BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         RALPH R. COOK,
 
         
 
              Claimant,
 
         
 
         VS.
 
         
 
         IOWA MEAT PROCESSING COMPANY,
 
         
 
              Employer,
 
                                                  File Nos. 727578/771086
 
         and
 
                                                        A P P E A L
 
         
 
         ARGONAUT INSURANCE COMPANY,
 
                                                      D E C I S I 0 N
 
         and
 
         
 
         CHUBB INSURANCE COMPANY,
 
         
 
              Insurance Carriers,
 
         
 
         and
 
         
 
         SECOND INJURY FUND OF IOWA,
 
         
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Defendant-second injury fund appeals from a consolidated 
 
         review-reopening and arbitration decision in which the second 
 
         injury fund was ordered to pay to claimant 93 3/4 weeks of 
 
         compensation.  Claimant was denied all compensation for the 
 
         injury he alleged in file no. 771086 (arbitration proceeding).
 
         
 
              The record on appeal consists of the transcript of the 
 
         consolidated proceeding; joint exhibits 1 through 9; and 
 
         claimant's exhibit B and joint exhibits (second injury fund and 
 
         claimant) C, D, E, F, G, I, J, L, N and S together with the 
 
         briefs and filings of all parties on appeal.
 
         
 
                                      ISSUES
 
         
 
              Defendant-second injury fund states the following issues on 
 
         appeal:
 
         
 
              I.  Whether the deputy erred in determining claimant's first 
 
              injury was an injury to a scheduled member as contemplated 
 
              by the second injury fund statute?
 
         
 
              II.  Whether the deputy erred in determining claimant's 
 
              second injury was an injury to a scheduled member as 
 
              contemplated by the second injury fund statute?
 
         
 
              III.  Whether the deputy erred in finding that claimant was 
 
              75% industrially disabled?
 
         
 

 
              IV.  Whether the deputy erred in finding that only 10% of 
 
              claimant's industrial disability resulted from claimant's 
 
              second injury?
 
         
 
              V.  Whether the deputy erred in making his computation of 
 
              fund liability?
 
         
 
                             REVIEW OF THE EVIDENCE
 
         
 
              The consolidated review-reopening and arbitration decision 
 
         adequately and accurately reflects the pertinent evidence and it 
 
         will not be reiterated herein.
 
         
 
              Briefly stated, claimant sustained a work injury on February 
 
         17, 1983 to his left arm for which he was awarded, in an appeal 
 
         decision filed February 8, 1985, 50 weeks of permanent partial 
 
         disability benefits for a 20 percent impairment to the left upper 
 
         extremity.  Claimant, in 1975, suffered an injury to his right 
 
         arm and shoulder as a result of an improperly administered blood 
 
         test.  The 1975 injury resulted in the removal of the first right 
 
         rib.  Phillip J. Monnig, M.D., opines that claimant sustained a 
 
         50 to 75 percent impairment of the right upper extremity as a 
 
         result of the 1975 injury.  Dr. Monnig was the treating physician 
 
         for that injury.
 
         
 
              Claimant alleges that he sustained an injury to his left arm 
 
         on September 19, 1984 when he was cutting meat off of jaw bones.  
 
         Claimant has worked intermittently since the 1983 injury with 
 
         continued pain because, he states, he needed the money.
 
         
 
              At the time of the hearing claimant was 47 years old with a 
 
         sixth grade education.  His work experience is limited to 
 
         unskilled manual labor.  Claimant has worked for numerous 
 
         different employers over the years which he attributes to 
 
         alcoholism.  However, he states that he has not had a drink in 
 
         five years.
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              Claimant's recovery in this case as the deputy correctly 
 
         noted lies with the second injury fund.  Claimant has established 
 
         neither a change of condition since the appeal decision of 
 
         February 8, 1985, nor a new injury on September 19, 1984.  
 
         Therefore, the analysis here will focus on the extent of 
 
         liability of the second injury fund.
 
         
 
              The first argument made by the second injury fund is that 
 
         claimant's 1975 injury affected his body as a whole.  Undoubtedly 
 
         that injury affected claimant's body as a whole; however, that 
 
         injury also resulted in a loss of use of a scheduled 
 
         member-claimant's right arm.  For the purpose of imposing second 
 
         injury fund liability, a prior injury affecting a scheduled 
 
         member is all that is necessary.
 
         
 
              The second argument made by the second injury fund is that 
 
         claimant's second injury resulted in disability to the body as a 
 
         whole.  The nature of the injury that claimant sustained on 
 
         February 17, 1983 was specifically found by the appeal decision 
 
         filed February 8, 1985 to be limited to claimant's left arm.  See 
 
         findings of facts, Appeal Decision, February 8, 1984.  As no 
 
         change of condition is found in this decision which holds that 
 
         the February 17, 1983 injury has resulted in subsequent 
 
         disability to the body as a whole, the nature of claimant's 1983 
 
         injury is res judicata.
 
         
 

 
         
 
         
 
         
 
         COOK V. IOWA MEAT PROCESSING COMPANY
 
         Page   3
 
         
 
         
 
              The third argument made by the second injury fund concerns 
 
         the extent of claimant's industrial disability.  The analysis of 
 
         this issue set out in the consolidated review-reopening and 
 
         arbitration decision is adequate and accurate and adopted 
 
         herein.
 
         
 
              The last two arguments made by the second injury fund will 
 
         be considered together.  In the consolidated decision in this 
 
         case the deputy, relying on prior agency interpretation of 
 
         Second Injury Fund v. Mich Coal Co., 274 N.W.2d 300 (Iowa 1979), 
 
         assessed the industrial disability which resulted from the second 
 
         injury.  The deputy then gave the second injury fund a credit for 
 
         the amount of that disability.  However, subsequent agency 
 
         interpretation of the Mich Coal case has held that assessment of 
 
         industrial disability is appropriate only when the second injury 
 
         extends to the body as a whole.  See Fulton v. Jimmy Dean Meat 
 
         Company, Appeal Decision, July 23, 1986.  Therefore, the correct 
 
         computation of the liability of second injury fund would be 75 
 
         percent of the body as a whole or 375 weeks less 156 1/4 weeks 
 
         for previous impairment to the right upper extremity and 50 weeks 
 
         for impairment to the left upper extremity (the deputy's analysis 
 
         with regard to previous impairment is adopted herein) for a total 
 
         of 168 3/4 weeks.
 
         
 
              The findings of fact, conclusions of law and order of the 
 
         consolidated review-reopening and arbitration decision are 
 
         modified in accordance with this decision.
 
         
 
         
 
         
 
                                        
 
                                 FINDINGS OF FACT
 
         
 
              1.  As a result of his work-related injury of February 17, 
 
         1983, claimant has a permanent functional impairment of his left 
 
         upper extremity equal to twenty percent.
 
         
 
              2.  As the result of an injury in 1975, claimant has 
 
         permanent functional impairment or loss of use of his right arm 
 
         equal to 62 1/2 percent.
 
         
 
              3.  Claimant is 47 years old and has a sixth grade 
 
         education.
 
         
 
              4.  Claimant has no special vocational training.,
 
         
 
              5.  All of claimant's past employment involved heavy 
 
         lifting.
 
         
 
              6.  Claimant is well motivated and has continued to work in 
 
         spite of severe pain.
 
         
 
              7.  It is unlikely claimant will be able to continue 
 
         employment with defendant employer.
 
         
 
              8.  Claimant's employability is not presently known.
 
         
 
              9.  Claimant's rate of compensation is $282.42.
 
         
 

 
         
 
         
 
         
 
         COOK V. IOWA MEAT PROCESSING COMPANY
 
         Page   4
 
         
 
         
 
             10.  Claimant's present industrial disability is 75 percent 
 
         of the body as a whole.
 
         
 
             11.  The compensable value of the impairment to claimant's 
 
         right arm is 156 1/4 weeks.
 
         
 
             12.  The compensable value of the impairment to claimant's 
 
         left arm is 50 weeks.
 
         
 
             13.  Claimant did not receive an injury on September 19, 
 
         1984.
 
         
 
             14.  Claimant's left arm condition has not changed since the
 
         hearing of June 14, 1984.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant has proven by a preponderance of the evidence that 
 
         he is entitled to benefits from the second injury fund equal to 
 
         168 3/4 weeks.
 
         
 
              Claimant has failed to prove by a preponderance of the 
 
         evidence that he received an injury arising out of and in the 
 
         course of employment on September 19, 1984.
 
         
 
         
 
              Claimant has failed to prove by a preponderance of the 
 
         evidence that he is entitled to further benefits against the 
 
         employer as a result of his injury of February 17, 1983.
 
         
 
              WHEREFORE, the consolidated decision is affirmed and 
 
         modified.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That in file number 771086 claimant shall take nothing from 
 
         these proceedings.
 
         
 
              That in file number 727578 the Second Injury Fund of Iowa 
 
         shall pay unto claimant two hundred eighteen and three-fourths 
 
         (168 3/4) weeks of compensation at his rate of two hundred 
 
         eighty-two and 42/100 dollars ($282.42) commencing December 20, 
 
         1984 and ending March 15, 1988.
 
         
 
              Accrued payments are to be paid in a lump sum together with 
 
         interest pursuant to section 85.30, Code of Iowa.
 
         
 
              That the costs for file number 771086 are taxed to claimant. 
 
          Costs for file number 727578 are taxed to the second injury 
 
         fund.
 
         
 
              Signed and filed this 12th day of May, 1987.
 
         
 
         
 
         
 
         
 
                                                   ROBERT C. LANDESS
 
                                                   INDUSTRIAL COMMISSIONER
 
 
 

 
         
 
         
 
         
 
         COOK V. IOWA MEAT PROCESSING COMPANY
 
         Page   5
 
         
 
         
 
 
 
 
 
         Copies To:
 
         
 
         Mr. Harry H. Smith
 
         Attorney at Law
 
         P.O. Box 1194
 
         Sioux City, Iowa 51102
 
         
 
         Mr. Thomas M. Plaza
 
         Attorney at Law
 
         P.O. Box 3086
 
         Sioux City, Iowa 51102
 
         
 
         Mr. Barry Moranville
 
         Attorney at Law
 
         974 73rd Street, Suite 16
 
         Des Moines, Iowa 50312
 
         
 
         
 
         Ms. Shirley A. Steffe
 
         Assistant Attorney General
 
         Tort Claims Division
 
         Hoover State Office Bldg.
 
         Des Moines, Iowa 50319
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                1402.20 - 1402.40 3200
 
                                                Filed May 12, 1987
 
                                                ROBERT C. LANDESS
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         RALPH R. COOK,
 
         
 
              Claimant,
 
         
 
         VS.
 
         
 
         IOWA MEAT PROCESSING COMPANY,
 
         
 
              Employer,
 
                                                   File Nos. 
 
         727578/771086
 
         and
 
                                                        A P P E A L
 
         ARGONAUT INSURANCE COMPANY,
 
                                                      D E C I S I 0 N
 
         and
 
         
 
         CHUBB INSURANCE COMPANY,
 
         
 
              Insurance Carriers,
 
         
 
         and
 
         
 
         SECOND INJURY FUND OF IOWA,
 
         
 
              Defendants.
 
         
 
         
 
         1402.20 - 1402.40 - 3200
 
         
 
              Claimant failed to establish a new injury as alleged in File 
 
         Number 771086 or a change of his left arm condition since the 
 
         hearing of June 14, 1984.  However, claimant has established a 
 
         prior injury affecting a scheduled member and a subsequent 
 
         compensable injury affecting a scheduled member.  Therefore, 
 
         claimant may recover from the second injury fund.  The deputy 
 
         assessed industrial disability which resulted from the second 
 
         injury.  However, assessment of industrial disability is 
 
         appropriate only when the second injury extends to the body as a 
 
         whole.  See Fulton v. Jimmy Dean Meat Company, Appeal Decision, 
 
         July 23, 1986.
 
 
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         JOHN BEEMBLOSSOM,
 
         
 
              Claimant,                               File No. 727594
 
         
 
         VS.
 
                                                   A R B I T R A T I 0 N
 
         TINDAL FARM SUPPLY CO.,
 
                                                      D E C I S I 0 N
 
              Employer,
 
         
 
         and
 
         
 
         ALLIED INSURANCE, a/k/a
 
         AID INSURANCE,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by the claimant, 
 
         John Beemblossom, against his employer, Tindal Farm Supply Co., 
 
         and its insurance carrier, Allied Insurance f/k/a Aid Insurance 
 
         Co., to recover benefits under the Iowa Workers' Compensation Act 
 
         as a result of an injury sustained February 21, 1983.  This 
 
         matter came on for hearing before the undersigned deputy 
 
         industrial commissioner at the Division of Industrial Services 
 
         office in Des Moines, Iowa, on December 11, 1986.  But for briefs 
 
         subsequently filed and considered, the record was considered 
 
         fully submitted at close of hearing.
 
         
 
              The record in this case consists of the testimony of 
 
         claimant, of Janet Craven, of Donna Daniel, of Jill Boileau, and 
 
         of Kathleen Benson-Larson, as well as of joint exhibits 1 through 
 
         41.  Joint exhibit 1 is a radiological consultation report of May 
 
         24, 1983.  Joint exhibit 2 is records of reports of John C. 
 
         VanGilder, M.D.  Joint exhibit 3 is records and reports of David 
 
         Naden, M.D.  Joint exhibit 4 is physical therapy records prepared 
 
         by Pam Hazell.  Joint exhibit 5 is records of Muscatine General 
 
         Hospital for an admission of claimant of June 25, 1984.  Joint 
 
         exhibit 6 is records of E. A. Dykstra, M.D.  Joint exhibit 7 is 
 
         further physical therapy department notes prepared by Pam Hazell.   
 
         Joint exhibit 8 is records of David M. Paul, M.D.  Joint exhibit 
 
         9 is a consultation report of July 5, 1983 from University of 
 
         Iowa Hospitals.  Joint exhibit 10 is a report of Walter L. 
 
         Gerber, M.D.. Joint exhibit 11 is interrogatories submitted to 
 
         Kathleen Benson.
 
         
 
         Joint exhibit 12 is the ruling on claimant's application for 
 
         social security disability benefits.  Joint exhibit 13 is a 
 
         ISCRF discharge entry of December 17, 1985.  Joint exhibit 14 
 

 
         
 
         
 
         
 
         BEEMBLOSSOM V. TINDAL FARM SUPPLY, CO.
 
         Page   2
 
         
 
         
 
         is records of the State of Iowa Department of Public 
 
         Instruction Rehabilitation Education and Services Branch.  
 
         Joint exhibit 15 is records of the Washington County 
 
         Development Center.  Joint exhibit 16 is records and reports of 
 
         Professional Rehabilitation Management, Inc.  Joint exhibit 17 
 
         is a radiological consultation report of March 30, 1983.  Joint 
 
         exhibit 18 is the deposition of Dr. VanGilder.  Joint exhibit 
 
         19 is the deposition of Dr. Naden.  Joint exhibit 20 is the 
 
         deposition of claimant.  Joint exhibit 21 is the deposition of 
 
         Leonard Tindal with attached exhibits.  Joint exhibit 22 is 
 
         claimant's original notice and petition and defendants' answer.  
 
         Joint exhibit 23 is wage, earnings, and salary information 
 
         concerning claimant.  Joint exhibit 24 is reports and filings 
 
         of defendants before the Iowa Industrial Commissioner.  Joint 
 
         exhibit 25 is aft admission record and CT scan of January 11, 
 
         1983.  Joint exhibit 26 is letters between counsel of June 16, 
 
         1986 and June 25, 1986, respectively.  Joint 27 is a March 16, 
 
         1986 Professional Rehabilitation Management, Inc., report.  
 
         Joint exhibit 28 is a February 27, 1986 Professional 
 
         Rehabilitation Management, Inc., report.  Joint 29 is a medical 
 
         report of D. C. Shimp, D.O.  Joint exhibit 30 is clinical notes 
 
         of Dr. Shimp.  Joint exhibit 31 is a radiology report of 
 
         September 21, 1984.  Joint exhibit 32 is a radiology report of 
 
         February 24, 1983.  Joint exhibit 33 is a radiology report of 
 
         February 23, 1983.  Joint exhibit 34 is a radiology report of 
 
         February 10, 1977.  Joint exhibit 35 is a duplicate of joint 
 
         exhibit 17.  Joint exhibit 36 is a neurology report from the 
 
         University of Iowa Hospitals of November 14, 1979.  Joint 
 
         exhibit 37 is a Washington County Developmental Center report 
 
         to Dr. Shimp of March 3, 1986.  Joint exhibit 38 is the resume 
 
         of Kathleen Benson-Larson.  Joint exhibit 39 is the deposition 
 
         of Pam Hazell.  Joint exhibit 40 is interrogatories answered by 
 
         Leonard Tindal.  Joint exhibit 41 is a letter from defense 
 

 
         
 
         
 
         
 
         BEEMBLOSSOM V. TINDAL FARM SUPPLY, CO.
 
         Page   3
 
         
 
         
 
         counsel to claimant's counsel Mullins.
 
         
 
                                    ISSUES
 
         
 
              The issues for resolution are:
 
         
 
              1)  Whether an employer-employee relationship exists between 
 
         claimant and the alleged employer;
 
         
 
              2)  Whether claimant received an injury which arose out of 
 
         and in the course of his employment;
 
         
 
              3)  Whether a causal relationship exists between the alleged 
 
         injury and the claimed disability;
 
         
 
              4)  Whether claimant is entitled to benefits and the nature 
 
         and extent of such benefit entitlement, including the question of 
 
         whether claimant is an odd-lot worker under the Guyton doctrine;
 
         
 
              5)  Whether claimant is entitled to vocational 
 
         rehabilitation benefits; and
 
         
 
              6)  Claimant's rate of weekly compensation.
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              The following is a summary of the evidence most -relevant to 
 
         the issues before us.  All evidence relevant to those issues was 
 
         reviewed and considered in the disposition of this matter even if 
 
         such evidence is not expressly set forth in the following review 
 
         of the evidence.
 
         
 
              Fifty-five year old claimant who resides in Washington, 
 
         Iowa, testified that he began working for Tindal Farm Supply Co. 
 
         in January 1980 and worked there until he was laid off in 
 
         November 1982.  He reported that he was originally hired by B & T 
 
         Farm Supply which became Tindal Farm Supply Co. in 1981, and that 
 
         he felt his employment was continuous as he performed the same 
 
         duties under each entity.  Tindal Farm Supply sold seed corn, 
 
         chemicals, and farm supplies, and bought and sold grain.  The 
 
         entity also transported livestock and operated livestock and crop 
 
         farms.  Claimant assisted in all of The Farm Supply's operations 
 
         but principally operated tractor-trailer rigs which The Farm 
 
         Supply owned.  Claimant neither owned nor rented a 
 
         tractor-trailer in either 1982 or 1983.  Claimant used The Farm 
 
         Supply's tools for any repairs made on tractor-trailers and did 
 
         such work in The Farm Supply's shop or on Farm Supply property.  
 
         The Farm Supply either paid any fuel oil or maintenance repair 
 
         fees or claimant paid those and was reimbursed by The Farm 
 
         Supply.  Prior to his November 1982 layoff, claimant received a 
 
         weekly paycheck from The farm Supply from which state and federal 
 
         taxes, social security taxes, and court ordered child support was 
 
         withheld.  Claimant received both vacation pay and health 
 
         insurance when those benefits were paid to full-time regular Farm 
 
         Supply employees.  He testified that he received no sick leave or 
 
         disability benefits.
 
         
 
              Claimant testified that he was not paid for work done on 
 
         February 21, 1983.  Mr. Leonard Tindal, sole shareholder in 
 

 
         
 
         
 
         
 
         BEEMBLOSSOM V. TINDAL FARM SUPPLY, CO.
 
         Page   4
 
         
 
         
 
         Tindal Farm Supply, testified that claimant was paid a straight 
 
         $200 for trucking done on that date and that represented 
 
         claimant's only compensation from Tindal Farm Supply in 1983.  
 
         Claimant's 1983 W2 form with Tindal Farm Supply reflects that 
 
         federal and state income and social security tax were withheld 
 
         from the  $200 total compensation.  Leonard Tindal testified that 
 
         claimant was paid on either an hourly or on a per-job basis 
 
         depending on which would be more fair compensation for the 
 
         particular job.  He testified that truckers for The Farm Supply 
 
         were generally paid a percentage on the number of loads hauled 
 
         and on the number of bushel hauled.  Individuals and corporations 
 
         contracting with The Farm Supply for hauling paid The Farm Supply 
 
         which then paid the trucker.
 
         
 
              Claimant's daily work hours apparently varied with the job 
 
         he was performing.  Mr. Tindal either directly or through his 
 
         secretary instructed claimant as to his duties on each day.  Mr. 
 
         Tindal testified that when The Farm Supply sends a trucker out 
 
         with a Farm Supply truck, either The Farm Supply directs the 
 
         trucker as to the particular trip or the person contracting for 
 
         hauling from The Farm Supply directs the trucker as to the 
 
         particulars of the hauling Job.  On February 21, 1983, Rath 
 
         Packing Company apparently called Leonard Tindal and sought 
 
         hauling of livestock from its Columbus Junction plant to its 
 
         Waterloo plant.  Tindal then contacted claimant who appeared at 
 
         Tindal Farm Supply to undertake the haul.  Mr. Tindal testified 
 
         that when claimant got to the Columbus Junction Rath Packing 
 
         plant, Tindal expected claimant to go wherever Rath Packing told 
 
         him to but that claimant had the ability to say yes or no.  
 
         Claimant testified that when he arrived at Tindal Farm Supply on 
 
         February 21, 1983, he discovered the truck had a blown air bag 
 
         which could cause difficulties with braking.  Claimant stated 
 
         that he had not wanted to take the truck for that reason, but was 
 
         told to take the truck and proceed to Rath.  Tindal testified 
 
         that he expected claimant to go directly from Columbus Junction 
 
         to Waterloo with a load of hogs he was hauling but for stops for 
 
         dinner or other necessities, but that claimant, as a trucker, was 
 
         expected to know the appropriate route to take to Waterloo and 
 
         was not specifically directed as to which route to travel.  
 
         Tindal testified that it was never discussed whether claimant had 
 
         the ability to hire other individuals to assist claimant in 
 
         either loading or unloading or transporting livestock, but that 
 
         Tindal himself would have assumed no financial obligation for 
 
         anyone else.  A friend of claimant's was traveling with claimant 
 
         on the injury date without The Farm Supply's express permission.
 
         
 
              Tindal testified that as of February 21, 1983, The Farm 
 
         Supply had no long range plans as to how much they "were going to 
 
         use John" and that he was not sure that that was discussed with 
 
         claimant before he left.
 
         
 
              The three tier tractor-trailer rig which claimant was 
 
         driving on February 21, 1983 overturned enroute to the Waterloo 
 
         Rath Packing plant as claimant attempted to maneuver a sharp 
 
         corner.  The truck and trailer tipped on the right side onto the 
 
         road shoulder and claimant was thrown in and out of his seat a 
 
         few times and was straddled on the gearshift.  Claimant was 
 
         transported by ambulance to the St. Luke's Hospital emergency 
 
         room where he was treated and released after approximately three 
 

 
         
 
         
 
         
 
         BEEMBLOSSOM V. TINDAL FARM SUPPLY, CO.
 
         Page   5
 
         
 
         
 
         hours.  Claimant reported that immediately following the injury, 
 
         he had a bruise on his thigh but no other abrasions, that his 
 
         left leg was numb, and that his neck bothered him.
 
              Claimant saw D. C. Shimp, D.O., at the Washington Clinic the 
 
         following morning.  Dr. Shimp apparently examined claimant, 
 
         ordered x-rays, and prescribed physical therapy consisting of 
 
         whirlpool, hot packs, and heat.  On May 3, 1983, Dr. Shimp 
 
         indicated that claimant continued to make slow progress with 
 
         medication and physical therapy, but that he had no other 
 
         suggestions for therapy.  His diagnosis of that date was of 
 
         myofascitis of the entire spine.
 
         
 
              An x-ray report of J. Gardner, M.D., of February 24, 1983, 
 
         reports that on a coned down view of L2, there is a very slight 
 
         irregularity in the anterior border of the L2 vertebral body 
 
         which the doctor believes to be a developmental variation rather 
 
         than a compaction fracture.  The doctor opined that he did not 
 
         expect this defect to be the cause of claimant's rather severe 
 
         progressive neurological findings.  Dr. Gardner interpreted 
 
         cervical and lumbar spine views of that date overall as showing 
 
         normal lordotic curvature of the cervical region and the lumbar 
 
         region with vertebral body heights maintained.  He noted a 
 
         narrowing of of the C5-6 and the C6-7 disc spaces accompanied by 
 
         osteophyte lipping.  In the lumbar region, the disc spaces were 
 
         normal with vertebral body heights measuring unchanged from 1977.  
 
         An earlier x-ray report of a Dr. Fedge of February 10, 1977 was 
 
         reported as essentially negative with vertebral body heights 
 
         maintained at all levels and no definite loss of disc space, no 
 
         significant congenital variations, and no misalignment.  Dr. 
 
         Fedge subsequently interpreted lumbar sacral spine x-rays of 
 
         February 14, 1984 as showing some accentuation of the normal 
 
         lumbar lordosis and a modest scoliosis.  Moderate degenerative 
 
         change was noted but no evidence of significant congenital 
 
         variation or recent or previous trauma.  He interpreted x-rays of 
 
         May 21, 1984 as showing a slight narrowing of the 4-5 and 5-1 
 
         disc interspaces, but no appreciable misalignment and no definite 
 
         spondylolysis.  Degenerative changes in the posterior articular 
 
         facets were noted.
 
         
 
              Dr. Shimp subsequently referred claimant to John C. Van 
 
         Gilder, M.D., a professor and chair of the division of 
 
         neurosurgery at the University of Iowa Hospitals and Clinics.  
 
         Dr. VanGilder initially saw claimant on March 3, 1983 with chief 
 
         complaints of paraspinal pain in the lower thoracic and lumbar 
 
         area, left hip pain, and left leg pain.  On examination, claimant 
 
         was moderately tender in the lower parathoracic and lumbar area 
 
         bilaterally with scoliosis of the lumbar spine, convexity to the 
 
         right, secondary to muscle spasm.  Claimant had moderate 
 
         tenderness in the left inguinal anterior thigh area and in the 
 
         left hip.  Knee reflexes were +1; ankle reflexes were trace on 
 
         the left, +1 on the right; both toes were downgoing to plantar 
 
         stimulation.  There was questionable weakness of dorsiflexion of 
 
         the left foot.  Flexion of the back and the lumbar spine was
 
         
 
         
 
         limited to 40 degrees with exacerbation of his scoliosis with 
 
         stretching of the low back muscles.  Straight leg raising was 
 
         positive at 60 degrees on the left and 70 degrees on the right.  
 
         No "clear cut" muscle atrophy was present.  Claimant had mild 
 

 
         
 
         
 
         
 
         BEEMBLOSSOM V. TINDAL FARM SUPPLY, CO.
 
         Page   6
 
         
 
         
 
         paracervical tenderness of his cervical spine with good strength 
 
         in the upper extremities and reflexes +1 and symmetrical.  The 
 
         doctor then believed that claimant's condition represented a 
 
         contusion on a muscular basis; that claimant had given a clear 
 
         history of improvement both in the painful [sic] syndrome and 
 
         weakness in the left foot and felt that claimant should continue 
 
         with conservative management.
 
         
 
              Dr. VanGilder again saw claimant on April 5, 1983.  Low back 
 
         examination revealed a normal lordotic curve.  Low back flexion 
 
         remained at approximately 40 degrees with lateral bending of 30 
 
         degrees to the right and 35 degrees the to the left.  There was 
 
         no evidence of focal weakness of the lower extremities and 
 
         sensory examination to vibration and position and pinprick was 
 
         normal with no evidence of neurological deficit.  VanGilder 
 
         suggested claimant continue with conservative management 
 
         consisting of physical therapy, analgesics, and antispasmodic 
 
         medication.  VanGilder prescribed Elavil, 50 mg. hour of sleep as 
 
         well.  On examination on May 25, 1983, claimant could flex the 
 
         low back approximately 70 degrees with lateral bending of 35 
 
         degrees right and left.  Again, claimant had no evidence of focal 
 
         weakness of the lower extremities and sensory examination 
 
         remained normal.  Reexamination July 5, 1983 was essentially the 
 
         same, but for straight leg raising positive at 75 degrees left 
 
         and 80 right in the supine position.  When seen on September 1, 
 
         1983, claimant had a normal lordotic curve and could flex his low 
 
         back to 80 degrees with lateral bending of 35 degrees left to 
 
         right.  Straight leg raising was 90 degrees bilaterally with a 
 
         mild loss of normal lordotic curve of the lumbar spine.  Sensory 
 
         examination was normal.  Dr. VanGilder opined that claimant was 
 
         gradually demonstrating improvement, quite marked since July and 
 
         indicated that claimant could return to work in approximately two 
 
         months.  In a handwritten note of September 7, 193, Dr. VanGilder 
 
         opined again that claimant could return to work as a truck driver 
 
         on or about November 1983 and that he doubted that any permanent 
 
         disability would result.  He also noted that he could find no 
 
         evidence of malingering in claimant.
 
         
 
              Claimant was again seen on November 8, 1983.  Claimant then 
 
         reported that he continued to have low back pain which 
 
         radiatedinto the left buttock but not down the leg.  Parathesis 
 
         was still present in the left foot but was improved since 
 
         September.  Physical examination was essentially similar other 
 
         than sensory examination demonstrated spotty hypalgesia over the 
 
         dorsum of the left foot as well as mesial aspect of the left leg.  
 
         Increased exercise, particularly hip strengthening exercises, 
 
         were prescribed.  On reexamination on June 14, 1985, claimant's 
 
         physical condition was essentially unchanged with straight leg 
 
         raising at 80 degrees bilaterally and no evidence of hypalgesia 
 
         on sensory examination of the lower extremities.  Dr. VanGilder 
 
         opined that claimant remains with intractable pain somewhat 
 
         helped with Elavil.  He opined that claimant continued to be 
 
         disabled and would be unable to return to truck driving.  
 
         VanGilder agreed claimant had approximately 20 percent "medical 
 
         disability."  He doubted claimant's condition would significantly 
 
         change in the future given his prolonged consistent 
 
         symptomatology.  On August 26, 1985, Dr. VanGilder opined that 
 
         claimant would be limited to no climbing, no lifting greater than 
 
         20 pounds, no prolonged standing greater than one hour, and no 
 

 
         
 
         
 
         
 
         BEEMBLOSSOM V. TINDAL FARM SUPPLY, CO.
 
         Page   7
 
         
 
         
 
         prolonged sitting associated with jostling, as would be 
 
         associated with driving a truck, and that claimant is employable 
 
         only in sedentary work.  In his deposition, Dr. VanGilder opined 
 
         that claimant had reached maximum medical healing as of his June 
 
         13, 1985 examination.  The doctor further opined that claimant's 
 
         20 percent functional impairment and his limitations resulted 
 
         from the February 1983 injury.
 
         
 
              Claimant was subsequently examined by David C. Naden, M.D., 
 
         a board certified orthopedic surgeon.  Dr. Naden initially 
 
         evaluated claimant on December 8, 1983.  Examination findings 
 
         were not significantly different from those of Dr. VanGilder 
 
         other than that Dr. Naden found lateral bending only to be about 
 
         10 to 15 degrees each way with muscle spasm and guarding, and 
 
         rotation of 5 to 15 degrees each way and maybe 5 to 10 degrees of 
 
         hyperextension.  All motion of the back was found to produce 
 
         muscle spasm, pain and tightness.  Dr. Naden noted that in the 
 
         prone position claimant had evidence of instability of his spine 
 
         from L5-Sl to the lower dorsal spine.  Dr. Naden opined that 
 
         claimant's prognosis was guarded and felt that claimant would 
 
         probably not be able to return to work in his then present 
 
         condition.  Claimant was admitted to the Muscatine General 
 
         Hospital on January 25, 1984 for myelogram and CT scan.  The CT 
 
         scan revealed mild anterior spur formation of the lumbar spine 
 
         .With slight narrowing of the L5-Sl disc space.  No evidence of a 
 
         herniated disc was seen.  The myelogram was interpreted as 
 

 
         
 
         
 
         
 
         BEEMBLOSSOM V. TINDAL FARM SUPPLY, CO.
 
         Page   8
 
         
 
         
 
         revealing bulging discs at the L4-5 and the L5-Sl levels.  The 
 
         nerve roots were not cut off or compromised, however.  In a 
 
         February 28, 1984 report, however, Dr. Naden indicated that the 
 
         AP films of the myelogram did not show really good evidence of a 
 
         nerve root cutoff at either of the levels, but that he thought 
 
         that claimant had as bulging disc midline at the two levels which 
 
         was probably intermittently causing symptomatology down into his 
 
         lower left extremity.  He characterized claimant as having had a 
 
         preexisting condition that was aggravated by his truck accident 
 
         and which has caused an intermittent bulging disc in the lower 
 
         spine.  The doctor opined that claimant had a physical impairment 
 
         of around 17.5 to 20 percent which the doctor would attribute 
 
         approximately 50 percent to his preexisting conditions and 
 
         approximately 50 percent to his [February 1983] accident.  The 
 
         doctor then felt that the prognosis was not excellent but that 
 
         while it may be difficult for claimant to get back to driving, he 
 
         would probably improve with time and eventually be employable and 
 
         function in a "halfway decent fashion."
 
         
 
              Dr. Naden reexamined claimant on January 29, 1985.  His 
 
         physical examination was essentially as presented previously.  
 
         The doctor's ultimate diagnosis was of degenerative disc disease 
 
         with some evidence of nerve root encroachment on the left, 
 
         probably involving both the L-5 and S-1 nerve roots.  The doctor 
 
         opined that surgery would not really profit claimant and that he 
 
         was getting along adequately albeit not driving a semi.  In his 
 
         deposition, Dr. Naden opined that claimant could lift or carry 
 
         from 10 to 12 pounds on a repetitive basis, that claimant could 
 
         do intermittent sweeping, that claimant could either sit or stand 
 
         approximately 40 to 50 percent of the time during an eight hour 
 
         work day.  Dr. Naden noted that claimant has a mild limp which is 
 
         probably secondary to his condition and habit.  The doctor agreed 
 
         that he had seen no significant change in claimant's condition 
 
         during the approximate year between his last two examinations and 
 
         that as of his last examination no significant medical 
 
         improvement was likely.  The doctor further opined that while 50 
 
         percent of claimant's condition could be attributed to 
 
         degenerative changes, it was the February 1983 incident which 
 
         caused these preexisting changes to become symptomatic.  Dr. 
 
         Naden further stated that claimant could not bend, stoop, or 
 
         twist.  He subsequently stated that because of the intermittent 
 
         nature of claimant's symptoms, claimant would need employment 
 
         which would accommodate those times in which he was having more 
 
         difficulty and [was unable to perform within the limitations 
 
         outlined].  Dr. Naden opined that claimant's activities as a 
 
         laborer and trucker at Tindal Farm were such that could logically 
 
         lead to degeneration of the spine.
 
         
 
              Claimant was examined and treated by E. A. Dykstra, M.D., an 
 
         orthopedic surgeon, initially on September 21, 1984 per referral 
 
         .of Dr. Shimp   Initial physical examination was consistent with 
 
         those outlined above.  EMG's were nondiagnostic.  Further 
 
         physical therapy and epidural steroid injections were prescribed.  
 
         Claimant reported benefits from both regimes but continued to 
 
         have symptoms with very minimal change in his condition as of 
 
         February 18, 1985.  Dr. Dykstra then opined that claimant would 
 
         be unable to return to truck driving and that there would be no 
 
         long term changes in the original "disability" of 15 to 20 
 
         percent, 10 of which was related to the present episode.  
 

 
         
 
         
 
         
 
         BEEMBLOSSOM V. TINDAL FARM SUPPLY, CO.
 
         Page   9
 
         
 
         
 
         Claimant testified that the insurer subsequently refused to 
 
         continue authorization for physical therapy.
 
         
 
              David M. Paul, M.D., examined claimant on February 14, 1984 
 
         and November 13, 1984, both pursuant to a disability 
 
         determination for the Social Security Administration.  Following 
 
         the February examination, Dr. Paul stated that claimant did not 
 
         appear to require professional care nor significant amounts of 
 
         pain- relieving medication as he could walk a mile and was fully 
 
         independent in all areas of daily living but for a problem of 
 
         pain.  He stated that claimant may have "a mechanical backache" 
 
         or a "chronic pain syndrome," but that there was much in the 
 
         history and examination findings to suggest symptomatic or 
 
         conversion overlay.  He noted that there appeared to be no 
 
         examination findings which could confirm significant 
 
         musculoskeletal system functional limitations.  The November 
 
         examination and report was consistent.  In both reports, Dr. Paul 
 
         commented on claimant's performance on testing.  Noting that 
 
         "according to a Burns' bench study," Burns' bench patients who 
 
         show inability to perform or who refuse to even try the bench 
 
         test also show a significant correlation with conversion 
 
         personality features as defined on MMPI testing.
 
         
 
              Claimant was seen for evaluation of epididymitis and 
 
         prostatitis following his February 1983 accident.  The conditions 
 
         were treated and resolved successfully.
 
         
 
              Claimant testified that he initially had a TENS unit 
 
         prescribed following his injury; subsequently a back brace which 
 
         he continues to wear was prescribed.  Claimant testified that 
 
         during the period when he lived by himself following his injury 
 
         his son mowed lawn and shoveled snow while his daughters did 
 
         laundry and grocery shopped.  He admitted that he occasionally 
 
         washed dishes himself.  Claimant now lives with his children's 
 
         mother in a one story house which has three front steps and two 
 
         back steps as well as a garage.  Claimant admitted that he moved 
 
         furniture when the couple moved into their current home following 
 
         his February 1983 accident.
 
         
 
              Claimant reported that he has constant low back pain which 
 
         goes into his left leg with leg numbness at times.  Claimant 
 
         localized his pain as in the left center of the back and 
 
         approximately three inches above the beltline and radiating into 
 
         the left .buttock and hip through the mid thigh.  He reported 
 
         that at times the leg is completely numb to the mid thigh and 
 
         that he then uses a walker.  Claimant expressed his belief that 
 
         when he favors his left leg, the right leg "flares up."  Claimant 
 
         reported that he walks approximately a mile every day but must 
 
         stop after about two blocks and rest.  He indicated that if he 
 
         sits from one-half to three-quarters of an hour, he is awfully 
 
         stiff and that he therefore tries to get up every fifteen 
 
         minutes.  Claimant stated that he can drive an automatic car but 
 
         has not tried to drive a stick shift car as he is unable to push 
 
         the clutch down in his son's stick shift truck.  Claimant 
 
         testified that prior to his injury he handled ninety to one 
 
         hundred pound seed corn bags but now he does not even attempt to 
 
         pick up five pounds of potatoes.  He reported that he gives 
 
         himself rest periods during the day when at home or he simply 
 
         lies down or sits.  Claimant testified that he depends on his 
 

 
         
 
         
 
         
 
         BEEMBLOSSOM V. TINDAL FARM SUPPLY, CO.
 
         Page  10
 
         
 
         
 
         Elavil to sleeps through the night and that following his injury 
 
         he began to sleep on a heated waterbed.  Claimant river or creek 
 
         fishes on occasion and hunted mushrooms four times last spring.  
 
         Claimant has no medical appointments currently scheduled and sees 
 
         Dr. Shimp only for renewal of his Elavil prescription.  He 
 
         occasionally takes Tylenol during the day.
 
         
 
              Claimant could not recall having complaints of pain and 
 
         numbness in both legs in February 1977, but stated he went to a 
 
         chiropractor at that time and came out of it just like that.  A 
 
         note of Dr. Shimp on February 9, 1977 reflects complaints of pain 
 
         and numbness in both legs.
 
         
 
              Claimant reported that he was offered a job last year but 
 
         was unable to accept it on account of his injury.  He reported 
 
         that he has applied for other jobs through his counsel.  Claimant 
 
         indicated that he talked to Erv Lewis of State Vocational 
 
         Rehabilitation at the Washington County Development Center and 
 
         that Mr. Lewis referred him for vocational rehabilitation inhouse 
 
         evaluation in Des Moines.  Claimant subsequently underwent 
 
         inhouse evaluation in Des Moines and also on the job evaluation 
 
         at the Washington County Development Center.
 
         
 
              Claimant testified that he met on two occasions with Jan 
 
         Craven, a vocational rehabilitation coordinator with Professional 
 
         Rehabilitation Management.  He agreed that she had told him he 
 
         could call her at any time and that he had not done so.  He 
 
         refused to indicate that those calls could be made collect.  
 
         Claimant testified that he attempted a work hardening program 
 
         involving further physical therapy as well as exercise through 
 
         the YMCA, but that he was unable to do so as he developed poison 
 
         ivy over an extended portion of his body.  He stated that the 
 
         poison ivy cleared up after a month but, by then the YMCA program 
 
         was not available.  Claimant testified he followed up on any 
 
         employment references which Ms. Craven gave him.  He stated he 
 
         has lived in Washington, Iowa throughout his life and his family 
 
         resides there.  He indicated that he relies on his family to 
 
         fulfill his physical needs.  He testified he has difficulties 
 
         with driving substantial distances.
 
         
 
              Jan Craven testified that she has a masters degree in 
 
         special education; behavioral disorders, educationally and 
 
         mentally handicapped and behavior disordered, as well as a 
 
         masters degree in vocational counseling.  Craven met with 
 
         claimant for initial assessment on October 3, 1985.  Following 
 
         the initial job readiness assessment, claimant's case was put on 
 
         hold until January 21, 1986 pending completion of the State 
 
         Vocational Rehabilitation evaluation.  Ms. Craven testified that 
 
         upon reinstitution of services, a work hardening program 
 
         consisting of physical therapy at the Washington Community 
 
         Hospital and exercise at the Washington YMCA was instituted to 
 
         prepare claimant for functioning throughout an eight hour work 
 
         day.  She reported that the YMCA was contacted on January 29, 
 
         1986.  A letter regarding the program sent to claimant and his 
 
         counsel on February 4, 1986.  Craven testified that claimant 
 
         never entered into the work hardening program but that she had 
 
         been informed that claimant's brother had heart surgery and that 
 
         may have been a reason why claimant did not attend classes.  She 
 
         subsequently testified that she did have some indication 
 

 
         
 
         
 
         
 
         BEEMBLOSSOM V. TINDAL FARM SUPPLY, CO.
 
         Page  11
 
         
 
         
 
         concerning the poison ivy episode.  She noted that the work 
 
         hardening program was available to claimant from January through 
 
         May 1986 even though he never participated.  In her deposition, 
 
         Pam Hazell, licensed physical therapist, stated she advised Ms. 
 
         Craven that Ms. Hazell would initiate a program with claimant 
 
         at,the YMCA.  Hazell testified claimant once attempted contact 
 
         with her as to a time for them to work together, but that for 
 
         whatever reason contact was not made between her and claimant.  
 
         Ms. Craven testified that she authorized a labor market survey 
 
         which identified positions in both the Iowa City and Muscatine 
 
         area which claimant could possibly fill.  These included small 
 
         engine repair, rod and lure tying, gun repair, and small parts 
 
         assembly.  She agreed that some of the positions offered 
 
         on-the-job training but noted that many were small 
 
         family-operated firms.  She stated that an August 1, 1986, 
 
         approximately thirty-two openings in small assembly and repair 
 
         and mechanics in the Iowa City to Muscatine area were identified, 
 
         but stated only one or two were actually accepting applications 
 
         for employment and that she had identified only one possible job 
 
         opening.  Craven agreed that her August 6, 1986 report states 
 
         there does not appear to be an abundance of jobs within 
 
         claimant's capacities within claimant's geographic area and that 
 
         she had been unable to find a single employer who had a job 
 
         within claimant's restrictions.  She opined, however, that 
 
         claimant's employability was a function of his locale and if 
 
         claimant lived near or was mobile to Iowa City, claimant was 
 
         employable.  She opined that claimant had expressed an interest 
 
         in employment in Iowa City or Muscatine, or otherwise within 
 
         thirty minutes of his home if he were able to travel to those 
 
         locales.
 
         
 
              Ms. Craven testified that she had advised claimant to 
 
         contact and speak with the job training partnership act 
 
         coordinator in the Washington area and that claimant had met with 
 
         that individual on one occasion.  Ms. Craven indicated that 
 
         claimant did not wish to relocate and characterized the 
 
         Washington, Iowa economic picture as very poor at the time of the 
 
         labor market survey.  She characterized this as a "very 
 
         significant factor" in job availability.  Ms. Craven's written 
 
         reports concerning her involvement in claimant's case are 
 
         consistent with her oral testimony.
 
         
 
              Donna Daniel testified that she is a vocational 
 
         rehabilitation counselor with the State Vocational Rehabilitation 
 
         Program and has been such since 1976.  Ms. Daniel has a masters 
 
         degree in vocational rehabilitation counseling.  She has been 
 
         assigned to the state's evaluation facility in Des Moines since 
 
         1984 and was claimant's rehabilitation counselor during his stay 
 
         at the evaluation facility in November and December 1985.  She 
 
         reported that while claimant's stay at the evaluation facility 
 
         was interrupted on account of the Thanksgiving holiday and also 
 
         on account of a personal tragedy in claimant's life, claimant 
 
         completed his assigned evaluation program and was ultimately 
 
         discharged on December 17, 1985.  Ms. Daniel indicated that 
 
         claimant was willing to cooperate in the evaluation program and 
 
         desired to do his best in all that he was assigned to, but that 
 
         while claimant had some skills, the most significant concern was 
 
         whether claimant could physically tolerate performing any skills 
 
         on a full-time competitive level.  Ms. Daniel characterized 
 

 
         
 
         
 
         
 
         BEEMBLOSSOM V. TINDAL FARM SUPPLY, CO.
 
         Page  12
 
         
 
         
 
         claimant as best at hands on activities in the industrial skills 
 
         area, particularly small parts assembly, electronics portion of 
 
         such tasks.  She reported that on-the-job evaluation was 
 
         recommended in order to observe whether claimant could handle 
 
         such work physically.  She agreed that actual work hardening was 
 
         not a specific recommendation at the facility.  Records 
 
         concerning claimant's stay and performance at the evaluation 
 
         center were consistent with Ms. Daniel's oral testimony.
 
         
 
              Ms. Daniel's January 3, 1986 report noted that vocationally, 
 
         claimant received selective recommendations to pursue employment 
 
         as a production assembler, small parts assembler, and related 
 
         assembly portions of an electronics worker job.  She noted that 
 
         his hands on performance met expectations for those positions but 
 
         his physical tolerance for full-time employment and activities 
 
         that might be related and necessary to these positions is 
 
         questionable.  Ms. Daniel characterized claimant as a very 
 
         cooperative, mature, and motivated individual.  A building 
 
         maintenance final report of Dorothy Tarr indicated that no 
 
         vocational recommendations were made in that area since in the 
 
         reporter's opinion, work requiring comparable physical 
 
         movements-walking, bending, twisting, pushing, pulling, etc., 
 
         would be contraindicated.  It was suggested that possibly 
 
         inspection-type tasks or dispatcher work could be considered and 
 
         this would not be so physically demanding and would provide 
 
         claimant an opportunity to alternate his physical position 
 
         between sitting, standing, and walking.  In a work awareness 
 
         final report, claimant was noted to be better able to follow 
 

 
         
 
         
 
         
 
         BEEMBLOSSOM V. TINDAL FARM SUPPLY, CO.
 
         Page  13
 
         
 
         
 
         verbal with demonstrated instructions than he was able to follow 
 
         written or verbal [instructions] only.  Academic-related tests 
 
         were very difficult for claimant and he needed much encouragement 
 
         and support to carry them out.  The psychological evaluation 
 
         report indicated that the WAIS-R was administered claimant and 
 
         the results suggested intellectual functioning within the average 
 
         range with claimant's nonverbal skills surpassing his verbal 
 
         skills [WAIS verbal IQ 89, performance IQ 98, full scale IQ 92]. 
 
          Claimant's performance on reading tests was at the 5.8 grade 
 
         equivalent; math test placed at the seventh grade [23rd 
 
         percentile].  The reporter stated that performances at those 
 
         levels were not supportive of further academic training.  
 
         Performances on the DAT mechanical reasoning and space relation 
 
         tests were both  in the inferior range, and did not reflect 
 
         claimant's prior experience in mechanical work.
 
         
 
              Jill Boileau, director of client services at the Washington 
 
         County Developmental Center, testified that the center is a 
 
         sheltered work activity center and work adjustment center that 
 
         serves vocationally, physically, mentally and emotionally 
 
         handicapped individuals.  She reported that claimant attended the 
 
         center through the work adjustment program upon referral of his 
 
         regional vocational rehabilitation counselor.  Ms. Boileau 
 
         indicated that claimant was in the development center program for 
 
         ten working days and that following that time it was concluded 
 
         that claimant was not ready for competitive employment and that 
 
         although motivated, it was doubtful that claimant could 
 
         competitively be employed.  Ms. Boileau indicated that Dr. Shimp 
 
         reported at her request that claimant could do hand sorting; hand 
 
         pickups, which would involve lifting bags and placing items into 
 
         a truck; read envelopes, which would involve sitting for long 
 
         periods; fiber rolls, which would involve sitting for long 
 
         periods; janitorial, which would involve some lifting; tempo 
 
         paper folding, which would involve sitting for long periods; and 
 
         bending; running the drill press; table saw; band saws; and 
 
         participating in activities.  Dr. Shimp indicated that claimant 
 
         could not do tempo delivery which involves walking for long 
 
         periods.  The witness indicated that claimant's program at the 
 
         center was based on Dr. Shimp's checkoff report as well as on the 
 
         limitations Dr. VanGilder had suggested.
 
         
 
              Kathleen Benson-Larson, director of the Iowa Methodist 
 
         Medical Center Low Back Institute, and formerly a vocational 
 
         consultant and branch manager at Crawford Health and 
 
         Rehabilitation Services, testified.  Ms. Benson-Larson has 
 
         testified before the agency on other occasions and her 
 
         qualifications are well known to the undersigned as well as 
 
         outlined in exhibit 38.  They will not be further set forth here.  
 
         Ms. Benson-Larson indicated that she first became acquainted with 
 
         claimant when, in her capacity as a certified social security 
 
         vocational expert, she was asked to review claimant's file 
 
         concerning his application for social security disability 
 
         benefits and answer interrogatories prepounded.  She reviewed all 
 
         matters in that file as of December 1985 and was present for all 
 
         testimony on the day of this hearing.  Ms. Benson-Larson opined 
 
         that claimant could not function physically in competitive 
 
         sustained employment.  She indicated that claimant could function 
 
         only in casual or intermittent employment or in selective 
 
         placement.  Benson-Larson opined that claimant is not capable of 
 

 
         
 
         
 
         
 
         BEEMBLOSSOM V. TINDAL FARM SUPPLY, CO.
 
         Page  14
 
         
 
         
 
         dependably and continually selling his services in the 
 
         competitive labor market.  She further opined that the work 
 
         hardening program which Ms. Craven had attempted for claimant was 
 
         an appropriate approach in that the physical tolerance problem 
 
         was the most significant hurdle to claimant's employability in 
 
         that he has innate abil- ities and interests, as well as skills 
 
         which could be utilized to return him to the job market if his 
 
         physical abilities would so permit.  Ms. Benson-Larson's answers 
 
         to interrogatories propounded in the social security 
 
         administration hearing as well as the ultimate decision in that 
 
         hearing were reviewed and considered in the disposition of this 
 
         matter.
 
         
 
              Evidence concerning claimant's earnings with the employer 
 
         was reviewed and considered.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              We first consider the employer-employee relationship 
 
         question.
 
         
 
              Iowa Code sections 85.61(l) provides in part:
 
         
 
              2.  "Worker" or "employee" means a person who has entered 
 
              into employment of, or works under contract of service, 
 
              express or implied, or apprenticeship, for an employer ....
 
         
 
              The Iowa Supreme Court stated in Nelson v. Cities Service 
 
         Oil Co., 259 Iowa 1209, 1213, 146 N.W.2d 261 (1967):
 
         
 
                 This court has consistently held it is a claimant's 
 
              duty to prove by a preponderance of the evidence he or 
 
              his decedent was a workman or employee within the 
 
              meaning of the law....
 
         
 
              And, if a compensation claimant establishes a prima 
 
              facie case the burden is then upon defendant to go 
 
              forward with the evidence and overcome or rebut the 
 
              case made by claimant.  He must also establish by a 
 
              preponderance of the evidence any pleaded affirmative 
 
              defense or bar to compensation. (Citations omitted.)
 
         
 
              Given the above, the court set forth its latest standard for 
 
         determining an employer-employee relationship in Caterpillar 
 
         Tractor Co. v. Shook, 313 N.W.2d 503 (Iowa 1981).  The court 
 
         stated in part:
 
         
 
              I.  The employer-employee relationship.  As defined in 
 
              section 85.61(2), The Code, an "employee" is a "person 
 
              who has entered into the employment of, or works under 
 
              contract of service...for an employer."  Factors to be 
 
              considered in determining whether this relationship 
 
              exists are: (1) the right of selection, or to employ at 
 
              will, (2) responsibility for payment of wages by the 
 
              employer, (3) the right to discharge or terminate the 
 
              relationship, (4) the right to control the work, and 
 
              (5) identity of the employer as the authority in charge 
 
              of the work or for whose benefit it is performed.  The 
 
              overriding issue is the intention of the parties.  
 

 
         
 
         
 
         
 
         BEEMBLOSSOM V. TINDAL FARM SUPPLY, CO.
 
         Page  15
 
         
 
         
 
              McClure v. Union, et al., Counties, 188 N.W.2d 285 
 
              (Iowa 1971).(Emphasis added).
 
         
 
              Workers' compensation law is for the benefit of workers and 
 
         should be liberally construed.  Irish v. McCreary Saw Mill, 175 
 
         N.W.2d 364 (Iowa 1970).
 
         
 
              Workers' Compensation Act is remedial in nature and should 
 
         be given a liberal construction to accomplish the purpose 
 
         intended.  Snook v. Herrmann, 161 N.W.2d 185 (Iowa 1968).
 
         
 
              In cases of doubt as to workers' compensation cases, the 
 
         court must construe statutes liberally with view to extending aid 
 
         to every employee who can fairly be brought within them.  
 
         Usgaard v. Silver Crest Gay Club, 127 N.W.2d 636 (Iowa 1964).
 
         
 
              When the above factors are applied to claimant's case, it is 
 
         evident claimant was an employee of Tindal Farm Supply when 
 
         injured.  The Farm Supply had the right of selection and employed 
 
         claimant at will.  Likewise, The Farm Supply had the right to 
 
         discharge claimant.  Indeed, The Farm Supply had discharged 
 
         claimant in November 1982 and voluntarily called him back on his 
 
         injury date.  The Farm Supply was responsible for payment of 
 
         wages to claimant.  The parties considered those payments made as 
 
         wages and not as payment for services an independent contractor 
 
         rendered.  Tindal Farm Supply withheld state, federal and FICA 
 
         taxes.  Tindal Farm Supply paid claimant vacation pay and any 
 
         other benefits its full-time employees were entitled to all times 
 
         during which claimant was employed.  Tindal Farm Supply had the 
 
         right to control the work.  Leonard Tindal, directly or 
 
         indirectly, assigned claimant his daily work duties.  While 
 
         Tindal testified claimant could say 'yes" or "no," claimant's 
 
         testimony as regards driving the tractor-trailer rig with its 
 
         blown air bag demonstrates that claimant believed he would 
 
         jeopardize his job were he to refuse to perform directed duties.  
 
         Claimant did have some control over how he performed his work in 
 
         that he could determine the routes he followed while driving and 
 
         apparently was not prohibited from permitting nonemployees to 
 
         ride in the rig with him.  Claimant had no actual control over 
 
         the nature of his assigned work, however; that rested with The 
 
         Farm Supply.  Whatever control claimant exercised was that which 
 
         with one would expect a skilled employee to be trusted; namely, 
 
         that related to carrying out his assigned duties with minimal 
 
         direction or instruction.  Similarly, Tindal Farm Supply was 
 
         identified as the authority in charge of the work.  Rath Packing 
 
         contacted The Farm Supply and not claimant for trucking services.  
 
         Nothing in this record suggests Rath or any other entity or 
 
         individual believed claimant had actual authority over the work 
 
         performed or that claimant performed his services for other than 
 
         The Farm Supply's benefit.  That the immediate benefit may -have 
 
         been to Rath is not relevant.  Rath contracted with The Farm 
 
         Supply for hauling services and paid The Farm Supply for those 
 
         services.  Clearly, the ultimate benefactor from claimant's labor 
 
         was The Farm Supply.
 
         
 
              The parties stipulated as to the arising out of and in the 
 
         course of issue provided the employer-employee relationship was 
 
         established.  We need not, therefore, discuss that issue.  We 
 
         consider whether claimant has established a causal relationship 
 

 
         
 
         
 
         
 
         BEEMBLOSSOM V. TINDAL FARM SUPPLY, CO.
 
         Page  16
 
         
 
         
 
         between his work injury and his claimed disability.
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of February 21, 1983 is causally 
 
         related to the disability on which he now bases his claim.  
 
         Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  
 
         Lindahl v. L. 0. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A 
 
         possibility is insufficient; a probability is necessary.  Burt v. 
 
         John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 
 
         (1955).  The question of causal connection is essentially within 
 
         the domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
         Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              While a claimant is not entitled to compensation for the 
 
         results of a preexisting injury or disease, the mere existence at 
 
         the time of a subsequent injury is not a defense.  Rose v. John 
 
         Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2d 756, 760-761 
 
         (1956).  If the claimant had a preexisting condition or 
 
         disability that is aggravated, accelerated, worsened or lighted 
 
         up so that it results in disability, claimant is entitled to 
 
         recover.  Nicks v. Davenport Produce Co., 254 Iowa 130, 115 
 
         N.W.2d 812, 815 (1962).
 
         
 
              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.
 
         
 
         Dr. VanGilder opined claimant's current low back and lower 
 
         extremity difficulties resulted from his February 1, 1983 work 
 
         accident.  Dr. Naden believes that claimant's condition results 
 
         from the work accident and from degenerative changes in 
 
         claimant's spine.  Dr. Naden believes both that claimant's prior 
 
         activities for The Farm Supply were of a type which could 
 
         "logically lead" to degenerative spinal changes and that 
 
         claimant's work incident caused those preexisting changes to 
 
         become symptomatic.  Claimant's only known prior incident of low 
 
         back and leg problems occurred in 1977.  That difficulty, 
 
         whatever its nature, apparently resolved and claimant had been 
 
         able to work as a trucker and farm laborer until his work injury.  
 
         Only then did his condition become so manifest that he has been 
 
         unable to work or live as he had prior to that incident.  
 
         Claimant's 1983 work injury materially aggravated any prior 
 
         degenerative changes such that the requisite causal relationship 
 
         between the work injury and the disability is found.
 

 
         
 
         
 
         
 
         BEEMBLOSSOM V. TINDAL FARM SUPPLY, CO.
 
         Page  17
 
         
 
         
 
         
 
              We now reach the fighting issues, namely, the nature and 
 
         extent of claimant's benefit entitlement and whether claimant is 
 
         an odd-lot worker under the Guyton holding.
 
         
 
              Functional disability is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963). 
 
         Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961).
 
         
 
              A finding of impairment to the body as a whole found by a 
 
         medical evaluator does not equate to industrial disability.  This 
 
         is so as impairment and disability are not synonymous.  Degree of 
 
         industrial disability can in fact be much different than the 
 
         degree of impairment because in the first instance reference is 
 
         to loss of earning capacity and in the later to anatomical or 
 
         functional abnormality or loss.  Although loss of function is to 
 
         be considered and disability can rarely be found without it, it 
 
         is not so that a degree of industrial disability is 
 
         proportionally related to a degree of impairment of bodily 
 
         function.
 
         
 
              Factors to be considered in determining industrial 
 
         disability include the employee's medical condition prior to the 
 
         injury, immediately after the injury, and presently; the situs of 
 

 
         
 
         
 
         
 
         BEEMBLOSSOM V. TINDAL FARM SUPPLY, CO.
 
         Page  18
 
         
 
         
 
         the injury, its severity and the length of healing period; the 
 
         work experience of the employee prior to the injury, after the 
 
         injury and potential for rehabilitation; the employee's 
 
         qualifications intellectually, emotionally and physically; 
 
         earnings prior and subsequent to the injury; age; education; 
 
         motivation; functional impairment as a result of the injury; and 
 
         inability because of the injury to engage in employment for which 
 
         the employee is fitted.  Loss of earnings caused by a job 
 
         transfer for reasons related to the injury is also relevant.  
 
         These are matters which the finder of fact considers collectively 
 
         in arriving at the determination of the degree of industrial 
 
         disability.
 
         
 
              There are no weighting guidelines that indicate how each of 
 
         the factors are to be considered.  There are no guidelines which 
 
         give, for example, age a weighted value of ten percent of the 
 
         total value, education a value of fifteen percent of total, 
 
         motivation - five percent; work experience - thirty percent, etc.  
 
         Neither does a rating of functional impairment directly correlate 
 
         to a degree of industrial disability to the body as a whole.  In 
 
         other words, there are no formulae which can be applied and then 
 
         added up to determine the degree of industrial disability.  It 
 
         therefore becomes necessary for the deputy or commissioner to 
 
         draw upon prior experience, general and specialized knowledge to 
 
         make the finding with regard to degree of industrial disability.  
 
         See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, 
 
         February 28, 1985); Christensen v. Hagen, Inc., (Appeal Decision, 
 
         March 26, 1985).
 
         
 
              In Guyton v. Irving Jensen Co., 373 N.W.2d 101 (Iowa 1985), 
 
         the Iowa court formally adopted the "odd-lot doctrine."  Under 
 
         that doctrine a worker becomes an odd-lot employee when an injury 
 
         makes the worker incapable of obtaining employment in any well 
 
         known branch of the labor market.  An odd-lot worker is thus 
 
         totally disabled if the only services the worker can perform are 
 
         "so limited in quality, dependability, or quantity that a 
 
         reasonably stable market for them does not exist.
 
         
 
              The burden of persuasion on the issue of industrial 
 
         disability always remains with the worker.  However, when a 
 
         worker makes a prima facie case of total disability by producing 
 
         substantial evidence that the worker is not employable in the 
 
         competitive labor market, the burden to produce evidence of 
 
         suitable employment shifts to the employer.  If the employer 
 
         fails to produce such evidence and the trier of fact finds the 
 
         worker does fall in the odd-lot category, the worker is entitled 
 
         to a finding of total disability.  Id. Even under the odd-lot 
 
         doctrine, the trier of fact is free to determine weight and 
 
         credibility of evidence in determining whether the worker's 
 
         burden of persuasion has been carried, and only in an exceptional 
 
         case would evidence be sufficiently strong to compel a finding of 
 
         total disability as a matter of law.  Id.  In Guyton, the court 
 
         also stated the following regarding determination of a worker's 
 
         industrial loss.
 
         
 
                 The question is more than the one posed by the 
 
              commissioner concerning what the evidence shows Guyton 
 
              "can or cannot do."  The question is the extent to 
 
              which the injury reduced Guyton's earning capacity.  
 

 
         
 
         
 
         
 
         BEEMBLOSSOM V. TINDAL FARM SUPPLY, CO.
 
         Page  19
 
         
 
         
 
              This inquiry cannot be answered merely by exploring the 
 
              limitations on his ability to perform physical activity 
 
              associated with employment.  It requires consideration 
 
              of all the factors that bear on his actual 
 
              employability.  See New Orleans (Gulfwide) Stevadores 
 
              v. Turner, 661 F.2d 1031, 1042 (5th Cir.1981) (are 
 
              there jobs in the community that the worker can do for 
 
              which he could realistically compete?) Id.
 
         
 
              Claimant has not made a prima facie showing that he is an 
 
         odd-lot worker.  Under the odd-lot doctrine, the injury must be 
 
         the factor which makes the worker incapable of obtaining 
 
         employment in any well known branch of the labor market.  In 
 
         claimant's case, we cannot ascertain whether claimant's current 
 
         nonemployability arises from his injury as such or from 
 
         claimant's nonparticipation in a work hardening program.  All 
 
         vocational experts agreed that claimant's primary problem is his 
 
         physical condition and lack of physical tolerance.  Both Ms. 
 
         Craven and Ms. Benson-Larson testified that work hardening was 
 
         the appropriate and necessary approach to rehabilitate claimant 
 
         for productive employment.  Defendants, through Ms. Craven's 
 
         efforts, attempted to establish a work hardening program for 
 
         claimant.  At least portions of that program were available to 
 
         claimant from February through early Summer 1986.  Claimant who 
 
         by that time certainly had some understanding that physical 
 
         conditioning was essential to his vocational wellbeing never 
 
         participated in the program.  He did not even visit the YMCA and 
 
         use his employer-provided membership.  While claimant asserts and 
 
         we would like to believe that claimant's non-participation 
 
         resulted from a series of unfortunate mishaps in claimant's life, 
 
         we conclude the record does not support that conclusion.  
 
         Claimant made little effort to communicate to either defendants 
 
         or his own counsel that he was unavailable for the program.  
 
         Claimant did not inform his own counsel of his alleged problems 
 
         with participation until June 10, 1986.  While claimant did not 
 
         have a telephone during part of the time in question, Mr. 
 
         Mullins, his co-counsel, has his office in the same small 
 
         community in which claimant resides.  One suspects that if 
 
         claimant had considered preservation of and participation in the 
 
         work hardening program a priority, either he personally or one of 
 
         the family members on whom he relies for assistance would have 
 
         contacted Mr. Mullins in April or May 1986.  Mr. Mullins or his 
 
         co-counsel then could have immediately contacted defendants and, 
 
         thereby, demonstrated that claimant had a good faith desire to 
 
         participate in the work hardening efforts.  Likewise, neither 
 
         claimant nor any family member on his behalf directly attempted 
 
         to call Ms. Craven collect or communicate to defendants by letter 
 
         that claimant then could not participate in the work hardening 
 
         efforts.  While we agree claimant has academic limitations, he 
 
         was able to function with enough common sense and social 
 
         appropriateness in his adult life to remain employed until his 
 
         injury.  Hence, we do not feel that his intellectual abilities 
 
         and level of social sophistication precluded his realizing the 
 
         importance of communicating his inability to participate in the 
 
         work hardening program in a timely fashion.  Further, claimant's, 
 
         at best, languid approach to the work hardening efforts offered 
 
         him raises serious questions as to his motivation.  As the 
 
         Guyton court pointed out, the question of the extent to which 
 
         the injury reduced the claimant's earning capacity requires 
 

 
         
 
         
 
         
 
         BEEMBLOSSOM V. TINDAL FARM SUPPLY, CO.
 
         Page  20
 
         
 
         
 
         consideration of all factors that bear an actual employability.  
 
         Motivation is such a factor.  We agree that claimant participated 
 
         in the state vocational rehabilitation program and the 
 
         opportunity center program.  Both of those programs assessed 
 
         claimant's ability to perform employment tasks in his current 
 
         physical state.  Neither was designed to assist claimant in 
 
         achieving a higher level of physical functioning.  Only the work 
 
         hardening program was designed to achieve that.  Work hardening 
 
         was essential to claimant's employability in that claimant had 
 
         transferable skills.  We also agreed that claimant at one time 
 
         contacted Pam Hazell regarding initiating work hardening and that 
 
         Ms. Hazell was uncertain why further contact did not occur.  We 
 
         believe, however, that claimant had a responsibility to make 
 
         further efforts at contact with Ms. Hazell on his own behalf.  
 
         His failure to do so or to offer a credible reason why he did not 
 
         do so over an extended period also raises serious questions as to 
 
         his motivation.  Claimant's failure to seriously attempt to 
 
         either participate in or preserve the possibility of 
 
         participating in such a program counterbalances any finding of 
 
         motivation to work through his participation in less essential 
 
         vocational efforts.  Claimant has not shown that his failure to 
 
         find any employment in a well-known branch of the labor market 
 
         results from his injury and not from his own lack of motivation.  
 
         Claimant is not an odd-lot worker.
 
         
 
              Other evidence does show that claimant has sustained a 
 
         substantial loss of earning capacity, however.  Claimant is an 
 
         older worker.  He lives in a smaller, economically depressed, 
 
         community where employment opportunities are limited.  His desire 
 
         not to relocate is reasonable and cannot be used as a negative 
 
         factor in assessing his current industrial disability.  He is a 
 
         high school graduate but is academically limited and apparently 
 
         lacks the abstract thinking skills required for more 
 
         sophisticated academic retraining.  His prior experience is 
 
         largely as a truck driver and manual labor.  His residual 
 
         physical problems from his injury are likely such that he could 
 
         not return to like jobs even were he to complete the work 
 
         hardening offered.  On the other hand, he has transferable skills 
 
         identified through state vocational rehabilitation and with work 
 
         hardening might be able to find employment within his permanent 
 
         limitations.  As discussed above, claimant's motivation to work 
 
         is, at best, marginal.  All factors support an overall. loss of 
 
         earning capacity of 75 percent.  A significant change in any of 
 
         the factors bearing an employability would, of course, make this 
 
         award ripe for review-reopening.
 
         
 
         
 
              We reject both claimant's and defendants' position as to the 
 
         running of healing period benefits.  Evaluation and care by Dr. 
 
         Naden initially was intended to discover whether claimant's 
 
         condition could be improved with further treatment.  Hence, the 
 
         initial examination time could not constitute the end of the 
 
         healing period.  Reexamination on January 29, 1985 demonstrated 
 
         claimant's condition had not changed significantly in the 
 
         subsequent year and raised a fair assumption that significant 
 
         further improvement could not reasonably be anticipated.  That 
 
         assumption was supported by Dr. DykstraOs February 18, 1985 
 
         conclusion that claimant had very minimal changes in his 
 
         condition even with physical therapy and steroid injections and 
 

 
         
 
         
 
         
 
         BEEMBLOSSOM V. TINDAL FARM SUPPLY, CO.
 
         Page  21
 
         
 
         
 
         Dr. VanGilder's June 14, 1985 opinion that claimant's condition 
 
         would not change significantly in the future.  Claimant's healing 
 
         period is found to run through January 29, 1985.
 
         
 
              Claimant seeks vocational rehabilitation benefits.  The 
 
         reason he seeks them is unclear from the record.  Section 85.70 
 
         entitles claimant to such benefits during that time in which he 
 
         was actively participating in a vocational rehabilitation program 
 
         recognized by the state board for vocational education.  If 
 
         either the Washington City Opportunity Center Program or the 
 
         State Vocational Rehabilitation on site evaluation program 
 
         qualifies under the section, claimant is entitled to vocational 
 
         rehabilitation benefits for times in which he was in attendance 
 
         and defendants are advised to pay claimant any such entitlement.
 
         
 
              The rate issue remains.  In his brief, claimant states:
 
         
 
                 Since John had not returned to work for the full 
 
              thirteen-week period of time before his injury, it 
 
              would appear that Iowa Code Section 85.36 (7) is 
 
              applicable and as Defendants earlier admitted, the 
 
              gross weekly wage for purposes of determining John's 
 
              rate of compensation is $263.00.  The appropriate rate 
 
              is, therefore, no less than $164.44 per week.
 
         
 
              Claimant appears to be waiving all other rate issues raised 
 
         but for that of claimant's entitlement to an exemption for his 
 
         son.  Claimant's son was 18 at the time of the injury.  
 
         Claimant's son apparently was still attending high school, 
 
         however, and claimant apparently still was required to and was 
 
         paying child support for him.  We conclude the claimant could 
 
         properly have claimed his son as an exemption.  Therefore, the 
 
         appropriate rate is $164.44.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              WHEREFORE, IT IS FOUND:
 
         
 
              Tindal Farm Supply, d/b/a B & T Farm Supply, originally 
 
         hired claimant in January 1980 and laid him off in November 
 
         1982.
 
         
 
              Tindal Farm Supply called claimant back to work on February 
 
         21, 1983.
 
         
 
              Tindal Farm Supply had the right of employee selection, 
 
         employed claimant at will and had exercised the right to 
 
         discharge claimant.
 
         
 
              Tindal Farm Supply was responsible for paying claimant wages 
 
         and withheld federal and state income taxes, FICA taxes, and 
 
         child support from claimant's wages.
 
         
 
              Tindal Farm Supply paid claimant vacation pay and any other 
 
         benefits to which its full-time employees were then entitled.
 
         
 
              Tindal Farm Supply's chief executive officer assigned 
 
         claimant his daily work activities and claimant's discretion was 
 
         largely limited to determining how to reasonably perform the job 
 

 
         
 
         
 
         
 
         BEEMBLOSSOM V. TINDAL FARM SUPPLY, CO.
 
         Page  22
 
         
 
         
 
         assigned.
 
         
 
              Tindal Farm Supply had the right to control the work 
 
         performed.
 
         
 
              Rath Packing Company contacted Tindal Farm Supply for 
 
         trucking services.
 
         
 
              Tindal Farm Supply either directly purchased fuel and other 
 
         supplies for the tractor-trailer or reimbursed claimant for 
 
         purchase of those items.
 
         
 
              Any repairs on the tractor-trailer were made on Tindal Farm 
 
         Supply property with Farm Supply tools and supplies.
 
         
 
              Tindal Farm Supply was identified as the authority in charge 
 
         of the work and for whose benefit the work was performed.
 
         
 
              Claimant was an employee of Tindal Farm Supply on February 
 
         21, 1983.
 
         
 
              Claimant sustained an injury which arose out of and in the 
 
         course of his employment on February 21, 1983 when the 
 
         tractor-trailer he was driving overturned.  Claimant was thrown 
 
         about in the truck cabin.
 
         
 
              Claimant initially was treated for a bruise on his thigh, 
 
         left leg "numbness" and neck pains.
 

 
         
 
         
 
         
 
         BEEMBLOSSOM V. TINDAL FARM SUPPLY, CO.
 
         Page  23
 
         
 
         
 
         
 
              Claimant has no evidence of neurologic deficit but has 
 
         continuing leg "numbness,O low back pain radiating into his left 
 
         buttock, and weakness and fatigue.
 
         
 
              Claimant did not generally have similar complaints or 
 
         limitations prior to his injury.
 
         
 
              Claimant is limited from lifting greater than 20 pounds, 
 
         from climbing, prolonged standing, and from prolonged sitting.
 
         
 
              Claimant's limitations and complaints result from his work 
 
         injury.
 
         
 
              Claimant injured his testicle in his work accident.  That 
 
         injury has since resolved.
 
         
 
              Significant improvement in claimant's condition could not 
 
         reasonably be anticipated after January 29, 1985.
 
         
 
              Claimant is 55 years old; a high school graduate and has 
 
         limited academic ability.
 
         
 
              Claimant's work experience is primarily as a manual laborer 
 
         and truck driver.  Claimant cannot return to either occupation.
 
         
 
              Claimant has transferable skills which might result in 
 
         gainful employment but claimant's present physical condition 
 
         prevents his attempting employment utilizing those skills.
 
         
 
              Work hardening is advisable for claimant.
 
         
 
              Defendants attempted a work hardening program for claimant. 
 
          Claimant was not well motivated to either participate in or 
 
         preserve the right to participate in that program.
 
         
 
              Claimant has not made prima facie showing that his inability 
 
         to obtain employment in any well-known branch of the labor market 
 
         results from his work injury and not from his own lack of 
 
         motivation.
 
         
 
              Claimant is not an odd-lot worker.
 
         
 
              Claimant's local labor market is limited and economically 
 
         depressed.
 
         
 
              Claimant has a reasonable desire to remain near his family 
 
         and not relocate.
 
         
 
              Claimant has a moderately severe functional impairment.
 
         
 
              Claimant has sustained a loss of earning capacity of 75 
 
         percent.
 
         
 
              Claimant had been in the employ of the employer for less 
 
         than thirteen calendar weeks immediately preceding the injury.
 
         
 
              Claimant's gross weekly wage for rate commutation purposes 
 
         is $263.00, the wage amount paid a similar Tindal Farm Supply 
 

 
         
 
         
 
         
 
         BEEMBLOSSOM V. TINDAL FARM SUPPLY, CO.
 
         Page  24
 
         
 
         
 
         employee.
 
         
 
              Claimant's son was over 18 but still attending high school 
 
         on the injury date.
 
         
 
              Claimant still was obligated to support his son and was 
 
         paying child support for the son on claimant's injury date.
 
         
 
              Claimant was entitled to claim his son as a federal income 
 
         tax exemption on claimant's injury date.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              THEREFORE, IT IS CONCLUDED:
 
         
 
              Claimant has established that claimant was an employee of 
 
         the employer, Tindal Farm Supply, on February 21, 1983.
 
         
 
              Claimant has established his February 21, 1983 injury arose 
 
         out of and in the course of his employment.
 
         
 
              Claimant has established that his February 21, 1983 injury 
 
         is the cause of the disability on which he now bases his claim.
 
         
 
              Claimant is entitled to healing period benefits from his 
 
         injury date through January 29, 1985.  Defendants are entitled to 
 
         credit for benefits previously paid.
 
         
 
              Claimant is entitled to permanent partial disability 
 
         benefits resulting from his February 21, 1983 injury of 
 
         seventy-five percent (75%).
 
         
 
              Claimant's rate of weekly compensation is one hundred 
 
         sixty-four and 44/100 dollars ($164.44).
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Defendants pay claimant permanent partial disability 
 
         benefits for three hundred seventy-five (375) weeks at a rate of 
 
         one hundred sixty-four and 44/100 dollars ($164.44) with those 
 
         payments to commence on January 30, 1985.
 
         
 
              Defendants pay claimant healing period benefits from his 
 
         injury date through January 29, 1985 at a rate of one hundred 
 
         
 
         sixty-four and 44/100 dollars ($164.44). Defendants receive 
 
         credit for benefits previously paid.
 
         
 
              Defendants pay accrued amounts in a lump sum.
 
         
 
              Defendants pay interest pursuant to section 85.30
 
         
 
              Defendants pay costs pursuant to Division of Industrial 
 
         Services Rule 343-4.33, formerly Industrial Commissioner Rule 
 
         500-4.33.
 
         
 
              Defendants file claim activity reports as required by the 
 

 
         
 
         
 
         
 
         BEEMBLOSSOM V. TINDAL FARM SUPPLY, CO.
 
         Page  25
 
         
 
         
 
         agency.
 
         
 
         
 
              Signed and filed this 29th day of January, 1987.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                           HELEN JEAN WALLESER
 
                                           DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies to:
 
         
 
         Mr. Michael R. Mullins
 
         Attorney at Law
 
         P.O. Box 88
 
         112 South Avenue B
 
         Washington, Iowa 52353
 
         
 
         Ms. Lorraine J. May
 
         Attorney at Law
 
         404 Equitable Bldg.
 
         Des Moines, Iowa 50309
 
         
 
         Mr. James Q. Blomgren
 
         Attorney at Law
 
         P.O. Box 732
 
         110 North Market Street
 
         Oskaloosa, Iowa 52577
 
         
 
         
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                     1108; 1402.10; 1803;
 
                                                     1802; 2001; 3001;
 
                                                     3002; 4100
 
                                                     Filed 1-29-87
 
                                                     Helen Jean Walleser
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         JOHN BEEMBLOSSOM,
 
         
 
              Claimant,                             File No. 727594
 
         VS.
 
                                                 A R B I T R A T I 0 N
 
         TINDAL FARM SUPPLY CO.,
 
                                                    D E C I S I 0 N
 
              Employer,
 
         
 
         and
 
         
 
         ALLIED INSURANCE, a/k/a
 
         AID INSURANCE,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1108; 1402.10; 1803; 1802; 2001; 3001; 3002; 4100
 
         
 
              Employer-employee relationship established where formerly 
 
         full-time trucker/general manual laborer received an injury which 
 
         arose out of and in the course of his employment while driving a 
 
         truck for employer on call back after three month layoff.  
 
         Claimant's present back condition causally related to truck 
 
         accident.  Seventy-five percent industrial disability awarded 55 
 
         year old male claimant with work history in trucking and manual 
 
         labor and transferable skills which current physical condition 
 
         precluded his using.  Claimant had avoided participation in work 
 
         hardening program defendants initiated even though two vocational 
 
         experts testified work hardening was key to his potential 
 
         employability.  Held claimant not an odd-lot worker in that 
 
         claimant had made a prima facie showing his inability to find 
 
         employment resulted from his injury and not from his own lack of 
 
         motivation.
 
 
 
         
 
         
 
 
         
 
         Page   1
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         before the iowa industrial commissioner
 
         ____________________________________________________________
 
                   :
 
         PATRICK H. MALLOY,  :
 
                   :
 
              Claimant, :
 
                   :
 
         vs.       :
 
                   :      File No. 727883
 
         FLOYD VALLEY PACKING COMPANY, :
 
                   :        A P P E A L
 
              Employer, :
 
                   :      D E C I S I O N
 
         and       :
 
                   :
 
         ARGONAUT INSURANCE COMPANY,   :
 
                   :
 
              Insurance Carrier,  :
 
              Defendants.    :
 
         ___________________________________________________________
 
         The record, including the transcript of the hearing before the 
 
         deputy and all exhibits admitted into the record, has been 
 
         reviewed de novo on appeal.  The decision of the deputy January 
 
         23, 1991 is affirmed and is adopted as the final agency action in 
 
         this case, with the following additional analysis:
 
         Even if claimant's garden incident of back spasm and pain does 
 
         not constitute an intervening cause of his present back 
 
         condition, claimant's medical evidence fails to establish a 
 
         causal connection between his work injury and his present 
 
         condition.  Most of claimant's physicians did not attribute his 
 
         back condition to his work injury, including physicians who were 
 
         unaware of the garden incident.  In addition, claimant's 
 
         fibrositis was cited as a possible cause of his condition.  
 
         Claimant bears the burden of proof.  Claimant has failed to carry 
 
         his burden to show that his present condition was caused by his 
 
         work injury.
 
         Claimant shall pay the costs of the appeal, including the 
 
         preparation of the hearing transcript.
 
         Signed and filed this ____ day of July, 1991.
 
         
 
         
 
         
 
         
 
                   ________________________________
 
                            CLAIR R. CRAMER
 
                    ACTING INDUSTRIAL COMMISSIONER
 
         
 

 
         
 
         Page   2
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Raymond E. Pogge
 
         Mr. Christopher J. Tinley
 
         Attorneys at Law
 
         P.O. Box 1502
 
         Council Bluffs, Iowa 51503
 
         
 
         Mr. Harry W. Dahl
 
         Attorney at Law
 
         974 73rd St., Ste 16
 
         Des Moines, Iowa 50312
 
         
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            9999
 
            Filed July 30, 1991
 
            Clair R. Cramer
 
            WRM
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            PATRICK H. MALLOY,  :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :      File No. 727883
 
            FLOYD VALLEY PACKING COMPANY, :
 
                      :        A P P E A L
 
                 Employer, :
 
                      :      D E C I S I O N
 
            and       :
 
                      :
 
            ARGONAUT INSURANCE COMPANY,   :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            9999
 
            Summary affirmance of deputy's decision filed January 23, 
 
            1991 with short additional analysis.
 
            
 
 
         
 
 
 
 
 
 
 
 
 
                                       51106; 51401; 51402.20; 51402.30;
 
                                       51402.40; 51801; 51803; 51402.60;
 
                                       52501; 52700; 2906
 
                                       Filed January 23, 1991
 
                                       Walter R. McManus, Jr.
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         PATRICK H. MALLOY,
 
         
 
              Claimani,
 
         
 
         vs.
 
                                              File No.  727883
 
         FLOYD VALLEY PACKING COMPANY,
 
                                          A R B I T R A T I O N
 
              Employer,
 
                                              D E C I 5 I 0 N
 
         and
 
         
 
         ARGONAUT INS[]RANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         51106; 51401; 51402.20; 51402.30
 
         
 
              Claimant proved a right thigh and back injury.
 
         
 
         51402.40 51801
 
         
 
              Claimant awarded temporary total disability for the same few 
 
         weeks tltat defendants had paid him prior to hearing.
 
         
 
         51402.40 51803
 
         
 
              Claimant did not prove the injury was the cause of permanent 
 
         disability-.
 
         
 
         51402.60  52501  52700
 
         
 
              Claimant did not prove several succeeding doctors retained 
 
         after his initial treatment by company authorized doctors was 
 
         caused by this injury and he was denied those expenses.
 
         
 
         2906
 
         
 
              Claimant's previous attorney failed to serve a favorable 
 
         medical report pursuant to rule 343 IAC 4.17 some two and onehalf 
 
         years prior to hearing.  Current attorney did serve it 15 days 
 
         prior to hearing.  Defendants objected to the report.  The 
 
         objection was overruled and the report was admitted because 
 
         MfiLLOY V. FLOYD VALLEY PACKING CO.
 

 
         
 
 
 
 
 
 
 
 
 
         Page 2
 
         
 
         defendants' attorney did not express any desire to depose this 
 
         doctor after the report was served on him, he did not ask for a 
 
         continuance to depose this doctor, but did depose two of his own 
 
         doctors witi'out any objection, but with the cooperation of 
 
         claimant's attorney within the 15 day period prior to hearing. It 
 
         was determined that to exclude this report would be too harsh a 
 
         sanction under the circumstances.
 
         
 
              Defendants' objection to the admission of claimant's medical 
 
         bills for the reason that the charges were not reasonable, were 
 
         not for reasonable treatment, were not causally connected to this 
 
         injury and were not authorized was overruled.  Defendants' 
 
         objection goes to the weight of the evidence and not the 
 
         admissibility.  It would not be possible to tell if the charges 
 
         were reasonable, were for reasonable treatment and causally 
 
         connected without examining the bills.
 
         
 
         
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         PATRICK I-I. MALLOY,                                     ~ ~  LEo
 
         
 
              Claimant,                                        Jh1l~3 l~l
 
         vs.
 
                                              File No.  72 88~3JSTRl.Al 
 
                                              sERVloeFjC
 
         FLOYD VALLEY PACKING COMPANY,
 
                                          A R B I T R A T I O N Employer,
 
                                              D E C I 5 I 0 N
 
         and
 
         
 
         ARGONAUT INS[JRANCE COMPANY,
 
         
 
              Insuran<e Carrier,
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Patrick H. 
 
         Malloy, claimant, against Floyd Valley Packing Company, employer 
 
         and Argonaut Insurance Company, insurance carrier, defendants for 
 
         benefits as the result of an alleged injury which occurred on 
 
         February 22, 1983.  A hearing was held in Sioux City, Iowa, on 
 
         January l9, 1989, and the case was fully submitted at the close of 
 
         the hearing.  Claimant was represented by Christopher J. Tinley 
 
         and Raymond E. Pogge.  Defendants were represented by Harry W. 
 
         Dahl.  The evidence consists of the testimony of Patrick H. 
 
         Malloy, claimant; Joyce Malloy-Bressler, claimant's mother; Rhonda 
 
         McNeeley, claimant's witness; and, Ervin Sencenbaugh, supervisor.  
 
         At the hearing, the attorneys referred to joint exhibits 1 through 
 
         18 (transcript pages 18, 40, 196 and 197). Later in the hearing, 
 
         exhibits 19 through 21 were added to the exhibits.  The deputy 
 
         noted that the exhibits had not been prepared pursuant to 
 
         paragraph nine of the hearing assignment order and in particular, 
 
         the exhibits did not have page numbers so they could be identified 
 
         in the decision (tr. p. 25). Subsequently, Mr. Tinley remarked the 
 
         exhibits and the case is determined on the following remarked 
 
         exhibits--joint exhibits 1 through 5, 8 through 10, 15, 17 through 
 
         21 and defendants' exhibits 1 through 3.  The exhibits contain the 
 
         deposition of Paul From, M.D., and Alfredo Soccaras, M.D., but 
 
         these exhibits do not bear any identification number or letter.  
 
         No exhibit l.ist was submitted.  Defendants objected to exhibit 8, 
 
         pages 1 through 4 and exhibit 18, as being considered joint 
 
         exhibits because defendants objected to those exhibits.  It was 
 
         agreed that they would be considered as claimant's exhibits even 
 
         though marked as joint exhibits.  At the time of hearing, 
 
         claimant's attorneys presented claimant's contentions of disputed 
 
         issues.  Defendants' MALLOY V. FLOYD VALLEY PACKING CO.
 
         Page 2
 
         
 
         attorney presented defendants' description of disputes.  Both 
 

 
         
 
 
 
 
 
 
 
 
 
         attorneys submitted excellent posthearing briefs.  Defendants 
 
         ordered a copy of the transcript and agreed to supply a copy for 
 
         the industrial commissioner's file (tr. pp. 46 & 47).
 
         
 
                               PRELIMINARY MATTERS
 
         
 
              The original notice and petition requested a reviewreopening 
 
         proceeding.  The deputy inquired if there had been a prior award 
 
         or settlement agreement.  Claimant then moved to amend the 
 
         petition to request an arbitration decision. Defendants did not 
 
         object to the motion.  The motion was granted and the petition is 
 
         amended to request a proceeding in arbitration.  Iowa Code section 
 
         86.14.
 
         
 
              Defendants moved to close the record to any testimony from 
 
         claimant concerning his employment history, earnings history or 
 
         claimant's income for the reason that claimant had not complied 
 
         with the order of Deputy Industrial Helenjean Walleser, dated 
 
         January 13, 1989, to supply income tax returns to defendants prior 
 
         to the hearing.  Claimant replied that he had furnished individual 
 
         income tax returns to defendants just a few days prior to hearing.  
 
         Defendants responded that claimant had not supplied partnership 
 
         income tax returns for the period in question. Claimant countered 
 
         that partnership returns had not been requested.  Uefendants 
 
         agreed that they had not specified partnership income tax returns, 
 
         but expected to receive all income tax returns of any kind.
 
         
 
              CIaima"t's income tax preparer was contacted during the 
 
         hearing and claimant obtained the partnersriip income tax returns 
 
         requested by defendants during the hearing.  These were marked 
 
         joint exhibits 19, 20 and 21.  Defendants motion then became moot 
 
         and defendants further withdrew the motion that the record be 
 
         foreclosed to claimant's testimony concerning his employment 
 
         history, earnings history and other income testimony (tr. pp. 
 
         3-14; 59 and ~n)
 
         
 
              Claimant initially objected to defendants' exhibit 2, which 
 
         are excepts rrom the treatise entitled Manual for Orthopedic 
 
         Surqeons in Evaluatinq Permanent Physical Impairment which 
 
         defendants counsel had used to interrogate Chester H. Waters, III, 
 
         M.D., at the time of his deposition.  Defendants' counsel stated 
 
         that he used the entire book to cross-examine Dr. Waters, but 
 
         needed to keep the book and had prepared these copies of the pages 
 
         used to cross-examine Dr. Waters as a deposition exhib.it. After 
 
         some discussion, claimant's counsel withdrew his objection to 
 
         defendants' exhibit 2 and it was admitted into evidence (tr. pp. 
 
         35-40).
 
         
 
              Defendants objected to joM~LLOY V. FLOYD VALLEY PACKING CO.
 
         Page 3
 
         
 
         responded tlt~t this report was served on January 4, 1989, which 
 
         was the fifteenth day prior to hearing; and therefore, it was 
 
         timely served pursuant to paragraph six of the hearing assignment 
 
         order.  Ciaimant demonstrated a notice of service of January 4, 
 

 
         
 
 
 
 
 
 
 
 
 
         1989, and defendants withdrew their objection to the exhibit on 
 
         that ground.
 
         
 
              Defendants then objected to exhibit 8, pages I through 4, for 
 
         the reason that the document was not served on them within ten 
 
         days after receipt of the document by claimant as required by rule 
 
         343 IAC 4.17.  The date of Dr. Hagen's report is March 20, 1987.  
 
         Defendants' counsel argued that the document was almost two years 
 
         old and that he had never seen it until it was served on January 
 
         4, 1989.  Claimant's counsel asserted that they served it as soon 
 
         as they received it from claimant's previous counsel, but they 
 
         were unable to say when they received it and could not demonstrate 
 
         that it was served shortly after it was received from the previous 
 
         attorney.  Rule 4.17 states, "A party failing to comply with the 
 
         provisions of this rule shall, if the failure is prejudicial to an 
 
         opposing party, be subject to the provisions of 4.35(86)." 
 
         Oefendants' attorney claimed prejudice because the report 
 
         addresses causal connection and the nature and extent of 
 
         disability, which are ultimate issues to be decided in this case. 
 
         Claimant's counsel could not demonstrate that the document was 
 
         timely served as required by rule 4.17.  Claimant's counsel 
 
         acknowledged in their brief that the document had not been served 
 
         upon defendants by claimant's prior counsel in 1987 (claimant's 
 
         brief page 7).  Claimant's counsel asserted that defendants' 
 
         counsel had known for several months that claimant had seen Dr. 
 
         Hagen and to exclude the exhibit at this time would be highly 
 
         prejudicial to claimant.  Ruling was reserved on defendants' 
 
         motion until the time of the decision.
 
         
 
              Rule 341 lAC 4.36 empowers a deputy 'to close the record to 
 
         further activity or evidence or to dismiss the action.  It is now 
 
         determined and ruled that defendants' objection to exhibit 8, 
 
         pages I through 4 is overruled.  The report was served on 
 
         defendants on January 4, 1989.  Defendants made no request to 
 
         depose Dr. Hagen, nor did they ask for a continuance in order to 
 
         do so.  At the same time, defendants, with the cooperation of 
 
         claimant's counsel, deposed Paul From, M.D. and Alfredo Socarras, 
 
         M.D., both on January Il, 1989, but expressed no desire to depose 
 
         Dr. Hagen.  Under these circumstances, it would be too harsh of a 
 
         sanction to exclude the exhibit from evidence.  Therefore, exhibit 
 
         8 pages 1 through 4, the medical report of Dr. Hagen, dated March 
 
         20, 1987, is admitted into evidence at this time (tr. pp. 22-34).
 
         
 
              Defendants objected to exhibit 18, certain medical bills, for 
 
         the reasons that the fees charged were not reasonable, the 
 
         treatment was not reasonable and necessary treatment, the 
 
         treatment was not causally connected to this injury and the 
 
         treatment was not authorized by defendants (tr. pp. 18-20, 34, 41, 
 
         48).  Ruling was reserved until the time of decision.  It is 
 
         MALLOY V. FLOYD VALLEY PACKING CO.
 
         page 4
 
         
 
         now ruled th't defendants' objection to exhibit 18 is overruled. 
 
         Defendants' objection goes to the weight of the evidence and not 
 
         the admissibility of it.  Exhibit IS is admitted into evidence at 
 

 
         
 
 
 
 
 
 
 
 
 
         this time.  In order to determine the reasonableness of the 
 
         charges, the reasonableness of the treatment and their casual 
 
         connection to this injury, it is necessary to examine the bills 
 
         themselves.
 
         
 
              At the close of the hearing, the parties agreed to file 
 
         briefs by April 1, 1989 (tr. pp. 197-202).  See also posthearing 
 
         order.  Claimant's counsel requested an extension of time until 
 
         May 1, 1989, which was granted.  Defendants' brief was timely 
 
         filed on May 1, 1989.  Claimant's brief was not received until 
 
         August 7, 1990.  Defendants then filed a motion to strike brief on 
 
         behalf of claimant for the reason that it was more than 15 months 
 
         late.  Defendants' motion was not resisted.  The deputy ruled on 
 
         ~eptember 11, 1990, that he would rule on defendants' motion at 
 
         the time of decision.  When briefs were requested, the deputy 
 
         stated that it was to give each party a final opportunity to 
 
         summarize their best evidence and apply it to their respective 
 
         proposition on each issue in this case so that they could be 
 
         considered at the time of the decision (tr. p. 199).  Therefore, 
 
         even though defendants' brief was timely and claimant's brief was 
 
         untimely, the evidence was all in and the briefs were not intended 
 
         to be responsive; and therefore, no prejudice to defendants 
 
         results from considering claimant's brief at this tame.  
 
         Therefore, defendants' motion to strike claimant's brief is 
 
         overruled.  Claimant's brief was examined and considered in the 
 
         determination of the issues in this case.
 
         
 
                                   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 defendants were willing to stipulate that if they were 
 
         found liable for the injury that claimant was entitled to 
 
         temporary disability benefits for one day on February 23, 1983 and 
 
         then again from March 8, 1983 through April 25, 1983; a total of 
 
         7.143 weeks of temporary disability benefits.  Claimant agreed 
 
         that claimant was entitled to temporary disability benefits for 
 
         this period, but contended claimant was also off work until 
 
         October of 1983 and furthermore, his healing period did not end 
 
         until March 20, 1987 (tr. p. 14).
 
         
 
              That the rate of compensation, in the event of an award of 
 
         benefits, is $235.01 per week.
 
         
 
              That de!=endants claim no credit for benefits paid to 
 
         claimant prior to hearing under an employee nonoccupational group 
 
         health plan.
 
         
 
         
 
 
 
 
 
 
 
 
 
         M~LLOY V. FLOYD VALLEY PACKING CO.
 
         Page 5
 
         
 
              That defendants paid claimant 7.143 weeks of workers' 
 
         compensation benefits at the rate of $235.01 per week prior to 
 
         hearing.
 
         
 
              That there are no bifurcated claims.
 
         
 
                                      ISSUES
 
         
 
              The parties submitted the following issues for determination 
 
         at the Lime of the hearing:
 
         
 
              Whether claimant sustained an injury on February 22, 1983, 
 
         which arose out of and in the course of employment with employer.
 
         
 
              Whether the injury was the cause of temporary disability.
 
         
 
              Whether claimant is entitled to temporary disability 
 
         benefits, and if so, the nature and extent of benefits to which he 
 
         is entitled.
 
         
 
              Whether the injury was the cause of permanent disability, to 
 
         include whether claimant sustained an injury to the body as a 
 
         wltole or whether claimant sustained a scheduled member injury.
 
         
 
              Whether claimant is entitled to permanent disability 
 
         benefits, and if so, the nature and extent of benefits to which he 
 
         is entitled.
 
         
 
              Whether claimant is entitled to medical benefits.
 
         
 
              Even though the hearing assignment order designated odd-lot 
 
         as a hearing issue, the prehearing report did not specify that 
 
         this was proposed as a hearing issue at the time of the hearing, 
 
         and thus it appears that the parties had abandoned this issue.
 
         
 
              Even though paragraph 7a and 7b on the prehearinq report 
 
         showed that claimant was asserting the affirmative defenses of 
 
         untimely claim under Iowa Code section 85.26 and untimely notice 
 
         under Iowa Code section 85.23, defendants' counsel stated that 
 
         these were not issues in this case at this time.  Furthermore, 
 
         neither one of these issues appeared on the hearing assignment 
 
         order (tr. p. 17); and therefore, could not be addressed by the 
 
         deputy anyway.
 
         
 
              Defendants contentions (1) that costs should be taxed to 
 
         claimant and (2) that claimant is not entitled to any interest on 
 
         any award because of the delays and continuances occasioned by 
 
         claimant, are not designated as hearing issues on the hearing 
 
         assignment order and will not be addressed in this decision (tr. 
 
         p. 30; defendants' prehearing description of disputes, paragraph 
 
         7).
 
         
 
         
 
 
 
 
 
 
 
 
 
         int exhibit 8, pages 1 through 4, a medical report from Mark P. 
 
         Hagen, D.C., for the reason that it was not served within 15 days 
 
         prior to hearing pursuant to paragraph six of the hearing 
 
         assignment order.  Claimant
 
         
 
         
 
 
 
 
 
 
 
 
 
         MALLOY V. FLOYD VALLEY PACKING CO.
 
         Page 6
 
         
 
                                 FINDINGS OF FACT
 
         
 
                                      INJURY
 
         
 
              It is determined that claimant sustained an injury to his 
 
         right t;tigh and lower back on February 22, 1983, which arose out 
 
         of and in the course of employment with employer.
 
         
 
              Claimant started to work for employer on April 28, 1982.  He 
 
         voluntarily quit on March 5, 1984, in order to open a bar in 
 
         partnership with a friend.  The injury occurred on February 22, 
 
         1983.  Claimant was off work due to a strike from June 1, 1983 to 
 
         October 1, 1983 (defendants exhibit 3).
 
         
 
              Claimant testified that he worked on night cleanup (tr. p. 
 
         52).  One of his jobs was to clean combos.  A combo is a metal 
 
         container which measures four feet by four feet by four feet and 
 
         weighs approximately 325 pounds when empty.  It is used to 
 
         transport hams, loins and other meat products within the packing 
 
         house.  On February 22, 1983, claimant attempted to place the 
 
         lifting bars of a floor jack under a combo in order to raise it up 
 
         and clean it out.  The floor jack did not lower the Iifting bars 
 
         like it was supposed to and the lifting bars and floor jack struck 
 
         the combo with a jerk and it came to a sudden stop.  This impact 
 
         forced claimant's body forward and he struck the battery casing on 
 
         the floor jack from the waist down and he also flipped over into 
 
         the combo about three to four feet in front of him (tr. pp. 
 
         54-58).  Claj.mant testified that he reported that he hurt his leg 
 
         to Erv Sencenbaugh, his supervisor.  Sencenbaugh told him to see 
 
         Milton D. Grossman, M.D., the company physician.  Claimant said he 
 
         lost one day of work on February 23, 1983, pursuant to Dr. 
 
         Grossman's orders.  Claimant was working alone and there were no 
 
         witnesses to the accident (tr. pp. 58-63).
 
         
 
              Dr. Grossman reported on March 29, 1983, that claimant bumped 
 
         his ri.ght thigh into a fork lift on February 22, 1983 and 
 
         sustained a contusion of the right thigh for which he was disabled 
 
         one day on February 23, 1983.  He administered first aid, took 
 
         x-rays, and prescribed medication.  Claimant was returnetr to work 
 
         on February 24, 1983 (ex. 8 1-2; ex. 15, p. 6). Employer prepared 
 
         an internal first report of injury for this incident which 
 
         indicated that claimant bumped his right thigh against the fork 
 
         lift causing pain and difficulty walking (ex. 15, p. 5).  
 
         cencenbaugh also completed a supervisor's report of injury on 
 
         February 23, 1983, which indicated that claimant bumped his knee 
 
         and thigh (ex. 15, p. 11).  Sencenbaugh verified at the hearing 
 
         that claimant reported the injury to him at the time it happened 
 
         (tr. p. 174).  lie said claimant bruised his thigh and bumped his 
 
         knee (tr, p. 175).
 
         
 
              The supervisor testified that when claimant returned to work, 
 
         he inquired about his leg and claimant said it was alright. His 
 

 
         
 
 
 
 
 
 
 
 
 
         work was good.  He did everything.  He did not have any problem 
 
         that Sencenbaugh can remember (tr. p. 176).  Sencenbaugh MALLOY V. 
 
         FL.OYD VALLEY PACKING CO.
 
         Page 7
 
         
 
         did not detect that claimant was in pain or having any 
 
         difficulties after February of 1983 except on one occasion when 
 
         claimant tol<! him that he was stiff and sore from working out 
 
         lifting weights in a gym (tr. pp. 176 & 185).
 
         
 
              Claimant admitted that he belonged to a club, but denied that 
 
         there were any weights involved.  Claimant testified that when he 
 
         told Sencenbaugh that he was stiff and sore, it was because of his 
 
         job with employer (tr. p. 192).  Claimant also admitted that he 
 
         belonged to a nautilus club, but stated this was before the injury 
 
         date.  Claimant responded that he did not complain about being 
 
         stiff and sore after the accident because he wasn't released by 
 
         any doctor to work out (tr. p. 193).
 
         
 
              Claimant testified that after he returned to work on February 
 
         24, 1983, his leg and back continued to bother him and Sencenbaugh 
 
         told him to go see his own doctor, A. J. Callaghan, M.D.  However, 
 
         claimant did continue to work at his same job of night cleanup 
 
         from February 24, 1983 until he was taken off work by Dr. 
 
         Callaghan on March 8, 1983 (tr. pp. 63-66).
 
         
 
              Dr. Callaghan reported, "Teeth jammed on fork l~ft, throwing 
 
         patient against mead combo.  He twisted his back.  He returned to 
 
         work following day, but back got worse." (ex. 8 G-4).  Dr. 
 
         Callaghan reported that x-rays were negative for fracture and that 
 
         he diagnosed, "Acute sacroiliac".  He took claimant off work on 
 
         March 8, 1983, prescribed medication and physiotherapy and 
 
         referred claimant to Dr. Paulsrud (full name unknown), an 
 
         orthopedic surgeon (ex. 8 G-4).
 
         
 
              Dr. paulsrud saw claimant on April 1-4', 1983, for low back 
 
         pain without radicular symptoms.  X-rays demonstrated an increased 
 
         lumbar lordosis.  Dr. paulsrud diagnosed, "Low back strain with 
 
         superimposed postural back problem." (ex. 8 G-3).  He prescribed a 
 
         postural program of exercises and said that claimant should be 
 
         ab!e to return to work in the next week or two (ex. 8 G-3).
 
         
 
              Dr. Callaghan estimated as of April 18, 1983, that claimant 
 
         would be able to return to work in approximately two weeks (ex. 8 
 
         G-5) Dr. Callaghan reported on September 16, 1985, "He was 
 
         involved in a work accident on February 22, 1983, at which time I 
 
         took care of him." (ex. 8 G-l).  Company records and medical 
 
         records show that claimant was taken off work on March 8, 1983. On 
 
         April 25, 1983, he was released to return to work the following 
 
         day on April 26, 1983 (ex. 15, pp. 3, 4, 12, 13, 14, 18, 19).
 
         
 
              Claimant then worked full time at his night cleanup job from 
 
         April 26, 1983, until the time of the strike on June 1, 1983.
 
         
 
              Claimant testified that during the strike in the summer of 
 

 
         
 
 
 
 
 
 
 
 
 
         1983, he went to stoop over to cut a weed and his back went into 
 
         severe spasm.  He felt severe pain in his back and left leg.  He 
 
         MALLOY V. FLOYD VALLEY PACKING CO.
 
         Page 8
 
         
 
         laid down in a ditch behind his car and then was helped into the 
 
         back ser~t of the car and was eventually taken home.  He testified 
 
         that he had severe spasms on other occasions and when it was 
 
         severe lie would be off his feet for three to four days, unable to 
 
         move (tr. pp. 87-89).  Claimant verified that he testified in his 
 
         deposition that, "Everything went out on me." and that he was home 
 
         in bed for about three days because, "I couldn't move it." 
 
         Claimant further testified there was a lot of pain.  "Seemed like 
 
         anything I would do, I go into a lot of pain." (tr. pp. 127 h 128)
 
         
 
              Claimant returned to work when the strike ended 0!' October 
 
         1, 1983 and worked either on night cleanup or the cut floor, until 
 
         he resigned on March 5, 1983 (tr. pp. 116, 119 & 129).
 
         
 
              From the foregoing evidence, it is determined that claimant 
 
         sustained an injury to his right thigh and lower back on February 
 
         22, 1983, which arose out of and in the course of employment with 
 
         employer eve't though the accident was not witnessed.  Claimant 
 
         reported it immediately; the supervisor made a written report; the 
 
         company made out an internal first report of injury; claimant was 
 
         treated by the company physician, Dr. Grossman, for his right 
 
         thigh; claimant was later treated by Dr. Callaghan and examined by 
 
         Dr. Paulsrud for his low back based on the history of this work 
 
         injury and no prior episodes of back injury.
 
         
 
                CAUSAL CONNECTION-ENTITLEMENT-TEMPORARY DISABILITY
 
         
 
              Claimant is entitled to one day of temporary disability 
 
         benefits on February 23, 1983, when Dr. Grossman kept claimant off 
 
         work on the day following the injury.. 'Claimant is also entitled 
 
         to temporary disability benefits for the period from March 8, 
 
         through April 25, 1983, when Dr. Callaghan took claimant off work.  
 
         Both Dr. Grossman and Dr. Callaghan indicated that these times off 
 
         work were due to injury which occurred in February 22, 1983.
 
         
 
              Claimant received chiropractic treatments from Lloyd G. 
 
         Molstad, D.C., from August 12, 1983 through September 30, 1983 and 
 
         incurred a bill in the amount of $402 (ex. 8 C-l & C-2; ex. 15, 
 
         pp. 23-25).  It is determined that claimant did not sustain the 
 
         burden of proof by a preponderance of the evidence that this 
 
         period of treatment was caused by the injury of February 22, 1983.  
 
         First of all, claimant returned to work and performed all of his 
 
         duties without any difficulty according to Sencenbaugh until t)'e 
 
         time of the strike on June 1, 1983.  Then during the summer of 
 
         1983 while out on strike, claimant experienced an intervening 
 
         severe traumatic back episode while working in his garden.  No 
 
         physician has stated that the garden incident was related to his 
 
         injury on February 22, 1983.  In fact, Dr. Molstad does not even 
 
         mention the garden incident, nor do later doctors 'who examined 
 
         and treated claimant.  Therefore, the garden incident would appear 
 

 
         
 
 
 
 
 
 
 
 
 
         to be an intervening cause in this case. MALLOY V. FLOYD VALLEY 
 
         PACKING CO.
 
         page 9
 
         
 
              Claimant's back complaints from the February 22, 1983 
 
         incident came on gradually and were not fully manifested until he 
 
         saw Dr. Callaghan on March 8, 1983.  By comparison, the garden 
 
         incident precipitated immediate, severe pain which put claimant on 
 
         his back and totally disabled him for a total of three days. There 
 
         ale other minor discrepancies in Dr. Molstad's report.  One of 
 
         them is that he stated that claimant injured himself on March 27, 
 
         1983, while operating the fork lift and that all of his treatments 
 
         were related to his accident of March 27, 1983.  Dr. Molstad was 
 
         incorrect about the date of injury which is actually February 22, 
 
         1983.  Secondly, in his written report of November 7, 1983, Dr. 
 
         Molstad stated he treated claimant from August 12 until September 
 
         30, 1983, but he did not indicate that claimant was unable to work 
 
         during this period of time (ex. 8 C-l & C-2; ex. 15, p. 25).  A 
 
         third problem with Dr. Molstad's information is that he stated 
 
         claimant would be unable to work from September 30, 1983 until 
 
         October 10, 1983 (ex. 15, pp. 15 & 17).  However, according to his 
 
         written report claimant was not treated by Dr. Molstad during this 
 
         period of time (ex. 8 C-l; ex. 15, p. 25).
 
         
 
              Therefore, it is determined that the injury of February 22, 
 
         1983, was not the cause of any temporary disability during the 
 
         period of Dr. Molstad's treatment from August 12, 1983 until 
 
         September 30, 1983 or from September 30, 1983 to October 10, 1983.
 
         
 
              Claimant is entitled to 7.143 weeks of temporary disability 
 
         benefits when he was taken off work by Dr. Grossman on February 
 
         23, 1983 and when he was taken off work by Dr. Callaghan from 
 
         March 8, 1983 through April 25, 1983.
 
         
 
                CASUAL CONNECTION-ENTITLEMENT-PERMANENT DISABILITY
 
         
 
              It is determined that the injury of February 22, 1983, was 
 
         not the cause of permanent disability and claimant is not entitled 
 
         to permanent disability benefits.
 
         
 
              Claimant did not seek out any treatment after he last saw Dr. 
 
         Mol~tad on September 30, 1983, until he contacted Dr. Pechacek 
 
         (full name unknown) on his own on February 18, 1985, a period of 
 
         almost a year and a half after he last saw Dr. Molstad. 
 
         Lumbosacral x-rays were normal.  The disc spaces were normal. Dr. 
 
         Pechacek diagnosed muscular low back pain.  He recommended back 
 
         exercises.  Claimant saw Dr. Pechacek again on March 21, 1985.  He 
 
         did not keep his appointment on April 23, 1985.  He saw Dr. 
 
         Pechacek again on May 7, 1985 and did not keep his appoint\nent on 
 
         June 18, 1985.  There is another gap in his treatment by Dr. 
 
         Pechacek of approximately one year, from May 7, 1985 to April 25, 
 
         1986.  He saw Dr. Pechacek again on May 9, 1986, missed his 
 
         appointment on May 19, 1986 and kept his appointment on June 26, 
 
         1986.  Dr. Pechacek had claimant checked by Dr. McLarnan (full 
 
         name unknown).
 
         
 
         
 
 
 
 
 
 
 
 
 
         HALLOY V. FLOYD VALLEY PACKING CO.
 
         Page 10
 
         
 
              Dr. pechacek reported on October 2, 1986, that Dr. McLarnan 
 
         did not identify any neurologic problems.  He suggested that 
 
         claimant obtain an EMG and nerve conduction study.  None of Dr. 
 
         pechacek's entries comment on the garden incident.  Even though 
 
         Dr. Pecliacek proceeded on the history of the fork lift incident, 
 
         he made absolutely no statement concerning the cause of claimants 
 
         compl.aints nor did he find any impairment or impose any permanent 
 
         restrictions (ex. 8 Fl through F-5).
 
         
 
              Claimant then saw Mark P. Hagen, D.C., on September 3, 1986. 
 
         Claimant gave a history of the fork lift incident, but there is no 
 
         mention of the garden incident.  Dr. Hagen said claimant 
 
         complaiiied of severe daily migraine headaches, light headedness, 
 
         loss of balance, dizziness, severe stiffness and soreness of the 
 
         cervical spine, difficult neck movement, muscle spasms of the 
 
         neck, grinding sounds in the neck, severe shoulder pain between 
 
         the shoulder, numbness and pain in the arms, hands, and fingers, 
 
         cold hands, loss of strength in the arms and hands, severe low 
 
         back pain aggravated by activity, numbness and pain extending into 
 
         the legs, muscle spasm to the lower extremities, pain in the 
 
         buttocks, knee joint pain, lack of circulation in the feet, and 
 
         pain in the hip.  He determined that claimant had a IO percent 
 
         impairment of the whole man based up on the cervical spine and IO 
 
         percent impairment of the whole man based up on the low lumbar 
 
         spine.  A total whole body permanent physical impairment of 20 
 
         percent.  Dr. Hagen concluded, "Based on the history as presented 
 
         by this patient, the above noted objective findings from 
 
         examinations, re-examinations (including x-rays), that the above 
 
         noted injuries were sustained in the accident of February 22, 
 
         1983." (ex. 8 A-4) Dr. Hagen treated claimant with chiropractic 
 
         manipulation approximately 49 times between September 5, 1986 and 
 
         March 18, 1987 and his total bill amounted to $997.20 (ex. 18 A-I 
 
         and A-2).
 
         
 
              Dr. Hagen's opinion on causal connection and impairment are 
 
         disregarded.  He makes no mention of the garden incident.  His 
 
         opinion is made on March 20, 1987, over four years after the 
 
         initial injury of February 22, 1983.  The scope of complaints 
 
         which claimant registered with Dr. Hagen far exceed his initial 
 
         complaints of a bruised right thigh and low back pain.  Dr. 
 
         Hagen's opinions are contrary to the opinions of Dr. Paulsrud and 
 
         Dr. Pechacek, both orthopedic surgeons, and Dr. From, an 
 
         internist, attd Dr. Socarras, a neurologist.  Dr. From and Dr. 
 
         Socarras who saw claimant approximately two or three weeks prior 
 
         to hearing.
 
         
 
              Claimant saw Chester H. Waters, IlL, M.D., an orthopedic 
 
         surgeon, on Tuly 27, 1987 and he made a report on October 20, 
 
         1987.  Dr. Waters examined claimant for neck pain, shoulder pain, 
 
         frequent heaOaches, blurred vision, vomiting, occasional numbness 
 
         on the left side into the fingers and back pain.  He found no 
 
         fixed neurologic deficits in either the upper extremity or the 
 

 
         
 
 
 
 
 
 
 
 
 
         lower extremity neurologic testing.  Claimant's x-rays were 
 
         essentially normal.  He diagnosed chronic cervical and lumbar 
 
         MALLOY V. FLOYD VALLEY PACKING CO.
 
         Page Il
 
         
 
         strain and possible inflammatory spondylopathy.  He said his 
 
         symptoms have remained relatively unchanged in the last several 
 
         years and presumably are not likely to improve further.  He did 
 
         not see the need for anything surgical or for additional tests 
 
         that would lead to surgery such as a CT scan or a myelogram.  Dr. 
 
         Waters concluded:
 
         
 
              In the absence of significant objective radiologic or 
 
              neurologic abnormalities, and based upon the patient's 
 
              persistent complaints of discomfort in his neck and back, I 
 
              would estimate a ten to fifteen per cent [sic) permanent 
 
              partial impairment to the body as a whole from his neck and 
 
              back complaints, presumably a chronic cervical and lumbar 
 
              strain.
 
         
 
         exhibit 8 B-3
 
         
 
              Dr. Waters did not state that claimant's complaints were 
 
         caused by the injury of February 22, 1983, nor did he state that 
 
         claimant's disability was caused by this injury.  On the contrary, 
 
         Dr. Waters believed that it was a chronic problem which has 
 
         remained relatively unchanged for the last several years and 
 
         presumably is not likely to improve further.
 
         
 
              Dr. Hagen's report is also at odds with Angelo Patil, M.D., a 
 
         neurosurgeon, who saw claimant on February 2, 1988, and Lynell W. 
 
         Klassen, M.D., a rheumatologist, and Gerald Francis Moore, M.D., a 
 
         rheumatologist.  Doctors Patil, Klassen and Moore are doctors at 
 
         the University of Nebraska Hospital and Clinics (ex. 9 A-I through 
 
         G-l; ex. IO).  None of these doctors could pinpoint a definite 
 
         diagnosis for claimant's myriad symptoms.  None of these doctors 
 
         stated that the injury of February 22, 1983 was the cause of any 
 
         of claimant's symptoms.
 
         
 
              The opinions of Dr. Patil, Dr. Klassen, Dr. Moore, Dr. From 
 
         and Dr. Socarras as well as the opinions of Dr. paulsrud, Dr. 
 
         Pechacek and Dr. Waters are preferred over the isolated opinion of 
 
         Dr. Hagen.  Rockwell Graphics Systems. Inc. v. Prince, 366 N.W.2d 
 
         187, 192 (Iowa 1985).  Furthermore, the expertise and board 
 
         certification of the medical doctors should be accorded greater 
 
         weight than the chiropractic opinion of Dr. Hagen. Reiland v. 
 
         Palco Inc., Thirty-second Biennial Report of the Industrial 
 
         Commissioner 56 (1975); Dickey v. ITT Continental Bakinq Co, 
 
         thirty-fourth Biennial Report of the Industrial Commissioner 89 
 
         (1979).  Dr. From and Dr. Socarras testified by deposition on 
 
         January Il, 1989, approximately one week before the hearing.  
 
         Their depositions do not have a numerical or letter identification 
 
         as an exhibit.
 
         
 
              An EMG at the university of Nebraska Medical Center of the 
 

 
         
 
 
 
 
 
 
 
 
 
         left upper extremity and the left lower extremity, as well as both 
 
         motor and sensory nerve conduction studies performed by A.
 
         S. Lorenzo, M.D., on April 6, 1988, were all reported as normal 
 
         (ex. 9 DI aitd D-2)
 
         
 
         
 
 
 
 
 
 
 
 
 
         MfiLLOY V. FIOYD VALLEY PACKING CO.
 
         Page 12
 
         
 
              An MflI examination performed at the university on April 6, 
 
         1988, by Francis Hahn, M.D., disclosed mild changes of 
 
         degenerative disc disease with minimal disc bulging at L4-5 and 
 
         mild lumber scoliosis (ex. 9 J-l).  Laboratory studies on July l3, 
 
         1988, all appear to be normal (ex. 9 I-I and 1-2).
 
         
 
              A circulating immune complexes (CIC) test performed by T. 
 
         McDonald, Ph.D., on July 13, 1988, which is a recently developed 
 
         research tool that directly measures the amount of serum IG G 
 
         and/or IG M antibody that is bound in an immune complex reported 
 
         that the IG G was borderline positive and the IG M was highly 
 
         elevated (ex. 9 1-3).
 
         
 
              Dr. patil stated that the MRI disclosed degeneration of L4-5 
 
         which was suspected to be related to heavy lifting, however, it is 
 
         was not the cause of claimant's current symptoms.  lie said his 
 
         current symptoms were related to fibrositis and that is when he 
 
         referred claimant to Dr. Klassen (ex. 8 El).  Dr. From commented 
 
         that the IG G and IG M studies indicated that something is going 
 
         wrong with claimant's immune system (From deposition page 17). 
 
         Both Dr. From and Dr. Socarras could find no objective cause of 
 
         claimant's complaints other than the mild MRI report and the 
 
         abnormal immune system report.  They did not relate either of 
 
         these conditions to claimant's employment or to the injury of 
 
         February 22, 1983.  They found no permanent impairment and saw no 
 
         need to impose any permanent restrictions.
 
         
 
              From the foregoing evidence it is determined that the injury 
 
         of February '2, 1983, was not the cause of any permanent 
 
         impairment or disability.  Therefore, the issues of whether the 
 
         injury was the cause of scheduled memberdr industrial disability, 
 
         commencement date and entitlement to permanent disability benefits 
 
         are all moot.
 
         
 
                                 MEDICAL BENEFITS
 
         
 
              It is determined that claimant is not entitled to recover the 
 
         medical expenses incurred with Dr. Hagen (ex. 18 A-I & A-2), Dr. 
 
         Mol~tad (ex. IQ BI), the University of Nebraska Hospital (ex. IQ 
 
         C-l) and the physicians at the University of Nebraska Medical 
 
         Center (ex. IQ DI through D-7) because claimant did not prove that 
 
         these expenses were caused by the injury of February 22, 1983.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Wherefore, based on the evidence presented and the foregoing 
 
         and following principles of law, these conclusions of law are 
 
         made:
 
         
 
              That claimant did sustain the burden of proof by a 
 
         preponderance of the evidence that he sustained an injury to his 
 
         right thigh and low back on February 22, 1983, which arose o'it of 
 

 
         
 
 
 
 
 
 
 
 
 
         and in the course of employment with employer.  Iowa Code section 
 
         M~LLOY V. FLOYD VALLEY PACKING CO.
 
         page 13
 
         
 
         85.3 (I)  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).
 
         
 
              Tlt't the injury of February 22, 1983 was the cause of 
 
         temporary disability.  Bodish v. Fischer Inc., 257 Iowa 516, 133 
 
         N.W.2d Qr~7 (1965); Lindahl v. L.O. Boqqs Co., 236 Iowa 296 IS 
 
         N.W.2d 007 (1945).
 
         
 
              Thit cl~iimant is entitled to 7.143 weeks of temporary 
 
         disability benefits.  Iowa Code section 85.33(l).
 
         
 
              That defendants are entitled to a credit for 7.143 weeks of 
 
         temporary disability benefits paid to claimant prior to hearing as 
 
         stipulated to by the parties.
 
         
 
              That claimant did not sustain the burden of proof by a 
 
         preponderance of the evidence that the injury of February 22, 1983 
 
         was the cause of permanent disability.  Bodish, 257 Iowa 516, 133 
 
         N.W.2d 867 (1965); Lindahl, 236 Iowa 296 18 N.W.2d 607 (1945)
 
         
 
              That the issues of whether the injury was the cause of 
 
         industrjal disability or scheduled member disability, entitlement 
 
         to permanent disability benefits, and the commencement date of 
 
         such benefits are moot because claimant did not prove that the 
 
         injury was the cause of permanent disability.
 
         
 
              That claimant is not entitled to the medical benefits 
 
         requested in exhibit IQ for the reason that claimant did not prove 
 
         that the injury of February 22, 1983, was the cause of this 
 
         treatment.
 
         
 
                                      ORDER
 
         
 
              TlILREFOHE, IT IS ORDERED:
 
         
 
              That no further amounts are due from defendants to claimant 
 
         on account of the injury of February 22, 1983.
 
         
 
              That each party is to pay their own respective costs of this 
 
         action and defendants are ordered to pay the costs for the 
 
         attendance of the court reporter at the hearing.  Rule 343 IAC 
 
         4.33.  pefendants are to pay for the copy of the transcript which 
 
         they ordered and the copy which they offered to supply to the 
 
         industrial commissioner's file (transcript pages 46 & 47).
 
         
 
              That defendants file any claim activity reports that may be 
 
         requested by this agency.  Rule 343 IAC 3.1.
 
         
 
         
 
 
 
 
 
 
 
 
 
         MALLOY V. FIOyD VALLEY PACKING CO.
 
         Page 14
 
         
 
              Signed and filed this -day of January, 1991.
 
         
 
         
 
         
 
         
 
                                                            hh;)Ln
 
                                       WALTER R. MCMANUS, JR.
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies to:
 
         
 
         Mr. Raymond Pogge
 
         Mr. Christopher J. Tinley
 
         Attorneys at Law
 
         306 First Federal Savings and Loan Bldg.
 
         PO Box 1502
 
         Council Bluffs, Iowa 51501
 
         
 
         Mr. Harry W. Dahl
 
         Attorney at Law
 
         974 73rd St. STE 16
 
         Des Moines, Iowa 50312
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      5-3303
 
                      Filed August 2, 1991
 
                      ELIZABETH A. NELSON
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            ANGIE AYALA,   :
 
                      :       File Nos. 728337
 
                 Claimant, :                 846131
 
                      :
 
            vs.       :        D E C I S I O N
 
                      :
 
            DEPARTMENT OF HUMAN SERVICES, :            O N
 
                      :
 
                 Employer, :     A P P L I C A T I O N
 
                      :
 
            and       :           F O R
 
                      :
 
            STATE OF IOWA, :        P A R T I A L
 
                      :
 
                 Insurance Carrier,  :     C O M M U T A T I O N
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            5-3303
 
            Claimant showed that payment of bills for the purchase of a 
 
            van, consumer debts and repairs to her home was a reasonable 
 
            use for commuted funds.  Claimant is 71 years old.  She is 
 
            totally disabled.  She is suffering chronic pain from two 
 
            failed back surgeries.  Payment of these bills will provide 
 
            claimant with peace of mind.  Claimant was not required to 
 
            show medical necessity in order to be successful on her 
 
            request for a partial commutation.