BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         MARIAN R. PETERS,
 
         
 
              Claimant,
 
         
 
         VS.                                      File No.  736787
 
         
 
         MILTON L. HANSON,
 
                                               A R B I T R A T I 0 N
 
              Employer,
 
                                                  D E C I S I 0 N
 
         
 
         and
 
         
 
         ALLIED INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Marian R. 
 
         Peters, claimant, against Milton L. Hanson, employer and Allied 
 
         Insurance Services, insurance carrier, defendants for benefits as 
 
         a result of an injury which occurred on February 23, 1983.  A 
 
         hearing was held on May 8, 1987 at Council Bluffs, Iowa and the 
 
         case was fully submitted at the close of the hearing.  The record 
 
         consists of the testimony of Marion R. Peters (claimant), Lyle 
 
         Peters (claimant's husband), Milton L. Hanson (employer), joint 
 
         exhibits one through 26, claimant's exhibit 27 and defendants' 
 
         exhibit 28.  Both attorneys prepared and submitted excellent 
 
         briefs.  Defendants supplied a partial transcript of the closing 
 
         arguments in this case.
 
         
 
                                 STIPULATIONS
 
         
 
              The parties stipulated to the following matters.
 
         
 
              That an employer-employee relationship existed between 
 
         claimant and employer at the time of the injury.
 
         
 
              That claimant sustained an injury on February 23, 1983 which 
 
         arose out of and in the course of her employment with employer.
 
         
 
              That the injury was the cause of temporary disability and 
 
         that claimant's entitlement to temporary disability benefits has 
 
         already been agreed upon and paid and is not disputed at this 
 
         time.
 
         
 
              That the injury was the cause of some permanent disability.
 
              That the type of permanent disability is industrial 
 
         disability to the body as a whole.
 
         
 
              That the commencement date for permanent partial disability 
 
         benefits is August 29, 1983.
 
         
 
              That the rate of compensation in the event of an award is 
 

 
         
 
         
 
         
 
         PETERS V. MILTON L. HANSON
 
         Page   2
 
         
 
         $219.20 per week.
 
         
 
              That all requested medical benefits have been or will be 
 
         paid.
 
         
 
              That defendants paid claimant 75 weeks of permanent partial 
 
         disability benefits prior to hearing in the total amount of 
 
         $16,440.00 and that defendants are entitled to a credit for this 
 
         amount in the event of an award of permanent partial disability 
 
         benefits.
 
         
 
              That defendants claim no credit for benefits paid under an 
 
         employee nonoccupational group plan.
 
         
 
              That there are no bifurcated claims.
 
         
 
         
 
                                      ISSUE
 
         
 
              The sole issue presented by the parties for  determination 
 
         at the time of the hearing was: whether claimant is entitled to 
 
         permanent partial disability benefits, and if so, the nature and 
 
         extent of benefits.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              All of the evidence was examined and considered.  The 
 
         following is a summary of the pertinent evidence.
 
         
 
              Milton L. Hanson testified that he has been a practicing 
 
         attorney in Avoca, Iowa since 1962.  Avoca is 12 miles from 
 
         Harlan, 18 miles from Atlantic and 32 miles from Council Bluffs.  
 
         The witness related that he met claimant as a client in 1966.  
 
         She became his full-time secretary in December of 1968.  Her work 
 
         has improved over the years, she was given more and more 
 
         responsibilities and she has received pay increases and bonuses 
 
         for her work.  Hanson stated that he does not provide health 
 
         insurance, life insurance or a pension or profit sharing plan but 
 
         claimant does accumulate sick leave for which she would be paid 
 
         if she leaves his employment without using it.
 
         
 
              Hanson testified that claimant actually serves as a 
 
         paralegal or legal assistant in some matters such as opening 
 
         estates, preparing tax returns and drafting a number of legal 
 
         documents.  He said that she also does all of the office 
 
         accounting and bookkeeping.  He confirmed that the quality of her 
 
         work is excellent or better.  Prior to her injury, she enjoyed 
 
         good health and probably did not lose ten days from work from the 
 
         time she started.  Since she has returned to work she does not 
 
         appear to feel good.  She now takes a 25 minute break in the 
 
         morning, whereas before the injury she took a ten minute break.
 
         
 
              Prior to this injury, claimant worked a lot of overtime 
 
         during tax season for which she was paid overtime and received 
 
         some bonuses.  She did not work any overtime in 1984, 1985 and 
 
         1986 and Hanson did not pay her any bonuses during these years 
 
         except for her Christmas bonus.  Hanson stated that he quit 
 
         paying bonuses in 1983 because he increased claimant's regular 
 
         pay and also because he did not have the overtime hours for her 
 
         to work after 1983.  He maintained that it was a personal 
 

 
         
 
         
 
         
 
         PETERS V. MILTON L. HANSON
 
         Page   3
 
         
 
         decision not to pay a bonus after 1983 which was based purely on 
 
         office economy.  Hanson stated that claimant had worked a little 
 
         overtime in 1987.  The witness reiterated that he has continued 
 
         to increase her regular pay over the years and that he has never 
 
         reduced her compensation due to this injury.
 
         
 
              Hanson stated that he has no intention of terminating 
 
         claimant.  On the contrary, he hopes that she will continue to 
 
         work for him indefinitely or at least for the next seven years 
 
         until she reaches retirement age at age 65.  He felt that based 
 
         on her current physical condition that she can do it.  He plans 
 
         to continue to increase her compensation in future years.
 
         
 
              Claimant was born October 8, 1928.  She was 54 years old at 
 
         the time of the injury and 58 years old at the time of the 
 
         hearing.  She is married and has two adult children.  She 
 
         graduated from high school and also from Iowa Western Community 
 
         College (IWCC) with an associate degree after three years of 
 
         night school.  In 1981, claimant received the Professional Legal 
 
         Secretary Certificate (PLS) from the National Association of 
 
         Legal Secretaries (NALS) after studying intensively for one year 
 
         and taking a seven part examination.  Past employments include a 
 
         variety of clerical and secretarial jobs in which claimant did 
 
         well and was often promoted.  Exhibit 27 is a salary history from 
 
         her employment with Hanson from 1975 through 1986 which was 
 
         prepared by claimant from her own records.  Claimant testified 
 
         that she always voluntarily worked overtime, received overtime 
 
         pay and was also paid bonuses until 1984.  Claimant acknowledged 
 
         that she was never required or obligated to work overtime, but 
 
         she did it because the work needed to be done.  Claimant avers 
 
         that exhibit 27 illustrates her overtime and bonus pay and 
 
         further verifies that she did not receive any of it in 1984, 1985 
 
         and 1986.  Claimant contended that the work was there but she was 
 
         not capable of doing it due to her injury because she was not 
 
         able to sit and concentrate that long anymore.  She further 
 
         stated that she is too fatigued due to the cervical and lumbar 
 
         damage in her back.
 
         
 
              On February 23, 1983 while at work, claimant rolled her 
 
         chair back from her desk.  The roller caught in the floor mat and 
 
         she fell over backward.  She struck her back against the back of 
 
         the chair.  The whole chair went over backward and her whole body 
 
         went with it.  She later developed pain in her lumbar spine that 
 
         radiated down into her left leg.  She also complained of pain in 
 
         her left shoulder and neck.
 
         
 
              Approximately six weeks after the injury occurred, she went 
 
         to see E. John Welbes, D.C., on April 6, 1983.  Dr. Welbes 
 
         recorded marked spasms of the lumbosacral musculature bilaterally 
 
         and sharp pain in the lower back on flexion and extension (Ex. 
 
         11).
 
         
 
              Then, approximately two months after that, she saw Maurice 
 
         P. Margules, M.D., a neurosurgeon on June 12, 1986 (Ex. 12).  
 
         Electromyographic and nerve conduction studies on both the left 
 
         upper and left lower extremities were within normal limits (Ex. 
 
         25, page 2).  Dr. Margules hospitalized claimant for additional 
 
         diagnostic tests from June 27, 1983 to July 3, 1983.  She 
 
         received a cervical and lumbar myelogram as well as chest, pelvis 
 
         and lower spine x-rays (Ex. 25).
 

 
         
 
         
 
         
 
         PETERS V. MILTON L. HANSON
 
         Page   4
 
         
 
         
 
              Claimant was again hospitalized for surgery by Dr. Margules 
 
         from July 7, 1983 to July 16, 1983 (Ex. 26).  The admitting 
 
         diagnosis was "Herniated lumbar disc, L4-L5 interspace, LEFT, due 
 
         to trauma sustained in an accidental fall while at work on 
 
         February 23, 1983.  Internal derangement of the LEFT shoulder due 
 
         to trauma sustained as in #1 above." (Ex. 26, p. 2).
 
         
 
              On July 8, 1983 Dr. Margules performed an intralaminal 
 
         chymopapian injection at L-4, L-5 (Ex. 26, p. 4).
 
         
 
              While claimant was hospitalized Dr. Margules requested 
 
         Ronald K. Miller, M.D., to examine her left shoulder.  Dr. Miller 
 
         saw claimant again on August 24, 1983.  Dr. Miller thought that 
 
         her left shoulder would improve and if it did not she could 
 
         return to see him in six weeks (Ex. 18).
 
         
 
              Dr. Margules released claimant to return to work on August 
 
         15, 1983 (Ex. 12).  Claimant testified that she returned to work 
 
         full time on August 29, 1983.  She has continued to work full 
 
         time ever since.  Dr. Margules wrote on November 17, 1983:
 
         
 
              Mrs. Peters was evaluated in this office on the 31st of 
 
              October 1983, at which time, her condition was found to 
 
              be progressing satisfactorily.  As you know, the 
 
              patient has returned to work and is working daily.  The 
 
              patient experiences no major problem with her lumbar 
 
              region and lower extremities but still has residual 
 
              pain at the level of the Left shoulder which in our 
 
              opinion is the result of an internal derangement of the 
 
              Left shoulder joint due to trauma of February 23, 1983.  
 
              No specific treatment is recommended at this time for 
 
              the Left shoulder.
 
         
 
         (Ex. 14)
 
         
 
              Claimant saw R. D. Harris, M.D., a personal physician, 
 
         concerning her left shoulder on September 23, 1983 (Ex. 16).  Dr. 
 
         Harris later wrote:
 
         
 
                 It is felt that she has muscle soreness and 
 
              tenderness of the posterior cervical, trapezius, and 
 
              rhomboid muscle areas extending up into the attachment 
 
              of these muscles at the base of the skull.  This pain 
 
              has been present since the injury and certainly 
 
              probably stems from the injury and the fact that she 
 
              has cervical disc.  Also this injury probably has 
 
              aggravated her pre-existing degenerative arthritis of 
 
              the cervical vertebrae, however, this is difficult to 
 
              prove.
 
         
 
         (Ex. 17)
 
         
 
              On October 2, 1984, Dr. Margules reported "It is our 
 
         opinion, at this time, that Mrs. Peters has a partial permanent 
 
         physical disability which is rated at 15% of the body as a whole.  
 
         This is to cover both the injury to the lumbar spine and her Left 
 
         shoulder.O (Ex. 15).
 
         
 
              Claimant saw Dr. Harris about her neck again on October 28, 
 

 
         
 
         
 
         
 
         PETERS V. MILTON L. HANSON
 
         Page   5
 
         
 
         1985 and he reported as follows on November 6, 1985:
 
         
 
              Marian Peters was seen in our office on Oct. 28, 1985 
 
              for severe neck pain due to an accident at work on 
 
              February 23, 1983.  Examination revealed significant 
 
              muscle spasm in the trapezius area especially on the 
 
              left.  She was given Soma 350mg qid to take for relief 
 
              of the spasms.
 
         
 
         (Ex. 20)
 
         
 
              Claimant's counsel wrote to Dr. Margules for further 
 
         clarification about claimant's neck (Ex. 21).  Dr. Margules then 
 
         reported as follows:
 
         
 
              This is in answer to your letter of August 12, 1986 
 
              concerning Mrs. Marian Peters who was under our care 
 
              from June 6, 1983 to June 21st, 1984.  Because of the 
 
              complaints of pain in the cervical spine, a Myelography 
 
              was performed during the admission of June 27, 1983 
 
              covering the cervical region.  It was then determined, 
 
              during the Myelography of June 28, 1983, that the 
 
              patient showed evidence of posterior marginal arthritic 
 
              spurring and disc degeneration, maximally involving the 
 
              C5-C6 and C6-C7 interspaces.
 
         
 
              At this time, the patient complains of minimal to 
 
              moderate pain at the level of the cervical spine which, 
 
              in our opinion, does not require any specific 
 
              treatment.
 
         
 
                 It is therefore obvious from our previous 
 
              evaluation, that the patient presented evidence of 
 
              pre-existing degenerative cervical disc disease prior 
 
              to the initial   trauma of February 23rd, 1983.
 
         
 
              We do not believe that the patient had sustained an 
 
              aggravation of this pre-existing condition which 
 
              requires any specific treatment at this time.
 
         
 
         (Ex. 22)
 
         
 
              Claimant received an Iowa Code section 85.39 examination 
 
         from Behrouz Rassekh, M.D., on December 10, 1986.  Dr. Rassekh 
 
         summarized claimant's condition by a report dated December 15, 
 
         1986 in the following words.
 
         
 
              At the present time, she has no radicular pain.  On 
 
              examination, examination of the head is normal.  Neck 
 
              is supple.  She has no spasm of the cervical 
 
              musculature.  The cervical spine motion is normal for 
 
              her age but at maximum extension, she complains of some 
 
              discomfort in posterior cervical region.  She is able 
 
              to touch her chest with her chin.  Lateral motion of 
 
              the neck is free.  Examination of upper and lower 
 
              extremities has normal tone.  Motor examination is 
 
              normal.  She has well-healed scar of lumbar 
 
              laminectomy.  Antiflexion of spine at 85 degrees 
 
              produced some discomfort.  Straight-leg raising at 75 
 
              degrees to 80 degrees produced some discomfort also, 
 

 
         
 
         
 
         
 
         PETERS V. MILTON L. HANSON
 
         Page   6
 
         
 
              but no radicular pain.
 
         
 
              Based on my examination, the patient shows good 
 
              recovery from the previous chymopapain injection.  She 
 
              has minimal residual discomfort in lumbar region.  As 
 
              far as the cervical spondylosis is concerned, I do not 
 
              find any clinical evidence of being symptomatic or need 
 
              of further treatment.  Therefore, although she may have 
 
              aggravation of cervical spondylosis following injury, I 
 
              do not find any evidence of aggravation or permanent 
 
              disability as result of trauma at present time.
 
         
 
         (Ex. 23)
 
         
 
              Dr. Rassekh further clarified his position by a follow-up 
 
         letter on November 20, 1986 by stating:
 
         
 
              In answer to your letter dated December 16, 1986 
 
              pertaining to Marian Peters, my statement of no partial 
 
              permanent disability was related to only the cervical 
 
              spondylosis of the patient and did not imply that Ms. 
 
              Peters did not have other disability.
 
         
 
              As far as amount of partial permanent disability to her 
 
              low back, I would defer that determination to Dr. 
 
              Margules; but, would concur with his determination of 
 
              disability to her low back.
 
         
 
         (Ex. 24)
 
         
 
              The following is a summary of the workers' compensation 
 
         benefits paid to claimant.
 
         
 
         TYPE OF PAYMENT               PERIOD            WEEKS    AMOUNT
 
         
 
         Temporary Total Disability    6-27-83 to 8-14-83  7    $ 1,534.40
 
         Temporary Partial Disability  8-15-83 to 8-28-83  2        176.45
 
         Permanent Partial Disability  8-29-83 to 2-05-85  75    16,440.00
 
         
 
                                                        TOTAL   $18,150.85
 
         
 
         (Ex. 9, p. 2)
 
         
 
              Claimant testified that currently she tires easily.  She has 
 
         lost stamina and endurance.  She cannot type for long periods.  
 
         She has frequent and severe pain from her left shoulder to her 
 
         left skull which she never had before and which limits her 
 
         movements.  Even though the doctor said her degenerative disc 
 
         disease predated the injury she, nevertheless, had no trouble 
 
         with it until after the injury.  The pain sometimes limits her 
 
         concentration and causes her to make errors.
 
         
 
              Claimant testified that she cannot squat.  She must sit on a 
 
         chair to file in the lower file drawer.  She cannot sit or stand 
 
         for very long, possibly for only 15 to 20 minutes, and then she 
 
         has to move around.  Claimant said she can only lift 20 pounds 
 

 
         
 
         
 
         
 
         PETERS V. MILTON L. HANSON
 
         Page   7
 
         
 
         now, but had no weight limit prior to this injury.  She has pain 
 
         and limitation of motion in her left leg, hip, neck, shoulder and 
 
         lower back.
 
         
 
              Claimant testified that she is making  $10.60 per hour.  In 
 
         her opinion, however, she should be earning $11.60 per hour.  She 
 
         attributed her loss of income to the fact that she has not worked 
 
         overtime and received bonuses as in former years and also, 
 
         because her pay increases had not been a.s large as they used to 
 
         be.  Claimant stated that she earns $20,600.00 per year, but 
 
         feels that her financial loss is $3,000.00 per year.  She feels 
 
         she should have earned $23,600.00.  She maintains that she has 
 
         been paid less because she is not as good or as productive as she 
 
         was before the injury.  Claimant said that she wants to work 
 
         until age 65, but does not know if she will be able to do it or 
 
         not due to her limitations of pain while typing and performing 
 
         desk work and her lack of concentration.  It takes her much 
 
         longer to get ready for work in the morning and she is exhausted 
 
         at the end of the day when she arrives home at night.  She plans 
 
         to continue with Mr. Hanson.
 
         
 
              Claimant calculated and submitted an estimate of what she 
 
         believed she should be earning:
 
         
 
           HOURS           TYPE OF HOURS      RATE               TOTAL
 
         
 
         1,950.00         Regular Hours      $11.60           $22,620.00
 
            46.92         Overtime Hours
 
                          at regular rate     11.60               544.27
 
            32.78         Overtime Hours
 

 
         
 
         
 
         
 
         PETERS V. MILTON L. HANSON
 
         Page   8
 
         
 
                          at overtime rate    17.40               570.37
 
         
 
                                                      TOTAL   $23,734.64
 
         
 
         (Ex. 8, interrogatory no. 23)
 
         
 
              Claimant's income tax returns show that claimant received a 
 
         salary increase in every year from 1981 through 1986, except in 
 
         the year 1983.
 
         
 
              EXHIBIT                YEAR                    INCOME
 
         
 
                1                    1981                  $15,782.80
 
                2                    1982                   17,856.40
 
                3                    1983                   17,361.53
 
                4                    1984                   18,476.25
 
                5                    1985                   19,207.52
 
                6                    1986                   19,938.75
 
         
 
              In 1983; claimant also received workers' compensation 
 
         benefits that were not taxable and are not set out above (Ex. 9, 
 
         p. 2).
 
         
 
              Claimant admitted and it appears in the medical reports that 
 
         after 1982 claimant had a number of personal and family problems 
 
         at home to cope with in addition to doing her job at work.  Her 
 
         husband suffered a stroke.  He retired and receives income from 
 
         the Iowa Public Employees Retirement Systems (IPERS) and social 
 
         security.  Claimant's married daughter became quite ill and was 
 
         hospitalized in Council Bluffs.  Claimant endeavored to spend as 
 
         much time with her as possible while she was in the hospital.  
 
         Claimant and her husband were appointed legal guardians of their 
 
         grandchild and cared for the grandchild in their home after the 
 
         daughter became ill.  Claimant also granted that she likes to and 
 
         does play golf with her husband.
 
         
 
              Comparisons were made with how much claimant would earn at 
 
         other jobs and how her income compared with other persons with 
 
         the same general legal secretarial qualifications (Ex. 28).  It 
 
         was generally agreed that these earnings were available to 
 
         persons working in larger cities.  Claimant testified, however, 
 
         that she had no intention of applying for other employment.  She 
 
         stated that she intended to continue working for Hanson at Avoca, 
 
         Iowa until her anticipated retirement in approximately seven 
 
         years at age 65.
 
         
 
              Lyle Peters, claimant's husband, testified that he suffered 
 
         a stroke in 1982 which affected his right side.  He acknowledged 
 
         that he receives income from IPERS and social security and that 
 
         he is also dependant upon his wife's salary.  He keeps house and 
 
         watches the grandchild while claimant works and is gainfully 
 
         employed.  He corroborated that prior to the injury claimant had 
 
         no problems with her back, neck or shoulder.  Since the injury, 
 
         claimant has suffered pain and has to limit her activities.  Now 
 
         she has trouble getting up in the morning.  At night she is so 
 
         tired she hurts.  She used to go to work early and stay late, now 
 
         she can't do it anymore.  She used to work overtime but does not 
 
         do that anymore.
 
         
 
         
 

 
         
 
         
 
         
 
         PETERS V. MILTON L. HANSON
 
         Page   9
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of February 23, 1983 is causally 
 
         related to the disability on which she now bases her claim.  
 
         Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). 
 
         Lindahl v. L. 0. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A 
 
         possibility is insufficient; a probability is necessary.  Burt v. 
 
         John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 
 
         (1955).  The question of causal connection is essentially within 
 
         the domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language. 
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is-for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         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).
 
         
 
              If claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
         593, 258 N.W. 899, 902 (1935) as follows:  "It is therefore plain 
 
         that the legislature intended the term 'disability' to mean 
 
         'industrial disability' or loss of earning capacity and not a 
 
         mere 'functional disability' to be computed in the terms of 
 
         percentages of the total physical and mental ability of a normal 
 
         man.O
 
         
 
              Functional impairment is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 
 
         257 (1963).
 
         
 
              The operative phrase in industrial disability is loss of 
 
         earning capacity.  Ver Steegh v. Rolscreen Co., IV Iowa 
 
         Industrial Commissioner Reports 377 (1984).
 
         
 
              Claimant was age 54 at the time of the injury and age 58 at 
 
         the time of hearing.  Retirement in seven years at age 65 was 
 
         mentioned more than once at the hearing.  The industrial 
 
         commissioner commented as follows in Becke v. Turner-Busch, Inc., 
 
         Thirty-fourth Biennial Report of the Industrial Commissioner, 34, 
 
         36 (1979).
 
         
 
                 It is held that the approaching of later years when 
 
              it can be anticipated that under normal circumstances a 
 
              worker would be retiring is, without some clear 
 
              indication to the contrary, a factor which can be 
 
              considered in determining the loss of earning capacity 
 

 
         
 
         
 
         
 
         PETERS V. MILTON L. HANSON
 
         Page  10
 
         
 
              or industrial disability which is causally related to 
 
              the injury.
 
         
 
              In this case, however, it should be considered that claimant 
 
         may need to work to support herself and her disabled husband.  
 
         Claimant stated that she planned to work until age 65.  Hanson 
 
         said that he wanted her to continue to work for him until then.  
 
         Claimant said she had no intention of changing jobs.  Claimant 
 
         also testified that she had been making contributions to an 
 
         individual retirement account over the years for her retirement.
 
         
 
              In the area of education and qualifications claimant is 
 
         certainly a high achiever.  She attended that area community 
 
         college and received an associate degree and completed the 
 
         requirements to obtain the PLS certificate.  Annually claimant 
 
         attends tax and secretarial continuing education seminars.  
 
         Claimant is probably one of the best educated and most highly 
 
         qualified legal secretaries in her area.  In fact, she actually 
 
         performs as a paralegal or legal assistant in many matters in the 
 
         Hanson Law Office operations.  These matters, of course, improve 
 
         her employability and at the same time, tend to be a 
 
         consideration that would tend to limit her industrial disability.  
 
         Hebensperger v. Motorola Communications and Electronics, Inc., II 
 
         Iowa Industrial Commissioner Report 187 (Appeal Decision 1981).  
 
         Presumably, a person would rather be gainfully employed than 
 
         receive workers' compensation benefits and likewise a person will 
 
         be better off in the long run through gainful employment than 
 
         through the receipt of workers' compensation benefits.
 
         
 
              Claimant is fully able to perform her job.  She testified to 
 
         certain self determined limitations such as not lifting over 20 
 
         pounds, not stooping or bending, not engaging in prolonged 
 
         standing or sitting and sitting to file in the lower file 
 
         drawers.  However, these are self determined limitations.  None 
 
         of the doctors, in particular Dr. Margules, her treating 
 
         physician, issued any restrictions or imposed any limitations 
 
         whatsoever on claimant's activities.  Claimant testified that she 
 
         is able to modify the job to blend in with her limitations, 
 
         including her lack of concentration and stamina.  There was no 
 
         evidence that any other legal secretarial job would be foreclosed 
 
         to claimant due to what she considers to be her physical 
 
         limitations. Michael v. Harrison County, Thirty-fourth Biennial 
 
         Report of the Industrial Commissioner 218, 220 (Appeal Decision 
 
         1979).  She could suffer reduced earnings if it became necessary 
 
         to leave her employment with Hanson and to compete in a 
 
         metropolitan job market with younger persons that have not 
 
         sustained a previous back injury.
 
         
 
              In one situation, however, it was determined that when 
 
         claimant returned to her former employment without loss or 
 
         earnings that there was no industrial disability.  Mason v. 
 
         Armour-Dial, Inc., I Iowa Industrial Commissioner Reports 227, 
 
         229 (1981).
 
         
 
              At the same time there is no 100 percent assurance or 
 
         guarantee that Hanson will be able to provide remunerative 
 
         employment for claimant until she is age 65.  Rohrberg v. 
 
         Griffin Pipe Products Co., I Iowa Industrial Commissioner Reports 
 
         282 (Appeal Decision 1981).  There are an infinite number of 
 
         reasons that a solo law practitioner might cease to practice law.  
 

 
         
 
         
 
         
 
         PETERS V. MILTON L. HANSON
 
         Page  11
 
         
 
         If claimant were forced to travel to Omaha or Council Bluffs to 
 
         find employment, it would appear that claimant could not earn as 
 
         much, salary wise, as she is now being paid by Hanson, even 
 
         though she might acquire additional fringe benefits (Ex. 28).  In 
 
         addition, claimant would have the time, expense and inconvenience 
 
         of commuting to and from work every working day in all seasons 
 
         and weather conditions.
 
         
 
              Claimant testified to pain and certain limitations in doing 
 
         her job.  Her testimony is credible and reasonable.  However, 
 
         pain that is not substantiated by clinical findings is not a 
 
         substitute for impairment.  Waller v. Chamberlain Mfg, II Iowa 
 
         Industrial Commissioner Report 419, 425 (1981).
 
         
 
              Claimant contends that she lost overtime pay and bonuses 
 
         that she would have received if she had not been injured.  Hanson 
 
         testified that he did not have the overtime for her to work or 
 
         the money to pay bonuses in 1984, 1985 and 1986.  His testimony 
 
         was that it was a matter of office economy rather than claimant's 
 
         injury.  Hanson testified, and the income tax returns verify, 
 
         that claimant's regular income has increased each year since the 
 
         injury except in 1983, and in that year she received workers' 
 
         compensation which was tax exempt.
 
         
 
              It is true that claimant's regular pay increases after the 
 
         injury were less than before the injury.  A bonus is something 
 
         extra that is paid when business conditions permit.  Salary 
 
         increases would also be linked to business conditions in a one 
 
         man law office.
 
         
 
              Another factor to be considered is whether claimant, who 
 
         voluntarily chose to work overtime in the first place, and not 
 
         because it was required of her, chose not to work overtime for 
 
         reasons other than her injury.  Claimant's motivation to work 
 
         overtime would be reduced because her husband suffered a 
 
         disabling stroke in 1982, her daughter became critically ill and 
 
         was hospitalized and claimant and her husband were appointed 
 
         legal guardians for their grandchild.
 
         
 
              Dr. Margules awarded claimant a 15 percent permanent 
 
         functional impairment rating of the body as a whole.  Dr. Rassekh 
 
         did not independently determine a separate impairment rating.  
 
         However he stated that he concurred in Dr. Margules' award.  Dr. 
 
         Margules said that his award included her back and her left 
 
         shoulder.  Industrial disability need not exceed functional 
 
         impairment.  Birmingham v. Firestone Tire & Rubber Co., II Iowa 
 
         Industrial Commissioner Report 39 (1981).  Industrial disability 
 
         can be equal to, less than or greater than functional impairment.  
 
         Lawyer & Higgs, Iowa Workers' Compensation -- Law & Practice, 
 
         section 13-5, p. 116 and 1987 supplement page 20.
 
         
 
              Neither Dr. Margules, or any of the other doctors imposed 
 
         any restrictions or limitations on claimant's activities.  
 
         Claimant has been able to perform her job satisfactorily to her 
 
         employer, has received yearly raises and has no intention of 
 
         leaving this employment.  Claimant's surgery occurred on July 8, 
 
         1983 and she returned to work on August 15, 1983, approximately 
 
         six weeks later.  She has continued to work full time since then 
 
         and has not lost any time from work due to the injury.  She has 
 
         not:seen a doctor for over two years on account of the injury.  
 

 
         
 
         
 
         
 
         PETERS V. MILTON L. HANSON
 
         Page  12
 
         
 
         Her employment appears to be very secure in that she wants to do 
 
         this job and can do it and her employer is equally desirous of 
 
         keeping her employed in this job.
 
         
 
              In conclusion, based on claimant's impairment rating, the 
 
         nature of the surgery, her healing period, the absence of medical 
 
         restrictions or limitations, her ability to perform her old job 
 
         for the same pay in a satisfactory manner albeit with some 
 
         difficulty, the fact that claimant has earned salary increases 
 
         and all the other factors of industrial disability, and 
 
         claimant's contention that she now earns less due to her injury, 
 
         it is determined that claimant has sustained an industrial 
 
         disability of 15 percent of the body as a whole.
 
         
 
         
 
                                 FINDINGS OF FACT
 
         
 
              WHEREFORE, based upon the evidence presented the following 
 
         findings of fact are made.
 
         
 
              That claimant is 58 years old and extremely well educated 
 
         and qualified to be a legal secretary.
 
         
 
              That claimant received a lumbar chymopapian injection on 
 
         July 8, 1983 due to an injury sustained in a fall at work.
 
         
 
              That claimant returned to the same job at the same pay and 
 
         has received salary increases since returning to work.
 
         
 
              That claimant has performed the job satisfactorily and has 
 
         lost no time from work.
 
         
 
              That claimant was assigned a 15 percent permanent functional 
 
         impairment rating for both her back and left shoulder condition 
 
         by her treating physician.
 
         
 
              That none of the physicians imposed any restrictions or 
 
         limitations on claimant's activities of any kind.
 
         
 
              That claimant has sustained an industrial disability of 15 
 
         percent of the body as a whole.
 
         
 
         
 
                                CONCLUSION OF LAW
 
         
 
              WHEREFORE, based upon the evidence presented and the 
 
         principles of law previously discussed it is determined that 
 
         claimant is entitled to 75 weeks of permanent partial disability 
 
         benefits and that entitlement has been previously satisfied by 
 
         the prior payments which have been made to claimant.
 
         
 
         
 
                                      ORDER
 
         
 
              WHEREFORE, IT IS ORDERED:
 
         
 
              That claimant take nothing from this proceeding as her 
 
         entitlement has previously been fully paid.
 
         
 
              That the costs of this action are assessed against claimant 
 

 
         
 
         
 
         
 
         PETERS V. MILTON L. HANSON
 
         Page  13
 
         
 
         pursuant to Division of Industrial Services Rule 343-4.33.
 
         
 
              That defendants shall file claim activity reports as 
 
         requested by this agency pursuant to Division of Industrial 
 
         Services Rule 343-3.1.
 
         
 
         
 
              Signed and filed this 22nd of February, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            WALTER R. McMANUS, JR.
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Dennis Gray
 
         Attorney at Law
 
         PO Box 1166
 
         Council Bluffs, Iowa 51502
 
         
 
         Mr. Cecil Goettsch
 
         Attorney at Law
 
         1100 Des Moines Bldg
 

 
         
 
         
 
         
 
         PETERS V. MILTON L. HANSON
 
         Page  14
 
         
 
         Des Moines, Iowa 50307
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
                                                 1402.40; 1803; 2907
 
                                                 Filed February 22, 1988
 
                                                 WALTER R. McMANUS, JR.
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         MARIAN R. PETERS,
 
         
 
              Claimant,
 
                                                      FILE NO. 736787
 
         VS.
 
                                                  A R B I T R A T I 0 N
 
         MILTON L. HANSON,
 
                                                      D E C I S I 0 N
 
              Employer,
 
         
 
         and
 
         
 
         ALLIED INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1402.40; 1803
 
         
 
              Claimant, a legal secretary, fell over backwards in her 
 
         chair and injured her back and neck which subsequently resulted 
 
         in a lumbar intralaminal chymopapian injection.  Claimant 
 
         returned to work six weeks after the surgery and has 
 
         satisfactorily performed her job ever since without loss of time, 
 
         albeit with many complaints of pain and limitation.  Treating 
 
         physician awarded 15 percent permanent functional impairment but 
 
         stated no limitations or restrictions.  Evaluating physician 
 
         concurred with treating physician.  Claimant awarded 15 percent 
 
         industrial disability; but had already been paid 15 percent 
 
         industrial disability prior to hearing so took nothing.  Claimant 
 
         alleged she should be earning more but employer had increased her 
 
         regular earnings both before and after the injury.
 
         
 
         2907
 
         
 
              Costs charged to claimant.
 
 
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JOHN A. CARLSEN,
 
         
 
              Claimant,                               File No. 736867
 
         
 
         vs.                                            A P P E A L
 
         
 
         DEPARTMENT OF TRANSPORTATION,                D E C I S I O N
 
         
 
              Employer,
 
                                                         F I L E D
 
         and
 
                                                        MAY 20 1988
 
         STATE OF IOWA,
 
                                               IOWA INDUSTRIAL COMMISSIONER
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Claimant appeals from an arbitration decision awarding 
 
         permanent partial disability benefits.
 
         
 
              The record on appeal consists of the transcript of the 
 
         proceeding; claimant's exhibits 1 through 43; and defendants' 
 
         exhibits A through C.  Both parties filed briefs on appeal.
 
         
 
                                   ISSUES
 
         
 
              Claimant states the following issues on appeal:
 
         
 
                     I.  The facts in this case are substantially similar 
 
              to those in Dietrich [sic] v. Tri-City Railway Co., 258 NW 
 
              889 [sic], and thus the result should have been similar.
 
         
 
                    II.  In the alternative, the industrial disability of 
 
              claimant is in excess of 40%.
 
         
 
                   III.  Under the circumstances in this case, the action 
 
              taken in reducing the 40% being voluntarily paid, if 
 
              affirmed, will it chill" future claimants from exercising 
 
              their rights in this social legislation.
 
         
 
                            REVIEW OF THE EVIDENCE
 
         
 
              Briefly stated, claimant was employed by defendant Iowa 
 
         Department of Transportation as an equipment operator from 
 
         October 1966 until April 30, 1984.  Claimant's work involved 
 
         driving vehicles such as snow plows, and some heavy manual labor 
 
         consisting of bending, stooping, twisting and heavy lifting as 
 
         well as prolonged standing and sitting.  Claimant's entire work 
 
                                                
 
                                                         
 
         history consisted of these duties and farm work.  Claimant's 
 
         education is limited to the eighth grade.
 
         
 
              On June 16, 1983, claimant suffered an injury to his low 
 
         back when he hit a "washout" while mowing roadside grass.  
 
         Claimant felt the immediate onset of pain in his back and legs.  
 
         Claimant was treated by E. M..Mumford, M.D., who diagnosed a 
 
         broken fusion mass at the L4-5 vertebral interspace.  Claimant 
 
         was 61 years old at the time of his accident.
 
         
 
              This interspace had been previously fused in a 1969 surgery 
 
         and again fused in 1971 following work injuries.  The 1971 
 
         surgery was the result of a work injury in 1970 that was seen as 
 
         pulling loose the earlier fusion.  Claimant was given a lifting 
 
         restriction of 50 pounds, but nevertheless was returned to full 
 
         duty work.  Claimant also had Paget's disease of the spine.
 
         
 
              Dr. Mumford opined that claimant's injury of June 16, 1983 
 
         again pulled loose the fusion of claimant's L4-5 interspace, 
 
         based upon claimant's symptomatology following that injury.  
 
         Prior to June 16, 1983, claimant had not required medical 
 
         attention for his back since 1980 and had little pain.  
 
         Claimant's Paget's disease was treated and Dr. Mumford opined 
 
         that this disease was asymptomatic and unrelated to his back 
 
         injury.  Dr. Mumford re-fused claimant's L4-5 interspace on 
 
         January 31, 1984.  Pursuant to his physician's recommendations, 
 
         claimant voluntarily retired from his work on April 30, 1984.
 
         
 
              Dr. Mumford indicated that claimant reached maximum medical 
 
         recovery from this surgery on June 14, 1985.  At his last 
 
         examination in January of 1986, claimant was told not to stoop by 
 
         Dr. Mumford and was given a lifting restriction of 15 pounds. 
 
         Claimant has not found other work, and testified that he would 
 
         like to work but feels he cannot do any physical work.  Claimant 
 
         has not applied for any jobs or sought rehabilitation counseling 
 
         because he felt his restrictions would make a job search futile. 
 
         Claimant makes craft items at home on a non-profit basis.
 
         
 
              On June 14, 1985, Dr. Mumford opined that, "[f]rom the most 
 
         recent injury, the disability would be 40% minus what he had 
 
         previously been rated as having.  Exhibit 2."  The record 
 
         contains no ratings of impairment or finding of industrial 
 
         disability prior to June 16, 1983.
 
         
 
              Claimant and his wife testified that prior to June 16, 1983 
 
         claimant was able to perform the duties of his job, but that 
 
         after June 16, 1983 claimant has chronic pain in his hip and back 
 
         radiating into his legs, cannot sit longer than one hour at a 
 
         time, and cannot perform household chores.
 
         
 
              The parties stipulated that claimant received an injury on 
 
         June 16, 1983 which arose out of and in the course of his 
 
         employment with defendant; that claimant is entitled to and has 
 
         been paid temporary total disability or healing period benefits 
 
         from June 16, 1983 through June 14, 1985; that if claimant has a 
 
                                                
 
                                                         
 
         permanent disability, it is an industrial disability; that the 
 
         commencement date for any permanent disability is June 14, 1985; 
 
         and that claimant's rate is $187.90.
 
         
 
                                APPLICABLE LAW
 
         
 
              If claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
         593, 258 N.W.2d 899 (1935) as follows:  "It is therefore plain 
 
         that the legislature intended the term 'disability' to mean 
 
         'industrial disability' or loss of earning capacity and not a 
 
         mere 'functional disability' to be computed in the terms of 
 
         percentages of the total physical and mental ability of a normal 
 
         man."
 
         
 
              The opinion of the supreme court in Olson v. Goodyear 
 
         Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963) 
 
         cited with approval a decision of the industrial commissioner for 
 
         the following proposition:
 
         
 
              Disability * * * as defined by the Compensation Act means 
 
              industrial disability, although functional disability is an 
 
              element to be considered . . .  In determining industrial 
 
              disability, consideration may be given to the injured 
 
              employee's age, education, qualifications, experience and 
 
              his inability, because of the injury, to engage in 
 
              employment for which he is fitted. * * * *
 
         
 
              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 
 
         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).
 
 
 
                                
 
                                                         
 
         
 
              The approach of later years when it can be anticipated that 
 
         under normal circumstances a worker would be retiring is, without 
 
         some clear indication to the contrary, a factor which can be 
 
         considered in determining the loss of earning capacity or 
 
         industrial disability which is causally related to the injury. 
 
         Becke v. Turner-Busch, Inc., 34th Biennial Report of the 
 
         Industrial Commissioner 34 (Appeal Decision 1979).
 
         
 
              Apportionment is limited to those situations where a prior 
 
         injury or illness independently produces some ascertainable 
 
         portion of the ultimate industrial disability which exists 
 
         following the employment related aggravation.  Varied 
 
         Enterprises, Inc. v. Sumner, 353 N.W.2d 407 (Iowa 1984).
 
         
 
                                   ANALYSIS
 
         
 
              Claimant urges that under the principles enumerated in 
 
         Diederich v. Tri-City Railway Co., 219 Iowa 587, 258 N.W. 899 
 
         (1935), claimant is entitled to a finding of permanent total 
 
         disability.  Specifically, claimant argues that since he was 61 
 
         years old at the time of his disability, received a partial 
 
         rating of impairment, and could not return to the work he had 
 
         done all of his life, that he was therefore totally and 
 
         permanently disabled. The claimant in Diederich was 59 years old 
 
         at the time of his accident, had a partial rating of impairment, 
 
         and could not return to work.
 
         
 
              It should be noted that Diederich was decided in 1935. 
 
         Subsequent cases have set forth the various factors that 
 
         determine industrial disability.  Claimant's age at the time of 
 
         his injury is a relevant factor in a determination of industrial 
 
         disability. The approach of normal retirement age, without an 
 
         indication to the contrary, is a factor properly considered in 
 
         evaluating the effect of the claimant's age on his loss of 
 
         earning capacity.
 
         
 
              Claimant's motivation to find work is also a relevant 
 
         factor. Claimant has not actively sought alternative work.  
 
         Claimant's receipt of social security disability benefits has 
 
         provided some income and decreased claimant's incentive to look 
 
         for work. Claimant has lost income.  However, loss of earnings is 
 
         not synonymous with loss of earning capacity.
 
         
 
              Dr. Mumford assigned claimant 40 percent "disability."  It 
 
         is unclear from the record whether Dr. Mumford was assigning a 
 
         rating of physical impairment, or industrial disability.  Medical 
 
         testimony is properly limited to opinions on the extent of 
 
         physical impairment.  The degree of industrial disability is 
 
         beyond the expertise of Dr. Mumford.
 
         
 
              However, a medical rating of physical impairment is but one 
 
         factor to be considered in determining industrial disability. 
 
         Claimant is no longer able to perform the duties of his job. 
 
         Claimant is unable to realistically compete for other jobs 
 
                                                
 
                                                         
 
         involving heavy physical labor, or prolonged sitting or standing. 
 
         Claimant's training and work experience are limited to jobs that 
 
         do require heavy physical labor and prolonged sitting and 
 
         standing.  Claimant's education is limited to the eighth grade, 
 
         and he found school difficult.  Claimant is not a good candidate 
 
         for retraining.  Claimant's age also mitigates against retraining 
 
         or further education.  Claimant's back condition has resulted in 
 
         restrictions on lifting, bending and stooping.  Claimant is under 
 
         medical advice not to return to his work.  Claimant is close to 
 
         retirement age.  Subsequent to June 16, 1983, claimant was given 
 
         a lifting restriction of 15 pounds.
 
         
 
              Based on these and all other appropriate factors for 
 
         determining industrial disability, claimant is determined to have 
 
         an industrial disability of 55 percent.
 
         
 
              Since claimant had a prior disability, an apportionment must 
 
         be considered.  There is no rating of impairment for claimant's 
 
         prior injuries or surgeries in the record, nor is there a finding 
 
         of industrial disability based on these injuries and resulting 
 
         surgeries.  Claimant had undergone two prior back surgeries, but 
 
         was able to perform the duties of his job after the last surgery 
 
         for over 12 years until the present injury.  Claimant had not 
 
         sought medical attention for his back for approximately three 
 
         years prior to June 16, 1983.  Claimant had a lifting restriction 
 
         of 50 pounds prior to June 16, 1983.
 
         
 
              Based on the factors known to exist prior to the injury, it. 
 
         is determined that claimant had prior industrial disability of 25 
 
         percent.
 
         
 
              Claimant argues that lowering the benefit amount claimant 
 
         was already receiving pursuant to voluntary payments by the 
 
         employer would deter other claimants from pursuing a claim for 
 
         benefits in an arbitration proceeding.  However, the amount of 
 
         benefits voluntarily paid prior to the institution of arbitration 
 
         proceedings can have no binding effect on this agency as it is 
 
         the duty of the agency under the Code of Iowa to make a 
 
         determination of claimant's entitlement to benefits based on the 
 
         law and the facts of the case.  It is irrelevant to that 
 
         determination whether a voluntary arrangement between the parties 
 
         resulted in differing benefits or speculation as to the effect of 
 
         the decision on other claimants.
 
         
 
                                  FINDINGS OF FACT
 
         
 
              1.  Claimant was employed by defendant Iowa Department of 
 
         Transportation from October 1966 until April 30, 1984.
 
         
 
              2.  Claimant received an injury to his back that arose out 
 
         of and in the course of his employment on June 16, 1983.
 
         
 
              3.  Claimant had a prior fusion surgery of the L4-5 
 
         interspace in 1969, and an injury to his back in 1970 and second 
 
         fusion surgery of the L4-5 interspace in 1971.
 
                                                
 
                                                         
 
         
 
              4.  Claimant had a lifting restriction of 50 pounds prior to 
 
         June 16, 1983.
 
         
 
              5.  As a result of the injury on June 16, 1983, claimant 
 
         underwent a third fusion surgery at the L4-5 interspace on 
 
         January 31, 1984.
 
         
 
              6.  Claimant voluntarily retired from work on April 30, 
 
         1984, pursuant to medical advice.
 
         
 
              7.  Claimant was 61 years old at the time of his injury on 
 
         June 16, 1983.
 
         
 
              8.  Claimant reached maximum medical recovery on June 14, 
 
         1985.
 
         
 
              9.  Claimant has a lifting restriction of 15 pounds 
 
         subsequent to his injury of June 15, 1983 and cannot bend, stoop, 
 
         stand or sit for prolonged periods of time.
 
         
 
              10.  Claimant's work involved physical labor and the 
 
         operation of heavy equipment, and required claimant to lift, 
 
         bend, stoop, stand or sit for prolonged periods of time.
 
         
 
              11.  Claimant can no longer perform the duties of his job.
 
         
 
              12.  Claimant's education is limited to the eighth grade.
 
         
 
              13.  Claimant had an industrial disability of 25 percent 
 
         prior to June 16, 1983.
 
         
 
              14.  Claimant's industrial disability at the time of hearing 
 
         was 55 percent.
 
         
 
              15.  As a result of his injury of June 16, 1983, claimant 
 
         has an industrial disability of 30 percent.
 
         
 
              16.  Claimant's rate is $187.90.
 
         
 
                             CONCLUSIONS OF LAW
 
         
 
              Claimant suffered an injury to his back that arose out of 
 
         and in the course of his employment on June 16, 1983.
 
         
 
              Claimant has an industrial disability of 55 percent 
 
         subsequent to his injury of June 16, 1983.
 
         
 
              Claimant had an industrial disability of 25 percent prior to 
 
         June 16, 1983.
 
         
 
              Claimant met his burden in proving an industrial disability 
 
         of 30 percent as a result of his June 16, 1983 injury.
 
         
 
              WHEREFORE, the decision of the deputy is modified.
 
                                                
 
                                                         
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That defendants are to pay unto claimant one hundred fifty 
 
         (150) weeks of permanent partial disability benefits at a rate of 
 
         one hundred eighty-seven and 90/100 dollars ($187.90) per week 
 
         from June 14, 1985.
 
         
 
              That defendants are entitled to credit for benefits 
 
         previously paid.
 
         
 
              That defendants shall pay accrued weekly benefits in a lump 
 
         sum.
 
         
 
              That defendants shall pay interest on benefits awarded 
 
         herein as set forth in Iowa Code section 85.30.
 
         
 
              That defendants are to pay the costs of this action.
 
         
 
              That defendants shall file claim activity reports as 
 
         required by this agency pursuant to Division of Industrial 
 
         Services Rule 343-3.1(2).
 
         
 
         
 
              Signed and filed this 20th day of May, 1988.
 
         
 
                             
 
                                                         
 
         
 
                                               DAVID E. LINQUIST
 
                                            INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Harry H. Smith
 
         Attorney at Law
 
         632-640 Badgerow Building
 
         P.O. Box 1194
 
         SiOux City, Iowa  51102
 
         
 
         Mr. Robert P. Ewald
 
         Assistant Attorney General
 
         Iowa Dept. of Transportation
 
         800 Lincoln Way
 
         Ames, Iowa  50010
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            1803; 1806; 2906
 
                                            Filed May 20, 1988
 
                                            David E. Linquist
 
         
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JOHN A. CARLSEN,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                 File No. 736867 
 
         DEPARTMENT OF TRANSPORTATION,
 
                                                   A P P E A L
 
              Employer,
 
                                                 D E C I S I 0 N
 
         and
 
         
 
         STATE OF IOWA,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1803
 
         
 
              Claimant suffered a back injury while doing road work for 
 
         DOT, and was awarded 55% industrial disability, with 
 
         apportionment of 25% for prior disability.  Claimant's age of 61 
 
         and proximity to retirement age was a factor in the determination 
 
         of industrial disability.
 
         
 
         1806
 
         
 
              Claimant was found to have a prior disability of 25% where 
 
         he had undergone two previous back surgeries, had a prior lifting 
 
         restriction of 50 pounds, but had been able to perform the duties 
 
         of his job for 12 years between the last surgery and the present 
 
         injury.
 
         
 
         2906
 
         
 
              Claimant's argument that an arbitration decision awarding a 
 
         lower amount of permanent partial disability than was already 
 
         being voluntarily paid by the defendants prior to the petition 
 
         would deter claimant from pursuing a claim for benefits was 
 
         rejected as contrary to statutory scheme for determination of 
 
         entitlement to benefits by the commissioner, and voluntary 
 
         payments prior to the arbitration proceeding can have no binding 
 
         effect on that determination.
 
 
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            JOHN A. CARLSEN,    :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :      File No. 736867
 
            DEPARTMENT OF TRANSPORTATION, :
 
                      :        R E M A N D
 
                 Employer, :
 
                      :      D E C I S I O N
 
            and       :
 
                      :
 
            STATE OF IOWA, :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            This case has been remanded to the Iowa Industrial 
 
            Commissioner by order of the Iowa District Court for further 
 
            proceedings.  The district court order, dated September 4, 
 
            1990, orders this agency to enter an award of 55 percent 
 
            industrial disability for claimant, without reduction for 
 
            prior disability. 
 
            It is noted that since the prior appeal decision in this 
 
            case, the Iowa Supreme Court has issued a decision in the 
 
            case of Bearce v. FMC Corporation, 465 N.W.2d 531 (Iowa 
 
            1991).  The order of the district court appears to conform 
 
            with the Bearce decision.
 
            ORDER
 
            THEREFORE, it is ordered:
 
            That defendants are to pay unto claimant two hundred 
 
            seventy-five (275) weeks of permanent partial disability 
 
            benefits at a rate of one hundred eighty-seven and 90/100 
 
            dollars ($187.90) per week from June 14, 1985.
 
            That defendants are entitled to credit for benefits 
 
            previously paid.
 
            That defendants shall pay accrued weekly benefits in a lump 
 
            sum.
 
            That defendants shall pay interest on benefits awarded 
 
            herein as set forth in Iowa Code section 85.30.
 
            That defendants are to pay the costs of this action.
 
            
 
                 That defendants file claim activity reports as 
 
            requested by this agency pursuant to rule 343 IAC 3.1.
 
            Signed and filed this ____ day of April, 1991.
 
            
 
            
 
            
 
                      ________________________________
 
                               CLAIR R. CRAMER
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                       ACTING INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Harry H. Smith
 
            Attorney at Law
 
            632-640 Badgerow Bldg.
 
            P.O. Box 1194
 
            Sioux City, Iowa 51102
 
            
 
            Mr. Robert P. Ewald
 
            Assistant Attorney General
 
            Iowa Dept. of Transportation
 
            800 Lincoln Way
 
            Ames, Iowa 50010
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            1806
 
            Filed April 30, 1991
 
            Clair R. Cramer
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            JOHN A. CARLSEN,    :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :      File No. 736867
 
            DEPARTMENT OF TRANSPORTATION, :
 
                      :        R E M A N D
 
                 Employer, :
 
                      :      D E C I S I O N
 
            and       :
 
                      :
 
            STATE OF IOWA, :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            1806
 
            On remand from the Iowa Supreme Court, prior order was 
 
            amended to award full industrial disability to claimant, 
 
            without apportionment for prior disability. 
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    
 
                                        
 
                 BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         GEORGE ROWLEY,
 
         
 
              Claimant,                                File No. 737020
 
         
 
         vs.                                        A R B I T R A T I O N
 
         
 
         IOWA VETERAN'S HOME,                          D E C I S I O N
 
         
 
              Employer,
 
                                                         F I L E D
 
         and
 
                                                         MAR 01 1989
 
         STATE OF IOWA,
 
                                                     INDUSTRIAL SERVICES
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by George Rowley 
 
         against the Iowa Veteran's Home, his former employer, and the 
 
         State of Iowa.  The case was heard and fully submitted at Des 
 
         Moines, Iowa on June 1, 1988.  The record in this proceeding 
 
         consists of the testimony from George Rowley, claimant's exhibits 
 
         1 through 17 and defendants' exhibit A through F.
 
         
 
                                    ISSUES
 
         
 
              The issues presented by the parties at the time of hearing 
 
         are determination of claimant's entitlement to compensation for 
 
         temporary total disability or healing period, claimant's 
 
         entitlement to compensation for permanent disability and 
 
         claimant's entitlement to recovery medical expenses under Code 
 
         section 85.27.
 
         
 
                          SUMMARY OF EVIDENCE
 
         
 
              The following is a summary of evidence presented in this 
 
         case.  Of all the evidence received at the hearing, only that 
 
         considered most pertinent to this decision is discussed. 
 
         Conclusions about what the evidence showed are inevitable with 
 
         any summarization.  The conclusions in the following summary 
 
         should be considered to be preliminary findings of fact.
 
         
 
              George Rowley testified that he was born June 5, 1942 and 
 
         was age 45 at the time of hearing.  He stated that his 
 
         educational achievement was limited to the eighth grade and that 
 
         he last attended school in 1959.  Apparently, he was 
 
         approximately 16 or 17 years of age when he completed eighth 
 
         grade.  Subsequent to the injury in this case, he was evaluated 
 
                                                
 
                                                         
 
         by the state Department of Vocational Rehabilitation where he 
 
         obtained a GED.
 
         
 
              After Rowley ceased school, he held a variety of 
 
         employments. He has been a farmhand, dressed turkeys, loaded 
 
         boxcars, stocked and carried out groceries, pumped gas, washed 
 
         and vacuumed cars, driven a truck, performed roofing and also 
 
         worked as a custodian.
 
         
 
              Claimant denied having suffered any particular health 
 
         problems or injuries prior to the time he commenced employment at 
 
         the Iowa Veteran's Home in Marshalltown, Iowa in July, 1981. 
 
         Claimant stated that he took a physical examination when he was 
 
         hired and that he was in good health and had no back or other 
 
         significant health problems at that time.
 
         
 
              Claimant testified that he was injured in June, 1983 while 
 
         removing dirty linen from beds in the visitor cottages at the 
 
         Veteran's Home.  Claimant testified that, while bending over to 
 
         remove the linen, he was unable to straighten up and reported the 
 
         incident to his supervisor.  Claimant stated that he was sent 
 
         home and that his mother then made an appointment for him to see 
 
         Lloyd J. Thurston, D.O.  Claimant stated that, immediately prior 
 
         to the incident with the bed linen, he had been working on a 
 
         scaffold washing overhead fluorescent lights for two and one-half 
 
         days. Claimant stated that he worked astraddle of a bucket and 
 
         that the work involved a great deal of twisting to the left.
 
         
 
              Rowley testified that Dr. Thurston provided physical therapy 
 
         and took him off work for five days, but then released him to 
 
         return to work without restrictions.  Claimant stated that he 
 
         performed his regular work for a day or two, but then returned to 
 
         Dr. Thurston because his condition worsened.  Claimant stated 
 
         that, over a period of time, he continued to have problems 
 
         including pain in his chest, trouble bending and stooping, pain 
 
         in his lower back and left hip and pain in his neck and the back 
 
         of his head.
 
         
 
              Claimant testified that he was referred to Carl O. Lester, 
 
         M.D., who also took him off work.  Claimant testified that he 
 
         worked off and on between June of 1983 and April of 1984 and had 
 
         been paid workers' compensation benefits when he was off work. 
 
         Claimant stated that he was paid disability.benefits from Bankers 
 
         Life for a period of one year ending in June, 1985.
 
         
 
              Claimant testified that he has had no income since June of 
 
         1985 and that the only work he has performed was six days of 
 
         spraying weeds during the summer of 1987.
 
         
 
              Claimant was hospitalized for his back in May, 1984.  A CT 
 
         scan and a myelogram were performed.  Claimant has been evaluated 
 
         at the University of Iowa Hospitals and Clinics on two separate 
 
         occasions (claimant's exhibit 9).  Claimant has been seen at the 
 
         Medical Occupational Evaluation Center in Des Moines, Iowa 
 
         (claimant's exhibit 8).  Claimant was evaluated for three weeks 
 
                                                
 
                                                         
 
         at the Iowa Vocational Rehabilitation facility in Des Moines in 
 
         January and February of 1988 (claimant's exhibits 16 and 17).
 
         
 
              Claimant testified that he currently experiences pain in his 
 
         low back and left hip that does not go away.  He stated that he 
 
         is unable to stand or sit for any length of time and that all he 
 
         wants is to be fixed up so he can go back to work.  Claimant 
 
         testified that he has not looked for work because he could not 
 
         hold a job if he were hired.  He stated that he was not fired 
 
         from his job at the Veteran's Home, but ceased going to work 
 
         because it was too painful.
 
         
 
              Claimant's exhibit 2 shows that claimant commenced treatment 
 
         with Dr. Thurston on June 24, 1983.  He continued to treat with 
 
         Dr. Thurston until October 25, 1983 at which time he was released 
 
         to work for the remainder of that week and was advised to perform 
 
         certain exercises.  Dr. Thurston again saw claimant on November 
 
         7, 1983 for a routine employee physical.  At that time, it was 
 
         noted that claimant had chronic low back strain and claimant was 
 
         again encouraged to perform his low back exercises.  Dr. Thurston 
 
         did not see claimant again until March 12, 1984.
 
         
 
              Dr. Thurston had referred claimant to a Marshalltown 
 
         orthopaedic surgeon, Carl O. Lester, M.D.  Dr. Lester saw 
 
         claimant on two occasions, namely August 9 and October 31, 1983 
 
         (claimant's exhibits 3 and 10).  Claimant did not thereafter 
 
         return to see Dr. Lester until May 7, 1984.  In a report dated 
 
         August 9, 1983, Dr. Lester indicated that he had examined 
 
         claimant and that claimant made complaint of pain that runs down 
 
         his neck, into both shoulders and of headaches that go up the 
 
         back of his neck to the top of his head.  Dr. Lester's impression 
 
         was that claimant had a cervical sprain.  He recommended physical 
 
         therapy and did not expect any permanent disability (claimant's 
 
         exhibit 7, page 20). At page 21 of exhibit 7, a note dated 
 
         October 26, 1983 indicates that claimant related to Dr. Lester 
 
         that it was really his low back that was bothering, rather than 
 
         his neck.  A subsequent note of October 31, 1983 indicates that 
 
         claimant related to Dr. Lester that his pain started in his low 
 
         back and radiated up to his neck and into his head.  Dr. Lester 
 
         characterized the claimant's distribution of pain as "bizarre."  
 
         Dr. Lester's impression was of a chronic lumbosacral strain of 
 
         the left lower lumbar.
 
         
 
              Claimant was evaluated by Scott B. Neff, D.O., an 
 
         orthopaedic surgeon, on November 28, 1983.  Dr. Neff indicated 
 
         that claimant had sustained a simple lumbosacral strain and that 
 
         he had reached the maximum state of recuperation.  Dr. Neff 
 
         stated that claimant had no permanent disability as a result of 
 
         the incident, although he did recommend that claimant perform 
 
         further lifting using his legs rather than his back.  Dr. Neff 
 
         also recommended that claimant be prescribed Motrin for some of 
 
         his other complaints which Dr. Neff felt were unrelated to the 
 
         alleged injury.  When seen by Dr. Neff, claimant had complained 
 
         of stomach gas, right shoulder pain and abdominal pain 
 
         (claimant's exhibit 1).
 
                                                
 
                                                         
 
         
 
              In March, 1984, claimant also commenced a course of 
 
         treatment with L. E. Phipps, D.C.  (claimant's exhibit 4).
 
         
 
              In May, 1984, claimant was hospitalized under the direction 
 
         of Dr. Lester.  A myelogram and CT scan were performed which were 
 
         both essentially normal except for a "bulging disc" (claimant's 
 
         exhibit 3, pages 4 and 5).
 
         
 
              Claimant was evaluated at the University of Iowa Hospitals 
 
         and Clinics in July, 1984.  X-rays showed a Grade I 
 
         retrolisthesis of L5 on S1 which was characterized as being 
 
         "minimal."  The impression that was entered in the clinical notes 
 
         was that claimant has low back pain which may be secondary to a 
 
         degenerative disc with annular tearing, although there was no 
 
         evidence of disc protrusion.  It was recommended that claimant 
 
         perform physical therapy, specifically abdominal strengthening 
 
         exercises, and that he lose weight.  Claimant returned to the 
 
         University of Iowa Hospitals in February, 1987.  At that time, he 
 
         was noted to have a radiculopathy and rated as having a five 
 
         percent permanent partial impairment.
 
         
 
              Claimant was evaluated at the Medical Occupational 
 
         Evaluation Center on October 22, 1986 by Joshua Kimelman, D.O., 
 
         an orthopaedic surgeon.  Dr. Kimelman was unable to assess any 
 
 
 
                          
 
                                                         
 
         particular permanent impairment for the claimant and stated that 
 
         claimant could resume activity as tolerated and should be able to 
 
         resume gainful employment (claimant's exhibit 8).
 
         
 
              Defendants' exhibit E contains claimant's work attendance 
 
         records.  The records show that claimant missed work and was 
 
         characterized as being sick on several occasions during the last 
 
         six months of 1983.  The last of such occasions ended November 
 
         28, 1983.  Thereafter, claimant did not miss any work for more 
 
         than one day until March 9, 1984.  Subsequent to March 9, 
 
         claimant seldom was present at work.  The records show him being 
 
         present on only 13 occasions.
 
         
 
                         APPLICABLE LAW AND ANALYSIS
 
         
 
              The parties stipulated that claimant sustained an injury on 
 
         June 22, 1983 which arose out of and in the course of his 
 
         employment.  It is only the results of that injury which are in 
 
         dispute.  Defendants contend that claimant is entitled to receive 
 
         only the weekly compensation and medical benefits which have been 
 
         provided while claimant seeks further weekly compensation for 
 
         permanent disability.  In the event of an award, the employer 
 
         seeks a credit under the provisions of Code section 85.38(2) for 
 
         long-term disability benefits paid to claimant.
 
         
 
              Claimant seeks compensation for healing period or temporary 
 
         total disability.  When Dr. Thurston released claimant to return 
 
         to work, such implies that he was disabled and off work prior to 
 
         the release if the records fail to specifically show that the 
 
         doctor took claimant off work.  An examination of defendants' 
 
         exhibit E in comparison with records and reports from Drs. 
 
         Thurston and Lester shows claimant to have been absent from work 
 
         and entitled to receive benefits for the following periods:
 
         
 
              June 24 -- July 4, 1983                1 4/7 weeks
 
              July 22 -- July 26, 1983                 5/7 weeks
 
              August 9, 1983                           1/7 weeks
 
              September 23 -- September 26, 1983       4/7 weeks
 
              September 29 -- October 2, 1983          4/7 weeks
 
              October 24 -- October 25, 1983           2/7 weeks
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of June 22, 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.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A possibility is 
 
         insufficient; a probability is necessary.  Burt v. John Deere 
 
         Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
         question of causal connection is essentially within the domain of 
 
         expert testimony.  Bradshaw v. Iowa Methodist Hospital, 251 Iowa 
 
         375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
                                                
 
                                                         
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
         Co., 261 Iowa 352, 154 N.W.2d 128(1967).
 
         
 
              Claimant continued to voice symptoms subsequent to October 
 
         25, 1983.  Drs. Lester and Thurston relate claimant's continued 
 
         complaints to the June 22, 1983 injury, but Dr. Neff disputes 
 
         their opinions.  Further, the reports from the University of Iowa 
 
         Hospitals and Clinics and also from the Medical Occupational 
 
         Evaluation Center are not particularly corroborative of the 
 
         assessment made by Drs. Thurston and Lester.  At no point is it 
 
         suggested that the retrolisthesis was caused by the June 22, 1983 
 
         injury.
 
         
 
              The particular difficulty in this case arises from the fact 
 
         that the activity in which claimant was engaged at the time of the 
 
         injury is apparently nonstrenuous and nontraumatic.  It is not the 
 
         type of activity which normally produces permanent disability.  
 
         The activities are the type of things which could likely aggravate 
 
         or flare up a preexisting degenerative condition or even cause a 
 
         simple strain, but they are not the type of activities which are 
 
         normally injurious.
 
         
 
              Claimant's initial complaints waivered between his low back, 
 
         neck and head.  When seen by Dr. Neff, he made complaints of 
 
         abdominal distress.  When seen by Dr. Kimelman, he made complaints 
 
         that included his arms.  The only physical abnormality that any of 
 
         the diagnostic testing has identified is a retrolisthesis which 
 
         has been characterized as minimal and some nerve conduction 
 
         studies which indicate a left radiculopathy. Since the nerve 
 
         conduction studies were conducted in 1987, three and one-half 
 
         years subsequent to the injury, it cannot be assumed that the 
 
         radiculopathy was caused by the 1983 injury, particularly where 
 
         numerous office notes show claimant to have denied pain in his 
 
         legs and physicians previously found no indication of a 
 
         radiculopathy.  In summary, the assessment of the case as made by 
 
         Dr. Neff in claimant's exhibits 1 is determined to be correct.  
 
         The type of injury which claimant sustained should have resolved 
 
         in a period of a few weeks.  The record shows that claimant did 
 
         resume employment and worked without substantial interruption 
 
         through the months of December, January and February.
 
         
 
              It is therefore found that the injury of June 22, 1983 
 
         produced temporary total disability totalling three and 
 
         six-sevenths weeks in duration, but no permanent disability.  
 
         Whatever caused claimant to leave work in March of 1984 cannot be 
 
         clearly determined from the record of this case.  There is 
 
         evidence to suggest some possible influence from depression due 
 
         to his earnings being garnished.  Having observed claimant's 
 
                                                
 
                                                         
 
         appearance and demeanor while he testified together with the fact 
 
         of his educational background, the undersigned suspects that 
 
         claimant may have some deficit in intellectual capacity.  Such a 
 
         deficit could possibly explain some of the inconsistencies in 
 
         this record. Direct evidence of any limited intellectual 
 
         incapacity does not appear in the record of the case.  The fact 
 
         that claimant completed a GED in only three weeks while working 
 
         with vocational rehabilitation negates indications of limited 
 
         capacity.  Dr. Lester has characterized claimant as being unable 
 
         to return to his previous type of work and suitable only for 
 
         light duty, but he makes that statement in a situation which is 
 
         lacking in any definitive medical diagnosis other than chronic 
 
         musculoskeletal pain syndrome (claimant's exhibit 7).  His 
 
         assessment is not relied upon.
 
         
 
              Claimant is entitled to recover the expenses of his medical 
 
         treatment (claimant's counsel did not provide an itemized 
 
         statement).  Based upon the dates of treatment and previous 
 
         findings regarding claimant's condition, it is determined that 
 
         the medical treatment which claimant obtained running through 
 
         November 17, 1983 is the responsibility of defendants.  These 
 
         include Marshalltown Orthopaedics, P.C., in the amount of $50.00 
 
         (claimant's exhibit 10); Dr. Thurston in the amount of $247.50 
 
         (claimant's exhibit 12); Dr. Bendixen in the amount of $15.00 
 
         (claimant's exhibit 12); and, Marshalltown Area Community 
 
         Hospital in the amount of $205.00 (claimant's exhibit 13).  The 
 
         record fails to demonstrate by a preponderance of the evidence 
 
         that any of the subsequent expenses incurred by claimant were 
 
         related to the June 22, 1983 injury.  Defendants' exhibit D shows 
 
         that the employer has previously paid all the medical expenses 
 
         for which it is liable.
 
         
 
                             FINDING OF FACT
 
         
 
              1.  The injury which George Rowley sustained on June 22, 
 
         1983 was a lumbosacral strain which had resolved no later than 
 
         November 17, 1983.
 
         
 
              2.  The injury of June 22, 1983 is not shown to have 
 
         produced any permanent functional impairment or disability.
 
         
 
              3.  The injury oF June 22, 1983 did produce several periods 
 
         of time when claimant was medically incapable of performing work 
 
         in employment substantially similar to that he perform at the 
 
         time of injury.  Those periods total three and six-sevenths 
 
         weeks.
 
         
 
              4.  Claimant's medical expenses, incurred in obtaining 
 
         treatment for the injury, have been previously fully paid by the 
 
         employer.
 
         
 
                             CONCLUSIONS OF LAW
 
         
 
              1. This agency has jurisdiction of the subject matter of 
 
         this proceeding and its parties.
 
                                                
 
                                                         
 
         
 
              2.  Claimant has failed to prove by a preponderance of the 
 
         evidence that the injury of June 22, 1983 proximately caused any 
 
         permanent impairment or permanent disability or any other 
 
         disability subsequent to November 17, 1983.
 
         
 
              3.  Claimant has failed to prove by a preponderance of the 
 
         evidence that any medical expenses or treatment which he received 
 
         subsequent to November 17, 1983 were proximately caused by the 
 
         injury of June 22, 1983.
 
         
 
                                   ORDER
 
         
 
              IT IS THEREFORE ORDERED that defendants pay claimant three 
 
         and six-sevenths (3 6/7) weeks of compensation for temporary 
 
         total disability at the stipulated rate of one hundred 
 
         twenty-eight and 52/100 dollars ($128.52) per week with one and 
 
         four-sevenths (1 4/7) weeks thereof payable commencing June 24, 
 
         1983; with five-sevenths (5/7) weeks thereof payable commencing 
 
         July 22, 1983; with one-seventh (1/7) week thereof payable 
 
         commencing August 9, 1983; with four-sevenths (4/7) weeks thereof 
 
         payable commencing September 23, 1983; with four-sevenths (4/7) 
 
         weeks thereof payable commencing September 29, 1983; and, with 
 
         two-sevenths (2/7) weeks thereof payable commencing October 24, 
 
         1983.  Defendants shall receive credit for all amounts previously 
 
         paid for the stated periods, as shown in exhibit D, and shall pay 
 
         any remaining unpaid amounts in a lump sum together with interest 
 
         pursuant to section 85.30 of The Code of Iowa.
 
         
 
              IT IS FURTHER ORDERED that the costs of this proceeding are 
 
         assessed against defendants pursuant to Division of Industrial 
 
         Services Rule 343-4.33.
 
                                   
 
                                                
 
                                                         
 
              IT IS FURTHER ORDERED that defendants file Claim Activity 
 
         Reports as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
         
 
         
 
              Signed and filed this 1st day of March, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            MICHAEL G. TRIER
 
                                            DEPUTY INDUSTRIAL 
 
                                            COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Theodore R. Hoglan
 
         Attorney at Law
 
         34 South First Avenue
 
         Marshalltown, Iowa  50158
 
         
 
         Mr. Greg Knoploh
 
         Assistant Attorney General
 
         Tort Claims Division
 
         Hoover State Office Building
 
         Des Moines, Iowa  50319
 
         
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 1108.50, 1402.30, 
 
                                                 1402.40
 
                                                 Filed March 1, 1989 
 
                                                 MICHAEL G. TRIER
 
         
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         GEORGE ROWLEY,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                      File No. 737020
 
         IOWA VETERAN'S HOME,
 
                                                   A R B I T R A T I 0 N
 
              Employer,
 
                                                      D E C I S I 0 N
 
         and
 
         
 
         STATE OF IOWA,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1108.50, 1402.30, 1402.40
 
         
 
              Claimant sustained an admitted injury which was of an 
 
         apparent minor consequence.  The medical evidence showed 
 
         inconsistent complaints and lack of objective medical evidence to 
 
         corroborate the claimant's stated complaints.  It was held that 
 
         claimant was awarded temporary total disability for a period of 
 
         recovery and also medical expenses, but that a further course of 
 
         treatment which originated approximately four months subsequent 
 
         to the end of the temporary total disability award was not found 
 
         to have been proximately caused by the injury.
 
         
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         GEORGE ROWLEY,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                     File No. 737020
 
         IOWA VETERANS HOME,
 
                                                       A P P E A L
 
              Employer,
 
                                                       R U L I N G
 
         and
 
         
 
         STATE OF IOWA,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         
 
               Division of Industrial Services Rule 343-4.27 states in 
 
         part:
 
         
 
                 No appeal shall be separately taken under this or 
 
              4.25 (17A, 86) from an interlocutory decision, order or 
 
              ruling of a deputy industrial commissioner.  A 
 
              decision, order or ruling is interlocutory if it does 
 
              not dispose of the contested case, unless the sole 
 
              issue remaining for determination is claimant's 
 
              entitlement to additional compensation for unreasonable 
 
              denial or delay of payment pursuant to Iowa Code 
 
              section 86.13.
 
         
 
              The ruling filed April 7, 1988, which is the subject matter 
 
         of this appeal, is not dispositive of the contested case and
 
         therefore interlocutory.
 
         
 
              THEREFORE, the appeal filed April 27, 1988 is hereby 
 
         dismissed.
 
         
 
         
 
              Signed and filed this 18th day of May, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                                DAVID E. LINQUIST
 
                                                INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Theodore R. Hoglan
 

 
         
 
         
 
         
 
         ROWLEY V. IOWA VETERANS HOME
 
         Page   2
 
         
 
         Attorney at Law
 
         34 South First Avenue
 
         Marshalltown, Iowa 50158
 
         
 
         Mr. Greg Knoploh
 
         Assistant Attorney General
 
         Tort Claims Division
 
         Hoover State Office Bldg.
 
         Des Moines, Iowa 50319
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JAN CHODA,
 
         
 
              Claimant,                               File No. 737114
 
         
 
         VS.                                       A R B I T R A T I 0 N
 
         
 
         TEMPUTER, INC.,                               D E C I S I O N
 
         
 
              Employer,
 
         
 
         and
 
         
 
         TRAVELERS INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              The case was heard in Des Moines, Iowa on February 17, 1987 
 
         and was fully submitted upon conclusion of the hearing.  The 
 
         record in the proceeding consists of testimony from Jan Choda and 
 
         Mary Crispin, claimant's exhibits 1, 2 and 3 and defendants' 
 
         exhibits A, B and C.
 
         
 
                                      ISSUES
 
         
 
              Choda was injured on June 23, 1983 when the employer's van, 
 
         in which he was a passenger, overturned.  Weekly compensation was 
 
         paid during a period of recovery.  The only disputed issue in the 
 
         case is the nature and extent of permanent partial disability.  
 
         Contained within that issue is whether or not the accident was a 
 
         proximate cause of any disability with which Choda is currently 
 
         afflicted.
 
         
 
                               SUMMARY OF EVIDENCE
 
         
 
              Choda was injured when the van in which he was riding 
 
         overturned.  He was taken by ambulance to Iowa Methodist Medical 
 
         Center in Des Moines, Iowa where he remained until June 30, 1983.  
 
         Claimant was diagnosed as having a posterior cervical strain and 
 
         a lumbosacral strain (claimant's exhibit 1, page 12).  While 
 
         hospitalized, x-rays showed him to have congenital or other 
 
         developmental abnormalities in his neck and in his lumbar spine.  
 
         The lumbar abnormality was thought to be a result of 
 
         Scheuermann's Disease (claimant's exhibit 1, pages 12, 18, 41, 
 
         42, 43 and 44).
 
              Claimant was released to return to work on approximately 
 
         August 31, 1983, but he did not return to his employment with 
 
         Temputer, Inc.  The evidence is conflicting on the precise 
 

 
         
 
         
 
         
 
         CHODA V. TEMPUTER, INC.
 
         Page   2
 
         
 
         
 
         reason.  Claimant attributed the lack of return to the 
 
         employment due to problems with his arms and neck.
 
         
 
              The business of Temputer, Inc. is selling and installing 
 
         temperature monitoring systems in grain elevators and storage 
 
         facilities.  Claimant's work involved the actual installation 
 
         and maintenance of the systems.  He testified that he climbed 
 
         at heights of as much as 120 feet on a daily basis, even when 
 
         he was working as a crew chief.  Claimant testified that the 
 
         problems in his neck and arms caused him to lose faith in his 
 
         ability to rely upon his body to work at heights.
 
         
 
              In December of 1983, claimant obtained employment 
 
         inspecting fire alarms, fire extinguishing and burglar alarm 
 
         systems.  He was subsequently assigned to installing the 
 
         systems.  He testified concerning portions of the job which 
 
         required lifting a 90-pound sphere overhead which produced 
 
         symptoms in his arms.  Other portions of the work, such as 
 
         removing and replacing covers on alarm units, also produced 
 
         symptoms.  Claimant held the job for approximately four months, 
 
         but felt incapable of continuing in the position and resigned.  
 
         Claimant obtained a job with Meredith/ Burda and a second job 
 
         in the supply department of Bankers Life Insurance Company.  He 
 
         found himself unable to hold two full-time jobs and left the 
 
         Meredith job for the one at Bankers Life which he felt was 
 
         somewhat easier, even though it paid slightly less.
 
         
 
              In September, 1984, claimant obtained his present job at 
 
         the walnut Creek YMCA where he is the assistant building 
 
         superintendent.  His starting wages were $6.50 per hour and at 
 
         time of hearing he was earning $7.50 per hour.  The job duties 
 
         involve making sure the building is working properly and 
 
         include painting, repairing motors, replacing bearings and 
 

 
         
 
         
 
         
 
         CHODA V. TEMPUTER, INC.
 
         Page   3
 
         
 
         
 
         seals, dry wall work and other routine repair and maintenance 
 
         functions.  Claimant testified that he is allowed to work at 
 
         his own pace and that when physical activity brings on 
 
         symptoms, he is permitted to take a break.
 
         
 
              Choda testified that his main problem at the present time 
 
         results from working with his hands overhead such as when 
 
         painting or pruning trees.   He stated that he experiences 
 
         numbness, but that he generally does not allow it to stop him.  
 
         He also complained of a pain that pulls the shoulder blades 
 
         back and is more severe and does cause him to stop working.
 
         
 
              Claimant also performs part-time work installing furnaces. 
 
          Copies of claimant's income tax returns show that in 1983 he 
 
         earned $7,062.00; in 1984 he earned $15,753.00; in 1985 he 
 
         earned $13,827.00.  His stipulated rate of compensation 
 
         indicates
 
         
 
         average weekly earnings of $260.00 per week or $13,500.00 per 
 
         year.
 
         
 
              The record also reflects that, on July 12, 1980, claimant 
 
         was in an auto accident which resulted in complaints that 
 
         included neck pain (claimant's exhibit 1, pages 51-53).  He was 
 
         also involved in a second accident on August 17, 1980, but 
 
         whether or not his neck was substantially injured in that 
 
         accident is uncertain from the records (claimant's exhibit 1, 
 
         page 54).  Claimant denied having any residual problems with 
 
         his neck following either of those accidents.
 
         
 
              Martin S. Rosenfeld, D.O., an orthopaedic surgeon, has 
 
         evaluated claimant and diagnosed his condition as a cervical 
 
         and myofascial strain which is resolving.  He felt that 
 

 
         
 
         
 
         
 
         CHODA V. TEMPUTER, INC.
 
         Page   4
 
         
 
         
 
         claimant had previously had a lumbar strain that is now 
 
         resolves.  He recommended that claimant avoid working with his 
 
         hands above shoulder level and that he also avoid heavy 
 
         lifting, pushing, pulling and prolonged sitting or standing.  
 
         He expressed the opinion that the condition in claimant's 
 
         cervical spine is related to the injury of June 23, 1983 
 
         (claimant's exhibit 1, pages 1-5).  Dr. Rosenfeld, in the 
 
         report which is dated September 20, 1984, indicated that 
 
         claimant has a 10% permanent partial impairment.
 
         
 
              Robert A. Hayne, M.D., a neurosurgeon, was responsible for 
 
         part of claimant's care while he was hospitalized immediately 
 
         following the accident and also provided follow-up care.  In a 
 
         report dated December 20, 1984, Dr. Hayne related that a recent 
 
         CT scan of claimant's cervical spine was normal.  He felt that 
 
         claimant had no severe permanent disability resulting from the 
 
         injury, but did assign a 2-3 percent of the body as a whole 
 
         impairment rating.  Dr. Hayne recommended that claimant avoid 
 
         activity which places stress and strain on his shoulders and 
 
         neck and that he curtail his lifting to no more than 40 or 50 
 
         pounds (claimant's exhibit 1, page 8).
 
         
 
              Mary Crispin, the general manager of Temputer, Inc., 
 
         testified that claimant could have returned to work with the 
 
         company following his release from medical care after the 
 
         accident, but that he declined to do so.  She stated that he 
 
         was a good employee, learned quickly and worked efficiently.  
 
         Crispin indicated that the company would still have some 
 
         part-time work in the shop available for claimant if he desired 
 
         to do it.
 
         
 
                          APPLICABLE LAW AND ANALYSIS
 
         
 
              As previously stated, the only disputed issues in this case 
 
         are causation and permanent partial disability.
 

 
         
 
         
 
         
 
         CHODA V. TEMPUTER, INC.
 
         Page   5
 
         
 
         
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of June 23, 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).
 
         
 
              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),
 
         
 
              The preexisting abnormalities in claimant's spine were not 
 
         symptomatic and were not shown to be disabling prior to June 23, 
 
         1983.  Claimant's lumbar spine complaints have resolved and the 
 
         lumbar spine does not currently appear to be symptomatic.  The 
 
         cervical spine complaints may be due, in part, to the congenital 
 
         abnormality, but to the extent that they are, this case still 
 
         presents an aggravation of a preexisting condition for which the 
 
         employer is, nevertheless, responsible.
 
         
 
              Dr. Rosenfeld provides a medical opinion of causation.  
 
         Claimant denied prior problems with his neck.  The complaints 
 
         upon which his claim is based originated at the time of the 
 
         accident.  It is found that the injury of June 23, 1983 is a 
 
         proximate cause of the symptoms and disability which claimant 
 
         currently experiences related to his neck and cervical spine.
 
         
 
              If claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
         593, 258 N.W. 899, 902 (1935) as follows:  OIt is therefore plain 
 
         that the legislature intended the term 'disability' to mean 
 
         'industrial disability' or loss of earning capacity and not a 
 
         mere 'functional disability' to be computed in the terms of 
 
         percentages of the total physical and mental ability of a normal 
 
         man.O
 
         
 
              Functional impairment is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 
 
         257 (1963).
 
         
 
              Claimant has a GED, is 29 years of age, married and 
 
         appropriately trained for his current position as assistant 
 
         building superintendent.  In view of his physical limitations, 
 
         education and general background, he is appropriately employed.  
 
         Claimant's current rate of earning is approximately equal to that 
 
         which he experienced with Temputer, Inc., but it is uncertain 
 
         what his wages would currently be if he were still employed at 
 

 
         
 
         
 
         
 
         CHODA V. TEMPUTER, INC.
 
         Page   6
 
         
 
         
 
         Temputer, Inc.  Some increase would normally be expected from 
 
         year to year.  Claimant does have physical limitations as 
 
         indicated by both Drs. Rosenfeld and Hayne.  This makes him 
 
         unable to perform in certain portions of the job market which 
 
         were available to him prior to June 23, 1983.  He has sustained 
 
         some disability from an industrial standpoint.  When all the 
 
         applicable factors are considered, it is determined that Choda 
 
         has a 10% permanent partial disability in industrial terms as a 
 
         result of the injuries sustained on June 23, 1983.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  As a result of the accident of June 23, 1983, Choda is 
 
         limited in his ability to work with his hands higher than 
 
         shoulder level and also in his ability to lift, push and pull.
 
         
 
              2.  Choda has an impairment of the body as a whole related 
 
         to the condition of his cervical spine which is in the range of 
 
         2-10 percent of the body as a whole.
 
         
 
              3.  Choda is a 29-year-old man who dropped out of school 
 
         after the tenth grade, but subsequently obtained a GED.  He is 
 
         trained in boiler room operation and maintenance.
 
         
 
              4.  Choda is appropriately employed as an assistant building 
 
         superintendent when consideration is given to his training, 
 
         education, background, experience and physical limitations.
 
         
 
              5.  Claimant's injury has been diagnosed as a cervical 
 
         strain which has not resolved completely.  The lumbar strain 
 
         which resulted from the injury has resolved.
 
         
 
              6.  Claimant has a 10% loss of earning capacity as a result 
 
         of the injuries of June 23, 1983.
 
         
 
              7.  The preexisting abnormalities in claimant's spine were 
 
         relatively asymptomatic prior to the injury of June 23, 1983.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              1.  This agency has jurisdiction of the subject matter of 
 
         this proceeding and its parties.
 
         
 
              2.  The injury claimant sustained on June 23, 1983 in the 
 
         vehicle accident is a proximate cause of the disability which he 
 
         currently experiences relating to his cervical spine and 
 
         symptomatology in his arms.
 
         
 
              3.  When evaluated industrially claimant has a 10% permanent 
 
         partial disability as a result of the injury of June 23, 1983.
 
         
 
                                        
 
                                      ORDER
 
         
 
              IT IS THEREFORE ORDERED that defendants pay claimant fifty 
 
         (50) weeks of compensation for permanent partial disability at 
 
         the stipulated rate of one hundred fifty-eight and 99/100 dollars 
 
         ($158.99) per week payable commencing September 1, 1983.
 
         
 

 
         
 
         
 
         
 
         CHODA V. TEMPUTER, INC.
 
         Page   7
 
         
 
         
 
              IT IS FURTHER ORDERED that the entire amount thereof is past 
 
         due and owing and shall be paid in a lump sum together with 
 
         interest pursuant to section 85.30.
 
         
 
              IT IS FURTHER ORDERED that defendants pay the costs of this 
 
         action pursuant to Division of Industrial Services' Rule 
 
         343-4.33.
 
         
 
              IT IS FURTHER ORDERED that defendants file Claim Activity 
 
         Reports as requested by the agency pursuant to Rule 343-3.1.
 
         
 
              IT IS FURTHER ORDERED that the case be returned to 
 
         prehearing for assignment on the claim for additional section 
 
         86.13 benefits.
 
         
 
         
 
         
 
              Signed and filed this 8th day of July, 1987.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                         MICHAEL G. TRIER
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. James R. Lawyer
 
         Attorney at Law
 
         2141 Grand Avenue
 
         P.O. Box 367
 
         Des Moines, Iowa  50302
 
         
 
         Mr. Terry Monson
 
         Attorney at Law
 
         300 Liberty Building
 
         Des Moines, Iowa 50309
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                     1108, 1402.40, 1803
 
                                                     Filed July 8, 1987
 
                                                     MICHAEL G. TRIER
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         JAN CHODA,
 
         
 
              Claimant,                                File No. 737114
 
         
 
         VS.
 
                                                   A R B I T R A T I 0 N 
 
         TEMPUTER, INC.,
 
         
 
              Employer,                               D E C I S I 0 N
 
         
 
         and
 
         
 
         TRAVELERS INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1108, 1402.40, 1803
 
         
 
              Twenty-nine year-old claimant was injured when a van in 
 
         which he was a passenger overturned.  He had continuing 
 
         complaints of cervical spine pain and symptomatology that flared 
 
         up when he worked with his hands overhead.  Medical care 
 
         diagnosed a congenital narrowing in his cervical spine, but it 
 
         appeared to have been asymptomatic prior to the accident.
 
         
 
              Following recovery from the injury, claimant declined to 
 
         return to his former employment and chose to seek other types of 
 
         work which he felt were more within his capabilities.  He is now 
 
         employed in a position which pays approximately the same as what 
 
         he earned with the defendant employer.  He is appropriately 
 
         employed with regard to his physical limitations, training, 
 
         experience and general abilities.  Claimant awarded 10% permanent 
 
         partial disability.
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                    5-1803
 
                                                    Filed July 26, 1990
 
                                                    LARRY P. WALSHIRE
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            RICHARD D. MILLER,            :
 
                                          :
 
                 Claimant,                :
 
                                          :    File Nos. 874539, 845155,
 
            vs.                           :              814636 & 737315
 
                                          :
 
            NATIONAL BY-PRODUCTS, INC.,   :      A R B I T R A T I O N
 
                                          :
 
                 Employer,                :         D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INSURANCE CO., :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            
 
            
 
                 5-1803
 
            
 
                 Extent of disability benefits - Nonprecedential
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JEFFREY L. ANDERSON,
 
         
 
              Claimant,                              File No. 737537
 
         VS.
 
         
 
         ROBERT M. JENSEN,                       A R B I T R A T I 0 N
 
         
 
              Employer,                             D E C I S I 0 N
 
         
 
         and
 
         
 
         BITUMINOUS CASUALTY
 
         COMPANIES,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Jeffrey L. 
 
         Anderson, claimant, against Robert M. Jensen (Jensen), employer, 
 
         and Bituminous Casualty Companies, insurance carrier, for 
 
         benefits as a result of an alleged injury on May 20, 1983.  A 
 
         hearing was held in Des Moines, Iowa on March 25, 1987 and the 
 
         case was submitted on that date.
 
         
 
              The record consists of the testimony of claimant and Blaine 
 
         Boken; and joint exhibits 1 through 4.  Neither party filed a 
 
         brief.
 
         
 
              The parties stipulated that claimant's weekly rate of 
 
         compensation is $87.96; that claimant has been paid 18 4/7 weeks 
 
         of healing period benefits; that any permanency benefits awarded 
 
         would commence on November 4, 1983; that claimant has been paid 
 
         75 weeks of permanent partial disability benefits; that 
 
         claimant's injury of May 20, 1983 arose out of and in the course 
 
         of his Jensen employment; and that claimant is not currently 
 
         entitled to permanent total disability benefits (he did not 
 
         assert the odd-lot doctrine).
 
         
 
                                   ISSUES
 
         
 
              The contested issues are:
 
         
 
             1)  Whether there is a causal relationship between 
 
         claimant's
 
         
 
         work-related injury of May 20, 1983 and his asserted disability; 
 
         and
 
         
 
              2)  Nature and extent of disability; specifically, whether 
 
         claimant is entitled to more than 75 weeks of permanent partial 
 
         disability benefits.
 

 
         
 
         
 
         
 
         ANDERSON V. ROBERT M. JENSEN
 
         Page   2
 
         
 
         
 
         
 
                             SUMMARY OF THE EVIDENCE
 
         
 
              Claimant testified that he is 22 years old, having been born 
 
         September 10, 1964.  He quit school in the tenth grade, but has 
 
         obtained a GED.  In 1983 or 1984, he attended Iowa Western 
 
         Community College in Council Bluffs, Iowa, to become a parts 
 
         specialist.  This involved classroom instruction and he worked 
 
         "inside like a parts store.O  He didn't complete this course of 
 
         study.
 
         
 
              Claimant testified that he sustained an injury on May 20, 
 
         1983 and sought chiropractic care in Audubon, Iowa as a result.  
 
         Ultimately, he saw Maurice P. Margules, M.D., in Council Bluffs 
 
         and had back surgery in July 1983.  Shortly after his back injury 
 
         of May 20, 1983, claimant stopped working for Jensen as he "did 
 
         not work more than a month after the injury."  Claimant informed 
 
         Jensen of his back injury and was told by Jensen that he would 
 
         have to do all his assigned tasks by himself.
 
         
 
              Claimant testified that prior to his injury of May 20, 1983, 
 
         he worked solely at manual labor jobs such as construction work. 
 
          He testified that he had no back problems prior to May 20, 
 
         1983.
 
         
 
              Claimant testified that his first job after the May 20, 1983 
 
         injury was with Atlantic Steel Erectors of Atlantic, Iowa, where 
 
         he worked from June 1985 through August 1, 1985.  He attempted to 
 
         get jobs prior to the Atlantic Steel Erectors job, but was 
 
         unsuccessful in doing so because he told about his physical 
 
         problems on his job applications.  At Atlantic Steel Erectors, 
 
         claimant was required to lift items off the ground that weighed 
 
         100 to 150 pounds.  As best claimant can recall, Dr. Margules 
 
         imposed a weight restriction of 60 to 80 pounds; the Atlantic 
 
         Steel Erectors job required heavier weights "pretty frequently." 
 
         Claimant testified that he always has pain in his lower back due 
 
         to the injury of May 20, 1983.  When he rides in a car this sets 
 
         off his back pain.  Claimant's main problem area is where his 
 
         back surgery was performed.  Sometimes he could not sleep at 
 
         night because of the pain caused by the Steel Erectors job.
 
         
 
              Claimant testified that he quit the Atlantic Steel Erectors 
 
         job on August 1, 1985 because no light duty positions at a lesser 
 
         rate of pay were available with this employer.  Claimant simply 
 
         could not handle going to work every day and sustaining the 
 
         resulting pain.  He was unable to concentrate and was unable to 
 
         keep up with his work.
 
         
 
              Claimant testified that he worked from August 1985 through 
 
         September 1985 in the state of Georgia hanging drywall and 
 
         pouring concrete.  Putting materials on the ceiling is what Ogot 
 
         to me.O He did not tell his Georgia employer about his back 
 
         problems.  He mixed cement for this employer.  The job also 
 
         required a lot of carrying.  Stooping also caused problems on 
 
         this job.  He was required to climb stairs carrying 60 pound bags 
 
         of cement.  Shoveling also caused him to have back problems on 
 
         this job.  He quit this job because of his back problems.  
 
         Standing on a hard surface and holding materials over his head 
 
         caused him to have problems on this job.  The site of his back 
 

 
         
 
         
 
         
 
         ANDERSON V. ROBERT M. JENSEN
 
         Page   3
 
         
 
         
 
         surgery was the "problem area."  Claimant was able to do his 
 
         Georgia job for one or two hours before he got to hurting "real 
 
         bad."
 
         
 
              Claimant testified that his next job was a landscaping job 
 
         in Phoenix, Arizona mowing lawns at apartment buildings and at 
 
         big estates.  He would push lawn mowers around in order to do 
 
         this job.  He worked in this position for two or three months.  
 
         His left leg became numb and tingled because of this job.  This 
 
         job required him to lift bags of grass and to lift lawn mowers in 
 
         and out of trucks.  No non-lifting activities were available with 
 
         this Arizona employer.
 
         
 
              Claimant's current employment is in Des Moines doing general 
 
         construction.  His employer does remodeling and home 
 
         construction, and he has had this job for almost a year.  
 
         Claimant was paid $4.00 initially for this construction job and 
 
         is currently paid $5.00 per hour.  He does a lot of cleanup on 
 
         his current job and finishes concrete.  He stated he is not 
 
         particularly good at finishing concrete.  At his current job 
 
         other workers have to help him with lifting.  He currently 
 
         exceeds, on occasion, Dr. Margules' weight restriction.  His 
 
         current employer allows him to sit down when he needs to.
 
         
 
              Claimant saw Dr. Margules in November 1986 or December 1986. 
 
          He saw Dr. Margules as the result of twisting his back while 
 
         working in South Dakota.  He said that his back hurt worse for 
 
         three days because of the South Dakota incident and characterized 
 
         the problem as a temporary one.  He stated that after three or 
 
         four days his back was back to the way it was after his back 
 
         surgery; he stated that this is the way his back would normally 
 
         feel.
 
         
 
              Claimant testified that on October 14, 1984 he was involved 
 
         in a fight in Audubon, Iowa, and went to Chiropractor Barnes as a 
 
         result.  He sustained several broken ribs as a result of the 
 
         fight.  His back bothered him the night of the fight and the next 
 
         day, but then his back went back to the way it was before the 
 
         fight according to claimant.
 
         
 
              Claimant testified that he was involved in an automobile 
 
         accident in Council Bluffs on October 5, 1985.  He went to Dr. 
 
         Margules to get checked out after he was involved in this 
 
         accident.  He saw Chiropractor Barnes before he saw Dr. Margules.  
 
         Claimant testified that he did not injure his back where it had 
 
         previously been injured on May 20, 1983.
 
         
 
              Claimant testified as to his confinement at Eldora Training 
 
         School and to being in various jails after his Eldora 
 
         Confinement.  Claimant testified that he has trouble getting 
 
         along with people, but that he has two or three close friends.  
 
         Claimant testified that he does not like working inside.  
 
         He,stated regarding inside work that "I'm against it and I don't 
 
         like it."  Claimant testified that he doesn't handle pressure 
 
         well "as I like things to go easy."  He also testified that he 
 
         "gets totally nervous when he is around people all day.O
 
         
 
              Claimant testified that his father drives a truck.  He has 
 
         ridden with his father, but it caused a problem with his back 
 

 
         
 
         
 
         
 
         ANDERSON V. ROBERT M. JENSEN
 
         Page   4
 
         
 
         
 
         because of the bouncing around.  He testified that riding in a 
 
         truck causes more problems for him than riding in a car.
 
         
 
              On cross-examination, claimant described his wages at Jensen 
 
         and also described his work duties.  He stated that his work 
 
         injury on May 20, 1983 occurred when he was lifting an intake 
 
         manifold off a truck engine.  He stated that he was unemployed 
 
         for two years between his Jensen employment and Atlantic Steel 
 
         Erectors employment.  He applied at a number of places during 
 
         this two-year period.  He stated that he had pain in his back all 
 
         the time even after his back surgery.  He stated that his back 
 
         always bothers him since the surgery.  Claimant testified that he 
 
         was told by Dr. Margules in late 1983 at the time of his release 
 
         that he would have pain for the rest of his life.
 
         
 
              Claimant testified that he started the Georgia job two weeks 
 
         after separating from the Atlantic Erectors job.  Claimant stated 
 
         that working with sheet rock and bags of cement at the Georgia 
 
         job temporarily worsened his condition, but he did not seek 
 
         medical attention as a result.  Claimant testified that the 
 
         Georgia and Arizona jobs required him to lift weights in excess 
 
         of the limitation posed by Dr. Margules.  He stated that he went 
 
         directly from the Phoenix job to his current Des Moines job.  He 
 
         stated that he generally works forty hours per week at his 
 
         current job, but that there are slow periods.  His current job 
 
         requires bending and stooping.  He works with a wheelbarrow and 
 
         this requires twisting which causes his back symptoms to 
 
         increase.
 
         
 
              Claimant testified that he was cutting some wood in South 
 
         Dakota and that the incident in South Dakota was a "significant 
 
         aggravation of his problem."  He saw Dr. Margules as a result of 
 
         this South Dakota incident.  He did not seek medical attention in 
 
         either Georgia or Arizona.  Claimant does not recall telling Dr. 
 
         Margules about the South Dakota incident.
 
         
 
              On cross-examination, claimant testified that the fight of 
 
         August 14, 1984 affected his lumbar spine as he was thrown 
 
         against a rail.  As best claimant can recall, he did not tell Dr. 
 
         Margules about this fight.  On cross-examination, claimant 
 
         testified that he did not mention the car accident of October 14, 
 
         1984 to Dr. Margules.  On cross-examination, claimant stated that 
 
         he generally works 34 or 40 hours per week.  He earns about $150 
 
         per week..
 
         
 
              On redirect examination, claimant testified that the fight 
 
         and the automobile accident increased his back symptoms 
 
         temporarily, but did not cause him any permanent problems.
 
         
 
              Blaine Boken testified that he worked with claimant in 
 
         Georgia and currently works with claimant in Des Moines.  Boken 
 
         and claimant did the same job in Georgia, and Boken testified 
 
         that claimant tried to do his work in Georgia, but had a lot of 
 
         trouble doing so.  Claimant complained every day about his 
 
         physical condition while working in Georgia.  Boken is claimant's 
 
         current supervisor or foreman on his job in Des Moines.  Boken 
 
         has worked for his employer for about two years and characterized 
 
         claimant as a willing worker.  Boken also testified that claimant 
 
         has a good attitude about his work, but that he has a lot of 
 

 
         
 
         
 
         
 
         ANDERSON V. ROBERT M. JENSEN
 
         Page   5
 
         
 
         
 
         pain.  Claimant has a lot of trouble doing drywalling currently.  
 
         Boken and claimant have an arrangement whereby Boken helps 
 
         claimant do his job.  Claimant has problems with heavy work, but 
 
         always tries.
 
         
 
              Boken testified regarding the South Dakota incident.  
 
         Claimant was putting in some duct work and twisted his back with 
 
         a resulting pop; this was at the same area as the original injury 
 
         of May 20, 1983.  Boken testified that he currently observes 
 
         claimant in pain every day.
 
         
 
              On cross-examination, Boken testified that in Georgia 
 
         claimant and himself were paid $8.00 per hour.  Boken testified 
 
         that he hired claimant for his current job.  Boken testified that 
 
         he did not witness the South Dakota incident.  However, claimant 
 
         came off the ladder and said to Boken that he "had really hurt 
 
         his back.O
 
         
 
              On redirect, Boken testified that claimant recovered from 
 
         the South Dakota incident and was able to return to his Oprevious 
 
         condition.O
 
         
 
              Exhibit 1, page 24 (interrogatory 23), reads:
 
         
 
                 INTERROGATORY NO. 23.  Have you been a party to any 
 
              conversation or do you have any information whatsoever 
 
              indicating that your employment with Robert M. Jensen would 
 
              be terminated or in any way jeopardized or affected at any 
 
              time by this injury and the filing of this claim?  If so, 
 
              please indicate the parties to any such conversation, its 
 
              exact content and the date thereof or the source of said 
 
              information, the details of the information and the date it 
 
              was obtained.
 
         
 
                   ANSWER:  Yes, Robert Jensen told me that I
 
                            would  be fired if I did not come back
 
                            to work after I said that I had
 
                            slipped a disc.  Blaine Boken, myself
 
                            and Robert Jensen were all present at
 
                            the time of the conservation [sic].
 
                            It took place on the night of the
 
                            accident  after I went to the doctor
 
                            and was told that I would have to
 
                            take two weeks off.
 
         
 
              Exhibit 1, page 31 (dated September 26, 1983), is authored 
 
         by Dr. Margules and reads in part:
 
         
 
              Mr. Jeffrey Anderson has been under our care since July 13, 
 
              1983 as a referral from Dr. Barnes of Audubon, Iowa.  Please 
 
              find enclosed copies of History, Physical Examination, 
 
              Neurological Evaluation, Myelogram Report and Discharge 
 
              Summary covering hospitalization of July 13, 1983 to July 
 
              17, 1983 and History, Physical Examination, Operative Report 
 
              and Discharge Summery covering hospitalization of July 24, 
 
              1983 to July 31, 1983.
 
         
 
                 ....
 
         
 

 
         
 
         
 
         
 
         ANDERSON V. ROBERT M. JENSEN
 
         Page   6
 
         
 
         
 
              It is our opinion, at this time, that the patient's partial 
 
              permanent physical disability as the result of the injury 
 
              sustained on May 20, 1983 will not exceed 10 to 15% of the 
 
              body as a whole.
 
         
 
              Exhibit 2, page 17, authored by Dr. Margules, reads in part 
 
         regarding claimant's back surgery of July 25, 1983:
 
         
 
              FINAL DIAGNOSIS: Herniated lumbar disc, L5-Sl interspace, 
 
              LEFT due to trauma sustained while at work on May 20, 1983.
 
         
 
              PROCEDURE: Excision of herniated lumbar disc, L5-Sl 
 
              interspace, LEFT lateral approach.
 
         
 
              Exhibit 3 is the deposition of Dr. Margules taken on 
 
         December 17, 1986.  He examined claimant on July 13, 1983 and was 
 
         given a history at that time.  Claimant's complaints are set out 
 
         on page 6.  On pages 7 and 8, Dr. Margules stated his opinion 
 
         regarding the causal connection issue in this case and in 
 
         particular
 
         
 
         
 
         stated that claimant's complaints are consistent with the history 
 
         given by claimant.  On page 11, he stated that claimant's surgery 
 
         of July 23, 1983 was made necessary by the injury of May 20, 
 
         1983.  On page 13, he stated that claimantOs condition will not 
 
         be getting any better.  Claimant's medical restrictions are set 
 
         out on page 14.
 

 
         
 
         
 
         
 
         ANDERSON V. ROBERT M. JENSEN
 
         Page   7
 
         
 
         
 
         
 
              On cross-examination, Dr. Margules stated that claimant had 
 
         a reasonably good result from his surgery.  On page 19, 
 
         claimant's medical restrictions are explained further.  On page 
 
         23, Dr. Margules stated that the auto accident and/or fight could 
 
         have worsened claimant's preexisting condition.
 
         
 
              Exhibit 4 included claimant's 1985 tax returns documenting 
 
         his meager earnings that year.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              I.  The claimant has the burden of proving by a 
 
         preponderance of the evidence that the injury of May 20, 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).
 
         
 
              A treating physician's testimony is not entitled to greater 
 
         weight as a matter of law than that of a physician who later 
 
         examines claimant in anticipation of litigation.  Weight to be 
 
         given testimony of physician is a fact issue to be decided by the 
 
         industrial commissioner in light of the record the parties 
 
         develop.  In this regard, both parties may develop facts as to 
 
         the physician's employment in connection with litigation, if so; 
 
         the physician's examination at a later date and not when the 
 
         injuries were fresh; the arrangement as to compensation; the 
 
         extent and nature of the physician's examination; the physician's 
 
         education, experience, training, and practice; and all other 
 
         factors which bear upon the weight and value of the physician's 
 
         testimony may be considered.  Both parties may bring all this 
 
         information to the attention of the factfinder as either 
 
         supporting or weakening the physician's testimony and opinion.  
 
         All factors go to the value of the physician's testimony as a 
 
         matter of fact not as a matter of law.  Rockwell Graphic Systems, 
 
         Inc. v. Prince, 366 N.W.2d 187, 192 (Iowa 1985).
 
         
 
              A number of fact issues face the agency at this juncture.  
 
         Did the fight of August 14, 1984 cause any permanent,partial 
 
         impairment by causing claimant to sustain a new injury or 
 
         problem?  Did this fight materially aggravate claimant's injury 
 

 
         
 
         
 
         
 
         ANDERSON V. ROBERT M. JENSEN
 
         Page   8
 
         
 
         
 
         of May 20, 1983?  Did claimant's auto accident of October 15, 
 
         1984 cause a new injury or materially aggravate claimant's 
 
         stipulated injury of May 20, 1983?  Did the South Dakota incident 
 
         cause a new injury or materially aggravate claimant's stipulated 
 
         injury of May 20, 1983?  Despite the fact that claimant gave Dr. 
 
         Margules an incomplete history, I am convinced from the expert 
 
         and nonexpert evidence of record that the fight of August 14, 
 
         1984, the auto accident of October 15, 1984, and the South Dakota 
 
         incident only temporarily aggravated claimant's condition which 
 
         was caused by the injury of May 20, 1983.  I am also convinced 
 
         that claimant's injury of May 20, 1983 caused some permanent 
 
         partial impairment in the range of 10 to 15 percent.
 
         
 
              II.  As claimant has an impairment to the body as a whole, 
 
         an industrial disability has been sustained.  Industrial 
 
         disability was defined in Diederich v. Tri-City Railway Co., 219 
 
         Iowa 587, 593, 258 N.W. 899, 902 (1935) as follows: "It is 
 
         therefore plain that the legislature intended the term 
 
         'disability' to mean 'industrial disability' or loss of earning 
 
         capacity and not a mere 'functional disability' to be computed in 
 
         the terms of percentages of the total physical and mental ability 
 
         of a normal man.O
 
         
 
              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 
 
         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.
 
         
 

 
         
 
         
 
         
 
         ANDERSON V. ROBERT M. JENSEN
 
         Page   9
 
         
 
         
 
              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 Christensen v. Hagen, Inc., (Appeal Decision, March 26, 
 
         1985); Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, 
 
         February 28, 1985).
 
         
 
              Claimant conceded on the record that he is not currently 
 
         entitled to permanent total disability benefits.  However, 
 
         claimant has clearly sustained some loss of earning capacity as a 
 
         result of the whole body impairment caused by the work-related 
 
         injury of May 20, 1983.  Claimant is poorly educated and has a 
 
         history of manual labor jobs.  Between his separation from Jensen 
 
         and the Atlantic Steel Erectors job he applied for employment at 
 
         a number of places; however, his physical condition set out on 
 
         his job applications was a substantial factor in the resulting 
 
         fruitless job search.  The record documents that claimant is well 
 
         motivated to find a job and keep it.  He tried to do the Atlantic 
 
         Steel Erectors job but was unable to do so because of the 
 
         physical problems caused by the injury of May 20, 1983.
 
         
 
         
 
         
 
              It is also noteworthy in this case that Jensen made 
 
         absolutely no effort whatsoever to keep claimant employed after 
 
         his workrelated injury of May 20, 1983.  A defendant employer's 
 
         refusal to give any sort of work to a claimant after he suffers 
 
         his affliction may justify an award of disability.  McSpadden v. 
 
         Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980).  Similarly, a 
 
         claimant's inability to find other suitable work after making 
 
         bona fide efforts to find such work may indicate that relief
 
         should be granted.  Id.
 
         
 
              Taking all appropriate factors into account, it is concluded 
 
         that claimant is entitled to 250 weeks of permanent partial 
 
         disability benefits commencing on November 4,.1983 at a rate of 
 
         SS87.96 based on an industrial disability of 50 percent.  
 
         Defendants are, of course, entitled to a credit for benefits 
 
         already paid.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Claimant was born on September 10, 1964.
 
         
 
              2.  Claimant quit school during the tenth grade; claimant 
 
         has a GED.
 
         
 
              3.  Claimant has had only manual labor jobs during his work 
 
         life.
 
         
 

 
         
 
         
 
         
 
         ANDERSON V. ROBERT M. JENSEN
 
         Page  10
 
         
 
         
 
              4.  Claimant sustained a whole body injury on May 20, 1983 
 
         while working for Jensen.
 
         
 
              5.  Claimant's injury of May 20, 1983 caused whole body 
 
         impairment in the range of 10 to 15 percent.
 
         
 
              6.  Claimant was unable to continue doing his regular or 
 
         usual Jensen employment tasks because of the physical problems 
 
         caused by his work-related injury of May 20, 1983.
 
         
 
              7.  Jensen made no effort whatsoever to keep claimant 
 
         employed after his work-related injury of May 20, 1983.
 
         
 
              8.  A fight in August 1984 in which claimant participated 
 
         did not cause any permanent whole body impairment.
 
         
 
              9.  An auto accident in October 1984 in which claimant was 
 
         involved did not cause any permanent whole body impairment.
 
         
 
             10.  An incident in South Dakota while claimant was doing 
 
         some construction-type work did not cause any permanent whole 
 
         body impairment.
 
         
 
             11.  After claimant separated from Jensen, he applied for 
 
         employment at a number of places; he failed in part to secure 
 
         employment with these employers because of the physical problems 
 
         caused by his work-related injury of May 20, 1983; he disclosed 
 
         these physical problems on job applications.
 
         
 
             12.  Claimant secured employment with Atlantic Steel 
 
         Erectors, but was unable to do this job because of the physical 
 
         problems caused by his work-related injury of May 20, 1983.
 
         
 
             13.  Claimant is currently employed on a full-time basis.
 
         
 
             14.  Claimant is well motivated to remain employed even 
 
         though he has some physical problems doing his current job.
 
         
 
             15.  Claimant's current industrial disability is fifty 
 
         percent (50%).
 
         
 
             16.  Claimant's stipulated weekly rate of compensation is 
 
         eighty-seven and 96/100 dollars ($87.96).
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              1.  Claimant established by a preponderance of the evidence 
 
         that there is a causal connection between his stipulated 
 
         workrelated injury of May 20, 1983 and some whole body impairment 
 
         in the range of ten to fifteen percent (10-15%).
 
         
 
              2.  Claimant established by a preponderance of the evidence 
 
         that his current industrial disability is fifty percent (50%) 
 
         entitling him to two hundred fifty (250) weeks of permanent 
 
         partial disability benefits commencing on November 4, 1983 at a 
 
         rate of eighty-seven and 96/100 dollars ($87.96).
 
         
 
                                      ORDER
 
         
 

 
         
 
         
 
         
 
         ANDERSON V. ROBERT M. JENSEN
 
         Page  11
 
         
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              That defendants pay the weekly benefits described above.
 
         
 
              That defendants pay accrued benefits in a lump sum and pay 
 
         interest pursuant to section 85.30, The Code.
 
         
 
              That defendants be given credit for benefits already paid to 
 
         claimant.
 
         
 
              That defendants pay the costs of this action pursuant to 
 
         Industrial Services Rule 343-4.33.
 
         
 
              That defendants shall file claim activity reports pursuant 
 
         to Industrial Services Rule 343-3.1(2).
 
         
 
         
 
         
 
         
 
              Signed and filed this 15th day of May, 1987.
 
         
 
         
 
         
 
         
 
         
 
                                           T. J. McSWEENEY
 
                                           DEPUTY INDUSTRIAL COMMISSIONER
 
         
 

 
         
 
         
 
         
 
         ANDERSON V. ROBERT M. JENSEN
 
         Page  12
 
         
 
         
 
         
 
         Copies to:
 
         
 
         Mr. Gregory J. Siemann
 
         Attorney at Law
 
         801 N. Adams
 
         Carroll, Iowa 51401
 
         
 
         Mr. William Scherle
 
         Attorney at Law
 
         803 Fleming Bldg.
 
         Des Moines, Iowa 50309
 
         
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                        1402.40;  1803
 
                                                        Filed  5-15-87
 
                                                        T. J. McSweeney
 
         
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         JEFFREY L. ANDERSON,
 
         
 
               Claimant,
 
                                                    File No. 737537
 
         VS.
 
         
 
         ROBERT M. JENSEN,                       A R B I T R A T I O N
 
         
 
               Employer                             D E C I S I 0 N
 
         
 
         and
 
         
 
         BITUMINOUS CASUALTY
 
         COMPANIES,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1402.40; 1803
 
         
 
              Held in arbitration that claimant is entitled to 50% 
 
         industrial disability.  Claimant established causal connection by 
 
         a preponderance of the evidence.
 
 
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DEBRA K. RISIUS,              :
 
                                          :
 
                 Claimant,                :      File No. 737729
 
                                          :
 
            vs.                           :        A P P E A L
 
                                          :
 
            TODD CORPORATION,             :      D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 Defendant appeals from a remand decision awarding 
 
            claimant permanent partial disability benefits based on an 
 
            industrial disability of ten percent.
 
            
 
                 The record on appeal consists of the transcript of the 
 
            arbitration hearing and exhibits 1 through 14 and 16 through 
 
            21.  Both parties filed briefs on appeal.
 
            
 
                                      issues
 
            
 
                 The issue on appeal is whether claimant is entitled to 
 
            permanent partial disability benefits because she was 
 
            terminated from employment because of a work related injury.
 
            
 
                              review of the evidence
 
            
 
                 The arbitration decision filed May 20, 1988 and the 
 
            remand decision filed November 6, 1989 adequately and 
 
            accurately reflects the pertinent evidence and it will not 
 
            be reiterated herein.  Additional facts necessary for 
 
            disposition of this matter will be discussed as necessary.
 
            
 
                                  applicable law
 
            
 
                 The citations of law in the arbitration decision and 
 
            remand decision are appropriate to the issues and evidence.
 
            
 
                                     analysis
 
            
 
                 Defendant (the employer) appeals the deputy's finding 
 
            that claimant is entitled to an industrial disability of ten 
 
            percent due to its failure to give any sort of work to 
 
            claimant after her work injury.  There is no dispute that 
 
            claimant suffered a work injury on June 9, 1983.  She sought 
 
            care from her chiropractor and attempted to return to work 
 
            doing light duty.  The defendant requested that she undergo 
 
            a medical evaluation which was done on August 16 and 17, 
 
            1983.  Defendant was orally informed of the results of the 
 
            evaluation on August 19.  When defendant contacted claimant, 
 
            she said she couldn't work and defendant told her she must 
 
            have an excuse.  On August 23, 1983 claimant's chiropractor 
 

 
            
 
 
 
 
 
 
 
 
 
 
 
            took her off work "this week" and suggested claimant seek 
 
            another medical opinion.
 
            
 
                 On September 6, 1983 the defendant received the written 
 
            report on the medical evaluation which had been done on 
 
            August 16 and 17.  That report indicated that claimant could 
 
            return to work but should avoid certain activities.  When 
 
            claimant received her copy of the report on September 9, 
 
            1983 she called defendant regarding returning to work.  At 
 
            that time she was suspended and then terminated from 
 
            employment on September 11, 1983.  Claimant's testimony is 
 
            uncontroverted that she contacted the defendant in response 
 
            to her receipt of the written report.  In fact, defendant's 
 
            records corroborate claimant's testimony in this regard.
 
            
 
                 Defendant argues that claimant was terminated for 
 
            unexcused absences and emphasizes that claimant knew of the 
 
            defendant's policy on unexcused absences.  One must assume 
 
            that defendant asserts claimant's absences between August 26 
 
            and September 9, 1983 were those alleged to be unexcused.  
 
            Defendant's assertions are not convincing for a variety of 
 
            reasons.  That period of time followed very closely the 
 
            evaluation done as requested by defendant.  The timing of 
 
            defendant's actions is inconsistent with its assertions.  
 
            Defendant had told claimant that she needed an excuse from 
 
            work which she obtained.  While the excuse would have 
 
            expired on August 26, 1983, defendant did nothing until 
 
            claimant contacted the defendant.  Defendant received a 
 
            report which in essence said claimant could return to work 
 
            but with restrictions.  Claimant contacted defendant about 
 
            going back to work.  Defendant terminated claimant the next 
 
            working day after claimant contacted the defendant.  Two 
 
            other things make defendant's assertions suspect.  One is 
 
            that defendant offered no witnesses of its own to support 
 
            its assertion.  The other thing is that claimant's 
 
            unrebutted testimony (claimant's deposition, Exhibit 1) was 
 
            that employees were terminated because they were old 
 
            employees, pregnant, or had filed workers' compensation 
 
            claims.
 
            
 
                 To decide whether the claimant is eligible for benefits 
 
            the determination that must be made is whether claimant was 
 
            terminated because of the work injury.  Defendant stipulated 
 
            that claimant suffered an injury that arose out of and in 
 
            the course of her employment.  After unsuccessful attempts 
 
            of care at claimant's choosing and unsuccessful attempts to 
 
            return to light duty work, defendant sent claimant for 
 
            medical evaluation.  When claimant received the written 
 
            report on the evaluation she contacted defendant.  The 
 
            report indicated that claimant could return to work with 
 
            restrictions.  Claimant was terminated the next working day 
 
            after she contacted the defendant.  The defendant refused to 
 
            give claimant any sort of work as a result of the work 
 
            injury which prevented claimant from doing "normal" work 
 
            after claimant wanted to return to work following the 
 
            medical evaluation done at the defendant's request.  There 
 
            is no testimony from defendant that claimant was offered 
 
            light duty work on either August 19 when defendant called 
 
            claimant or on September 9 when claimant contacted 
 
            defendant.  The actions of both the claimant and the 
 
            defendant are less than exemplary.  When all of the unique 
 
            facts of this case are considered, defendant refused to give 
 
            claimant employment because of claimant's injury.
 

 
            
 
 
 
 
 
 
 
 
 
 
 
            
 
                                 findings of fact
 
            
 
                 1.  Claimant suffered an injury on June 9, 1983 which 
 
            arose out of and in the course of her employment.
 
            
 
                 2.  In the time period June 14, 1983 through August 23, 
 
            1983 claimant sought care from her chiropractor.  During 
 
            this time claimant made several unsuccessful returns to 
 
            light duty work.  Also, during this time claimant's 
 
            chiropractor would release her for light duty work.  On 
 
            August 23, 1983 the chiropractor took claimant off work for 
 
            "this week" and recommended that she seek another medical 
 
            opinion.
 
            
 
                 3.  On August 16 and 17, 1983 claimant was evaluated by 
 
            the Medical Occupational Evaluation Center at Mercy 
 
            Hospital.  As a result of that evaluation a report was sent 
 
            to both claimant and defendant.  The report indicated that 
 
            claimant could return to work but should avoid "twisting, 
 
            bending, reaching overhead, and heavy lifting."
 
            
 
                 4.  The defendant did not offer claimant light duty 
 
            work after August 19, 1983.  That date is when defendant was 
 
            verbally informed of the results of the evaluation done at 
 
            defendant's request.  Defendant did not offer claimant any 
 
            work when claimant contacted defendant about a return to 
 
            work.
 
            
 
                                conclusions of law
 
            
 
                 Claimant has a ten percent industrial disability 
 
            resulting from her injury on June 9, 1983.
 
            
 
                 WHEREFORE, the decision of the deputy is affirmed.
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendant pay claimant fifty (50) weeks of 
 
            permanent partial disability benefits at the rate of one 
 
            hundred eighteen and 94/100 dollars ($118.94) per week from 
 
            November 1, 1983.
 
            
 
                 That defendant pay claimant temporary total disability 
 
            benefits from August 11, 1983 through October 31, 1983, at 
 
            the rate of one hundred eighteen and 94/100 dollars 
 
            ($118.94) per week.
 
            
 
                 That defendant pay all accrued benefits in a lump sum 
 
            and defendant receive credit for all benefits previously 
 
            paid.
 
            
 
                 That defendant pay interest on benefits pursuant to 
 
            Iowa Code section 85.30.
 
            
 
                 That defendant pay the costs of this action including 
 
            costs of transcribing the arbitration hearing pursuant to 
 
            Division of Industrial Services Rule 343-4.33.
 
            
 
                 That defendant file activity reports pursuant to 
 
            Division of Industrial Services Rule 343-3.1.
 
            
 
                 Signed and filed this ____ day of May, 1990.
 
            
 

 
            
 
 
 
 
 
 
 
 
 
 
 
            
 
            
 
            
 
                                          
 
            ________________________________
 
                                                 DAVID E. LINQUIST
 
                                              INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Stephen D. Lombardi
 
            Attorney at Law
 
            2190 NW 82nd
 
            Des Moines, Iowa 50322
 
            
 
            Mr. E. J. Kelly
 
            Attorney at Law
 
            Terrace Center, Ste. 111
 
            2700 Grand Avenue
 
            Des Moines, Iowa 50312
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          51804
 
                                          Filed May 31, 1990
 
                                          DAVID E. LINQUIST
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DEBRA K. RISIUS,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 737729
 
            TODD CORPORATION,             :
 
                                          :        A P P E A L
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            5-1804
 
            Deputy's award of 10 percent industrial disability due to 
 
            employer's termination of claimant was affirmed on appeal.  
 
            The actions of both claimant and employer were less than 
 
            exemplary.  It was found in this case that claimant's 
 
            termination was due to her work injury.