He recalled that claimant 
 
         complained about his back and Riter recommended Dr. Walter and 
 
         instructed claimant to make a first report of injury.  He 
 
                                                
 
                                                         
 
         indicated claimant was not rehired in March 1983 because other 
 
         employees complained of having personal difficulties with 
 
         claimant.  Claimant did not report an accident.  He felt the 
 
         problem came on gradually.  He could not remember whether 
 
         claimant related it to work or otherwise.  He thought claimant's 
 
         video was exaggerated.  He agreed that the operation claimant was 
 
         performing could strain the body.
 
         
 
              Claimant agreed that the Veteran's Hospital examined and 
 
         treated his lower back as well as his upper back.  Claimant said 
 
         that his problems occurred while working on the balance fixture 
 
         job for John Deere and three separate jobs for Walker 
 
         Manufacturing (tr. p. 345; exs. 5 & B).  He said he has 
 
         consistently complained to all physicians that he had pain 
 
         between his shoulder, weakness in his arms, and that if, "...I 
 
         exaggerate the upper, my lower back starts giving me trouble..." 
 
         (tr. p. 346).
 
         
 
              Claimant replied that he used the rotary table because one 
 
         of the parts called for a shoulder and another part called for a 
 
         dish.  He said defendants' video used a heavier machine, more 
 
         solid, that has double locks on it and the knees are bigger.  It 
 
         was not representative of what he was doing when his trouble 
 
         began.  He did not think defendants' video took an actual cut 
 
         because no chips flew off when they did it (tr. pp. 354 & 355).
 
         
 
              Benoit testified that both machines were substantially the 
 
         same (tr. pp. 360 & 361).
 
         
 
              Defendants contend that if claimant was entitled to assert a 
 
         September 1982 injury date, just prior to hearing, then they were 
 
         entitled to assert an Iowa Code section 85.23 defense.
 
         
 
                          APPLICABLE LAW AND ANALYSIS
 
         
 
              An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
         employment.  Section 85.3(1).
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received an injury in September 1982 or December 
 
         1982, which arose out of and in the course of his employment. 
 
         McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); 
 
         Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 
 
         (1967).
 
         
 
              The injury must both arise out.of and be in the course of 
 
         the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 
 
         402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the 
 
         Iowa Report.  See also Sister Mary Benedict v. St. Mary's Corp., 
 
         255 Iowa 847, 124 N.W.2d 548 (1963) and Hansen v. State of Iowa, 
 
         249 Iowa 1147, 91 N.W.2d 555 (1958).
 
         
 
              Claimant did not sustain the burden of proof by a 
 
         preponderance of the evidence that he sustained an injury which 
 
                                                
 
                                                         
 
         arose out of and in the course of his employment in either 
 
         September 1982 or December 1982.  The petition alleged December 
 
         1982.  At hearing, claimant repeatedly testified that his problem 
 
         arose while working on the rotary table.  He related that he 
 
         worked on the rotary table when he performed the John Deere job 
 
         on balance fixture and the three jobs for Walker Manufacturing.  
 
         Both claimant's evidence (ex. 5) and defendants, evidence (exs. A 
 
         & B), the job work orders, show that claimant worked on these 
 
         jobs between August 25, 1982 (exs. 5, p. 1; A, p. 1; B-1, p. 1) 
 
         and September 24, 1982 (exs. 5, p. 4; A, p. 10; B-3, p. 1).  
 
         Claimant reported to all of the physicians that the injury 
 
         occurred in December 1982, but at hearing he clarified that he 
 
         first noticed difficulty while working on the rotary table, which 
 
         was between August 25, 1982 and September 24, 1982.  Claimant's 
 
         testimony clearly presents a dilemma.  Claimant resolved this 
 
         dilemma at hearing by testifying that he had stiffness and 
 
         weakness when he worked on the rotary table, but, "The pain 
 
         didn't come, I mean the actual per se pain...  The general pain 
 
         per se didn't happen until December, late November, early 
 
         December, if you're talking about physical pain."  (tr. pp. 140, 
 
         141).
 
         
 
              Claimant's explanation is accepted.  He experienced 
 
         stiffness and weakness in September, but he experienced actual 
 
         pain in December.  Dr. Phelps, who was claimant's own choice of 
 
         physician through his family physician Dr. Keiser, stated in the 
 
         last report on July 10, 1987, that if the pain occurred two and 
 
         one-half months after he used the rotary table, then it was 
 
         unrelated to the use of the rotary table.  (ex. 11, p. 9).
 
         
 
              Dr. Delbridge, who is also claimant's choice of physician at 
 
         his attorney's request, said on November 4, 1985 that a delay of 
 
         a day or two or a week or two was acceptable, but not a two or 
 
         three month delay (ex. 12, p. 4).  Later, on May 23, 1987, Dr. 
 
         Delbridge said that since Dr. Bacon treated claimant on November 
 
         1982, that brought the treatment closer to September 1982 and, 
 
         "... makes it much more likely, and even probable, that Mr. 
 
         Bussey's injury was due to his operation of the machine in 
 
         question, in September of 1982."  (ex. 12, p. 5).  However, Dr. 
 
         Delbridge's last opinion must be discounted because claimant did 
 
         not report a job related problem to Dr. Bacon.  Dr. Bacon said 
 
         claimant's condition was the common among working people, but 
 
         indicated that claimant did not say it was work related or he 
 
         would have made a,record of it. Furthermore, the treatments 
 
         administered to claimant by Dr. Bacon were not limited to the 
 
         area between his shoulder blades, but rather included his 
 
         cervical, thoracic and lumbar spine (ex. 6). Furthermore, Dr. 
 
         Delbridge's reports contradict each other (ex. 12, pp. 4 & 5).
 
         
 
              Claimant reported to Dr. Keiser, his personal physician, on 
 
         February 4, 1983, that he had back pain of one month's duration 
 
         from working on the rotary table (ex. 7).  This is an 
 
         irreconcilable dilemma again.  The hearing testimony of claimant 
 
         was that the actual pain occurred in December 1982 (tr. pp. 140 & 
 
         141).  Dr. Doro, after examining all the records, assumed that 
 
                                                
 
                                                         
 
         claimant had continuing pain from September 1982 until he saw Dr. 
 
         Bacon and concluded his work was the cause of his surgery.and 
 
         physical impairment.  However, he retracted this later and said 
 
         that if claimant experienced his pain symptoms in November 1982, 
 
         then it was not due to working on the rotary table (ex. 13, pp. 3 
 
         & 4).
 
         
 
              Dr. Roach found that claimant had dorsal scoliosis and 
 
         degenerative disc changes.  He suggested there may have been a 
 
         temporary aggravation of a preexisting condition, but Dr. Roach 
 
         was working on the incorrect premise that claimant was working on 
 
         the milling machine (rotary table) in December 1982.  He examined 
 
         claimant on two different occasions and found no permanent 
 
         injury. He said his tests showed claimant's condition was of a 
 
         nonorganic etiology and suggested that he get his legal situation 
 
         settled (ex. 11, p. 3; ex. E, pp. 5 & 6).  Dr. Roach's testimony 
 
         did not prove that claimant sustained a work-related injury from 
 
         the rotary table because claimant had not worked on the rotary 
 
         table since September 24, 1982.
 
         
 
              Dr. Poor and Dr. Hitchon, who treated claimant at the 
 
         Veteran's Hospital and performed surgery, did not give any 
 
         testimony on whether claimant sustained a work injury.  On the 
 
         contrary, their comments in the written material that they 
 
         dictated indicated claimant's condition was long-standing and 
 
         chronic.  (ex. 13, p. 32).
 
         
 
              Dr. Walter first saw claimant on January 10, 1983 for pain 
 
         between the shoulders while "executing one particular job" (ex. 
 
         8, p. 1).  Dr. Walter was the first physician to record that 
 
         claimant attributed his back problem to work.  Claimant said the 
 
         rotary table was the job that caused his injury, however, he last 
 
         worked on the rotary table on September 24, 1982., some three 
 
 
 
                          
 
                                                         
 
         months earlier.  The fact that claimant received workers' 
 
         compensation benefits for the period of time he saw Dr. Walter in 
 
         February and March 1983, "does not constitute an admission of 
 
         liability" Iowa Code section 86.13, first unnumbered paragraph.
 
         
 
              Therefore, after reviewing the evidence from Dr. Bacon, Dr. 
 
         Walter, Dr. Keiser, Dr. Phelps, Dr. Roach, Dr. Delbridge, Dr. 
 
         Poor, Dr. Hitchon, and Dr. Doro, no evidence can be found to 
 
         sustain the fact that claimant sustained an injury at work in 
 
         either September 1982 or December 1982.  There is much evidence 
 
         that claimant's problem is degenerative.  Dr. Keiser said 
 
         claimant demonstrated posture of slumping of the upper shoulders 
 
         and neck. In addition to kyphosis, Dr. Roach recorded thoracic 
 
         scoliosis, overweight and high arches.  Dr. Poor and Dr. Hitchon 
 
         described chronic and long-standing back problems in both the 
 
         cervical and lumbar areas.  Claimant still suffers with untreated 
 
         lumbar disc problems not related to this injury.  Degenerative 
 
         problems have been discussed and treated at all levels of his 
 
         spine by the various doctors.  Claimant testified that the pain 
 
         moved up and down his spine.  He said several times that if his 
 
         upper back was aggravated, that it moved to his lower back a few 
 
         days later. Vibrating from the mower and snow blower aggravates 
 
         his back and prevents him from using them.
 
         
 
              Since claimant did not sustain the burden of proof by a 
 
         preponderance of the evidence an injury in either September 1982 
 
         or December 1982, then all other issues such as causal connection 
 
         of the injury to disability, entitlement to temporary and 
 
         permanent disability benefits, entitlement to medical expenses, 
 
         the proper rate of compensation and whether claimant gave proper 
 
         notice as required by Iowa Code section 85.23 are moot.
 
         
 
                              FINDINGS OF FACT
 
         
 
              Wherefore, based upon the evidence presented, the following 
 
         findings of fact are made:
 
         
 
              That claimant testified that he sustained an injury while 
 
         working on the rotary table.
 
         
 
              That the work orders showed claimant worked on the rotary 
 
         table from August 25, 1982 through September 24, 1982.
 
         
 
              That claimant testified that he first experienced actual 
 
         pain in December 1982.
 
         
 
              That Dr. Phelps and Dr. Doro testified that if he worked on 
 
         the rotary table in September 1982 and he first experienced pain 
 
         in December 1982, that his pain was not caused by work on the 
 
         rotary table.
 
         
 
              That Dr. Bacon, who saw claimant on November 18, 1982 and 
 
         subsequently treated his entire spinal column, did not make any 
 
         note of the fact that claimant reported a work injury.
 
         
 
                                                
 
                                                         
 
              That Dr. Walter, who thought claimant had sustained a work 
 
         injury, was not aware of the fact that claimant had worked on the 
 
         rotary table some three months before the onset of actual pain.
 
         
 
              That Dr. Delbridge's opinion must be discounted because he 
 
         did not know that claimant did not report a work injury to Dr. 
 
         Bacon.  Therefore, Dr. Delbridge's last opinion (1) proceeds on a 
 
         false premise and (2) contradicts his earlier opinion, that a 
 
         delay of a day or two or even a week or two was reasonable, but 
 
         certainly not a two or three month delay.
 
         
 
              That Dr. Poor and Dr. Hitchon, the operating surgeons, did 
 
         not give an opinion on causal connection between claimant's 
 
         employment and the injury.
 
         
 
              That there is evidence of kyphosis, scoliosis and 
 
         degenerative disc disease at all levels of claimant's spine that 
 
         is chronic and long-standing.
 
         
 
              That there is evidence of overweight, high arches and 
 
         symptoms of generalized degenerative spine disease.
 
         
 
              That claimant did not sustain an injury in September 1982 or 
 
         December 1982 which arose out of and in the course of claimant's 
 
         employment with employer.
 
         
 
                              CONCLUSIONS OF LAW
 
         
 
              Wherefore, based on the evidence presented and the foregoing 
 
         principles of law, the following conclusions of law are made:
 
         
 
              That claimant did not sustain the burden of proof by a 
 
         preponderance of the evidence that he sustained an injury in 
 
         either September 1982 or December 1982, which arose out of and in 
 
         the course of employment with employer.
 
         
 
              That all other legal issues are moot in view of the 
 
         foregoing findings of fact and conclusions of law.
 
         
 
                                   ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              That no amounts are owed by defendants to claimant.
 
         
 
              That the costs of this action are taxed to claimant, except 
 
         the cost of the transcript, which is taxed to defendants pursuant 
 
         to Division of Industrial Services Rule 343-4.33.
 
         
 
              That defendants are to photograph, weigh, measure and 
 
         describe exhibits G and H, as they were ordered to do at the time 
 
         of hearing, but failed to do since the hearing, and submit copies 
 
         of the photographs, descriptions, weights, and measurements of 
 
         exhibits G and H to claimant and to the industrial commissioner's 
 
         file.
 
                                                
 
                                                         
 
         
 
              That defendants respond to the requests of this agency for 
 
         claim activity reports pursuant to Division of Industrial 
 
         Services Rule 343-3.1.
 
         
 
         
 
              Signed and filed this 17th day of January, 1990.
 
         
 
         
 
         
 
         
 
                                       WALTER R. McMANUS, JR.
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Robert Andres
 
         Attorney at Law
 
         616 Lafayette St
 
         Waterloo, IA  50704
 
         
 
         Mr. John Bickel
 
         Mr. Kevin Collins
 
         Attorneys at Law
 
         500 Merchants National Bank Bldg
 
         Cedar Rapids, IA  52406
 
         
 
 
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                       51106; 51108.50; 51400; 51402.20; 
 
                                       51402.30; 51402.40; 51402.60; 52206 
 
                                       52209 
 
                                       Filed January 17, 1990
 
                                       Walter R. McManus, Jr.
 
         
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         THOMAS E. BUSSEY,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                 File No. 726465
 
         SATURN TOOL & DIE COMPANY,
 
                                              A R B I T R A T I 0 N
 
              Employer,
 
                                                 D E C I S I 0  N
 
         and
 
         
 
         WEST BEND MUTUAL INSURANCE CO.
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         51106; 51108.50; 51400; 51402.20; 51402.30; 51402.40; 51402.60; 
 
         52206; 52209
 
         
 
              Claimant did not sustain the burden of proof by a 
 
         preponderance of the evidence that he sustained an injury that 
 
         arose out of and in the course of employment with employer in 
 
         either September of 1982 or December of 1982.  Claimant told most 
 
         of the doctors (8 of them) that his injury occurred in December 
 
         of 1982.  He testified he could not recall the date of the 
 
         injury, but it occurred when he worked on the rotary table.  
 
         Employer's records showed that claimant worked on the rotary 
 
         table from August 25, 1982 until September 24, 1982.  Each 
 
         doctor's testimony was summarized and discussed and it was 
 
         demonstrated that no doctor could be found out of eight of them 
 
         who supported the fact that claimant sustained a job-related 
 
         injury in either September 1982 or December 1982.  There was 
 
         evidence that claimant had kyphosis, dorsal scoliosis, 
 
         degenerative disc disease at all levels of his spine, high arches 
 
         for which he was prescribed special boots, nonorganic etiology 
 
         for his symptoms and that he was overweight.
 
         
 
         
 
         
 
 
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DANIEL W. TUTOR,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                  FILE NO. 727100
 
         COOPER PLUMBING,
 
                                              A R B I T R A T I 0 N
 
              Employer,
 
                                                  D E C I S I 0 N
 
         and
 
         
 
         STATE FARM INSURANCE,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Daniel W. 
 
         Tutor, claimant, against Cooper Plumbing, employer (hereinafter 
 
         referred to as Cooper), and State Farm Insurance Company, 
 
         insurance carrier, for workers compensation benefits as a result 
 
         of an alleged injury on February 21, 1983.  On December 28, 1987, 
 
         a hearing was held on claimant's petition and the matter was 
 
         considered fully submitted at the close of this hearing.
 
         
 
              The parties have submitted a prehearing report of contested 
 
         issues and stipulations which was approved and accepted as a part 
 
         of the record of this case at the time of hearing.  Oral 
 
         testimony was received during the hearing only from claimant.  
 
         The exhibits received into the evidence at the hearing are listed 
 
         in the prehearing report.  According to the prehearing report, 
 
         the parties have stipulated to the following matters:
 
         
 
              1.  On February 21, 1983, claimant received an injury which 
 
         arose out of and in the course of employment with Cooper.
 
         
 
              2.  Claimant's rate of weekly compensation in the event of 
 
         an award of weekly benefits from this proceeding shall be $226.80 
 
         per week.
 
         
 
              3.  Claimant is entitled to healing period benefits from 
 
         February 21, 1983 through November 2, 1983.
 
         
 
              4.  The alleged injury was a cause of permanent disability.
 
              5.  The type of disability is an industrial disability to 
 
         the body as a whole.
 
         
 
              6.  Permanent disability benefits shall begin as of 
 
         November 2, 1983.
 

 
         
 
         
 
         
 
         TUTOR V. COOPER PLUMBING
 
         Page   2
 
         
 
         
 
         
 
              7.  All requested medical benefits have been or will be 
 
         paid by defendants.
 
         
 
         ISSUE
 
         
 
              The only issue submitted by the parties for determination in 
 
         this proceeding is the extent of claimant's entitlement to weekly 
 
         benefits for permanent disability.
 
         
 
                             SUMMARY OF THE EVIDENCE
 
         
 
              The following is a summary of evidence presented in this 
 
         case.  For the sake of brevity, only the evidence most pertinent 
 
         to this decision is discussed.  Whether or not specifically 
 
         referred to in this summary, all of the evidence received at the 
 
         hearing was considered in arriving at this decision.  As will be 
 
         the case in any attempted summarization, conclusions about what 
 
         the evidence offered may show are inevitable.  Such conclusions, 
 
         if any, in the following summary should be considered as 
 
         preliminary findings of fact.
 
         
 
              The claimant is 42 years of age with a high school 
 
         education.  His work history was not in dispute at the hearing.  
 
         Claimant testified he has been employed in the plumbing trade all 
 
         of his adult life.  Following graduation from high school, 
 
         claimant completed a five year plumbing apprenticeship program 
 
         and became a journeyman plumber in 1969.  He eventually became a 
 
         master plumber and currently holds a journeyman and master 
 
         certificate or license issued by the City of Des Moines, Iowa.  
 
         Claimant initially worked for Reliable Plumbing until 1971 when 
 
         he was injured at Reliable while attempting to lift a jackhammer.  
 
         Claimant testified that he did not return to Reliable after his 
 
         recovery from the work injury and began working for Cooper.  
 
         Claimant remained at Cooper until the alleged work injury in this 
 
         case.  Claimant said that his work at Reliable was much easier 
 
         than his work at Cooper because he was always assisted by a 
 
         plumber's helper at Reliable and the work for Reliable usually 
 
         involved new residential construction rather than remodeling work 
 
         which is primarily the work he performed at Cooper.  Claimant 
 
         explained that new construction was less strenuous than 
 
         remodeling work because of the type of materials involved and the 
 
         much heavier tools needed for remodeling.  However, claimant 
 
         stated that his prior plumbing work before the 1983 injury 
 
         involved all aspects of plumbing from rough to finish work 
 
         including extensive digging and "busting" of concrete material.  
 
         Such work did require claimant to perform heavy lifting and 
 
         frequent climbing, reaching and bending.  Claimant testified at 
 
         the time of the 1983 injury at Cooper, his gross weekly earnings 
 
         was $350.00 per week plus a commission "now and then.O
 
         
 
              The work injury while working for Reliable in 1971 resulted 
 
         in "laminectomy" back surgery.  Claimant testified that he fully 
 
         recovered from this surgery and returned to work as a journeyman 
 
         plumber for Cooper which he said, as stated above, was much more 
 
         physically demanding work.  Claimant stated that he actually was 
 
         surprised how well he did after the 1971 surgery.  Claimant said 
 
         that he worked for Cooper full time for 11 years without back 
 
         problems.
 

 
         
 
         
 
         
 
         TUTOR V. COOPER PLUMBING
 
         Page   3
 
         
 
         
 
         
 
              The facts surrounding the work injury in this case were 
 
         again not in dispute.  Claimant testified that on February 21, 
 
         1983, he and his helper were attempting to carry a heavy shower 
 
         base unit at a Cooper construction site and the helper allowed 
 
         the full weight of the unit to drop on claimant's back.  Claimant 
 
         said that he immediately sought treatment for a low back pain 
 
         radiating into the left leg from John T. Bakody, M.D., a 
 
         neurosurgeon.  After a myelography test revealed a herniated disc 
 
         and the necessity of further surgery on claimant's back, claimant 
 
         underwent a second lumbar laminectomy on March 2, 1983.  However, 
 
         claimant testified that this time he did not fully recover after 
 
         this surgery.  Claimant was released to return to work in 
 
         November, 1983.  Despite this release, Dr. Bakody recommended 
 
         that claimant restrict the use of his back.
 
         
 
              After his release to return to work, claimant could not 
 
         return to the employ of Cooper as Cooper had sold his business 
 
         during claimant's absence.  Claimant stated that he worked 
 
         approximately two months for the new owner but was not able to 
 
         actually perform plumbing work due to lingering back problems.  
 
         Claimant said that the new owner only hired him because he needed 
 
         claimant's master's certificate to work on Des Moines 
 
         construction projects.  Claimant apparently was then terminated 
 
         from this employment because the new owner needed a working 
 
         foreman and claimant was physically unable to perform the usual 
 
         duties of a plumber.  Claimant testified that he felt at that 
 
         time that the only way he could return to plumbing work was to 
 
         start his own plumbing business and contract out the physical 
 
         labor involved.  Claimant then began his own business, called D & 
 
         E plumbing, and continues in this business enterprise at the 
 
         present time.  This business operation involves general 
 
         contracting for small construction projects to remodeling 
 
         residential houses under federal assistance programs.  Claimant 
 
         said that he is unable to contract for larger projects due to the 
 
         lack of collateral to obtain the necessary business loans.  
 
         Claimant said that he subcontracts out all of the physical 
 
         plumbing labor work and performs no physical work himself.  
 
         Claimant simply acts as a middle man.  Claimant's wife is his 
 
         bookkeeper.  She receives no salary.  Claimant stated that he 
 
         solicits work, prepares and presents bids and monitors the work 
 
         of the subcontractors.  Claimant's business, however, is not very 
 
         profitable as compared to his earnings at Cooper.  According to 
 
         schedule C of claimant's income tax returns, claimant suffered a 
 
         $200.00 loss in 1984, a $4,500.60 profit in 1985 and a $9,324.00 
 
         profit in 1986.  Claimant said that his profit in 1987 will 
 
         consist of approximately the same amount that he earned in 1985.  
 
         Defendants in cross-examination pointed out that claimant's gross 
 
         earnings before deductions in his business ranges from $44,000 to  
 
         $71,000 annually and that a substantial portion of the claimed 
 
         business expenses involved non-cash expenses such as 
 
         depreciation.
 
         
 
              Claimant was last seen by Dr. Bakody on August 4, 1987.  At 
 
         that time, Dr. Bakody agreed with claimant's self-assessment of 
 
         his limitations which restricted his ability to return to full 
 
         plumbing duty.  Claimant had said that he is unable to walk for 
 
         prolonged periods of time and he is unable to lift heavy objects 
 
         or perform frequent lifting, bending, digging, crawling, working 
 

 
         
 
         
 
         
 
         TUTOR V. COOPER PLUMBING
 
         Page   4
 
         
 
         
 
         with hands, working over head or twisting.  Dr. Bakody agreed 
 
         that claimant should continue restricting his physical activity 
 
         and approved of his current work as a self-employed general 
 
         contractor who performs no actual physical work himself.  Dr. 
 
         Bakody opines that claimant suffers from a 18 to 20 percent 
 
         permanent partial impairment to the body as a whole as a result 
 
         of the February 21, 1983 injury and resulting surgery.  In his 
 
         deposition, Dr. Bakody stated as follows with reference to the 
 
         effect of the 1971 injury and surgery on claimant's current 
 
         condition:
 
         
 
              I don't think it would apply to his condition at the 
 
              present time because we're talking about an individual 
 
              who was, in fact, working every day up until the time 
 
              of the accident of O83, 1983.  A person may have a 
 
              major physical impairment and a very small industrial 
 
              disability and vice versa, we're all aware of this.
 
         
 
                 So whatever physical impairment he had before, he 
 
              had at that time.  I'm seeing him, like, four --not 
 
              four, but several years later when he's fully employed, 
 
              but now he has an accident and he's disabled from 
 
              working.  And we find that he has a lumbar disk 
 
              protrusion, he's operated upon, and we conclude that he 
 
              does have a permanent physical impairment as a result 
 
              of that.
 
         
 
              In February, 1986, claimant underwent a functional 
 
         capabilities evaluation by Thomas W. Bower, L.P.T., who 
 
         summarized his recommendations as follows:
 
         
 
              1)  This patient's stamina and conditioning is poor and 
 
              will tire quickly.  A general conditioning program 
 
              needs to be implemented in terms of overall 
 
              conditioning, strengthening, and endurance.
 
              2)  All labor requiring heavy lifting, reaching, and 
 
              twisting maneuvers (e.g. weight in excess of 30 pounds) 
 
              will pose problems.
 
         
 
              3)  Because of limited kneeling, bending, and twisting, 
 
              Dan is going to have problems in getting into the small 
 
              nooks and crannies required of his work.
 
         
 
              4)  A weight loss program must be implemented to insure 
 
              a safer future.
 
         
 
              5)  Essentially, future activities appear to be 
 
              dictating more of a supervisory nature.  We need to 
 
              place Dan in positions and in job situations where 
 
              fewer demands are placed on his spine.
 
         
 
              Claimant's appearance and demeanor at the hearing indicated 
 
         that he was testifying in a truthful manner.
 
         
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              Claimant must establish by a preponderance of the evidence 
 
         the extent of weekly benefits for permanent disability to which 
 

 
         
 
         
 
         
 
         TUTOR V. COOPER PLUMBING
 
         Page   5
 
         
 
         
 
         claimant is entitled.  As the claimant has shown that the work 
 
         injury was a cause of a permanent physical impairment or 
 
         limitation upon activity involving the body as a whole, the 
 
         degree of permanent disability must be measured pursuant to Iowa 
 
         Code section 85.34(2)(u).  However, unlike scheduled member 
 
         disabilities, the degree of disability under this provision is 
 
         not measured solely by the extent of a functional impairment or 
 
         loss of use of a body member.  A disability to the body as a 
 
         whole or an "industrial disability" is a loss of earning capacity 
 
         resulting from the work injury.  Diederich v. Tri-City Railway 
 
         Co., 219 Iowa 587, 593, 258 N.w. 899 (1935).  A physical 
 
         impairment or restriction on work activity may or may not result 
 
         in such a loss of earning capacity.  The extent to which a work 
 
         injury and a resulting medical condition has resulted in an 
 
         industrial disability is determined from examination of several 
 
         factors.  These factors include the employee's medical condition 
 
         prior to the injury, immediately after the injury and presently; 
 
         the situs of the injury, its severity and the length of healing 
 
         period; the work experience of the employee prior to the injury, 
 
         after the injury and potential for rehabilitation; the employeeOs 
 
         qualifications intellectually, emotionally and physically; 
 
         earnings prior and subsequent to the injury; age; education; 
 
         motivation; functional impairment as a result of the injury; and 
 
         inability because of the injury to engage in employment for which 
 
         the employee is fitted.  Loss of earnings caused by a job 
 
         transfer for reasons related to the injury is also relevant.  
 
         Olson v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 
 
         251, 257 (1963).  See Peterson v. Truck Haven Cafe, Inc., (Appeal 
 
         Decision, February 28, 1985).
 
         
 
              In the case sub judice, claimant's testimony was found to be 
 
         credible.  This uncontroverted testimony established that 
 
         claimant's medical condition before the work injury was excellent 
 
         and despite prior back surgery, he had no functional impairments 
 
         which are significant from an industrial disability standpoint.  
 
         Claimant had no physician imposed work restrictions or 
 
         limitations in his physical activities for 11 years prior to the 
 
         1983 injury and surgery.  Prior to the work injury at Cooper, 
 
         claimant was able to fully perform all of his plumbing tasks such 
 
         as heavy lifting, repetitive lifting, bending, twisting, stooping 
 
         and prolonged walking.
 
         
 
              Claimant's treating physician, Dr. Bakody, has given 
 
         claimant an 18 to 20 percent permanent partial impairment rating 
 
         to the body as a whole.  Defendants in this case request that 
 
         there be an apportionment of the impairment rating between 
 
         claimant's prior condition and the condition caused by the second 
 
         injury to his back.  Claimant responds that Dr. Bakody refused to 
 
         apportion his disability rating and cites various legal 
 
         authorities for the proposition that defendants are responsible 
 
         for the full extent of disability when there can be no medical 
 
         apportionment of damages.  However, both parties are failing to 
 
         realize that this is an industrial disability case in which only 
 
         a loss of earning capacity, not a loss of physical impairment is 
 
         to be compensated.  As is evident from Dr. Bakody's testimony 
 
         quoted in the summary of evidence, the doctor was actually making 
 
         an industrial disability assessment in refusing to apportion the 
 
         rating between claimant's condition before and after the 1983 
 
         injury.  Dr. Bakody repeatedly stated that the prior impairment 
 

 
         
 
         
 
         
 
         TUTOR V. COOPER PLUMBING
 
         Page   6
 
         
 
         
 
         did not effect his ability to work.  This is beyond the expertise 
 
         of Dr. Bakody as it is a decision concerning the effect of an 
 
         impairment upon claimant's earning capacity -- a legal rather 
 
         than a medical question.
 
         
 
              However, no apportionment will be made in this case because 
 
         regardless of the extent of any residual physical impairment that 
 
         claimant may have had after the 1971 injury and surgery, there 
 
         was sufficient credible and uncontroverted lay evidence by 
 
         claimant to establish the fact that he had no ascertainable 
 
         industrial disability or loss of earning capacity before the work 
 
         injury of February 21, 1983.  Apportionment of disability between 
 
         a preexisting condition and an injury is proper only when there 
 
         is some ascertainable disability which existed independently 
 
         before the injury occurred.  Varied Enterprises, Inc., v. Sumner, 
 
         353 N.W.2d 407 (Iowa 1984).  Consequently there is no need to 
 
         reach the question of how to apportion liability when the amount 
 
         of prior existing industrial disability cannot be determined from 
 
         the evidence.
 
         
 
              Claimant's condition and physical conditions subsequent to 
 
         the February 21, 1983 injury prevents him from returning to 
 
         plumbing work or any other supervisory plumbing work involving 
 
         manual labor which would require claimant to violate his work 
 

 
         
 
         
 
         
 
         TUTOR V. COOPER PLUMBING
 
         Page   7
 
         
 
         
 
         restrictions.  Given his age, education and work history, 
 
         claimant is best suited for the type of work he can no longer 
 
         perform.
 
         
 
              Apart from his lost earnings during his healing period, 
 
         claimant has suffered a substantial loss of actual earnings as a 
 
         result of his inability to return to plumbing as a journeyman or 
 
         master plumber.  The fact that claimant was not able to continue 
 
         with the new owner of the Cooper business as a supervisor or 
 
         working foreman is evidence of a very serious disability.
 
         
 
              However, there is no evidence that claimant has made an 
 
         extensive job search outside of the field of plumbing and there 
 
         is no evidence of his current employability outside of plumbing 
 
         in the Des Moines labor market.
 
         
 
              Claimant is 46 years of age and in the middle of his working 
 
         life.  His loss of future earnings from employment due to his 
 
         disability is more serious than would be the case for a younger 
 
         or an older individual.  See Becke v. Turner-Busch, Inc., 
 
         Thirty-Fourth Biennial Report of the Iowa Industrial Commissioner 
 
         34 (1979); Walton v. B & H Tank Corp., II Iowa Industrial 
 
         Commissioner Report 426 (1981).
 
         
 
              Although claimant has not shown an extensive job search, it 
 
         is apparent that claimant is motivated to remain employed in some 
 
         capacity by initiating his own business, albeit unprofitable, as 
 
         compared to his earnings at Cooper.  His business operation over 
 
         the last four years and his demeanor at the hearing is evidence 
 
         that he does possess salesmanship and administrative skills not 
 
         possessed by many injured workers from the laboring occupations 
 
         that this agency deals with on a day to day basis.  Given these 
 
         skills, possibly some day claimant may overcome the effects of 
 
         his disability.  However, at the present time, he is very 
 
         severely disabled from an earnings capacity standpoint.
 
         
 
              After examination of all the factors, it is found as a 
 
         matter of fact that claimant has suffered a 60 percent loss of 
 
         his earning capacity from his work injury.  Based upon such a 
 
         finding, claimant is entitled as a matter of law to 300 weeks of 
 
         permanent partial disability benefits under Iowa Code section 
 
         85.34(2)(u) which is 60 percent of 500 weeks, the maximum 
 
         allowable number of weeks for an injury to the body as a whole in 
 
         that subsection.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Claimant was a credible witness.
 
         
 
              2.  The work injury of February 21, 1983 was a cause of a 
 
         period of disability from work beginning on February 21, 1983 
 
         through November 2, 1983.
 
         
 
              3.  The work injury of February 21, 1983 was a cause of a 
 
         10-20 percent permanent partial impairment to the body as a 
 
         whole, some of which preexisted the injury due to prior existing 
 
         back surgery in 1971.  However, only the work injury of February 
 
         21, 1983 was a cause of permanent restrictions among claimant's 
 
         physical activities consisting of no lifting over 30 pounds and 
 

 
         
 
         
 
         
 
         TUTOR V. COOPER PLUMBING
 
         Page   8
 
         
 
         
 
         no frequent bending, twisting, stooping or prolonged walking or 
 
         climbing.  Claimant had no such restrictions before February 21, 
 
         1983 and claimant was not limited in his job as a plumber by any 
 
         back problems before February 21, 1983.
 
         
 
              4.  The work injury of February 21, 1983 and the resulting 
 
         permanent partial impairment was a cause of a 60 percent loss of 
 
         earning capacity.  Claimant is 46 years of age and has a high 
 
         school education.  At the time of the work injury claimant's 
 
         trade was a journeyman and master plumber.  Claimant has no other 
 
         work history other than in the plumbing field.  Claimant had no 
 
         ascertainable loss of earning capacity before February 21, 1983, 
 
         despite a prior work injury and surgery in 1971.  Claimant is not 
 
         physically able to return to his work as a journeyman or master 
 
         plumber, the work for which he is best suited, as a result of the 
 
         work injury in this case.  Claimant has no training or education 
 
         in any occupation other than plumbing and his rehabilitation 
 
         potential for other occupations is not good in light of his age, 
 
         education and work history.  Claimant is currently operating a 
 
         plumbing contracting business as a general contractor in the 
 
         remodeling of houses under federal programs but the future 
 
         viability of this business is highly questionable.  Claimant 
 
         subcontracts out all of his physical labor work to fulfill his 
 
         general contracts in his current business.  Claimant's gross 
 
         earnings at the time of the injury was $350 per week.  Claimant 
 
         is currently receiving a net income from his business ranging 
 
         from $4,000 to $9,000 annually, substantially less than his 
 
         earnings as a master plumber.  There is no evidence that claimant 
 
         looked for work outside of plumbing contracting work over the 
 
         last few years but it is apparent that he is motivated to remain 
 
         employed in some capacity.  Claimant unsuccessfully attempted to 
 
         work as a foreman or supervisor for the new owner of Cooper's 
 
         operation after the injury but he could not continue because his 
 
         physical limitations caused by the injury would not allow him to 
 
         perform as a working foreman or to perform duties of a regular 
 
         plumber.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
               Claimant has established by a preponderance of the evidence 
 
         entitlement to permanent partial disability benefits as ordered 
 
         below.
 
         
 
                                      ORDER
 
         
 
              1.  Defendants shall pay to claimant three hundred (300) 
 
         weeks of permanent partial disability benefits at the rate of two 
 
         hundred twenty-six and 80/100 dollars ($226.80) per week from 
 
         November 3, 1983.
 
         
 
              2.  Defendants shall pay to claimant healing,period benefits 
 
         from February 21, 1983 through November 2, 1983 at the rate of 
 
         two hundred twenty-six and 80/100 dollars ($226.80) per week.
 
         
 
              3.  Defendants shall pay accrued weekly benefits in a lump 
 
         sum and shall receive credit against this award for all weekly 
 
         benefits previously paid.
 
         
 
              4.  Defendants shall pay interest on benefits awarded herein 
 

 
         
 
         
 
         
 
         TUTOR V. COOPER PLUMBING
 
         Page   9
 
         
 
         
 
         as set forth in Iowa Code section 85.30.
 
         
 
              5.  Defendants shall pay the costs of this action pursuant 
 
         to Division of Industrial Services Rule 343-4.33.
 
         
 
              6.  Defendants shall file activity reports on the payment of 
 
         this award as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
         
 
         
 
              Signed and filed this 24th day of February, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. John R. Ward
 
         Attorney at Law
 
         840 Fifth Avenue
 
         Des Moines, Iowa 50309-1398
 
         
 
         Mr. Thomas E. Leahy
 
         Attorney at Law
 
         2222 Grand Ave.
 
         P. 0. Box 10434
 
         Des Moines, Iowa 50306
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 1803
 
                                                 Filed February 24, 1988
 
                                                 LARRY P. WALSHIRE
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DANIEL W. TUTOR,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                   FILE NO. 727100
 
         COOPER PLUMBING,
 
                                                A R B I T R A T I 0 N
 
              Employer,
 
                                                   D E C I S I 0 N
 
         and
 
         
 
         STATE FARM INSURANCE,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1803
 
         
 
              Claimant awarded a 60 percent industrial disability as a 
 
         result of his inability to return to work as a journeyman or 
 
         master plumber.  Claimant's only work history has been as a 
 
         journeyman and master plumber.
 
 
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         
 
         JAMES WENTHE,
 
         
 
              Claimant,
 
                                                    FILE NO. 727198
 
         VS.
 
                                                 A R B I T R A T I 0 N
 
         FRENCH & HECHT,
 
                                                    D E C I S I O N
 
              Employer,
 
              Self-insured,
 
              Defendant.
 
         _________________________________________________________________
 
            
 
                             STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by James Wenthe, 
 
         claimant against French & Hecht, employer (hereinafter referred 
 
         to as FH) for workers' compensation benefits as a result of an 
 
         alleged injury on February 18, 1983.  On October 7, 1987, a 
 
         hearing was held on claimant's petition and the matter was 
 
         considered fully submitted at the close of this hearing.
 
         
 
              The parties have submitted a prehearing report of contested 
 
         issues and stipulations which was approved and accepted as a part 
 
         of the record of this case at the time of hearing.  Oral 
 
         testimony was received during the hearing from claimant and the 
 
         following witnesses: Tim Landers, Norm Leibold, Karen Wenthe and 
 
         Robert Williams.  The exhibits received into the evidence at the 
 
         hearing are listed in the prehearing report.  According to the 
 
         prehearing report the parties have stipulated to the following 
 
         matters:
 
         
 
              1.  On February 18, 1983, claimant received an injury which 
 
         arose out of and in the course of his employment with FH.
 
         
 
              2.  The injury of February 18, 1983, was a cause of a 
 
         temporary disability during a period of recovery and of permanent 
 
         disability.
 
         
 
              3.  Claimant's rate of weekly compensation in the event of 
 
         an award of weekly benefits from this proceeding shall be $314.66 
 
         per week.
 
         
 
              4.  If the injury is found to have caused permanent 
 
         disability, the type of disability is an industrial disability to 
 
         the body as a whole.
 
         
 
              5.  If permanent partial disability benefits are awarded 
 
         herein, they shall begin as of January 14, 1987.
 
         
 
              6.  All requested medical benefits have been or will be paid 
 
         by defendant.
 
         
 
                                  ISSUE
 
 
 

 
         
 
         
 
         
 
         WENTHE V. FRENCH & HECHT
 
         Page   2
 
         
 
         
 
              The issue submitted by the parties for determination in this 
 
         proceeding according to the prehearing report is the extent of 
 
         claimant's entitlement to weekly benefits for permanent 
 
         disability.
 
         
 
                           SUMMARY OF THE EVIDENCE
 
         
 
              The following is a summary of evidence presented in this 
 
         case.  For the sake of brevity, only the evidence most pertinent 
 
         to this decision is discussed.  Whether or not specifically 
 
         referred to in this summary, all of the evidence received at the 
 
         hearing was considered in arriving at this decision.
 
         
 
              Claimant testified that he has worked for FH since 1969 and 
 
         continues to work at FH at the present time.  Although claimant 
 
         performed other jobs at FH, most of the time he drove a tow motor 
 
         or forklift truck.  Claimant earned over $12.00 per hour at the 
 
         time of the alleged injury.  However, since the injury all of the 
 
         employees at FH have taken a pay cut pursuant to collective 
 
         bargaining agreements.  Claimant earns today what he would have 
 
         earned had he continued on the same job that he had at the time 
 
         of the work injury, however, this is considerably less per hour 
 
         than he was earning before.  Claimant's job at the time of the 
 
         work injury required claimant to lift heavy weights on occasion.  
 
         Claimant currently works in a light duty job at FH involving 
 
         janitor work such as dumping wastepaper baskets, changing toilet 
 
         paper and hand towels along with dusting and moping the floor.   
 
         Claimant also drives in this job a power sweeper and power 
 
         scrubber which resembles a tow motor in general appearance and 
 
         operation.
 
         
 
              The facts surrounding the work injury are not in real 
 
         dispute.  Claimant testified that while delivering rims to the 
 
         paint line with his lift truck, the load stuck between two 
 
         pallets and one of the rims fell off.  While attempting to pick 
 
         up this rim which was heavy with his outstretched left hand, he 
 
         felt a "snap" and immediate pain but claimant testified that this 
 
         was not a sharp pain.  Claimant's left hand then began to swell.  
 
         Claimant immediately reported to the company doctor, Paul H. 
 
         Beckman, M.D., who felt at the time that claimant suffered a 
 
         strain of his left shoulder and chest along with left numbness 
 
         and swelling.  Dr. Beckman also noted that claimant lost 
 
         sensation in three fingers in his left hand.  Dr. Beckman then 
 
         prescribed heat and heat packs and muscle relaxant medication.
 
         
 
         
 
         
 
         
 
         
 
              Claimant attempted to return to work on several occasions 
 
         during the weeks and months following the injury but the pain 
 
         persisted.  Claimant was also treated initially by F. Dale Wilson, 
 
         M.D., who reported that claimant suffered a right and left 
 
         shoulder injury.  Claimant was eventually referred to Steven R. 
 
         Jarrett, M.D., and later to Eugene Collins, M.D., who are 
 
         neurologists for EMG testing.  As claimant was obese with a large 
 
         upper torso, a proper EMG test could not be accomplished at that 
 
         time.
 
         
 

 
         
 
         
 
         
 
         WENTHE V. FRENCH & HECHT
 
         Page   3
 
         
 
         
 
              Claimant continued to experience left hand numbness and pain 
 
         along with severe headaches after physical activity with his left 
 
         arm during the latter part of 1983.  It was the opinion of Dr. 
 
         Beckman in November, 1983, that claimant sustained a "brachial 
 
         plexus stretch type injury."  In October, 1983, claimant was 
 
         treated by a hand and arm surgeon, Bruce Sprague, M.D., who felt 
 
         that claimant suffered a cervical stretch type injury and 
 
         prescribed cervical traction.  With no improvement in symptoms, 
 
         Dr. Sprague ordered a third EMG test and claimant was referred to 
 
         R. F. Neiman, M.D., a neurosurgeon.  Testing by Dr. Neiman 
 
         demonstrated a substantial radiculopathy and probable one or more 
 
         herniated cervical discs in claimant's neck.  Dr. Neiman then 
 
         ordered a myelogram of claimant's spine.  This myelogram was 
 
         performed in December, 1983, on both claimant's upper and lower 
 
         spine.  The myelogram found that claimant's lower spine was normal 
 
         but that the cervical spine was "totally blocked at one level."  
 
         In December, 1983, claimant also began treatment with an 
 
         orthopedic surgeon, G. E. Howe, M.D., from the Steinler clinic.  
 
         Over the next several months, claimant continued treatment with 
 
         both Dr. Neiman and Dr. Howe.  Initially, these doctors were quite 
 
         reluctant to consider surgery due to claimant's obesity despite 
 
         the evidence of herniated discs at various levels of claimant's 
 
         spine.  However, by October, 1984, claimant had lost some weight 
 
         at their request and expressed a desire for surgery so he could 
 
         return to work.
 
         
 
              Finally, in October, 1984, Dr. Howe performed a "cloward 
 
         anterior disc excision and dowel graft fusion" at three levels in 
 
         claimant's neck and cervical spine, C3-4, C5-6 and C6-7.  
 
         Following this surgery, claimant had a slow recovery but by 
 
         January 6, 1986, Dr. Howe and Dr. Neiman released claimant for 
 
         sedentary work with no lifting over 15 pounds.  This restriction 
 
         was later increased to 30 pounds in June, 1986.  In January, 1987, 
 
         Dr. Howe opined in a letter report that claimant suffers from a 35 
 
         percent permanent partial impairment to the body as a whole as a 
 
         result of the three level back fusion.  Dr. Howe finally imposed 
 
         permanent restrictions against lifting over 40 pounds.  Dr. Howe's 
 
         primary diagnosis was cervical disc disease due to the presence of 
 
         arthritis in claimant's spine aggravated by injury.  He also 
 
         recommended that claimant continue an exercise program including 
 
         swimming.  Dr. Neiman did not give a percentage rating of 
 
         claimant's disability but concurred with the restrictions imposed 
 
         by Dr. Howe.  Richard Roski, M.D.,
 
         
 
         another neurosurgeon evaluated claimant on a Cybex machine in 
 
         October, 1987, and concluded that claimant was at extreme risk in 
 
         moderate to heavy lifting but was able to perform light lifting 
 
         up to 48 inches in height but with no overhead use of 
 
         outstretched hands.
 
         
 
              FH has worked extensively with claimant and his physicians 
 
         in returning claimant to gainful employment at FH.  Since the 
 
         release by Drs.  Howe and Neiman in January, 1986, claimant has 
 
         worked full time at FH in various light duty jobs but receives 
 
         the same wage as he would receive had he remained on the job he 
 
         was performing at the time of the work injury.  Claimant 
 
         initially performed clerical work sorting papers and making 
 
         stencils.  Claimant was then moved to light janitorial work in 
 
         operating the power sweeper and scrubber as described above.  
 

 
         
 
         
 
         
 
         WENTHE V. FRENCH & HECHT
 
         Page   4
 
         
 
         
 
         There was one attempt on the part of FH to move claimant to his 
 
         former job as a tow truck operator but without the need for 
 
         occasional lifting.  However, claimant's physicians disapproved 
 
         of this move as it would involve extensive movement of the neck.  
 
         Claimant had tried to perform other light duty jobs within the 
 
         plant since his return but these jobs involve extensive use of 
 
         his arms and it resulted in headaches and pain in the neck.  The 
 
         plant manager, Robert Williams, testified during a video tape 
 
         presentation, that there are several light duty jobs within the 
 
         FH plant that would fit within claimant's physician imposed 
 
         restrictions which have a higher rate of pay then claimant 
 
         currently receives.  However, claimant's seniority does not 
 
         permit his assignment to many of these jobs at the current time.  
 
         Claimant continues on his janitor/sweeper/scrubber job and 
 
         expresses satisfaction with the cooperation by FH to date in 
 
         returning him to work.
 
         
 
              Claimant's current complaints consist of headaches with 
 
         excessive use of his arms along with continued pain in the neck 
 
         and arms along with limited motion of the neck.  Claimant also 
 
         describes a loss of strength in both of his arms and back.  
 
         Claimant denies any past back or neck trouble before February 18, 
 
         1983.  Claimant, his wife and several witnesses testified that 
 
         claimant was very strong before the work injury and could easily 
 
         lift and throw objects in excess of 200 pounds before February 
 
         18, 1983.  Claimant, however, has significant prior health 
 
         problems.  Claimant had a heart attack in 1982 resulting in 
 
         permanent damage to his right ventricle according to claimant's 
 
         testimony.  Also, since 1982, claimant has been diagnosed as 
 
         suffering from diabetes and is currently taking insulin 
 
         injections.  According to his medical records, claimant has been 
 
         diagnosed as suffering from hyperlipidemia which is being treated 
 
         with Lopid, a history of gout and alopecia totalis and obesity.  
 
         However, claimant testified that he had no restrictions on his 
 
         physical activity either self-imposed or imposed by physicians 
 
         before February 18, 1983 and the medical evidence submitted 
 
         supports this testimony.  The only causal connection opinion in 
 
         the
 
         
 
         
 
         record is from Dr. Sprague who states in a letter of March 9, 
 
         1984, that although claimant had osteoarthritis before the 
 
         injury, the injury is what aggravated and produced claimant's 
 
         symptoms.
 
         
 
              It is unclear in the record exactly when claimant first 
 
         began to complain of low back pain and leg pain.  The myelogram 
 
         performed in December, 1983, certainly did test both claimant's 
 
         upper and lower back apparently for some reason.  Dr. Neiman's 
 
         notes first reflect some back pain complaints in February, 1984 
 
         and again in April, 1984, but Dr. Neiman initially felt that 
 
         claimant's primary difficulties was with his upper spine rather 
 
         than his low back.  In April, 1984, G. T. Bozek, M.D., who had 
 
         consulted with Dr. Neiman on claimant's case, noted claimant's 
 
         leg discomfort at that time which he stated may be related to the 
 
         December, 1983, myelogram.  Dr. Howe states that claimant 
 
         complained to him of low back pain on a couple of occasions 
 
         during his course of treatment but found no correlation between 
 
         the cervical problems and claimant's back or leg pain 
 

 
         
 
         
 
         
 
         WENTHE V. FRENCH & HECHT
 
         Page   5
 
         
 
         
 
         complaints.
 
         
 
              Claimant testified that his employment prior to FH primarily 
 
         consisted of machine operator jobs in a manufacturing 
 
         environment.  Claimant occasionally was required to lift heavy 
 
         weights in these jobs and was required to stand for prolonged 
 
         periods of time.
 
         
 
              Claimant testified that he is 47 years of age.  He quit 
 
         formal schooling during the eleventh grade.  Claimant 
 
         testified that he had a C average in school.
 
         
 
              Patrick Doherty, a vocational consultant, submitted a report 
 
         into the evidence.  According to Doherty claimant performs at the 
 
         low average range of intelligence and describes claimant's 
 
         physical limitations submitted to him by Drs.  Neiman and Howe 
 
         consisting of no lifting over 20 pounds and no climbing or 
 
         balancing.  Given these restrictions, after reviewing the 
 
         dictionary of occupational titles of jobs claimant could pursue, 
 
         Doherty performed a labor market access study in the quad city 
 
         metropolitan area.  According to Doherty before the work injury 
 
         claimant had access to 29 percent of the available jobs but post 
 
         injury claimant's access has been reduced to zero.  Dohert 
 
         believes that claimant has a 100 percent loss of earning 
 
         capacity.
 
         
 
              Claimant's appearance and demeanor at hearing indicated that 
 
         he was testifying in a candid and truthful manner.
 
         
 
                        APPLICABLE LAW AND ANALYSIS
 
         
 
              I.  Claimant must establish by a preponderance of the 
 
         evidence the extent of weekly benefits for permanent disability 
 
         to which claimant is entitled.  As the claimant has shown that 
 
         the work injury was a cause of a permanent physical impairment
 
         
 
         
 
         or limitation upon activity involving the body as a whole, the 
 
         degree of permanent disability must be measured pursuant to Iowa 
 
         ode section 85.34(2)(u). However, unlike scheduled member 
 
         disabilities, the degree of disability under this provision is 
 
         not measured solely by the extent of a functional impairment or 
 
         loss of use of a body member.  A disability to the body as a 
 
         whole or an "industrial disability" is a loss of earning capacity 
 
         resulting from the work injury.  Diederich v. Tri-City Railway 
 
         Co., 219 Iowa 587, 593, 258 N.W. 899 (1935).  A physical 
 
         impairment or restriction on work activity may or may not result 
 
         in such a loss of earning capacity.  The extent to which a work 
 
         injury and a resulting medical condition has resulted in an 
 
         industrial disability is determined from examination of several 
 
         factors.  These factors include the employee's medical condition 
 
         prior to the injury, immediately after the injury and presently; 
 
         the situs of the injury, its severity and the length of healing 
 
         period; the work experience of the employee prior to the injury, 
 
         after the injury and potential for rehabilitation; the employee's 
 
         qualifications intellectually, emotionally and physically; 
 
         earnings prior and subsequent to the injury; age; education; 
 
         motivation; functional impairment as a result of the injury; and 
 
         inability because of the injury to engage in employment for which 
 

 
         
 
         
 
         
 
         WENTHE V. FRENCH & HECHT
 
         Page   6
 
         
 
         
 
         the employee is fitted.  Loss of earnings caused by a job 
 
         transfer for reasons related to the injury is also relevant.  
 
         Olson v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 
 
         N.W.2d 251, 257 (1963).  See Peterson v. Truck Haven Cafe, Inc., 
 
         (Appeal Decision, February 28, 1985).
 
         
 
              In the case sub judice, claimant's medical condition before 
 
         the work injury was certainly not excellent given all of his 
 
         medical problems but he had no functional impairments or 
 
         ascertainable disabilities at the time of the work injury.  
 
         Claimant was able to fully performed physical tasks involving 
 
         heavy lifting; repetitive lifting, bending, twisting and 
 
         stooping; and, prolonged standing and sitting.  As a result of 
 
         painful injuries the function of his whole body has now been 
 
         permanently modified.
 
         
 
              Claimant's treating physician, Dr. Howe, has given claimant 
 
         a significant permanent impairment rating of 35 percent to the 
 
         body as a whole.  Any impairment prior to the work injury is not 
 
         important as the record does not indicate that such impairment 
 
         resulted in any work disability.  Apportionment of disability 
 
         between a preexisting condition and an injury is proper only when 
 
         there was some ascertainable disability which existed 
 
         independently before the injury occurred.  Varied Enterprises, 
 
         Inc. v. Sumner, 353 N.W.2d 407 (Iowa 1984).
 
         
 
              Claimant's physicians have restricted claimants work 
 
         activities by prohibiting tasks such as heavy lifting and 
 

 
         
 
         
 
         
 
         WENTHE V. FRENCH & HECHT
 
         Page   7
 
         
 
         
 
         repetitive use of his arms and neck.  Claimant's medical 
 
         condition prevents him from returning to his former work as a 
 
         lift truck driver where he was required to occasionally lift 
 
         objects or
 
         extensive use of his arms and neck.  Claimant is an unskilled or 
 
         semi-skilled laborer with little education.  He is best suited 
 
         for physical labor jobs for which he can now only perform on a 
 
         limited basis.
 
         
 
              Apart from his lost earnings during his healing period which 
 
         was compensated by healing period benefits, claimant has not 
 
         suffered a permanent loss in actual earnings as a result of his 
 
         disability at least at the current time.  Defendant FH has 
 
         admirably worked with claimant in a successful attempt to return 
 
         claimant to employment.  These efforts will not go unawarded as 
 
         the award in this case is significantly lower because claimant 
 
         has not suffered a loss of earnings as a result of the work 
 
         injury.  However, a showing that claimant has no loss of actual 
 
         earnings does not preclude a finding of industrial disability. 
 
         See Michael v. Harrison County, Thirty-Fourth Biennial Report of 
 
         the Iowa Industrial Commissioner 218, 220 (1979).
 
         
 
              Claimant is 47 years old and in the middle of his working 
 
         career.  He should be at the most productive years of his life.  
 
         His loss of future earnings from employment due to disability is 
 
         more severe than would be the case for a younger or an older 
 
         individual.
 
         
 
              See Becke v. Turner-Busch, Inc., Thirty-Fourth Biennial 
 
         Report of the Iowa Industrial Commissioner 34 (1979); Walton v. B 
 
         & H Tank Corp., II Iowa Industrial Commissioner Report 426 
 
         (1981).
 
         
 
              Claimant has shown motivation to remain employed and 
 
         insisting upon surgery in an attempt to return to work.  However, 
 
         claimant has only a tenth grade education and exhibited average 
 
         intelligence at the hearing.  Although his intelligence 
 
         performance according to the rehabilitation consultant was in a 
 
         low range, little was shown in the form of actual testing to 
 
         indicate claimant's potential for vocational rehabilitation via 
 
         additional formal schooling.
 
         
 
              Claimant's current employment is suitable although its 
 
         stability is unknown at the present time.  Claimant has clearly 
 
         shown that he would experience considerable difficulty finding 
 
         replacement employment should he lose his current job.
 
         
 
              The views of the vocational rehabilitation consultant, 
 
         Doherty, as to the loss of earning capacity is not a proper 
 
         subject for vocational consultants and was not given any weight.  
 
         However, his job availability study was quite useful.  Although 
 
         both doctors, Neiman and Howe, have increased the lifting 
 
         restriction to 40 pounds since the evaluation, the report was 
 
         given considerable weight in light of the most recent evaluation 
 
         of claimant's condition by Dr. Roski.
 
         
 
         
 
         
 
              After examination of all the factors, it is found as a 
 

 
         
 
         
 
         
 
         WENTHE V. FRENCH & HECHT
 
         Page   8
 
         
 
         
 
         matter of fact that claimant has suffered a 30 percent loss of 
 
         earning capacity from his work injury.  Based upon such a 
 
         finding, claimant is entitled as a matter of law to 150 weeks of 
 
         permanent partial disability benefits under Iowa Code section 
 
         85.34(2)(u) which is 30 percent of 500 weeks, the maximum 
 
         allowable number of weeks for an injury to the body as a whole in 
 
         that subsection.
 
         
 
              It should be noted that no part of the award for claimant in 
 
         this case was based upon claimant's low back,or leg pain as it 
 
         could not be found that such problems stemmed from the work 
 
         injury found in this case due to a lack of supportive medical 
 
         expert opinion.  However, it should also be noted that no work 
 
         restrictions have been imposed upon claimant as a result of his 
 
         low back or leg pain.
 
         
 
                              FINDINGS OF FACT
 
         
 
              1.  Claimant was a credible witness.
 
         
 
              2.  Claimant was in the employ of FH at all times material 
 
         herein.
 
         
 
              3.  On February 18, 1983, claimant suffered an injury to the 
 
         upper back or neck which arose out of and in the course of 
 
         employment with FH.  Claimant was eventually compelled by his 
 
         pain to seek surgery in order to return to work which resulted in 
 
         a fusion of three vertebras in his neck.
 
         
 
              4.  The work injury of February 18, 1983, was a cause of a 
 
         35 percent permanent partial impairment to the body as a whole 
 
         and of permanent restrictions upon claimant's physical activity 
 
         consisting of no lifting, no median or heavy lifting and no 
 
         extensive use of his neck or arms especially above shoulder 
 
         level.
 
         
 
              5.  The work injury of February 18, 1983 and the resulting 
 
         permanent partial impairment was a cause of a 30 percent loss of 
 
         earning capacity.  Claimant is 47 years of age with only a tenth 
 
         grade education.  Claimant performs at the low average 
 
         intelligence range.  Claimant is unable to perform medium or 
 
         heavy physical labor employment, the type of employment best 
 
         suited to him given his lack of education and past experience.  
 
         However, claimant has not suffered a loss of actual earnings at 
 
         the present time due to the cooperation of FH in returning 
 
         claimant to work.
 
         
 
                            CONCLUSIONS OF LAW
 
         
 
              Claimant has established by a preponderance of the evidence 
 
         entitlement to permanent partial disability benefits as awarded 
 
         below.
 
         
 
         
 
                                   ORDER
 
         
 
              1.  Defendant shall pay to claimant one hundred fifty (150) 
 
         weeks of permanent partial disability benefits at the rate of 
 
         three hundred fourteen and 66/100 dollars ($314.66) per week from 
 

 
         
 
         
 
         
 
         WENTHE V. FRENCH & HECHT
 
         Page   9
 
         
 
         
 
         January 14, 1987.
 
         
 
              2.  Defendant shall pay accrued weekly benefits in a lump 
 
         sum and shall receive a credit against this award for all 
 
         benefits previously paid.
 
         
 
              3.  Defendant shall pay interest on benefits awarded herein 
 
         as set forth in Iowa Code section 85.30 and the costs of this 
 
         action pursuant to Division of Industrial Services Rule 
 
         343-4.33.
 
         
 
              4.  Defendant shall file activity reports on payment of this 
 
         award as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
         
 
         
 
                   Signed and filed this 15th day of December, 1987.
 
         
 
         
 
         
 
                                            LARRY P. WALSHIRE 
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. James M. Hood
 
         Attorney at Law
 
         302 Union Arcade
 
         Davenport, Iowa 52801
 
         
 
         Mr. Larry Shepler
 
         Attorney at Law 
 
         600 Union Arcade Bldg.
 
         Davenport, Iowa 52801
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                    1800
 
                                                    Filed December 15, 1987
 
                                                    LARRY P. WALSHIRE
 
         
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         
 
         JAMES WENTHE,
 
         
 
              Claimant,
 
                                                    FILE NO. 727198
 
         VS.
 
                                                 A R B I T R A T I 0 N
 
         FRENCH & HECHT,
 
                                                    D E C I S I 0 N
 
              Employer,
 
              Self-insured,
 
              Defendant.
 
         _________________________________________________________________
 
         
 
         
 
         1800
 
         
 
              Claimant awarded 30 percent industrial disability due to a 
 
         permanent impairment and loss of available employment 
 
         opportunities caused by the work injury.
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         PAUL E. SMITH,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                                 File No. 727394
 
         
 
         IOWA MOTOR CO., INC.,
 
                                                 A P P E A L
 
         
 
              Employer,
 
                                                  D E C I S I 0 N
 
         
 
         and
 
          
 
          UNIVERSAL UNDERWRITERS
 
          INSURANCE COMPANY,
 
          
 
               Insurance Carrier,
 
               Defendants.
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Claimant appeals from a ruling denying claimant's motion to 
 
         reconsider a ruling dismissing claimant's petition pursuant to 
 
         defendants, motion. .
 
         
 
              The record on appeal is the agency file in this matter.  
 
         Neither party has submitted briefs.
 
         
 
                                      ISSUE
 
         
 
              The issue on appeal is whether the deputy industrial 
 
         commissioner properly overruled claimant's motion to reconsider 
 
         and has properly dismissed claimant's petition.
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              The ruling on motion to reconsider, filed November 23, 1988 
 
         and ruling on motion to dismiss, filed October 19, 1988 
 
         adequately and accurately reflects the pertinent evidence and it 
 
         will not be reiterated herein.
 
         
 
                                  APPLICABLE LAW
 
         
 
              The citations of law in the ruling on the motion to dismiss 
 
         filed October 19, 1988 are appropriate to the issues and 
 
         evidence.
 
         SMITH v. IOWA MOTOR CO., INC.
 
         Page 2
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
                                     ANALYSIS
 
         
 
              The analysis of the evidence in conjunction with the law in 
 
         the ruling on the motion to dismiss is adopted.
 
         
 
                                 FINDINGS OF FACT
 
                                        
 
              1.   Claimant alleges a work-related injury on August 20,
 
         1982 to his right foot.
 
         
 
              2.   Claimant and defendants entered into a compromise
 
         special case settlement agreement pursuant to Iowa Code section
 
         85.35, on March 6, 1983.
 
         
 
              3.  Deputy industrial commissioner approved the special case 
 
         settlement on March 9, 1983.
 
         
 
              4.  Claimant received a sum of $7,400.00.  A receipt and 
 
         satisfaction was signed by the claimant on March 16, 1983.
 
         
 
                                CONCLUSION OF LAW
 
         
 
              Claimant's petition should be dismissed because a compromise 
 
         special case settlement pursuant to Iowa Code section 85.35 has 
 
         been previously approved regarding the alleged injury.
 
         
 
              WHEREFORE, the rulings of the deputy filed October 19, 1988 
 
         and November 23, 1988 dismissing claimant's petition and 
 
         overruling claimant's motion to reconsider are affirmed.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That claimant's petition is dismissed.
 
         
 
              That all costs of this proceeding are assessed against 
 
         claimant.
 
         
 
         
 
              Signed and filed this 22nd day of November, 1989.
 
         
 
         
 
         
 
         
 
         
 
                                                      DAVID E. LINQUIST
 
                                                      INDUSTRIAL               COMMISSIONER
 
         SMITH v. IOWA MOTOR CO., INC.
 
         Page 3
 
         
 
         
 
         Copies To:
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         Mr. John E. Behnke
 
         Attorney at Law
 
         Box F
 
         Parkersburg, Iowa 50665
 
         
 
         Mr. Philip H. Dorm, Jr.
 
         Attorney at Law
 
         2700 Grand Ave., Suite Ill
 
         Des Moines, Iowa 50312
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                             3302 - 2301
 
                                             Filed November 22, 1989
 
                                             DAVID E. LINQUIST
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         PAUL E. SMITH,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                                 File No. 727394
 
         IOWA MOTOR CO., INC.,
 
                                                 A P P E A L
 
              Employer,
 
                                                 D E C I S I 0 N
 
         and
 
         
 
         UNIVERSAL UNDERWRITERS
 
         INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         3302 - 2301
 
         
 
              Deputy's decision denying claimant's motion to reconsider a 
 
         ruling dismissing claimant's petition due to lack of subject 
 
         matter jurisdiction was affirmed on appeal.  Claimant received 
 
         benefits for the alleged injury pursuant to a compromise special 
 
         case settlement that had been previously approved, claimant's 
 
         petition was properly dismissed by the deputy.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         
 
         SUZANNE D. SEYMOUR,
 
         
 
              Claimant,
 
         VS.
 
                                                 FILE NO. 727538
 
         UNITED PARCEL SERVICE,
 
                                              A R B I T R A T I 0 N
 
              Employer,
 
                                                 D E C I S I O N
 
         and
 
         
 
         LIBERTY MUTUAL INSURANCE,
 
         
 
              Insurance Carrier,
 
              Defendants.  
 
         _________________________________________________________________
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Suzanne D. 
 
         Seymour, claimant, against United Parcel Service, employer, and 
 
         Liberty Mutual Insurance Company, insurance carrier, defendants 
 
         for benefits as a result of an injury which occurred on February 
 
         15, 1983.  A hearing was held on November 11, 1986 at Dubuque, 
 
         Iowa and the case was fully submitted at the close of the 
 
         hearing.  The record consists of the testimony of Suzanne D. 
 
         Seymour (claimant); claimant's exhibits A through Z (with the 
 
         exception of exhibit K) and AA, BB and CC; and defendants' 
 
         exhibits 1 through 42.
 
         
 
                                   STIPULATIONS
 
         
 
              The parties stipulated to the following matters:
 
         
 
              That an employer/employee relationship existed between the 
 
         claimant and the employer at the time of the alleged injury.
 
         
 
              That the claimant sustained an injury on February 15, 1983 
 
         which arose out of and in the course of her employment with the 
 
         employer.
 
         
 
              That the type of permanent disability, if the injury is 
 
         found to be a cause of permanent disability, is stipulated to be 
 
         an industrial disability to the body as a whole.
 
         
 
              That the rate of compensation in the event of an award is 
 
         $127.56 per week.
 
         
 
         
 
         
 
         That the provider of medical services would testify that the fees 
 
         were reasonable and that the defendants are not offering contrary 
 
         evidence.
 
         
 
                                      ISSUES
 

 
                          SEYMOUR V. UNITED PARCEL SERVICE                             age   2
 
         
 
              The issues presented by the parties for determination at the 
 
         time of the hearing are as follows:
 
         
 
              Whether the injury is the cause of any temporary or 
 
         permanent disability.
 
         
 
              Whether the claimant is entitled to any temporary or 
 
         permanent disability benefits.
 
         
 
              Whether the claimant is entitled to certain medical 
 
              benefits.
 
         
 
                             SUMMARY OF THE EVIDENCE
 
         
 
              All of the evidence was examined and considered and the 
 
         following is a brief summary of the most pertinent evidence.
 
         
 
              Claimant is age 35, divorced, has no dependants, is 
 
         unemployed and lives with a friend.  She is a high school 
 
         graduate and studied pottery in summer school for two years at 
 
         Luther College in Decorah, Iowa where she presently resides.  
 
         Past employments include factory worker, keypunch operator, file 
 
         clerk, teletype operator, art model, arts instructor, library 
 
         aid, outreach worker for legal services, babysitting and mowing 
 
         lawns.  She started to work for United Parcel Service on January 
 
         27, 1981.  She worked from midnight to 3:30 a.m. loading and 
 
         unloading cars and trucks on the dock and driving them up to and 
 
         away from the dock.  She worked typically 15 hours per week and 
 
         earned $11.87 per hour.   Prior to her employment with the 
 
         employer she was in good health, very physical and only weighed 
 
         135 pounds.  Prior to this injury she had twisted her back at 
 
         work in November of 1982.  At that time she felt a twinge, 
 
         reported it to the employer, and saw D. W. Wright, M.D. She was 
 
         treated and fully recovered and was having no further problems at 
 
         the time of this injury.
 
         
 
              The various medical reports describe various ways in which 
 
         this injury occurred.  However, since it has been stipulated that 
 
         the claimant received an injury which arose out of and in the 
 
         course of her employment with the employer it will suffice to 
 
         give the claimant's version in her testimony at the hearing.  She 
 
         testified that on February 15, 1983 she was lowering an eight 
 
         foot by four foot platform which had been stored upright.  One 
 
         end of the platform was frozen to the floor so it fell in a 
 
         twisted manner.  She caught it with both hands as it dropped and 
 
         felt a cross ways slam in her left hip and back.  It felt like 
 
         she was hit by lightening and she had a white out sensation.
 
         
 
         
 
         She could not get out of bed the next morning. she reported the 
 
         injury to the employer and went to see David R. Bakken, M.D., on 
 
         February 16, 1983 who hospitalized her from February 17, 1983 
 
         until February 25, 1983.
 
         
 
              Dr. Bakken found tenderness with spasm in the lumbar spine, 
 
         more on the left than on the right and diagnosed low back 
 
         syndrome (Defendants' Exhibit 1).  He treated her several times 
 

 
                          SEYMOUR V. UNITED PARCEL SERVICE                             age   3
 
         from February 16, 1983 through November 18, 1983 with physical 
 
         therapy, medication, bedrest and a TENS unit.  He found a trigger 
 
         point to the left of L5, Sl (Def.  Ex. 3), but no radiculopathy 
 
         (Def.  Ex. 6).  He did not describe a traumatic onset but did 
 
         state that her low back pain was related to her lifting 
 
         activities at United Parcel Service (Def.  Ex. 6).  He also 
 
         mentioned that she engaged in certain self treatments by raising 
 
         herself on her hands while sitting, hanging from doorways, and by 
 
         obtaining osteopathic manipulation five times prior to one of her 
 
         visits (Def.  Ex. 8).  She also attempted inverted lumbar 
 
         traction with a device called a back swing (Def.  Ex. 9).  She 
 
         also walked with a walker to decompress her lumbar spine 
 
         (Claimant's Ex.  BB, page 10)
 
         
 
              Dr. Bakken sent her to the Gunderson Clinic (an orthopedic 
 
         clinic) in LaCrosse, Wisconsin where she was seen four times by 
 
         Steven Hauge, M.D., in March and April of 1983.  He diagnosed a 
 
         back strain.  A CT scan was suggestive of a disc problem at L5, 
 
         Sl, but claimant declined to take a myelogram.  He recommended 
 
         that she return to work on April 25, 1983. (Def.  Ex. 4)
 
         
 
              In May of 1983, claimant did return to work for nine days.  
 
         After work on May 16, 1983, she noted pain in her back and could 
 
         not get out of bed the following morning.
 
         
 
              Claimant also decided on her own to go to the Apple Valley 
 
         Medical Clinic in July of 1983 where she was seen by Donald B. 
 
         Miller, M.D., (Def.  Ex. 14).
 
         
 
              Eventually, Dr. Bakken recommended a time table for claimant 
 
         to return to work on November 30, 1983.  Dr. Bakken thought that 
 
         claimant had a back strain (Cl. Ex. BB, p. 13) aggravated by 
 
         stress from marital problems (Cl.  Ex.  BB, p. 14).  He felt that 
 
         her problem was work related even though she did not describe a 
 
         traumatic onset of her back pain to him (Cl.  Ex.  BB, pp. 16 & 
 
         17).
 
         
 
              Dr. Bakken also recorded that claimant had cardiac 
 
         dysrythmia probably secondary to caffeine ingestion, hirsutism 
 
         with irregular menses, mild chronic situational depression, 
 
         capsulitis of the thumb at the PIP joint and a possible mitrol 
 
         valve prolapse (Def. Ex. 1, Cl.  Ex.  BB).  Further evidence 
 
         revealed a past medical history of tonsellectomy, apendectomy, 
 
         ovary surgery and a miscarriage.
 
         
 
         
 
              Claimant testified that she asked to see a chiropractor but 
 
         the insurance carrier denied this request.  She consulted with 
 
         Richard Roby, D.O., an osteopath, but he needed repeated 
 
         treatments and she wanted immediate relief and therefore 
 
         discontinued treatment with him.
 
         
 
              Claimant testified that she decided on her own to go and see 
 
         Dr. Miller at the Apple Valley Medical Clinic (an orthopedic 
 
         clinic) but that the insurance carrier accepted this as 
 
         authorized treatment.  Dr. Miller saw claimant on April 22, 1983, 
 
         diagnosed mechanical low back syndrome--subacute, and recommended 
 
         that she see the Institute for Low Back Pain in Minneapolis-, 
 

 
                          SEYMOUR V. UNITED PARCEL SERVICE                             age   4
 
         Minnesota (Def. Ex. 5 & 11).  Dr. Miller reported on August 31, 
 
         1983 that claimant did see Charles Burton, M.D., at the Institute 
 
         for Low Back Care at the Abbott Northwestern Hospital and a CT 
 
         scan showed no evidence of a prolapsed disc or stenosis and a 
 
         myelogram was also normal (Def. Ex. 13).  On September 20, 1983, 
 
         Dr. Miller said claimant still had discomfort but there was 
 
         nothing further that he could do from an orthopedic point of view 
 
         (Def. Ex. 15).
 
         
 
              Dr. Burton saw claimant on August 10, 1983, for low back 
 
         pain, aching with sharp stabbing sensation in the buttocks more 
 
         on the left than on the right, with pain into the leg.  Claimant 
 
         reported that she used aspirin, beer and rum for pain relief.  It 
 
         was also revealed that she suffered currently from an endocrine 
 
         dysfunction from the use of birth control pills in 1978 that now 
 
         causes irregular menses, facial hair growth, and lactation (Def. 
 
         Ex. 12).  Dr. Burton recommended a percutaneous radio frequency 
 
         facet nerve block with epidural steroid administration for her 
 
         mechanical low back syndrome on October 12, 1983 (Def.  Ex. 16).  
 
         This was carried out on November 7, 1983 (Def.  Ex. 17).  
 
         Claimant was also instructed in a stringent weight reduction 
 
         program with the admonition that if it was not followed the 
 
         likelihood of returning pain was quite high (Def.  Ex. 18).
 
         
 
              The facet nerve block did relieve her pain and pursuant to 
 
         Dr. Bakken's plan she returned to work on November 30, 1983 and 
 
         worked until December 26, 1983 when, due to a shortage of help at 
 
         work, claimant over worked and could not get out of bed on the 
 
         following morning of December 27, 1983.  Dr. Burton then referred 
 
         claimant to Matthew Monsein, M.D., of the Chronic Pain 
 
         Rehabilitation Program of the Sister Kenny Institute at the 
 
         Abbott Northwestern Hospital in Minneapolis (Def.  Ex. 21).  Dr. 
 
         Monsein completed an extensive history and physical examination 
 
         and reached the following conclusion:
 
         
 
              IMPRESSION:     1.  Mechanical back syndrome.
 
                              2.  Status post facet block.
 
                              3.  Chronic pain syndrome.
 
                              4.  Depression.
 
                              5.  Marked family dysfunction.
 
                              6.  Employee anger syndrome.
 
         
 
         
 
                              7.  Anxiety, situational.
 
                              8.  Possible alcohol abuse.
 
                              9.  Chronic pain patient.
 
              (Def.  Ex. 21)
 
         
 
              All prior x-rays, CT scans and myelograms did not reveal any 
 
         lateral stenosis or nerve root impingement.  It was his 
 
         impression that the degree of pain and incapacity was in excess 
 
         of his physical findings.  He did demonstrate some physical 
 
         findings consistent with mechanical back syndrome and a 
 
         paralumbar spasm on the left side while standing, triggering 
 
         point tenderness at the L5, Sl area, and a positive forward 
 
         stretch test on the left (Def.  Ex. 21).
 
         
 
              Claimant was admitted to the pain program on January 22, 
 

 
                          SEYMOUR V. UNITED PARCEL SERVICE                             age   5
 
         1984 and discharged on February 15, 1984 but continued to 
 
         complain of pain in the low back area which Dr. Monsein felt was 
 
         due to psychological factors.   Claimant had been victimized as a 
 
         child and subjected to psychological and physical abuse in her 
 
         family and she sees her present life as a continuation of this 
 
         victimization.  In addition, she suffered from galactorrhea and 
 
         urinary stress incontinence which they treated at that time (Def.  
 
         Ex. 22 & 23).  Dr. Monsein thought that if she followed a 50 
 
         pound weight restriction for 90 days she could then work again 
 
         without any restriction (Def.  Ex. 23 & 24).  He did not feel 
 
         that she had a permanent disability (Def.  Ex. 25).  After her 
 
         discharge from the Pain Rehabilitation Center Dr. Monsein wrote 
 
         to the claimant that she had a myofascial syndrome where she had 
 
         experienced a muscle strain or sprain (Def.  Ex. 26).  On April 
 
         3, 1984, Dr. Monsein estimated that the maximum medical 
 
         improvement would occur on June 1, 1984 when claimant finished 
 
         her clinic follow-up weight reduction course.  He recommended 
 
         against returning to United Parcel Service for fear that she 
 
         would physically reinjure her back and also because employer 
 
         mistrust might produce adverse psychological reactions (Def.  Ex. 
 
         28).  On May 31, 1984, Dr. Monsein stated claimant had reached a 
 
         point of maximal medical improvement and assessed a five percent 
 
         permanent impairment rating (Def.  Ex. 33).  Dr. Monsein reported 
 
         on December 3, 1984 that claimant had taken a job at the airport, 
 

 
                          SEYMOUR V. UNITED PARCEL SERVICE                             age   6
 
         worked 12 days and strained herself again lifting weights up to 
 
         70 or 80 pounds.  Dr. Monsein than reduced her weight restriction 
 
         to 10 or 15 pounds and raised her impairment rating to 12.5 
 
         percent and recommended retraining her for lighter work (Def.  
 
         Ex. 36).  Dr. Monsein did testify that these changes of a lowered 
 
         weight restriction and a higher impairment rating were related to 
 
         her subsequent job at the airport and not her work for the United 
 
         Parcel Service (Def.  Ex. 40,p. 25).
 
         
 
              In his deposition Dr. Monsein defined mechanical low back 
 
         syndrome as follows:
 
         
 
                    A.  A mechanical back syndrome is defined as a
 
         
 
              condition where there is some element of pathology in the 
 
              structures of the low back, such as -- how can I put it -- 
 
              so that there is some mechanical disfunction of the back, 
 
              that there is some weakness in the ligaments or the 
 
              structures supporting the lumbar vertebrae, but there is no 
 
              frank evidence of a herniated disk.
 
              (Def.  Ex. 40, p. 10).
 
         
 
              When claimant completed the pain clinical treatment the 
 
         defendants ceased to pay for additional medical treatment, but 
 
         claimant nevertheless continued to seek and obtain additional 
 
         medical care.  Among other things she saw Ralph Knudson, M.D., of 
 
         Decorah from January 23, 1985 to July 16, 1985 (Cl.  Ex.  J).  He 
 
         hospitalized her from February 13, 1985 to March 4. 1985 (Cl.  
 
         Ex. 0).  Dr. Knudson also prescribed physical therapy from James 
 
         Hughes, LPT, from March 1, 1985 to September 23, 1986 and she 
 
         received regular physical therapy treatments from him (Cl.  Ex.  
 
         G, H, R, S, U, V, W, and X).  Dr. Knudson diagnosed diffuse 
 
         tenderness in her back in the left side (Def.  Ex.  CC, p. 6).  
 
         He hospitalized her because she had suicidal feelings (Def . Ex.  
 
         CC, p. 7).    He found a lot of depression due to feelings of 
 
         worthlessness and low self-esteem because she could not work and 
 
         marital problems (Def.  Ex.  CC, pp. 10 & 11).  He did not have a 
 
         definitive opinion on whether her condition was permanent or not 
 
         and he was not able to assign any permanent impairment rating 
 
         (Def.  Ex.  CC, PP. 13 & 14).  He thought a five pound weight 
 
         restriction would be appropriate (Def.  Ex.  CC, pp. 15 & 20).  
 
         He was not directly asked and did not give a professional medical 
 
         opinion on whether the injury of February 15, 1983 caused the 
 
         problem for which he treated her or caused her current condition 
 
         (Def.  Ex.  CC).
 
         
 
              Claimant was seen and evaluated on October 17, 1984 for the 
 
         defendants by Richard F. Neiman, M.D., in Iowa City.  He appeared 
 
         to conclude that claimant did have a mechanical low back syndrome 
 
         for which nothing more could be done.  He assessed a permanent 
 
         impairment rating in the range of 10 to 12 percent (Def.  Ex. 
 
         37).  Dr. Neiman ordered a myelogram and a CT scan and the 
 
         claimant was hospitalized at Mercy Hospital in Iowa City for 
 
         these procedures from March 11, 1986 to March 13, 1986.  The 
 
         myelogram and CT scan demonstrated no abnormality on either test.  
 
         Dr. Neiman saw nothing to suggest a surgical remedial lesion.  He 
 
         suggested that claimant be rated and to get her into some useful 
 
         type of occupation (Def.  Ex. 42).
 

 
                          SEYMOUR V. UNITED PARCEL SERVICE                             age   7
 
         
 
              A psychiatric evaluation on March 22, 1986 concluded 
 
         dysthymia disorder but that claimant was showing improvement from 
 
         the level of depression she had three years ago (Def. Ex. 38).
 
         
 
              Claimant also consulted the Minnesota Headache Institute on 
 
         April 2, 1986 on her own.  No real conclusion was reached by this 
 
         group (Def. Ex 39 and Cl. Ex. L).
 
         
 
              At the hearing claimant testified that her back is not much 
 
         better now than it was at the time of her injury on February 15, 
 
         1983.  It was best after she left the pain clinic and prior to 
 
         when she reinjured it working at the airport.
 
         
 
              Claimant testified that she applied for a job at Living 
 
         History Farms but did not want to relocate to Des Moines.  She 
 
         was not able to endure the standing and lifting in the airport 
 
         job.  She worked a short time at the Luther College Food Service 
 
         as a dishwasher for three hours a day but that hurt her back 
 
         after six days and she could not handle the standing and lifting.  
 
         She worked for a veterinarian for a short period of time but was 
 
         not able to do that either.   She has applied for social security 
 
         disability but was denied benefits.
 
         
 
              Claimant began a vocational evaluation and career planning 
 
         program in Des Moines on September 2, 1986 but she terminated the 
 
         program after nine days.  Richard L. Rattray, counselor, reported 
 
         on September 26, 1986 as follows:
 
         
 
              Bunny elected to terminate the evaluation at the end of 
 
              the 9th day.  The constant pain, low self-confidence, 
 
              and the possibility [sic] of hooking up with an 
 
              acquaintance in Waterloo at a food convention are some 
 
              of the reasons she elected to terminate at this time.
 
              (Cl. Ex. Z).
 
         
 
                         APPLICABLE LAW AND ANALYSIS
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of February 15, 1983 is causally 
 
         related to the disability on which she now bases her claim. 
 
         Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). 
 
         Lindahl v. L. 0. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A 
 
         possibility is insufficient; a probability is necessary. Burt v. 
 
         John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 
 
         (1955).  The question of causal connection is essentially within 
 
         the domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language. 
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 

 
                          SEYMOUR V. UNITED PARCEL SERVICE                             age   8
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
         Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              Claimant has sustained the burden of proof by a 
 
         preponderance of the evidence that her injury of February 15, 
 
         1983 was the cause of both temporary and permanent disability.  
 
         Dr. Bakken said that the injury was the cause of her disability.  
 
         The other doctors proceeded on this same basis but did not 
 
         directly give a professional medical opinion on causation.  There 
 
         was no evidence that the injury of February 15, 1983 was not the 
 
         cause of some temporary and permanent disability even though 
 
         claimant did have other problems.
 
         
 
              An employer takes an employee subject to any active or 
 
         dormant health impairments, and a work connected injury which 
 
         more than slightly aggravates the condition is considered to be a 
 
         personal injury.  Ziegler v. United States Gypsum Co., 252 Iowa 
 
         613, 620, 106 N.W.2d 591 (1960), and cases cited.
 
         
 
              An employee is not entitled to recover for the results of a 
 
         preexisting injury or disease but can recover for an aggravation 
 
         thereof which resulted in the disability found to exist.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 ; 
 
         Yeager v. Firestone Tire & Rubber, Co., 253 Iowa 369, 112 N.W.2d 
 
         299 (1961) Ziegler, 252 Iowa 613, 106  N.W.2d  591 (1960). See 
 
         also Barz v. Oler, 257 Iowa 508, 133 N.W.2d 704 (1965); Almquist 
 
         v. Shenandoah Nurseries, 218 Iowa 724,  254  N.W. 35 (1934).
 
         
 
              Most of the practitioners of the healing arts also testified 
 
         that psychological problems combined with what normally would be 
 
         a simple back strain to prolong and increase the amount of 
 
         temporary and permanent disability.  The employer takes the 
 
         employee as is, and therefore, takes her subject to any active or 
 
         dormant health impairments.  Lawyer & Higgs, Iowa Workers' 
 
         Compensation -- Law and Practice, section 42.  As it happened 
 
         claimant had severe psychological problems stemming from 
 
         childhood and a stressful marital problem was existent at the 
 
         time of this injury.  The injury was in February of 1983 and she 
 
         separated from her husband in March of 1983 and was later 
 
         divorced sometime in 1984.  Claimant did see a counselor for this 
 
         situation.  Claimant had numerous endocrine and female problems 
 
         which influenced her during this period of time as well as a 
 
         personal problem with alcohol abuse.
 
         
 
              The evidence shows that the defendants did pay for treatment 
 
         for both physical and psychological problems of the claimant as 
 
         required by statute up to the point of maximum medical 
 
         improvement.  Iowa Code section 85.34(l) provides for healing 
 
         period benefits.  Since the claimant did not return to work and 
 
         cannot return to her old job, then healing period benefits begin 
 
         on the date of the injury and continue until it is medically 
 
         indicated that significant improvement from the injury is not 
 
         anticipated.
 
         
 
         
 
         
 
         
 

 
                          SEYMOUR V. UNITED PARCEL SERVICE                             age   9
 
              The physical injury in this case was basically a back strain 
 
         or what has been defined as an aggravation of a mechanical low 
 
         back syndrome.  Usually a back strain condition will be worse at 
 
         first and then will gradually heal over a period of time with or 
 
         without medical treatment.  In this case claimant was treated by 
 
         a local physician, Dr. Bakken, who was quite considerate and 
 
         sympathic to her problems; the Gunderson orthopedic Clinic at 
 
         LaCrosse, Wisconsin; the Apple Valley orthopedic Clinic; the 
 
         Institute for Low Back Care at Minneapolis, Minnesota; and the 
 
         Pain Rehabilitation Center at the Sister Kenny Institute in 
 
         Minneapolis, Minnesota.  In the process she received treatment 
 
         for psychological problems, family problems, endocrine problems, 
 
         female problems and urinary problems.  Yet, at the hearing she 
 
         testified that her back was not much better now than it was when 
 
         she was first injured on February 15, 1983.  Claimant has 
 
         described enormous subjective pain and incapacity which Dr. 
 
         Monsein testified exceeded his physical, objective, professional, 
 
         medical findings.  Dr. Monsein determined that maximum medical 
 
         improvement occurred on May 31, 1984.  This is the only opinion 
 
         by any professional person on this point.  Therefore, it is 
 
         determined that claimant is entitled to healing period benefits 
 
         for the period from the day after the injury February 16, 1983 
 
         through May 31, 1984.
 
         
 

 
                          SEYMOUR V. UNITED PARCEL SERVICE                             age  10
 
              If claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
         593, 258 N.W. 899, 902 (1935) as follows: "It is therefore plain 
 
         that the legislature intended the term 'disability' to mean 
 
         'industrial disability' or loss of earning capacity and not a 
 
         mere 'functional disability' to be computed in the terms of 
 
         percentages of the total physical and mental ability of a normal 
 
         man."
 
         
 
              The opinion of the supreme court in Olson, 255 Iowa 1112, 
 
         1121, 125 N.W.2d 251, 257 (1963) cited with approval a decision 
 
         of the industrial commissioner for the following proposition:
 
         
 
              Disability * * * as defined by the Compensation Act means 
 
              industrial disability, although functional disability is an 
 
              element to be considered . . . In determining industrial 
 
              disability, consideration may be given to the injured 
 
              employee's age, education, qualifications, experience and 
 
              his inability, because of the injury, to engage in 
 
              employment for which he is fitted. * * * *
 
         
 
              Dr. Monsein, who was the claimant's treating physician and 
 
         probably the doctor who gave her the most individual attention, 
 
         gave the claimant a functional impairment rating of five percent.  
 
         The increased rating of 12 1/2 percent after the subsequent 
 
         injury at the airport cannot be considered because Dr. Monsein
 
         
 
         
 
         
 
         indicated that this increase in rating was due to the later 
 
         injury.  However, defendants' evaluating physician, Dr. Neiman, 
 
         gave claimant a 10 to 12 percent functional impairment rating.  
 
         Claimant is 35 years old, single and has no dependants.  She has 
 
         average to above average intelligence according to the evidence.  
 
         She is young enough to be trained or retrained in a number of 
 
         occupations.  The variety of her past employments show that she 
 
         has potential in a wide variety of employment opportunities. . 
 
         She has the advantage of a high school education and training in 
 
         pottery and other crafts.  The biggest detriment is that she 
 
         cannot return to physical manual labor which she enjoyed a great 
 
         deal coupled with the fact that she does not like stereotyped 
 
         female types of jobs.  There was no evidence that the claimant 
 
         has made any serious attempts to obtain full time employment in a 
 
         job within her physical restrictions.  It also appears that she 
 
         has not made a serious attempt at retraining.  She came to Des 
 
         Moines for a lengthy course of rehabilitation training sponsored 
 
         by the State of Iowa and quit after nine days in order to go to a 
 
         food convention in Waterloo with friends.  According to her 
 
         testimony she still suffers pain and Dr. Monsein corroborated 
 
         that she does have a chronic pain syndrome.  This of course will 
 
         be a source of disability until it either goes away or she gives 
 
         it up.  At the same time pain that is not substantiated by 
 
         clinical findings is not a substitute for impairment.  Waller v. 
 
         Chamberlain Mfg., 2 Iowa Industrial Commissioner Reports 419, 425 
 
         (1981).  Based on the foregoing information it is found that 
 
         claimant has sustained a 35 percent industrial disability to the 
 
         body as a whole from the injury of February 15, 1983.
 

 
                          SEYMOUR V. UNITED PARCEL SERVICE                             age  11
 
         
 
              Iowa Code section 85.27 provides that the employer shall 
 
         provide reasonable medical care for an injured worker but that 
 
         the employer also has the right to choose the care.  It is 
 
         determined in this case that the employer did provide reasonable 
 
         care to the claimant.  It could possibly be stated that in some 
 
         instances it was more than reasonable care under the 
 
         circumstances.  Some of the care that the employer paid for did 
 
         not appear to be directly related to the work injury.  Much of 
 
         the same testing and evaluation was done more than once in order 
 
         to determine if there was something more than back strain or 
 
         mechanically low back syndrome involved.
 
         
 
              Claimant's exhibit B, the exercise bicycle in the amount of 
 
         $251.15, is allowed because it was prescribed by David Jones, 
 
         M.D., a physiologist at the Kenny Institute (Def.  Ex. 23, p. 3).  
 
         Claimant also testified that Dr. Bakken prescribed it and this 
 
         testimony was not controverted.  Also claimant's exhibit M, the 
 
         medical bill for Dr. Bakken in the amount of $29.00 is allowed 
 
         because he was an authorized physician and there was no evidence 
 
         that the authority to see him was revoked.
 
         
 
              All of the other bills contained in claimant's exhibits A 
 
         through 0 cannot be allowed because (1) there is no evidence
 
         
 
         
 
         that they were authorized by the defendants; (2) it was not 
 
         proven that they were caused by the injury of February 15, 1983; 
 
         (3) it was not proven that they were reasonable medical expenses. 
 
          Some of the treatment appears to be for non-work related health 
 
         conditions.  Much of it is repeated treatment in therapy which 
 
         have all ready been done in the past and according to the 
 
         claimant did not improve her condition better than it was back on 
 
         February 15, 1983.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              WHEREFORE, based upon the evidence presented, the following 
 
         findings of fact are made:
 
         
 
              That claimant was employed by the employer and sustained an 
 
         injury on February 15, 1983 while at work on that date.
 
         
 
              That the claimant attained maximum medical improvement 
 
         according to Dr. Monsein on May 31, 1984.
 
         
 
              That Dr. Monsein rated claimant's permanent functional 
 
         impairment at five percent of the body as a whole and Dr. Neiman 
 
         rated her permanent functional impairment at 10 to 12 percent of 
 
         the body as whole.
 
         
 
              That claimant is age 35, single and has no dependants.  She 
 
         has average or better than average intelligence, a variety of 
 
         previous work experiences and an infinite potential for 
 
         retraining in jobs which do not involve lifting more than five to 
 
         15 pounds.
 
         
 
              That claimant incurred $280.15 in allowable medical expenses 
 

 
                          SEYMOUR V. UNITED PARCEL SERVICE                             age  12
 
         for an exercise bicycle in the amount of $251.15 and treatment 
 
         with Dr. Bakken in the amount of $29.00.
 
         
 
                              CONCLUSIONS OF LAW
 
         
 
              WHEREFORE, based upon the evidence presented and the 
 
         principles of law previously stated, the following conclusions of 
 
         law are made:
 
         
 
              That the injury of February 15, 1983 was the cause of 
 
         temporary and permanent disability.
 
         
 
              That the claimant is entitled to healing period benefits 
 
         from February 16, 1983 through May 31, 1984.
 
         
 
              That claimant is entitled to 175 weeks of permanent partial 
 
         disability benefits for a 35 percent industrial disability to the 
 
         body as a whole beginning on June 1, 1984.
 
         
 
              That claimant is entitled to the payment of $251.15 for an 
 
         exercise bicycle and $29.00 for the treatment of Dr. Bakken in 
 
         the total amount of $280.15 in allowable medical expenses.
 
         
 
                                  ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              That the defendants pay to claimant sixty-seven point 
 
         two-eight-six (67.286) weeks of healing period benefits for the 
 
         period from February 16, 1983 through May 31, 1984 at the rate of 
 
         one hundred twenty-seven and 56/100 dollars ($127.56) per week in 
 
         the total amount of eight thousand five hundred eighty-three and 
 
         no/100 dollars ($8,583.00).
 
         
 
              That defendants pay to claimant one hundred seventy-five 
 
         (175) weeks of permanent partial disability benefits at the rate 
 
         of one hundred twenty-seven and 56/100 ($127.56) per week in the 
 
         total amount of twenty-two thousand three hundred and 
 
         twenty-three and no/100 dollars ($22,323.00).
 
              That the defendants pay accrued benefits in a lump sum.
 
         
 
              That interest will accrue under Iowa Code section 85.30.
 
         
 
              That the defendants pay to claimant two hundred eighty and 
 
         15/100 dollars ($280.15) in allowable medical expenses for an 
 
         exercise bicycle and for Dr. Bakken's bill.
 
         
 
              That the defendants pay the costs of this action pursuant to 
 
         Division of Industrial Services Rule 343-4.33.
 
         
 
              That defendants file claim activity reports as requested by 
 
         this agency pursuant to Division of Industrial Services Rule 
 
         343-3.1.
 
         
 
         
 
              Signed and filed this 6th day of April, 1987.
 
         
 
         
 
         
 

 
                          SEYMOUR V. UNITED PARCEL SERVICE                             age  13
 
         
 
                                        
 
                                            WALTER R. McMANUS, JR.
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies TO:
 
         
 
         Mr. Richard Phillips 
 
         Attorney at Law 
 
         103 River Street
 
         P. 0. Box 485
 
         Decorah, Iowa 52101
 
         
 
         Mr. Jay P. Roberts
 
         Attorney at Law
 
         300 WSB Bldg., Box 1200
 
         Waterloo, Iowa 50704
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 1402.80; 1802; 1804
 
                                                 2501; 2503
 
                                                 Filed April 6, 1987 
 
                                                 WALTER R. McMANUS, JR.
 
         
 
                                        
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         
 
         SUZANNE D. SEYMOUR,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                                 FILE NO. 727538
 
         UNITED PARCEL SERVICE,
 
                                              A R B I T R A T I 0 N
 
              Employer,
 
                                                 D E C I S I 0 N
 
            and
 
         
 
         LIBERTY MUTUAL INSURANCE
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         _________________________________________________________________
 
         
 
         
 
         1402.80
 
         
 
              Claimant's first treating physician said the injury of a 
 
         back strain at work was the cause of her back problems.  Other 
 
         doctors later did not specifically give an opinion on this point 
 
         but did proceed on this assumption.  Therefore, it was found that 
 
         the medical treatment and disability were causally connected.
 
         
 
         1802
 
         
 
              Claimant had back strain plus multiple physical and 
 
         psychological problems from childhood and marriage.  She was 
 
         allowed healing period benefits from the day after the injury 
 
         until the pain center doctor said she was maximum medically 
 
         improved.
 
         
 
         1804
 
         
 
              Claimant was female, age 35, divorced, no dependants, 
 
         average intelligence and had a variety of work experiences.  She 
 
         could not go back to doing heavy labor type jobs.  She did not 
 
         seriously pursue jobs within her limitations or vocational 
 
         rehabilitation offered.  She did not like stereotyped female 
 
         jobs.  She was allowed 35 percent permanent partial disability as 
 
         industrial disability based on chronic back pain and a 10 to 12 
 
         percent permanent impairment rating.
 
                                                
 
                                                         
 
         
 
         2501; 2503
 
         
 
              After claimant reached maximum medical treatment she 
 
         continued to incur medical services.  These doctor, hospital, 
 
         physical therapy and other bills were denied because they were 
 
         not authorized, were repetitious, had not helped in the past and 
 
         the doctor she employed did not state that they were caused by 
 
         this injury.