BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        WILMA HINGTGEN,
 
        
 
            Claimant,
 
        
 
        vs.                               File No. 737771
 
        
 
        MARY GOODMANN,                    A P P E A L
 
        
 
            Employer,                  D E C I S I O N
 
        
 
        and
 
        
 
        ECONOMY FIRE & CASUALTY,
 
        
 
            Insurance Carrier,
 
            Defendants.
 
        
 
        
 
                                 STATEMENT OF THE CASE
 
        
 
        Claimant appeals and defendants cross-appeal from an arbitration 
 
        decision awarding permanent partial disability benefits based 
 
        upon a 30 percent industrial disability to the body as a whole 
 
        and healing period benefits from April 12, 1983 through November 
 
        10, 1983 at the rate of $64.91 per week.
 
        
 
        The record on appeal consists of the transcript of the 
 
        arbitration hearing; claimant's exhibits 1 through 15 and A, B 
 
        and D; and defendants' exhibits AA, BB, CC, and DD. Both parties 
 
        filed briefs on appeal.
 
        
 
                                      ISSUES
 
        
 
        The issues on appeal are the extent of claimant's permanent 
 
        disability and whether claimant is an odd-lot employee, when 
 
        healing period benefits end, and the rate of compensation.
 
        
 
                                 REVIEW OF THE EVIDENCE
 
        
 
        The arbitration decision adequately and accurately reflects the 
 
        pertinent evidence and it will not be totally reiterated herein.
 
        
 
        Claimant was born January 3, 1924 and was 63 years of age at the 
 
        time of the arbitration hearing. Claimant has a tenth grade 
 
        education and she has completed a 12 hour course to become 
 
        certified as a nurse's aide. Prior to the time she started work 
 
        for her employer, Mary Goodmann, claimant had work experience as
 
        
 
        HINGTGEN V. MARY GOODMANN
 
        Page 2
 
        
 
        
 
        a Nurse's aide and as an unskilled production worker in 
 
        manufacturing plants.
 
        
 
        Claimant started to work in November or December 1982 for 
 
        Goodmann. On April 12, 1983, claimant was pulling Goodmann in a 
 
        wheelchair up the incline in Goodmann's yard when she slipped and 
 
        fell. Claimant fell on her "seat" and was taken to the hospital 
 
        by ambulance.
 

 
        
 
 
 
 
 
        
 
        Claimant testified that she was hospitalized in 1979 when she 
 
        hurt her back when she slipped and fell on the ice and that she 
 
        also hurt her back in 1981 when she was lifting her quadriplegic 
 
        son. She stated she went back to work after those incidents and 
 
        never had any other difficulty with her back after that. She also 
 
        testified that as a result of the fall at Goodmann's she had a 
 
        compression fracture in her vertebra. She stated that doing 
 
        activities such as washing windows or sitting or standing very 
 
        long will result in back spasms. She also stated that she was 
 
        unable to work as a nurse's aide because too much lifting would 
 
        be involved. She testified that she did not think she could do a 
 
        regular job and that she did not know whether there would be 
 
        anyone that would hire her. Claimant was unemployed at the time 
 
        of the arbitration hearing. No evidence was presented that 
 
        claimant had sought either employment or retraining.
 
        
 
        Claimant also testified that she was paid $3.35 per hour for 
 
        working four hours a day, five days a week for Goodmann. She 
 
        stated that she thought she was paid mainly by cash but was also 
 
        paid by check. She further testified that Goodmann provided food 
 
        for claimant's lunch and she estimated the value of a lunch at 
 
        $2.50 each.
 
        
 
        Claimant was admitted to Mercy Health Center on April 12, 1983 
 
        and was discharged on April 24, 1983 but readmitted on April 25, 
 
        1983 and discharged on April 27, 1983. She was treated by James 
 
        A. Pearson, M.D., an orthopaedic surgeon. Dr. Pearson's office 
 
        note dated November 10, 1983 reads:
 
        
 
        The patient still has inability to work. She is complaining of 
 
        discomfort from the upper thoracic area down to the lumbar area. 
 
        Examination reveals the thoracic kyphosis. Tenderness is noted 
 
        in this area, also tenderness is noted in the lumbosacral area, 
 
        mainly on the right side. She has good strength on toe and heel 
 
        walking. Straight leg raising is negative bilaterally.
 
        
 
        Recommendation: The patient is unable to work because of her 
 
        discomfort and has inability to
 
        
 
        HINGTGEN V. MARY GOODMANN
 
        Page 3
 
        
 
        carry out even her routine housework. (Emphasis in original.)
 
        
 
        (Claimant's Exhibit 3)
 
        
 
        In a letter dated November 10, 1983 he wrote:
 
        
 
        X-rays taken on June 21, 1983 showed a compression of 50% to the 
 
        normal height of the thoracic vertebra involved which was the 
 
        11th thoracic vertebra.
 
        
 
        The patient, on her most recent visit today, is still having 
 
        severe pain in her back with inability to carry out even routine 
 
        housework. She is totally disabled from resuming work and I feel 
 
        this will probably be a permanent nature because of her age.
 
        
 
        (Cl. Ex. A)
 
        
 
        In a letter dated April 19, 1984 he wrote:
 
        
 
        The patient, I feel, is totally disabled from work because of the 
 
        complaints that she has in her back and the findings of the 
 
        marked compression fracture of the 11th thoracic vertebra....
 
        
 

 
        
 
 
 
 
 
        The patient has been off work now for over one year. I do not 
 
        anticipate any particular change in her status in the succeeding 
 
        years to follow,...
 
        
 
        ( Cl . Ex . B )
 
        
 
        In a letter dated August 21, 1984 he stated no permanent 
 
        disability rate could be given at that time and in a letter dated 
 
        September 11, 1984 he stated a disability rating could be 
 
        provided in two months from that date. His office note dated 
 
        December 13, 1984 states: "...I think the patient is totally 
 
        disabled from work because of the injury secondary to pain...."
 
        
 
        In a letter dated May 2, 1985 he wrote:
 
        
 
        As you know, the above patient was injured in her thoracic spine 
 
        secondary to a fall which produced a marked compression fracture 
 
        of T11. When she was evaluated on April 19, 1984, the patient was 
 
        still totally disabled from working and when I saw her on 
 
        December 6, 1984, the patient was still felt to be totally 
 
        disabled from work due to pain and marked aggravation on any 
 
        attempts on any
 
        
 
        HINGTGEN V. MARY GOODMANN
 
        Page 4
 
        
 
        
 
        bending or lifting which is required in any type of work the 
 
        patient will do. X-rays of her spine on December 6, 1984 showed 
 
        what appeared to be some posterior subluxation of T11. ACT scan 
 
        showed the fracture to be well healed. It is for this reason that 
 
        I feel the condition this patient is in is static and would 
 
        anticipate no further improvement regarding the patient's 
 
        function abilities. In spite of the fact that the patient is 
 
        able to use her hands, any effort at lifting or sitting with any 
 
        length of endurance required, still will aggravate the patient's 
 
        condition and make her ineffective for any secondary occupation 
 
        as well.
 
        
 
        (Cl. Ex. 7)
 
        
 
        Dr. Pearson testified in his deposition:
 
        
 
        Q. Are there any frequent guidelines that you follow in giving 
 
        impairment ratings?
 
        
 
        A. Yes, I use the -- I start with the Manual of Orthopedic 
 
        Surgeons For Rating Physical Impairment, which correlates with 
 
        the American Medical Association guidelines. It's confined mainly 
 
        to orthopedic problems.
 
        
 
        Q. Are those guidelines standardized within orthopedic surgeons?
 
        
 
        A. They are, but I tend to modify them according to where they 
 
        stop. For example, the guidelines for compression fractures go 
 
        from a compression fracture of twenty-five percent is given as a 
 
        certain percentage, and then a compression fracture of fifty 
 
        percent, and then no further, it doesn't say seventy-five percent 
 
        compression. So one has to either extrapolate upwards or 
 
        downwards based on those two values.
 
        
 
        Q. What is your impairment rating of her at this time?
 
        
 
        A. Based on these guidelines I have estimated her at thirty-five 
 
        percent.
 
        
 

 
        
 
 
 
 
 
        Q. Do you think that accurately reflects her impairment?
 
        
 
        A. I think it does because I think the fracture is more than a 
 
        fifty-percent compression fracture, and there aren't any signs of 
 
        -- she has had no surgery
 
        
 
        HINGTGEN V. MARY GOODMANN
 
        Page 5
 
        
 
        
 
        and there is no neurological findings, it's just a problem of 
 
        persistent pain.
 
        
 
        Q. Has there been any change in her condition between December of 
 
        1984 and July 17th of 1986?
 
        
 
        A. No.
 
        
 
        
 
        Q. Specifically in Mrs. Hingtgen, when did you find that she was 
 
        not going to have any significant improvement?
 
        
 
        A. I will put it this way, on July 19th, 1983, I advised her to 
 
        return to full activity as much as possible, which was over three 
 
        months from the time of the injury. And on September 8th, 1983, I 
 
        was again encouraging her to increase her activities.
 
        
 
        By November 10th, 1983, she was unable to work because of pain, 
 
        and at that point I felt that she is not going to make any better 
 
        progress at that point.
 
        
 
        Q. Did she, in fact, make any further progress after that point?
 
        
 
        A. No, I don't think so.
 
        
 
        
 
        Q. When were you first able to do a disability rating on her?
 
        
 
        A. Well, I'm not certain when I actually made an actual 
 
        disability. Possibly it was in April of 1984. My statement in 
 
        March of 1984 was that she may require a disability letter when 
 
        she returns. I may have done one then, I don't know.
 
        
 
        I made a letter on November 10th, 1983, that she was totally 
 
        disabled from resuming work at that time. That's probably the 
 
        first one.
 
        
 
        
 
        Q. Your impairment rating for her then would be thirty-five 
 
        percent?
 
        
 
        HINGTGEN V. MARY GOODMANN
 
        Page 6
 
        
 
        
 
        A. Yes, sir.
 
        
 
        Q. Would she be able to do, say, a secretarial type job full 
 
        time?
 
        
 
        A. No, I don't think she can. Well, if she is restricted to a 
 
        period of time sitting of ten to fifteen minutes, they will allow 
 
        her to get up and move around every so often, which I don't know 
 
        of many jobs that allow you to do that, but then I think she 
 
        could do that.
 
        
 

 
        
 
 
 
 
 
        
 
        Q. How much do you think she can lift at this point on a regular 
 
        basis?
 
        
 
        A. Oh, repetitive lifting, I think she would be hard pressed to 
 
        anything more than ten or fifteen pounds with her arms out in 
 
        front of her. She could possibly lift fifty pounds bending her 
 
        knees to do it, but in nursing you don't lift that way, you lift 
 
        with your back bent forwards, a mechanically unstable position to 
 
        be in.
 
        
 
        
 
        Q. I understood you to say on direct examination that it was on 
 
        the November 10, 1983, visit that you felt she would not get any 
 
        better; in other words, you did not anticipate any significant 
 
        improvement from the injury in the future; is that correct?
 
        
 
        A. That is right. In fact, my impression was that she had chronic 
 
        instability of her thoracic lumbar spine, the chronic meaning 
 
        that it is probably going to be unchanged.
 
        
 
        
 
        Q. There was no neurological involvement?
 
        
 
        A. No.
 
        
 
        Q. There was no damage to the hands or the legs? She has full use 
 
        of her hands and legs?
 
        
 
        A. She certainly does.
 
        
 
        Cl. Ex. 12, pages 14-33)
 
        
 
        HINGTGEN V. MARY GOODMANN
 
        Page 7
 
        
 
        Claimant was also seen by David S. Field, M.D. In a letter dated 
 
        November 29, 1983 he wrote:
 
        
 
        Based on the degree of injury that she has experienced, people do 
 
        experience long-term pain in this region following a compression 
 
        fracture. It is not unusual that the back pain will be aggravated 
 
        by bending, lifting, and stooping and etc. and thus if her job 
 
        involves daily bending, stooping, and etc. she would have to 
 
        avoid this until her back becomes asymptomatic. This probably 
 
        would require another two to three months minimum.
 
        
 
        (Cl. Ex. 10)
 
        
 
        In a letter dated July 1, 1985 he wrote:
 
        
 
        I do feel that she has a well healed compression fracture, 
 
        greater than fifty percent compression of the T12 vertebral body 
 
        which remains still symptomatic.
 
        
 
        This would equal approximately at 20% whole body permanent 
 
        disability based on this injury and present findings.
 
        
 
        (Cl. Ex. 11) Dr. Field testified in his deposition:
 
        
 
        Q. Doctor, perhaps you mentioned it but can you tell us when you 
 
        conducted that examination?
 
        
 
        A. November 1st, 1983.
 
        
 
        Q. You indicated there was no spasm. What are you referring to 
 

 
        
 
 
 
 
 
        when you indicate spasm?
 
        
 
        A. I'm referring to spasm in the muscle that supports the spine.
 
        
 
        Q. Was there any evidence of any type of a neurological loss or 
 
        any deficit in the lower extremities or the hands or arms that 
 
        you found?
 
        
 
        A. No.
 
        
 
        Q. Doctor, did you assess Mrs. Hingtgen after that second 
 
        examination for a disability rating?
 
        
 
        A. Yes, we did.
 
        
 
        HINGTGEN V. MARY GOODMANN
 
        Page 8
 
        
 
        
 
        Q. Can you tell us what that disability rating was that you gave 
 
        her at that time?
 
        
 
        A. We gave her a twenty-percent whole body impairment or 
 
        disability rating on that injury.
 
        
 
        Q. Can you tell us generally what that disability was based upon.
 
        
 
        A. We base it on factors which are related in this situation to 
 
        the extent of the injury that she sustained to the vertebral 
 
        body, and to the fact that there is a formula that we use in 
 
        terms of compression fractures in vertebral bodies.
 
        
 
        The fact was that she did not have -- she had persistent pain in 
 
        her back, which is often correlated with this type of injury, and 
 
        the type of injury she had correlated with the findings we had at 
 
        our examination. And the guidelines would be relative to the 
 
        extent of injury she sustained in her history and findings.
 
        
 
        Q. So in assessing twenty-percent disability you took into 
 
        account her subjective complaints of pain?
 
        
 
        A. Correct.
 
        
 
        Q. Is this twenty-percent disability rating based upon the AMA 
 
        guides?
 
        
 
        A. Yes, it's based on the AMA guide and also the American Academy 
 
        of Orthopedic Surgeons guide as well.
 
        
 
        Q. Well, what was the percentage of loss in the vertebra?
 
        
 
        A. Any vertebra greater than fifty-percent compression has a 
 
        certain degree of disability rating.
 
        
 
        Q. Did she have a loss greater or less than fifty percent?
 
        
 
        A. It would be over fifty percent, yes.
 
        
 
        
 
        Q. Have you had occasion to review Dr. Pearson's evaluation of 
 
        Mrs. Hingtgen?
 
        
 
        HINGTGEN V. MARY GOODMANN
 
        Page 9
 
        
 
        A. No, I have not.
 

 
        
 
 
 
 
 
        
 
        Q. Now, specifically the twenty-percent disability impairment 
 
        that you gave to Mrs. Hingtgen, did you use specifically the AMA 
 
        guidelines or the orthopedic guidelines?
 
        
 
        A. This particular one I referred to the orthopedic guideline.
 
        
 
        And your disability rating of twenty percent did take into 
 
        account those feelings or findings of pain?
 
        
 
        A. I took that into account but in this particular situation the 
 
        major degree of the rating comes from the fact she clearly had a 
 
        fracture, and that's primarily what her rating is gained from.
 
        
 
        (Cl. Ex. 13, pp. 7-17)
 
        
 
                                 APPLICABLE LAW
 
        
 
        The claimant has the burden of proving by a preponderance of the 
 
        evidence that the injury of April 12, 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.352, 154 N.W.2d 128 (1967).
 
        
 
        The opinion of the supreme court in Olson v. Goodyear
 
        
 
        HINGTGEN V. MARY GOODMANN
 
        Page 10
 
        
 
        
 
        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 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, 
 
        255 Iowa 1112, 1121, 125 N.W.2d 251, 257.
 
        
 

 
        
 
 
 
 
 
        Claimant claims to be an odd-lot employee and entitled to 
 
        permanent total disability benefits under the odd-lot theory 
 
        expressed in Guyton v. Irving Jensen Co., 373 N.W.2d 101 (Iowa 
 
        1985). A worker becomes an "odd-lot" employee when an injury 
 
        makes the worker incapable of obtaining employment in any well 
 
        known branch of the labor market. Id. An odd-lot worker can only 
 
        perform services that are so limited in quality, dependability, 
 
        or quantity that a reasonably stable market for them does not 
 
        exist. Id. In Guyton at page 105 the supreme court quoted the 
 
        following language from an Arizona case, Employers Mutual Life 
 
        Ins. Co. v. Industrial Commission, 25 Ariz. App. 117, 119, 541 
 
        P.2d 580, 582 (1975):
 
        
 
        It is normally incumbent on an injured [worker], at a hearing to 
 
        determine loss of earning capacity, to demonstrate a reasonable 
 
        effort to secure employment in the area of residence. Where 
 
        testimony discloses that a reasonable effort was made, the burden 
 
        of going forward with evidence to show the availability of 
 
        suitable employment is on the employer and carrier.
 
        
 
        The Guyton court ultimately held that when-a worker makes a prima 
 
        facie case of total disability by producing substantial evidence 
 
        that worker was not employable in the competitive labor market, 
 
        the burden to produce evidence shifts to the employer; if the 
 
        employer fails to produce such evidence and the trier of fact 
 
        finds that the worker does fall into the odd-lot category, the 
 
        worker is entitled to a finding of total disability. Id. at 106.
 
        
 
        The basis of compensation is the weekly earnings of the
 
        
 
        HINGTGEN V. MARY GOODMANN
 
        Page 11
 
        
 
        
 
        injured employee at the time of the injury. Iowa Code section 
 
        85.36. Weekly earnings is defined in Iowa Code section 85.36:
 
        
 
        Weekly earnings means gross salary, wages, or earnings of an 
 
        employee to which such employee would have been entitled had he 
 
        worked the customary hours for the full pay period in which he 
 
        was injured, as regularly required by his employer for the work 
 
        or employment for which he was employed,....
 
        
 
        Section 85.36 also provides various methods of computing weekly 
 
        earnings depending upon the type of earnings and employment. If 
 
        an employee is paid on a weekly basis, the weekly gross earnings 
 
        shall be the basis of the compensation. Section 85.36(1), Code of 
 
        Iowa. If an employee is paid on a daily basis or hourly basis or 
 
        by output, the weekly earnings are computed by dividing by 
 
        thirteen the earnings over the thirteen week period prior to the 
 
        work injury. Section 85.36(6), Code of Iowa.
 
        
 
                                      ANALYSIS
 
        
 
        The first issue to be decided is the extent of claimant's 
 
        industrial disability. Claimant argues on appeal that the 
 
        deputy's rating which was 30 percent was too low and that 
 
        claimant is an odd-lot employee. Claimant has proved that she has 
 
        an impairment which the doctors agree is a permanent impairment. 
 
        Claimant has not returned to work and she has restrictions on her 
 
        physical capacity due in part to the pain she states she suffers. 
 
        However, as Drs. Pearson and Field agree, claimant does not have 
 
        neurological involvement and she has full use of her hands and 
 
        legs. The fact that claimant may suffer pain does not in and of 
 
        itself mean that she is totally disabled.
 
        
 

 
        
 
 
 
 
 
        Claimant argues that the deputy failed to properly consider the 
 
        odd-lot doctrine in the instant case because the deputy centered 
 
        solely on claimant's failure to find suitable replacement 
 
        employment. Under the odd-lot doctrine it is incumbent upon 
 
        claimant to make a prima facie showing that claimant is 
 
        unemployable. Claimant cites her age, education and training, 
 
        lack of experience in anything other than manual labor and pain 
 
        as reasons why she is unemployable. Claimant has not sought 
 
        other employment and there is no evidence that she has attempted 
 
        retraining. Claimant has not made a prima facie showing that she 
 
        is unemployable.
 
        
 
        In describing claimant's industrial disability the deputy stated:
 
        
 
        As a result of her functional impairment and, more importantly 
 
        from an industrial disability standpoint, physician imposed 
 
        physical restrictions, claimant is unable to return to the work 
 
        she was
 
        
 
        HINGTGEN V. MARY GOODMANN
 
        Page 12
 
        
 
        performing at the time of the work injury and most other jobs she 
 
        has held in the past. Claimant's past employment primarily 
 
        consists of unskilled or semiskilled physical labor jobs such as 
 
        factory work or nurse's aide positions which require either heavy 
 
        lifting or repetitive lifting, bending, twisting, and stooping, 
 
        prolonged sitting and prolonged standing. Claimant and Dr. 
 
        Pearson testified that claimant would not be able to remain 
 
        either standing or sitting for more than ten minutes at any one 
 
        period of time. Dr. Pearson, however, felt that if claimant were 
 
        allowed to move about or change positions periodically she could 
 
        tolerate clerical type work.
 
        
 
        Claimant has suffered a significant loss in actual earnings from 
 
        employment due to a work injury but again this is in part the 
 
        result of her lack of effort to seek suitable work.
 
        
 
        Claimant is sixty-three years of age (fifty-nine years of age at 
 
        the time of the injury). Given her age, claimant's loss of 
 
        earning capacity is not as great as that of a younger person.
 
        
 
        Claimant has only a tenth grade education and exhibited average 
 
        intelligence at the hearing. However, her limited formal 
 
        education and age indicates that she has low potential for 
 
        successful vocational rehabilitation.
 
        
 
        When all factors are considered the deputy correctly concluded 
 
        that claimant has an industrial disability of 30 percent.
 
        
 
        The next issue to be considered is when healing period ended. On 
 
        discussing this issue the deputy stated:
 
        
 
        Claimant has not returned to work in any capacity since April 12, 
 
        1983. Despite some ambiguous verbage in his clinical notes, Dr. 
 
        Pearson clearly states in his deposition testimony, exhibit 12, 
 
        that he did not expect claimant to improve medically after his 
 
        examination of claimant on November 10, 1983 and he gave his 
 
        first "disability" rating at that time.
 
        
 
        Claimant argues that the deputy erred. Claimant relies upon the 
 
        case of Thomas v. William Knudson & Son, Inc., 349 N.W.2d 124 
 
        (Iowa Ct. App. 1984) and argues that the healing period did not 
 
        end until May 2, 1985 because that is the date a rating of 
 
        disability could be made. Claimant's argument that the healing 
 
        period did not end until May 2, 1985 is clearly not persuasive.
 

 
        
 
 
 
 
 
        
 
        HINGTGEN V. MARY GOODMANN
 
        Page 13
 
        
 
        
 
        Claimant seems to admit in her appeal brief that a rating of 
 
        "disability" was made by Dr. Pearson as early as his letter of 
 
        September 11, 1984. Furthermore, Dr. Pearson clearly indicated 
 
        that there was no change in claimant's condition between December 
 
        1984 and July 17, 1986.
 
        
 
        Two points should be made about Thomas, 349 N.W.2d 124. The first 
 
        point is that it is at the point at which a disability can be 
 
        determined that the disability award can be made. Until that time 
 
        healing period benefits are awarded the injured worker. Id. at 
 
        126. The second point is that under Thomas there must be some 
 
        medical evidence from which the commissioner could find or infer 
 
        that no further improvement was anticipated. Id. at 126. In the 
 
        instant case Dr. Pearson specifically testified that claimant's 
 
        condition was going to be "unchanged" after November 10, 1983 and 
 
        that claimant's disability was permanent. It was at that time 
 
        that no significant improvement for claimant was anticipated and 
 
        that her disability could be determined. Merely because it was 
 
        Dr. Pearson's custom not to give a rating until some later date 
 
        does not mean that claimant did not reach maximum improvement on 
 
        November 10, 1983. There is ample evidence in the record to find 
 
        that the healing period ended November 10, 1983.
 
        
 
        The last issue to be discussed is the rate of compensation. 
 
        Defendants argue in their cross-appeal that the deputy erred in 
 
        not using the method of calculation found in Iowa Code section 
 
        85.36(10). That subsection provides:
 
        
 
        If an employee earns either no wages or less than the usual 
 
        weekly earnings of the regular full-time adult laborer in the 
 
        line of industry in which the employee is injured in that 
 
        locality, the weekly earnings shall be one-fiftieth of the total 
 
        earnings which the employee has earned from all employment during 
 
        the twelve calendar months immediately preceding the injury.
 
        
 
        Defendants argue that that subsection is applicable because a 
 
        letter,dated July 21, 1983 from the industrial commissioner's 
 
        office stated that it appeared from the information provided that 
 
        the claimant earned less than the usual weekly earnings of the 
 
        regular full-time adult laborer in that line of industry in that 
 
        locality. Defendants also argue that the deputy's decision places 
 
        an undue burden on the employer to demonstrate that the 
 
        requirements of section 85.36(10) have been met. Neither of 
 
        defendants' arguments are persuasive. The letter defendants rely 
 
        upon clearly stated that the conclusion reached was based upon 
 
        the information supplied (the employer's first report of injury) 
 
        and it was couched in indefinite terms. Furthermore, the only 
 
        information upon which that indefinite conclusion was apparently 
 
        based was a statement that claimant worked 25-30
 
        
 
        HINGTGEN V. MARY GOODMANN
 
        Page 14
 
        
 
        
 
        hours per week. While the letter was a legitimate attempt to 
 
        determine the proper rate based upon the limited information 
 
        available, the conclusion contained in that letter is not 
 
        dispositive of the issue involved in this appeal.
 
        
 
        The deputy discussed that because defendants assert section 
 
        85.36(10) is applicable they have the burden of proving that the 
 

 
        
 
 
 
 
 
        requirements of the subsection have been met. Defendants assert 
 
        on appeal that this places an undue burden on them. The only 
 
        evidence in this case as to whether claimant's earnings are the 
 
        usual earnings of a regular full-time adult laborer in her line 
 
        of industry in her locality is claimant's earnings. In the 
 
        absence of any proof to the contrary it must be concluded that 
 
        claimant's earnings were the usual earnings of an adult engaged 
 
        in in-home nurse's aide work. It is not unreasonable, in this 
 
        case, to conclude that claimant's work of 20 hours per week was 
 
        the "usual" hours of the industry and that she earned the "usual" 
 
        amount of her industry in her locality. The deputy correctly 
 
        concluded that section 85.36(10) was not applicable in this case.
 
        
 
        Defendants also argue on cross-appeal that the deputy erred in 
 
        including the value of the meals furnished to claimant by 
 
        Goodmann in calculation of the rate. The evidence is 
 
        uncontroverted that Goodmann furnished claimant lunch and the 
 
        value of a lunch was $2.50. Defendants offer no persuasive 
 
        argument why the value of the lunch claimant received should not 
 
        be included in the computation of claimant's gross weekly 
 
        earnings. The deputy correctly relied upon the reasoning of Hoth 
 
        v. Eilors, I Iowa Industrial Commissioner Report 156 (Appeal 
 
        Decision 1980) and correctly concluded that the value of the 
 
        meals furnished by the employer are to be included in the 
 
        computation of gross weekly earnings.
 
        
 
                                 FINDINGS OF FACT
 
        
 
        1. Claimant was born January 3, 1924 and was 63 years of age at 
 
        the time of the arbitration hearing.
 
        
 
        2. Claimant has a tenth grade education and has completed a 12 
 
        hour course to be certified as a nurse's aide. 
 
        
 
        3. Prior to the time claimant began work for her employer 
 
        (Goodmann) she had worked as a nurse's aide and as an unskilled 
 
        production worker in manufacturing plants.
 
        
 
        4. In November or December of 1982 claimant began employment for 
 
        Goodmann as a domestic helper and aide.
 
        
 
        5. Claimant was paid $3.35 per hour for four hours per day five 
 
        days a week and was furnished lunch valued at $12.50 per week by 
 
        Goodmann.
 
        
 
        HINGTGEN V. MARY GOODMANN
 
        Page 15
 
        
 
        
 
        6. On April 12, 1983 claimant slipped and fell while moving 
 
        Goodmann in a wheelchair at Goodman's home. Claimant suffered an 
 
        injury that arose out of and in the course of her employment.
 
        
 
        7. As a result of the injury on April 12, 1983, claimant had a 
 
        compression fracture of the eleventh thoracic vertebra.
 
        
 
        8. The work injury of April 12, 1983 caused claimant to miss 
 
        work.
 
        
 
        9. Dr. Pearson indicated that on November 10, 1983 significant 
 
        improvement from claimant's injury was not anticipated.
 
        
 
        10. The work injury of April 12, 1983 was a cause of permanent 
 
        partial impairment to claimant's body as a whole.
 
        
 
        11. Claimant does not have neurological involvement because the 
 

 
        
 
 
 
 
 
        April 12, 1983 injury. Claimant has full use of her hands and 
 
        legs.
 
        
 
        12. Claimant is unable to sit for more than 10 to 15 minutes 
 
        without experiencing pain. Claimant can possibly lift 50 pounds 
 
        by bending her knees to do it. Claimant cannot lift more than 10 
 
        to 15 pounds with her arms out in front of her.
 
        
 
        13. Claimant has sought neither employment nor retraining since 
 
        her April 12, 1983 injury.
 
        
 
        14. The work injury of April 12, 1983 was a cause of claimant's 
 
        industrial disability of 30 percent.
 
        
 
        15. On April 12, 1983 claimant's gross rate of weekly earnings 
 
        was $79.50 per week and she was single and had no dependents.
 
        
 
        16. Claimant's rate of compensation is $64.91.
 
        
 
                                 CONCLUSIONS OF LAW
 
        
 
        Claimant has established by a preponderance of evidence that 
 
        there is a causal connection between her work related injury of 
 
        April 12, 1983 and her permanent disability.
 
        
 
        Claimant has not established by a preponderance of evidence that 
 
        she is entitled to permanent total disability benefits as an 
 
        odd-lot employee.
 
        
 
        Claimant has established by a preponderance of evidence that her 
 
        industrial disability is 30 percent.
 
        
 
        Claimant has established by a preponderance of evidence that
 
        
 
        HINGTGEN V. MARY GOODMANN
 
        Page 16
 
        
 
        
 
        as a result of her injury she is entitled to healing period 
 
        benefits from April 12, 1983 through November 10, 1983 and 150 
 
        weeks of permanent partial disability benefits commencing on 
 
        November 11, 1983.
 
        
 
        WHEREFORE, the decision of the deputy is affirmed.
 
        
 
                                      ORDER
 
                                                
 
        THEREFORE, it is ordered:
 
        
 
        That defendants pay to claimant one hundred fifty (150) weeks of 
 
        permanent partial disability benefits at the rate of sixty-four 
 
        and 91/100 dollars ($64.91) per week from November 11, 1983.
 
        
 
        That defendants pay to claimant healing period benefits from 
 
        April 12, 1983 through November 10, 1983 at the rate of 
 
        sixty-four and 91/100 dollars ($64.91) per week.
 
        
 
        That defendants pay accrued weekly benefits in a lump sum and 
 
        shall receive a credit against this award for all weekly benefits 
 
        previously paid.
 
        
 
        That defendants pay interest on benefits awarded herein as set 
 
        forth in Iowa Code section 85.30.
 
        
 
        That defendants pay the costs of this action including the costs 
 
        of transcription of the arbitration hearing pursuant to Division 
 

 
        
 
 
 
 
 
        of Industrial Services Rule 343-4.33.
 
        
 
        That defendants file activity reports on the payment of this 
 
        award as requested by this agency pursuant to Division of 
 
        Industrial Services Rule 343-3.1.
 
        
 
        
 
        Signed and filed this 30th day of September, 1988.
 
        
 
        
 
        
 
                                         DAVID E. LINQUIST
 
                                      INDUSTRIAL COMMISSIONER
 
        
 
        
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         WILMA HINGTGEN,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                  File No. 737771
 
         MARY GOODMANN,
 
                                                   A P P E A L
 
              Employer,
 
                                                 D E C I S I O N
 
         and
 
         
 
         ECONOMY FIRE & CASUALTY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Claimant appeals and defendants cross-appeal from an 
 
         arbitration decision awarding permanent partial disability 
 
         benefits based upon a 30 percent industrial disability to the 
 
         body as a whole and healing period benefits from April 12, 1983 
 
         through November 10, 1983 at the rate of $64.91 per week.
 
         
 
              The record on appeal consists of the transcript of the 
 
         arbitration hearing; claimant's exhibits 1 through 15 and A, B 
 
         and D; and defendants' exhibits AA, BB, CC, and DD.  Both parties 
 
         filed briefs on appeal.
 
         
 
                                      ISSUES
 
         
 
              The issues on appeal are the extent of claimant's permanent 
 
         disability and whether claimant is an odd-lot employee, when 
 
         healing period benefits end, and the rate of compensation.
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              The arbitration decision adequately and accurately reflects 
 
         the pertinent evidence and it will not be totally reiterated 
 
         herein.
 
         
 
              Claimant was born January 3, 1924 and was 63 years of age at 
 
         the time of the arbitration hearing.  Claimant has a tenth grade 
 
         education and she has completed a 12 hour course to become 
 
         certified as a nurse's aide.  Prior to the time she started work 
 
         for her employer, Mary Goodmann, claimant had work experience as 
 
         a nurse's aide and as an unskilled production worker in 
 
         manufacturing plants.
 
         
 
              Claimant started to work in November or December 1982 for 
 
         Goodmann.  On April 12, 1983, claimant was pulling Goodmann in a 
 
         wheelchair up the incline in Goodmann's yard when she slipped and 
 
         fell.  Claimant fell on her "seat" and was taken to the hospital 
 
         by ambulance.
 

 
         
 
              Claimant testified that she was hospitalized in 1979 when 
 
         she hurt her back when she slipped and fell on the ice and that 
 
         she also hurt her back in 1981 when she was lifting her 
 
         quadriplegic son.  She stated she went back to work after those 
 
         incidents and never had any other difficulty with her back 
 
         after that.  She also testified that as a result of the fall at 
 
         Goodmann's she had a compression fracture in her vertebra.  She 
 
         stated that doing activities such as washing windows or sitting 
 
         or standing very long will result in back spasms.  She also 
 
         stated that she was unable to work as a nurse's aide because 
 
         too much lifting would be involved.  She testified that she did 
 
         not think she could do a regular job and that she did not know 
 
         whether there would be anyone that would hire her.  Claimant 
 
         was unemployed at the time of the arbitration hearing.  No 
 
         evidence was presented that claimant had sought either 
 
         employment or retraining.
 
         
 
              Claimant also testified that she was paid $3.35 per hour 
 
         for working four hours a day, five days a week for Goodmann.  
 
         She stated that she thought she was paid mainly by cash but was 
 
         also paid by check.  She further testified that Goodmann 
 
         provided food for claimant's lunch and she estimated the value 
 
         of a lunch at $2.50 each.
 
         
 
              Claimant was admitted to Mercy Health Center on April 12, 
 
         1983 and was discharged on April 24, 1983 but readmitted on 
 
         April 25, 1983 and discharged on April 27, 1983.  She was 
 
         treated by James A. Pearson, M.D., an orthopaedic surgeon.  Dr. 
 
         Pearson's office note dated November 10, 1983 reads:
 
         
 
              The patient still has inability to work.  She is 
 
              complaining of discomfort from the upper thoracic area 
 
     
 
         
 
         
 
         
 
         
 
         HINGTGEN V. MARY GOODMAN
 
         PAGE   3
 
         
 
         
 
              down to the lumbar area.  Examination reveals the 
 
              thoracic kyphosis.  Tenderness is noted in this area, 
 
              also tenderness is noted in the lumbosacral area, 
 
              mainly on the right side.  She has good strength on toe 
 
              and heel walking.  Straight leg raising is negative 
 
              bilaterally.
 
         
 
                 ....
 
         
 
              Recommendation: The patient is unable to work because 
 
              of her discomfort and has inability to carry out even 
 
              her routine housework. (Emphasis in original.)
 
         
 
         (Claimant's Exhibit 3)
 
         
 
              In a letter dated November 10, 1983 he wrote:
 
         
 
              X-rays taken on June 21, 1983 showed a compression of 
 
              50% to the normal height of the thoracic vertebra 
 
              involved which was the llth thoracic vertebra.
 
         
 
                 The patient, on her most recent visit today, is 
 
              still having severe pain in her back with inability to 
 
              carry out even routine housework.  She is totally 
 
              disabled from resuming work and I feel this will 
 
              probably be a permanent nature because of her age.
 
         
 
         (Cl. Ex. A)
 
         
 
              In a letter dated April 19, 1984 he wrote:
 
         
 
                 The patient, I feel, is totally disabled from work 
 
              because of the complaints that she has in her back and 
 
              the findings of the marked compression fracture of the 
 
              11th thoracic vertebra ....
 
         
 
                 ....
 
         
 
                 The patient has been off work now for over one year.  
 
              I do not anticipate any particular change in her status 
 
              in the succeeding years to follow ....
 
         
 
         (Cl. Ex. B)
 
         
 
         In a letter dated August 21, 1984 he stated no permanent 
 
         disability rate could be given at that time and in a letter dated 
 
         September 11, 1984 he stated a disability rating could be 
 
         provided in two months from that date.  His office note dated 
 
         December 13, 1984 states: O...  I think the patient is totally 
 
         disabled from work because of the injury secondary to pain...."
 
         
 
         In a letter dated May 2, 1985 he wrote:
 
         
 
                 As you know, the above patient was injured in her 
 
              thoracic spine secondary to a fall which produced a 
 
              marked compression fracture of Tll.  When she was 
 
              evaluated on April 19, 1984, the patient was still 
 
              totally disabled from working and when I saw her on 
 
              December 6, 1984, the patient was still felt to be 
 

 
         
 
         
 
         
 
         HINGTGEN V. MARY GOODMAN
 
         PAGE   4
 
         
 
         
 
              totally disabled from work due to pain and marked 
 
              aggravation on any attempts on any bending or lifting 
 
              which is required in any type of work the patient will 
 
              do.  X-rays of her spine on December 6, 1984 showed 
 
              what appeared to be some posterior subluxation of Tll.  
 
              A CT scan showed the fracture to be well healed.  It is 
 
              for this reason that I feel the condition this patient 
 
              is in is static and would anticipate no further 
 
              improvement regarding the patient's function abilities.  
 
              In spite of the fact that the patient is able to use 
 
              her hands, any effort at lifting or sitting,with any 
 
              length of endurance required, still will aggravate the 
 
              patient's condition and make her ineffective for any 
 
              secondary occupation as well.
 
         
 
         (Cl. Ex. 7)
 
         
 
              Dr. Pearson testified in his deposition:
 
         
 
              Q.  Are there any frequent guidelines that you follow 
 
              in giving impairment ratings?
 
         
 
              A.  Yes, I use the -- I start with the Manual of 
 
              Orthopedic Surgeons For Rating Physical Impairment, 
 
              which correlates with the American Medical Association 
 
              guidelines.  It's confined mainly to orthopedic 
 
              problems.
 
         
 
              Q.  Are those guidelines standardized within orthopedic 
 
              surgeons?
 
         
 
              A.  They are, but I tend to modify them according to 
 
              where they stop.  For example, the guidelines for 
 
              compression fractures go from a compression fracture of 
 
              twenty-five percent is given as a certain percentage, 
 
              and then a compression fracture of fifty percent, and 
 
              then no further, it doesn't say seventy-five percent 
 
              compression.  So one has to either extrapolate upwards 
 
              or downwards based on those two values.
 
         
 
              Q.  What is your impairment rating of her at this 
 
              time?
 
         
 
              A.  Based on these guidelines I have estimated her at 
 
              thirty-five percent.
 
         
 
              Q.  Do you think that accurately reflectsher 
 
              impairment?
 
         
 
              A.  I think it does because I think the fracture is 
 
              more than a fifty-percent compression fracture, and 
 
              there aren't any signs of -- she has had no surgery and 
 
              there is no neurological findings, it's just a problem 
 
              of persistent pain.
 
         
 
                 ....
 
         
 
              Q.  Has there been any change in her condition between 
 
              December of 1984 and July 17th of 1986?
 

 
         
 
         
 
         
 
         HINGTGEN V. MARY GOODMAN
 
         PAGE   5
 
         
 
         
 
         
 
              A.  No.
 
         
 
                 ....
 
         
 
              Q.  Specifically in Mrs. Hingtgen, when did you find 
 
              that she was not going to have any significant 
 
              improvement?
 
         
 
              A.  I will put it this way, on July 19th, 1983, I 
 
              advised her to return to full activity as much as 
 
              possible, which was over three months from the time of 
 
              the injury.  And on September 8th, 1983, I was again 
 
              encouraging her to increase her activities.
 
         
 
                 By November 10th, 1983, she was unable to work 
 
              because of pain, and at that point I felt that she is 
 
              not going to make any better progress at that point.
 
         
 
              Q.  Did she, in fact, make any further progress after 
 
              that point?
 
         
 
              A.  No, I don't think so.
 
         
 
                 ....
 
         
 
              Q.  When were you first able to do a disability rating 
 
              on her?
 
         
 
              A.  Well, I'm not certain when I actually made an 
 
              actual disability.  Possibly it was in April of 1984.  
 
              My statement in March of 1984 was that she may require 
 
              a disability letter when she returns.  I may have done 
 
              one then, I don't know.
 
         
 
                 I made a letter on November 10th, 1983, that she was 
 
              totally disabled from resuming work at that time.  
 
              That's probably the first one.
 
         
 
                 ....
 
         
 
              Q.  Your impairment rating for her then would be 
 
              thirty-five percent?
 
         
 
              A.  Yes, sir.
 
         
 
              Q.  Would she be able to do, say, a secretarial type 
 
              job full time?
 
         
 
              A.  No, I don't think she can.  Well, if she is 
 
              restricted to a period of time sitting of ten to 
 
              fifteen minutes, they will allow her to get up and move 
 
              around every so often, which I don't know of many jobs 
 
              that allow you to do that, but then I think she could 
 
              do that.
 
         
 
                 ....
 
         
 
              Q.  How much do you think she can lift at this point on 
 

 
         
 
         
 
         
 
         HINGTGEN V. MARY GOODMAN
 
         PAGE   6
 
         
 
         
 
              a regular basis?
 
         
 
              A.  Oh, repetitive lifting, I think she would be hard 
 
              pressed to anything more than ten or fifteen pounds 
 
              with her arms out in front of her.  She could possibly 
 
              lift fifty pounds bending her knees to do it, but in 
 
              nursing you don't lift that way, you lift with your 
 
              back bent forwards, a mechanically unstable position to 
 
              be in.
 
         
 
                 ....
 
         
 
              Q.  I understood you to say on direct examination that 
 
              it was on the November 10, 1983, visit that you felt 
 
              she would not get any better; in other words, you did 
 
              not anticipate any significant improvement from the 
 
              injury in the future; is that correct?
 
         
 
              A.  That is right.  In fact, my impression was that she 
 
              had chronic instability of her thoracic lumbar spine, 
 
              the chronic meaning that it is probably going to be 
 
              unchanged.
 
         
 
              Q.  There was no neurological involvement?
 
         
 
              A.  No.
 
         
 
              Q.  There was no damage to the hands or the legs?  She 
 
              has full use of her hands and legs?
 
         
 
              A.  She certainly does.
 
         
 
         (Cl. Ex. 12, pages 14-33)
 
         
 
              Claimant was also seen by David S. Field, M.D.  In a letter 
 
         dated November 29, 1983 he wrote:
 
         
 
                 Based on the degree of injury that she has 
 
              experienced, people do experience long-term pain in 
 
              this region following a compression fracture.  It is 
 
              not unusual that the back pain will be aggravated by 
 
              bending, lifting, and stooping and etc. and thus if her 
 
              job involves daily bending, stooping, and etc. she 
 
              would have to avoid this until her back becomes 
 
              asymptomatic.  This probably would require another two 
 
              to three months minimum.
 
         
 
         (Cl. Ex. 10)
 
         
 
              In a letter dated July 1, 1985 he wrote:
 
         
 
                 I do feel that she has a well healed compression 
 
              fracture, greater than fifty percent compression of the 
 
              T12 vertebral body which remains still symptomatic.
 
         
 
                 This would equal approximately at 20% whole body 
 
              permanent disability based on this injury and present 
 
              findings.
 
         
 

 
         
 
         
 
         
 
         HINGTGEN V. MARY GOODMAN
 
         PAGE   7
 
         
 
         
 
         (Cl. Ex. 11)
 
         
 
              Dr. Field testified in his deposition:
 
         
 
              Q.  Doctor, perhaps you mentioned it but can you tell 
 
              us when you conducted that examination?
 
         
 
              A.  November lst, 1983.
 
         
 
              Q.  You indicated there was no spasm.  What are you 
 
              referring to when you indicate spasm?
 
         
 
              A.  I'm referring to spasm in the muscle that supports 
 
              the spine.
 
         
 
              Q.  Was there any evidence of any type of a 
 
              neurological loss or any deficit in the lower 
 
              extremities or the hands or arms that you found?
 
         
 
              A.  No.
 
         
 
                 ....
 
         
 
              Q.  Doctor, did you assess Mrs. Hingtgen after that 
 
              second examination for a disability rating?
 
         
 
              A.  Yes, we did.
 
         
 

 
         
 
         
 
         
 
         HINGTGEN V. MARY GOODMAN
 
         PAGE   8
 
         
 
         
 
              Q.  Can you tell us what that disability rating was 
 
              that you gave her at that time?
 
         
 
              A.  We gave her a twenty-percent whole body impairment 
 
              or disability rating on that injury.
 
         
 
              Q.  Can you tell us generally what that disability was 
 
              based upon.
 
         
 
              A.  We base it on factors which are related.in this 
 
              situation to the extent of the injury that she 
 
              sustained to the vertebral body, and to the fact that 
 
              there is a formula that we use in terms of compression 
 
              fractures in vertebral bodies.
 
         
 
                 The fact was that she did not have -- she had 
 
              persistent pain in her back, which is often correlated 
 
              with this type of injury, and the type of injury she 
 
              had correlated with the findings we had at our 
 
              examination.  And the guidelines would be relative to 
 
              the extent of injury she sustained in her history and 
 
              findings.
 
         
 
              Q.  So in assessing twenty-percent disability you took 
 
              into account her subjective complaints of pain?
 
         
 
              A.  Correct.
 
         
 
              Q.  Is this twenty-percent disability rating based upon 
 
              the AMA guides?
 
         
 
              A.  Yes, it's based on the AMA guide and also the 
 
              American Academy of Orthopedic Surgeons guide as well.
 
         
 
                 ....
 
         
 
              Q.  Well, what was the percentage of loss in the 
 
              vertebrae?
 
         
 
              A.  Any vertebra greater than fifty-percent compression 
 
              has a certain degree of disability rating.
 
         
 
              Q.  Did she have a loss greater or less than fifty 
 
              percent?
 
         
 
              A.  It would be over fifty Percent, yes.
 
         
 
                 ....
 
         
 
              Q.  Have you had occasion to review Dr. Pearson's 
 
              evaluation of Mrs. Hingtgen?
 
         
 
              A.  No, I have not.
 
         
 
                 ....
 
         
 
              Q.  Now, specifically the twenty-percent disability 
 
              impairment that you gave to Mrs. Hingtgen, did you use 
 
              specifically the AMA guidelines or the orthopedic 
 

 
         
 
         
 
         
 
         HINGTGEN V. MARY GOODMAN
 
         PAGE   9
 
         
 
         
 
              guidelines?
 
         
 
              A.  This particular one I referred to the orthopedic 
 
              guideline.
 
         
 
                 ....
 
         
 
              Q.  And your disability rating of twenty percent did 
 
              take into account those feelings or findings of pain?
 
         
 
              A.  I took that into account but in this particular 
 
              situation the major degree of the rating comes from the 
 
              fact she clearly had a fracture, and that's primarily 
 
              what her rating is gained from.
 
         
 
         (Cl. Ex. 13, pp. 7-17)
 
         
 
                                  APPLICABLE LAW
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of April 12, 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).
 
         
 
              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 impairment is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 

 
         
 
         
 
         
 
         HINGTGEN V. MARY GOODMAN
 
         PAGE  10
 
         
 
         
 
         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, 
 
         255 Iowa 1112, 1121, 125 N.W.2d 251, 257.
 
         
 
              Claimant claims to be an odd-lot employee and entitled to 
 
         permanent total.disability benefits under the odd-lot theory 
 
         expressed in Guyton v. Irving Jensen Co., 373 N.W.2d 101 (Iowa 
 
         1985).  A worker becomes an "odd-lot" employee when an injury 
 
         makes the worker incapable of obtaining employment in any well 
 
         known branch of the labor market.  Id.  An odd-lot worker can 
 
         only perform services that are so limited in quality, 
 
         dependability, or quantity that a reasonably stable market for 
 
         them does not exist.  Id.  In Guyton at page 105 the supreme 
 
         court quoted the following language from an Arizona case, 
 
         Employers Mutual Life Ins. Co. v. Industrial Commission, 25 
 
         Ariz. App. 117, 119, 541 P.2d 580, 582 (1975):
 
         
 
              It is normally incumbent on an injured [worker], at a 
 
              hearing to determine loss of earning capacity, to 
 
              demonstrate a reasonable effort to secure employment in 
 
              the area of ... residence.  Where testimony discloses 
 
              that a reasonable effort was made, the burden of going 
 
              forward with evidence to show the availability of 
 
              suitable employment is on the employer and carrier.
 
         
 
              The Guyton court ultimately held that when a worker makes a 
 
         prima facie case of total disability by producing substantial 
 
         evidence that worker was not employable in the competitive labor 
 
         market, the burden to produce evidence shifts to the employer; if 
 
         the employer fails to produce such evidence and the trier of fact 
 
         finds that the worker does fall into the odd-lot category, the 
 
         worker is entitled to a finding of total disability.  Id. at 
 
         106.
 
         
 
              The basis of compensation is the weekly earnings of the 
 
         injured employee at the time of the injury.  Iowa Code section 
 
         85.36 . Weekly earnings is defined in Iowa Code section 85.36:
 
         
 
              Weekly earnings means gross salary, wages, or earnings 
 
              of an employee to which such employee would have been 
 
              entitled had he worked the customary hours for the full 
 
              pay period in which he was injured, as regularly 
 
              required by his employer for the work or employment for 
 
              which he was employed,....
 
         
 
              Section 85.36 also provides various methods of computing 
 
         weekly earnings depending upon the type of earnings and 
 
         employment.  If an employee is paid on a weekly basis, the weekly 
 
         gross earnings shall be the basis of the compensation.  Section 
 
         85.36(l), Code of Iowa.  If an employee is paid on a daily basis 
 
         or hourly basis or by output, the weekly earnings are computed by 
 
         dividing by thirteen the earnings over the thirteen week period 
 
         prior to the work injury.  Section 85.36(6), Code of Iowa.
 
         
 
                                     ANALYSIS
 
         
 
              The first issue to be decided is the extent of claimant's 
 
         industrial disability.  Claimant argues on appeal that the 
 

 
         
 
         
 
         
 
         HINGTGEN V. MARY GOODMAN
 
         PAGE  11
 
         
 
         
 
         deputy's rating which was 30 percent was too low and that 
 
         claimant is an odd-lot employee.  Claimant has proved that she 
 
         has an impairment which the doctors agree is a permanent 
 
         impairment.  Claimant has not returned to work and she has 
 
         restrictions on her physical capacity due in part to the pain she 
 
         states she suffers.  However, as Drs. Pearson and Field agree, 
 
         claimant does not have neurological involvement and she has full 
 
         use of her hands and legs.  The fact that claimant may suffer 
 
         pain does not in and of itself mean that she is totally 
 
         disabled.
 
         
 
              Claimant argues that the deputy failed to properly consider 
 
         the odd-lot doctrine in the instant case because the deputy 
 
         centered solely on claimant's failure to find suitable 
 
         replacement employment.  Under the odd-lot doctrine it is 
 
         incumbent upon claimant to make a prima facie showing that 
 
         claimant is unemployable.  Claimant cites her age, education and 
 
         training, lack of experience in anything other than manual labor 
 
         and pain as reasons why she is unemployable.  Claimant has not 
 
         sought other employment and there is no evidence that she has 
 
         attempted retraining.  Claimant has not made a prima facie 
 
         showing that she is unemployable.
 
         
 
              In describing claimant's industrial disability the deputy 
 
         stated:
 
         
 
                 As a result of her functional impairment and, more 
 
              importantly from an industrial disability standpoint, 
 
              physician imposed physical restrictions, claimant is 
 
              unable to return to the work she was performing at the 
 
              time of the work injury and most other jobs she has 
 
              held in the past.  Claimant's past employment primarily 
 
              consists of unskilled or semiskilled physical labor 
 
              jobs such as factory work or nurse's aide positions 
 
              which require either heavy lifting or repetitive 
 
              lifting, bending, twisting, and stooping, prolonged 
 
              sitting and prolonged standing.  Claimant and Dr. 
 
              Pearson testified that claimant would not be able to 
 
              remain either standing or sitting for more than ten 
 
              minutes at any one period of time.  Dr. Pearson, 
 
              however, felt that if claimant were allowed to move 
 
              about or change positions periodically she could 
 
              tolerate clerical type work.
 
         
 
                 Claimant has suffered a significant loss in actual 
 
              earnings from employment due to a work injury but again 
 
              this is in part the result of her lack of effort to 
 
              seek suitable work.
 
         
 
                 Claimant is sixty-three years of age (fifty-nine 
 
              years of age at the time of the injury)   Given her 
 
              age, claimant's loss of earning capacity is not as 
 
              great as that of a younger person.
 
         
 
                 Claimant has only a tenth grade education and 
 
              exhibited average intelligence at the hearing.  
 
              However, her limited formal education and age indicates 
 
              that she has low potential for successful vocational 
 
              rehabilitation.
 

 
         
 
         
 
         
 
         HINGTGEN V. MARY GOODMAN
 
         PAGE  12
 
         
 
         
 
         
 
         When all factors are considered the deputy correctly concluded 
 
         that claimant has an industrial disability of 30 percent.
 
         
 
              The next issue to be considered is when healing period 
 
         ended.  On discussing this issue the deputy stated:
 
         
 
              Claimant has not returned to work in any capacity since 
 
              April 12, 1983.  Despite some ambiguous verbage in his 
 
              clinical notes, Dr. Pearson clearly states in his 
 
              deposition testimony, exhibit 12, that he did not 
 
              expect claimant to improve medically after his 
 
              examination of claimant on November 10, 1983 and he 
 
              gave his first "disability" rating at that time.
 
         
 
         Claimant argues that the deputy erred.  Claimant relies upon the 
 
         case of Thomas v. William Knudson & Son, Inc., 349 N.W.2d 124 
 
         (Iowa Ct. App. 1984) and argues that the healing period did not 
 
         end until May 2, 1985 because that is the date a rating of 
 
         disability could be made.  Claimant's argument that the healing 
 
         period did not end until May 2, 1985 is clearly not persuasive.  
 
         Claimant seems to admit in her appeal brief that a rating of 
 
         "disability" was made by Dr. Pearson as early as his letter of 
 
         September 11, 1984.  Furthermore, Dr. Pearson clearly indicated 
 
         that there was no change in claimant's condition between December 
 
         1984 and July 17, 1986.
 
         
 
              Two points should be made about Thomas, 349 N.W.2d 124.  The 
 

 
         
 
         
 
         
 
         HINGTGEN V. MARY GOODMAN
 
         PAGE  13
 
         
 
         
 
         first point is that it is at the point at which a disability can 
 
         be determined that the disability award can be made.  Until that 
 
         time healing period benefits are awarded the injured worker.  Id. 
 
         at 126.  The second point is that under Thomas there must be some 
 
         medical evidence from which the commissioner could find or infer 
 
         that no further improvement was anticipated.  Id. at 126.  In the 
 
         instant case Dr. Pearson specifically testified that claimant's 
 
         condition was going to be "unchanged" after November 10, 1983 and 
 
         that claimant's disability was permanent.  It was at that time 
 
         that no significant improvement for claimant was anticipated and 
 
         that her disability could be determined.  Merely because it was 
 
         Dr. Pearson's custom not to give a rating until some later date 
 
         does not mean that claimant did not reach maximum improvement on 
 
         November 10, 1983.  There is ample evidence in the.record to find 
 
         that the healing period ended November 10, 1983.
 
         
 
              The last issue to be discussed is the rate of compensation. 
 
          Defendants argue in their cross-appeal that the deputy erred in 
 
         not using the method of calculation found in Iowa Code section 
 
         85.36(10).  That subsection provides:
 
         
 
                 If an employee earns either no wages or less than 
 
              the usual weekly earnings of the regular full-time 
 
              adult laborer in the line of industry in which the 
 
              employee is injured in that locality, the weekly 
 
              earnings shall be one-fiftieth of the total earnings 
 
              which the employee has earned from all employment 
 
              during the twelve calendar months immediately preceding 
 
              the injury.
 
         
 
              Defendants argue that that subsection is applicable because 
 
         a letter dated July 21, 1983 from the industrial commissioner's 
 
         office stated that it appeared from the information provided that 
 
         the claimant earned less than the usual weekly earnings of the 
 
         regular full-time adult laborer in that line of industry in that 
 
         locality.  Defendants also argue that the deputy's decision 
 
         places an undue burden on the employer to demonstrate that the 
 
         requirements of section 85.36(10) have been met.  Neither of 
 
         defendants' arguments are persuasive.  The letter defendants rely 
 
         upon clearly stated that the conclusion reached was based upon 
 
         the information supplied (the employer's first report of injury) 
 
         and it was couched in indefinite terms.  Furthermore, the only 
 
         information upon which that indefinite conclusion was apparently 
 
         based was a statement that claimant worked 25-30 hours per week.  
 
         While the letter was a legitimate attempt to determine the proper 
 
         rate based upon the limited information available, the conclusion 
 
         contained in that letter is not dispositive of the issue involved 
 
         in this appeal.
 
         
 
              The deputy discussed that because defendants assert section 
 
         85.36(10) is applicable they have the burden of proving that the 
 
         requirements of the subsection have been met.  Defendants assert 
 
         on appeal that this places an undue burden on them.  The only 
 
         evidence in this case as to whether claimant's earnings are the 
 
         usual earnings of a regular full-time adult laborer in her line 
 
         of industry in her locality is claimant's earnings.  In the 
 
         absence of any proof to the contrary it must be concluded that 
 
         claimant's earnings were the usual earnings of an adult engaged 
 
         in in-home nurse's aide work.  It is not unreasonable, in this 
 

 
         
 
         
 
         
 
         HINGTGEN V. MARY GOODMAN
 
         PAGE  14
 
         
 
         
 
         case, to conclude that claimant's work of 20 hours per week was 
 
         the "usual" hours of the industry and that she earned the Ousual" 
 
         amount of her industry in her locality.  The deputy correctly 
 
         concluded that section 85.36(10) was not applicable in this 
 
         case.
 
         
 
              Defendants also argue on cross-appeal that the deputy erred 
 
         in including the value of the meals furnished to claimant by 
 
         Goodmann in calculation of the rate.  The evidence is 
 
         uncontroverted that Goodmann furnished claimant lunch and the 
 
         value of a lunch was $2.50.  Defendants offer no persuasive 
 
         argument why the value of the lunch claimant received should not 
 
         be included in the computation of claimant's gross weekly 
 
         earnings.  The deputy correctly relied upon the reasoning of Hoth 
 
         v. Eilors, I Iowa Industrial Commissioner Report 156 (Appeal 
 
         Decision 1980) and correctly concluded that the value of the 
 
         meals furnished by the employer are to be included in the 
 
         computation of gross weekly earnings.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Claimant was born January 3, 1924 and was 63 years of 
 
         age at the time of the arbitration hearing.
 
         
 
              2.  Claimant has a tenth grade education and has completed a 
 
         12 hour course to be certified as a nurse's aide.
 
         
 
              3.  Prior to the time claimant began work for her employer 
 
         (Goodmann) she had worked as a nurse's aide and as an unskilled 
 
         production worker in manufacturing plants.
 
         
 
              4.  In November or December of 1982 claimant began 
 
         employment for Goodmann as a domestic helper and aide.
 
         
 
              5.  Claimant was paid $3.35 per hour for four hours per day 
 
         five days a week and was furnished lunch valued at $12.50 per 
 
         week by Goodmann.
 
         
 
              6.  On April 12, 1983 claimant slipped and fell while moving 
 
         Goodmann in a wheelchair at Goodman's home.  Claimant suffered an 
 
         injury that arose out of and in the course of her employment.
 
         
 
              7.  As a result of the injury on April 12, 1983, claimant 
 
         had a compression fracture of the eleventh thoracic vertebra.
 
         
 
              8.  The work injury of April 12, 1983 caused claimant to 
 
         miss work.
 
         
 
              9.  Dr. Pearson indicated that on November 10, 1983 
 
         significant improvement from claimant's injury was not 
 
         anticipated.
 
         
 
             10.  The work injury of April 12, 1983 was a cause of 
 
         permanent partial impairment to claimant's body as a whole.
 
         
 
             11.  Claimant does not have neurological involvement because 
 
         the April 12, 1983 injury.  Claimant has full use of her hands 
 
         and legs.
 
         
 

 
         
 
         
 
         
 
         HINGTGEN V. MARY GOODMAN
 
         PAGE  15
 
         
 
         
 
             12.  Claimant is unable to sit for more than 10 to 15 minutes 
 
         without experiencing pain.  Claimant can possibly lift 50 pounds 
 
         by bending her knees to do it.  Claimant cannot lift more than 10 
 
         to 15 pounds with her arms out in front of her.
 
         
 
             13.  Claimant has sought neither employment nor retraining 
 
         since her April 12, 1983 injury.
 
         
 
             14.  The work injury of April 12, 1983 was a cause of 
 
         claimant's industrial disability of 30 percent.
 
         
 
             15.  On April 12, 1983 claimant's gross rate of weekly 
 
         earnings was $79.50 per week and she was single and had no 
 
         dependents.
 
         
 
             16.  Claimant's rate of compensation is $64.91.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant has established by a preponderance of evidence that 
 
         there is a causal connection between her work related injury of 
 
         April 12, 1983 and her permanent disability.
 
         
 
              Claimant has not established by a preponderance of evidence 
 
         that she is entitled to permanent total disability benefits as an 
 
         odd-lot employee.
 
         
 
              Claimant has established by a preponderance of evidence that 
 
         her industrial disability is 30 percent.
 
         
 
              Claimant has established by a preponderance of evidence that 
 
         as a result of her injury she is entitled to healing period 
 
         benefits from April 12, 1983 through November 10, 1983 and 150 
 
         weeks of permanent partial disability benefits commencing on 
 
         November 11, 1983.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That defendants pay to claimant one hundred fifty (150) 
 
         weeks of permanent partial disability benefits at the rate of 
 
         sixty-four and 91/100 dollars ($64.91) per week from November 11, 
 
         1983.
 
         
 
              That defendants pay to claimant healing period benefits from 
 
         April 12, 1983 through November 10, 1983 at the rate of 
 
         sixty-four and 91/100 dollars ($64.91) per week.
 
         
 
              That defendants pay accrued weekly benefits in a lump sum 
 
         and shall receive a credit against this award for all weekly 
 
         benefits previously paid.
 
         
 
              That defendants pay interest on benefits awarded herein as 
 
         set forth in Iowa Code section 85.30.
 
         
 
              That defendants pay the costs of this action including the 
 

 
         
 
         
 
         
 
         HINGTGEN V. MARY GOODMAN
 
         PAGE  16
 
         
 
         
 
         costs of transcription of the arbitration hearing pursuant to 
 
         Division of Industrial Services Rule 343-4.33.
 
         
 
              That defendants file activity reports on the payment of this 
 
         award as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
         
 
         
 
              Signed and filed this 30th day of September, 1988.
 
         
 
         
 
         
 
         
 
                                                 DAVID E. LINQUIST
 
                                                 INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         Copies To:
 
         
 
         Mr. David A. Lemanski
 
         Attorney at Law
 
         200 Security Bldg.
 
         Dubuque, Iowa 52001
 
         
 
         Mr .Brendan T. Quann
 
         Attorney at Law
 
         200 CyCare Plaza
 
         Dubuque, Iowa 52001
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         WILMA HINGTGEN,
 
         
 
             Claimant,
 
         
 
         VS.
 
                                                     File No. 737771
 
         MARY GOODMANN,
 
                                                       R U L I N G
 
              Employer,
 
         
 
         and
 
         
 
         ECONOMY FIRE & CASUALTY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
              On April 29, 1987 the defendants filed a request for taking 
 
         additional evidence.  The claimant, having filed a response 
 
         thereto, the same comes on for determination.
 
         
 
              Division of Industrial Services Rule 343-4.28 states:
 
         
 
                 The commissioner shall decide an appeal upon the record 
 
              submitted to the deputy industrial commissioner unless the 
 
              commissioner is satisfied that there exists additional 
 
              material evidence, newly discovered, which could not with 
 
              reasonable diligence be discovered and produced at the 
 
              hearing.  A request for the taking of additional evidence 
 
              must be filed with the industrial commissioner within twenty 
 
              days of the filing of the appeal.
 
         
 
              This commissioner is not satisfied that there was good 
 
         reason for failure to present additional evidence to the deputy.
 
         
 
              THEREFORE, defendants' request for taking additional 
 
         evidence is denied.
 
         
 
              Signed and filed this 11th day of June, 1987.
 
         
 
         
 
         
 
         
 
                                            DAVID E. LINQUIST
 
                                            ACTING INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         
 
         HINGTGEN V. MARY GOODMANN
 
         Page 2
 
                                                
 
                                                         
 
         
 
         
 
         
 
         
 
         
 
         Copies To:
 
         
 
         Mr. David A. Lemanski
 
         Attorney at Law
 
         200 Security Building
 
         Dubuque, Iowa 52001
 
         
 
         Mr. Brendan T. Quann
 
         Attorney at Law
 
         200 CyCare Plaza
 
         Dubuque, Iowa 52001
 
 
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DENNIS GETTLER,
 
         
 
              Claimant,
 
                                                     File No. 737927
 
         vs.
 
                                                       A P P E A L
 
         ROBERT TICKNOR,
 
                                                     D E C I S I O N
 
              Employer,
 
         
 
         and                                            F I L E D
 
         
 
         EMPLOYERS MUTUAL COMPANIES,                   APR 15 1988
 
         
 
              Insurance Carrier,               IOWA INDUSTRIAL COMMISSIONER
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Defendants appeal from an arbitration decision awarding 
 
         permanent partial disability and medical benefits.
 
         
 
              The record on appeal consists of the transcript of the 
 
         arbitration hearing and joint exhibits 1 through 24.  Both 
 
         parties filed briefs on appeal.
 
         
 
                                    ISSUES
 
         
 
              The issues on appeal are whether claimant has an 
 
         occupational disease which arose out of and in the course of 
 
         employment; if claimant does have an occupational disease, 
 
         whether his last injurious exposure was while employed by 
 
         defendant employer; and whether there is a causal relationship 
 
         between claimant's exposure to irritants at work for defendant 
 
         employer and his bronchial asthma.
 
         
 
                           REVIEW OF THE EVIDENCE
 
         
 
              The arbitration decision adequately and accurately reflects 
 
         the pertinent evidence and it will not be totally reiterated 
 
         herein.
 
         
 
              Briefly stated, the claimant and his wife testified that he 
 
         had no serious illnesses or lung problems before beginning work 
 
         on the defendant employer's farm under a written employment 
 
         contract beginning the third week in February 1983.  Prior to 
 
         this contract he had worked for his father and another employer 
 
         and had been self-employed and in construction work.  Claimant's 
 
         duties for the employer were to do chores and take care of the 
 
         240 head sow, farrow-to-finish hog operation.  He worked inside 
 
                                                
 
                                                         
 
         buildings approximately fifty percent of the time and outdoors 
 
         approximately fifty percent of the time.  In the hog confinement 
 
         buildings the air was stale and there was feed dust, hog hair 
 
         dust, manure odor, and pit gases.  The work outside consisted of 
 
         moving hogs, cleaning buildings, repairing items, and moving corn 
 
         from bin to bin.  Claimant had brief involvement with the 2500 
 
         acres of row crops of employer.
 
         
 
              Claimant reported that in moving corn he was around moldy 
 
         corn in a 500 bushel grain bin in March 1983.  He testified that 
 
         after working in the corn he felt pain in his right side.  He 
 
         reported that by the end of his one year employment contract he 
 
         could not stay in the hog operating building because he was 
 
         having so many breathing problems.  He was not able to continue 
 
         work for employer after the year long contract was completed.
 
         
 
              Claimant testified that he was paid $400 per week, and that 
 
         he was paid under the terms of the agreement.  Defendant employer 
 
         stopped paying claimant in February 1984.  Claimant reported that 
 
         after a two week vacation in February 1984, he was supposed to 
 
         work two more weeks but was unable to and Dr. Hicklin 
 
         hospitalized him.  He further testified that in the time between 
 
         February and June 1984, he did some field work for defendant 
 
         employer, and that he was looking for construction jobs during 
 
         that time.  The medical records indicate that claimant was 
 
         treated at Iowa Methodist Medical Center from April 3, 1984 
 
         through April 6, 1984. The diagnosis at the time of admission was 
 
         right middle and lower lobe nonperfusion, high probability for 
 
         pulmonary embolism.
 
         
 
              In June 1984, claimant attempted to return to doing home 
 
         remodeling jobs but the dust, dirt, asbestos insulation, and 
 
         construction site fumes caused coughing like he had experienced 
 
         when working for employer.  He stated he can no longer do the 
 
         physical work he previously did in construction because he still 
 
         has coughing and breathing problems.  In November 1984, claimant 
 
         began to raise hogs on his own acreage under an arrangement with 
 
         another individual who furnished the hogs and the feed and 
 
         claimant furnished the buildings and care of the hogs.  Claimant 
 
         received $.06 a head per day and an extra half cent if the death 
 
         loss was less than three percent and another half cent if the 
 
         death loss was less than one percent.  Claimant initially raised 
 
         240 hogs and increased to 450 hogs.  He reported that his wife 
 
         helped in the operation and that he would spend between ten and 
 
         fifteen minutes per day in the buildings but for cleaning, which 
 
         required about two hours of time.  He stated that cleaning the 
 
         buildings bothered him and that he began to have coughing 
 
         problems after the operation increased to about 360 hogs.
 
         
 
              Gregory Hicklin, M.D., first saw claimant on June 8, 1983 
 
         with an evaluation of right mid-lung infiltrate.  Claimant was 
 
         hospitalized from June 8, 1983 through June 11, 1983 and had no 
 
         activity restrictions when discharged.  The diagnosis on 
 
         admission was probable pulmonary embolism, right lung with 
 
         infarct.  Dr. Hicklin saw claimant on December 22, 1983 with 
 
                                                
 
                                                         
 
         persistent, recurrent, right-sided chest pain with some dyspnea 
 
         on exertion. The diagnosis was of bronchial asthma.  In a report 
 
         of November 23, 1984, the doctor stated that the bronchial asthma 
 
         was definitely worsened by exposure to hog confinement buildings 
 
         and breathing cold air while doing chores around the farm, but 
 
         stated that exposure to the buildings and cold air did not cause 
 
         the asthma per se.  He noted that the asthma limits what claimant 
 
         can do and that further exposure to nonspecific irritants would 
 
         be expected to cause claimant's asthma to flare up.  He 
 
         recommended that claimant avoid nonspecific irritants and not 
 
         continue work in hog confinement buildings or vigorous manual 
 
         labor in cold air. The doctor described asthma as an intermittent 
 
         or variable disease and stated that on days when claimant's 
 
         asthma is bad, claimant has a Class 2 impairment under the AMA 
 
         Guidelines of 10 to 25 percent of the body as a whole.  He 
 
         reported that on a good day claimant is normal and has no 
 
         impairment.
 
         
 
              Dr. Hicklin testified that he would not characterize 
 
         claimant's impairment as either a temporary or permanent 
 
         disability.  He also testified that claimant's continuing problem 
 
         relates to the preexisting asthma condition.
 
         
 
              Dr. Hicklin defined asthma as a reversible airway 
 
         obstruction associated with bronchial hyperactivity.  He 
 
         described it as a lung and bronchial tube related difficulty, a 
 
         disease.  The doctor reported that he did not believe that 
 
         claimant's occupation caused his asthma but stated that he felt 
 
         claimant had a propensity towards asthma and the exposures in the 
 
         occupation to cold air, grain dust, and hog confinement buildings 
 
         irritated his condition to bring it to his attention.
 
         
 
              The doctor opined claimant's subsequent exposure to hogs and 
 
         hog confinement operations was an injurious exposure to the same 
 
         hazards and the same disease process as claimant had experienced 
 
         on the Ticknor operation.  The doctor opined that on November 15, 
 
         1984, when claimant entered his own hog business, he was 
 
         susceptible to further aggravation of his asthmatic condition and 
 
         that the subsequent exposure aggravated the underlying asthmatic 
 
         condition with the same symptoms provoked by the same atmosphere 
 
         and relieved by avoidance or medication (as at the Ticknor 
 
         farm).
 
         
 
              Dr. Hicklin stated that he disagreed with Dr. Aronow's 
 
         diagnosis in that bronchial asthma is a disease with many causes 
 
         and that claimant's was not caused by hog house exposure.  Dr. 
 
         Hicklin explained that any kind of irritant fumes may exacerbate 
 
         bronchial asthma and that hog house fumes are an exacerbating, 
 
         but not a causative factor (in the condition).  Dr. Hicklin 
 
         reported that he saw no physical impairment as a result of 
 
         claimant's pulmonary function test and that nothing led him to 
 
         believe claimant's employment exposure caused claimant's need to 
 
         avoid certain irritants.  He described the employment exposure as 
 
         a re-exacerbation of the asthma with each new contact or new 
 
         exposure a new aggravation of a problem preexisting employment 
 
                                                
 
                                                         
 
         with the employer.  He also reported that claimant had a 
 
         pulmonary embolism of undetermined source.
 
         
 
              Paul From, M.D., saw claimant for evaluation on February 19, 
 
         1985.  He reported claimant had evidence of obstructive lung 
 
         disease and a cough compatible with tracheobronchitis as well as 
 
         residual pleuritic change in his chest following pulmonary 
 
         embolus and infarction.  The doctor stated claimant's course was 
 
         nearly classical for chemical irritation of the tracheobronchial 
 
         tree secondary to exposure to atmosphere in a hog confinement 
 
         system.
 
         
 
              Martin R. Aronow, D.O., saw claimant on April 23, 1985.  The 
 
         doctor stated that test results suggested that claimant had an 
 
         obstructive ventilatory defect and that in spite of claimant's 
 
         history of cigarette smoking, he believed claimant's respiratory 
 
         impairment was mainly the result of his occupational exposure.  
 
         The doctor opined that claimant has a typical chronic or typical 
 
         obstructive ventilatory defect as one would see in a hog 
 
         confinement:worker.
 
         
 
         
 
                                 APPLICABLE LAW
 
         
 
              The citations of law in the arbitration decision are 
 
                 
 
                                                
 
                                                         
 
         appropriate to the issues and evidence but will be supplemented 
 
         as necessary for disposition of the matter.
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received an injury in February 1984 which arose 
 
         out of and in the course of his employment.  McDowell v. Town of 
 
         Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central 
 
         Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
         employment.  Section 85.3(1).
 
         
 
              The supreme court of Iowa in Almquist v. Shenandoah 
 
         Nurseries, 218 Iowa 724, 731-32, 254 N.W. 35, 38 (1934), 
 
         discussed the definition of personal injury in workers' 
 
         compensation cases as follows:
 
         
 
              While a personal injury does not include an occupational 
 
              disease under the Workmen's Compensation Act, yet an injury 
 
              to the health may be a personal injury.  [Citations 
 
              omitted.] Likewise a personal injury includes a disease 
 
              resulting from an injury....The result of changes in the 
 
              human body incident to the general processes of nature do 
 
              not amount to a personal injury.  This must follow, even 
 
              though such natural change may come about because the life 
 
              has been devoted to labor and hard work.  Such result of 
 
              those natural changes does not constitute a personal injury 
 
              even though the same brings about impairment of health or 
 
              the total or partial incapacity of the functions of the 
 
              human body.
 
         
 
                   ....
 
         
 
              A personal injury, contemplated by the Workmen's 
 
              Compensation Law, obviously means an injury to the body, the 
 
              impairment of health, or a disease, not excluded by the act, 
 
              which comes about, not through the natural building up and 
 
              tearing down of the human body, but because of a traumatic 
 
              or other hurt or damage to the health or body of an 
 
              employee.  [Citations omitted.]  The injury to the human 
 
              body here contemplated must be something, whether an 
 
              accident or not, that acts extraneously to the natural 
 
              processes of nature, and thereby impairs the health, 
 
              overcomes, injures, interrupts, or destroys some function of 
 
              the body, or otherwise damages or injures a part or all of 
 
              the body.
 
         
 
              While a claimant is not entitled to compensation for the 
 
         results of a preexisting injury or disease, the mere existence at 
 
         the time of a subsequent injury is not a defense.  Rose v. John 
 
         Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2d 756, 760-761 
 
         (1956).  If he claimant had a preexisting condition or disability 
 
         that is aggravated, accelerated, worsened or lighted up so that 
 
         it results in disability, claimant is entitled to recover.  Nicks 
 
                                                
 
                                                         
 
         v. Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, 815 
 
         (1962).
 
         
 
              Our supreme court has stated many times that a claimant may 
 
         recover for a work connected aggravation of a preexisting 
 
         condition.  Almquist, 218 Iowa 724, 254 N.W. 35.  See also Auxier 
 
         V. Woodward State Hosp. Sch., 266 N.W.2d 139 (Iowa 1978); Gosek 
 
         v. Garmer and Stiles Co., 15-8 N.W.2d 731 (Iowa 1968); Barz v. 
 
         Oler, 257 Iowa 508, 133 N.W.2d 704 (1965); Olson v. Goodyear 
 
         Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); Yeager v. 
 
         Firestone Tire & Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961); 
 
         Ziegler v. United States Gypsum Co., 252 Iowa 613, 106 N.W.2d 591 
 
         (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, 252 Iowa 613, 620, 106 N.W.2d 591, and 
 
         cases cited.
 
         
 
              An employee is not entitled to recover for the results of a 
 
         preexisting injury or disease but can recover for an aggravation 
 
         thereof which resulted in the disability found to exist.  Olson, 
 
         255 Iowa 1112, 125 N.W.2d 251; Yeager, 253 Iowa 369, 112 N.W. 
 
         299; Ziegler, 252 Iowa 613, 106 N.W.2d 591.  See also 257 Iowa 
 
         508, 133 N.W.2d 704; Almquist, 218 Iowa 724, 254 N.W. 35.
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of exposure to irritants during his 
 
         employment 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, 261 Iowa 352, 154 
 
         N.W.2d 128.
 
         
 
              When an aggravation occurs in the performance of an 
 
         employer's work and a causal connection is established, claimant 
 
         may recover to the extent of the impairment.  Ziegler, 252 Iowa 
 
                                                
 
                                                         
 
         613, 620, 106 N.W.2d 591, 595.
 
         
 
                                    ANALYSIS
 
         
 
              Defendants argue on appeal that claimant's condition is not 
 
         an occupational disease because his condition is a preexisting 
 
         asthma condition that was aggravated by the exposure to 
 
         irritants. While claimant's bronchial asthma was aggravated by 
 
         work environment exposure, the bronchial asthma was not caused by 
 
         the exposure of the work environment of defendant employer.  Dr. 
 
         Hicklin indicated that the condition was worsened by the work 
 
         exposure but that the exposure did not cause the asthma.  He was 
 
         a treating physician and his opinion should be and is given more 
 
         weight than Dr. From and Dr. Aronow, each of whom examined 
 
         claimant once nearly two years after claimant's asthma flared up. 
 
         In addition, the evidence clearly indicates that claimant's 
 
         condition is relieved by avoiding the nonspecific irritants which 
 
         cause the asthma to flare up.  Claimant suffered a temporary 
 
         aggravation of a preexisting condition but he has not suffered an 
 
         occupational disease within the meaning of Iowa Code chapter 85A. 
 
         Claimant has failed to establish that his condition was caused by 
 
         irritants found in his work environment.  Claimant does not have 
 
         a disease which arose out of and in the course of his employment. 
 
         The deputy erred in finding otherwise.
 
         
 
              Even if claimant had an occupational disease, he would not 
 
         be able to recover benefits from defendant employer.  Iowa Code 
 
         section 85A.10 provides that the employer in whose employment the 
 
         employee was last injuriously exposed to the hazards of the 
 
         disease is liable for compensation.  Claimant was exposed to the 
 
         same irritants while raising hogs on his own acreage after he 
 
         terminated employment with defendant employer as he was when he 
 
         was employed by defendant employer.  It should be noted that 
 
         claimant also had breathing difficulties when he was exposed to 
 
         irritants while doing construction work.  The last exposure that 
 
         claimant had with the irritants was when his employment was 
 
         raising hogs on his own acreage.  Exposure to the irritants while 
 
         in the employment of defendant employer was not the last 
 
         injurious exposure and therefore defendant employer would not be 
 
         liable for compensation.
 
         
 
              While the defendant employer is not liable to claimant for 
 
         an occupational disease, the defendant employer would be liable 
 
         for the injury of the temporary aggravation of the preexisting 
 
         asthma condition causing disability.  Dr. Hicklin, whose opinion 
 
         is given more weight, did not think that the employment exposure 
 
         caused the permanent bronchial asthma condition.  Dr. Hicklin 
 
         thought that when claimant was suffering from his asthma 
 
         condition, claimant had an impairment.  That impairment was not 
 
         permanent and was relieved by avoidance of irritants or 
 
         medication.  Claimant is not entitled to permanent disability 
 
         benefits nor healing period benefits.
 
         
 
              Claimant would be compensated for temporary disability 
 
         benefits if the aggravation of the preexisting asthma condition 
 
                                                
 
                                                         
 
         resulted in his being temporarily disabled.  The record is devoid 
 
         of any evidence that claimant was temporarily disabled because of 
 
         the aggravation of his asthma condition.  He was hospitalized 
 
         from June 8, 1983 through June 11, 1983, but was discharged with 
 
         no activity restrictions.  Also, that hospitalization was due at 
 
         least in part to the pulmonary embolism, the cause of which is 
 
         undetermined.  Claimant was paid for the full term of the 
 
         agreement with defendant employer.  After he was unable to 
 
         continue working for defendant employer after the expiration of 
 
         the one year agreement period, claimant looked for other work and 
 
         did other work.  Claimant was hospitalized April 3, 1984 through 
 
         April 6, 1984.  That hospitalization appeared to be because of 
 
         the pulmonary embolism and it was more than a month after 
 
         claimant's employment contract had ended.  The flare-up of 
 
         claimant's asthma condition was alleviated by avoidance of the 
 
         irritants, therefore, it cannot be said that this hospitalization 
 
         was caused by exposure to the irritants that would have occurred 
 
         at least one month prior to the hospitalization.  There is no 
 
         evidence in the record that demonstrates claimant was temporarily 
 
         disabled because of the aggravation of his asthma condition 
 
         caused by exposure to irritants at defendant employer.  Claimant 
 
         has not proved by the greater weight of evidence that he had a 
 
         disability that was caused by exposure to irritants while working 
 
         for defendant employer.
 
         
 
                                FINDINGS OF FACT
 
         
 
              1.  Claimant has preexisting bronchial asthma.
 
         
 
              2.  Claimant was able to work in construction prior to 
 
         beginning work with this employer.
 
         
 
              3.  Claimant was exposed to grain dust, dirt, hog dander, 
 
                       
 
                                                
 
                                                         
 
         hog ammonia, temperature changes, and stale air while working for 
 
         defendant employer.
 
         
 
              4.  Claimant was treated for and hospitalized for his 
 
         respiratory condition while working for defendant employer from 
 
         June 8, 1983 through June 11, 1983.
 
         
 
              5.  Claimant lost no income as a result of this 
 
         hospitalization but was paid the full amount pursuant to his 
 
         contract.
 
         
 
              6.  Claimant's condition is now aggravated by nonspecific 
 
         irritants such that he is unable to work in hog confinement 
 
         operations, or in construction, or in other locales where he 
 
         would be exposed to nonspecific irritants.
 
         
 
              7.  Claimant's work for defendant employer temporarily 
 
         aggravated his preexisting bronchial asthma.
 
         
 
              8.  Claimant worked under a year long contract from February 
 
         1983 to February 1984.
 
         
 
              9.  Claimant was hospitalized on account of a pulmonary 
 
         embolism from June 8, 1983 through June 11, 1983 and from April 
 
         3, 1984 through April 6, 1984.
 
         
 
              10.  The cause of the pulmonary embolism is undetermined.
 
         
 
              11.  Claimant did not continue work for the employer at the 
 
         contract's expiration.
 
         
 
              12.  Claimant attempted to raise hogs on his own land in 
 
         November 1984 in a joint venture or partnership arrangement.
 
         
 
              13.  Claimant was exposed to the same irritants in the joint 
 
         venture or partnership arrangement as he was while in the 
 
         employment of defendant employer.
 
         
 
              14.  Claimant did not continue the joint venture or 
 
         partnership on account of his condition.
 
         
 
              15.  Claimant's last injurious employment exposure to the 
 
         irritants that aggravate his bronchial asthma did not occur in 
 
         the employment of defendant employer.
 
         
 
                               CONCLUSIONS OF LAW
 
         
 
              Claimant has not established by the greater weight of 
 
         evidence that he sustained an occupational disease which arose 
 
         out of and in the course of his employment with defendant 
 
         employer.
 
         
 
              Claimant has not proven by the greater weight of evidence 
 
         that the aggravation of his preexisting asthma condition by 
 
         exposure to irritants while employed by defendant employer was 
 
                                                
 
                                                         
 
         the cause of any temporary or permanent disability.
 
         
 
              WHEREFORE, the decision of the deputy is reversed.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered
 
         
 
              That claimant take nothing from this proceeding.
 
         
 
              That defendants pay costs, including the costs of this 
 
         appeal and transcription of the hearing, pursuant to Division of 
 
         Industrial Services Rule' 343-4.33.
 
         
 
              Signed and filed this 15th day of April, 1988.
 
                                  
 
         
 
         
 
         
 
         
 
         
 
                                                    DAVID E. LINQUIST
 
                                                 INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Barry Moranville
 
         Attorney at Law
 
         974 73rd Street, Suite 16
 
         Des Moines, Iowa  50312
 
         
 
         Mr. Dennis L. Hanssen
 
         Mr. E. J. Kelly
 
         Attorneys at Law
 
         Terrace Center, Suite 111
 
         2700 Grand Avenue
 
         Des Moines, Iowa  50312
 
 
 
         
 
 
            
 
 
 
 
 
                     
 
 
 
                                                 1108.40; 1801; 1803
 
                                                 2203; 2206
 
                                                 Filed 4-15-88
 
                                                 David E. Linquist
 
         
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DENNIS GETTLER,
 
         
 
              Claimant,
 
                                                    File No. 737927
 
         vs.
 
         
 
         ROBERT TICKNOR,                              A P P E A L
 
         
 
              Employer,                             D E C I S I 0 N
 
         
 
         and
 
         
 
         EMPLOYERS MUTUAL COMPANIES,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1108.40; 2203; 2206
 
         
 
              Claimant's exposure to dirt, dust, hog urine ammonia, hog 
 
         dander, stale air, grain dust, and temperature changes as a farm 
 
         worker in hog confinement operation aggravated a preexisting 
 
         bronchial asthma.  Claimant's exposure aggravated his asthma and 
 
         resulting condition resolved itself when claimant was no longer 
 
         exposed to the irritants.  No occupational disease was caused by 
 
         exposure to the irritants.  Even if claimant had suffered an 
 
         occupational disease this employer would not have been liable for 
 
         benefits because claimant's last injurious exposure to the 
 
         irritants was when he was self-employed as a construction worker 
 
         and hog raiser.
 
         
 
         1801
 
         
 
              Claimant lost no income on this job because of the 
 
         aggravation of his preexisting bronchial asthma.  He had not 
 
         proved that exposure to the irritants was the cause of any 
 
         temporary disability.
 
         
 
         1803
 
         
 
              Claimant's bronchial asthma was not caused by exposure to 
 
         irritants while employed by defendant employer.  When claimant 
 
         was suffering from his asthma condition, he had an impairment.  
 
         That impairment was not permanent and was relieved by avoidance 
 
         of the irritants or medication.
 
 
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         DENNIS WAYNE MILLER,
 
         
 
              Claimant,
 
         
 
                                                      FILE NO. 738184
 
         VS.
 
                                                        R E V I E W -
 
         CITY OF DES MOINES, IOWA,
 
                                                     R E 0 P E N I N G
 
              Employer,
 
                                                      D E C I S I 0 N
 
         and
 
         
 
         CIGNA,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
                                  INTRODUCTION
 
         
 
              This is a proceeding in review-reopening brought by Dennis 
 
         Wayne Miller, claimant, against the City of Des Moines, Iowa, 
 
         employer, and CIGNA, insurance carrier, defendants, for further 
 
         benefits as a result of an injury that occurred on March 3, 1983. 
 
          The first hearing of this case was held on January 17, 1985 at 
 
         Des Moines, Iowa before Deputy Industrial Commissioner Michael G. 
 
         Trier.  His decision was filed on April 2, 1985.  It awarded 
 
         claimant 75 weeks of permanent partial disability benefits based 
 
         on an industrial disability of 15 percent to the body as a whole 
 
         at the rate of $201.30 per week in the total amount of 
 
         $15,097.50. This arbitration decision was affirmed by Industrial 
 
         Commissioner Robert C. Landess in an appeal decision dated 
 
         January 14, 1986.  This hearing was held on December 4, 1986 at 
 
         Des Moines, Iowa and the case was fully submitted at the close of 
 
         the hearing.  The record consists of the testimony of Paul Black 
 
         (personnel analyst for the city); Michael Peterson (safety 
 
         administrator for the city); Dennis Miller (claimant); 
 
         defendants' exhibits A through J; and claimant's exhibits 1 
 
         through 6.  Both attorneys submitted excellent briefs.
 
         
 
                             PARTIAL TRANSCRIPT
 
         
 
              Claimant ordered a partial transcript of this hearing which 
 
         transcribed the testimony of Paul Black and of Michael Edward 
 
         Peterson.  Claimant has made a copy of this partial transcript 
 
         available to the agency and it is included in the industrial 
 
         commissioner's file in this case.  In this decision, the term, 
 
         transcript, refers to the transcript of the hearing which was
 
         held on January 17, 1985.  The term, partial transcript, refers 
 
         to the partial transcript of the hearing which was held on 
 
         December 4, 1986.
 
         
 
                                EVIDENCE EXCLUDED
 
         
 
              Page five of defendants' exhibit I was excluded from 
 
         evidence because it was not timely served.  However, it is part 
 

 
         
 
         
 
         
 
         MILLER V. CITY OF DES MOINES, IOWA
 
         Page   2
 
         
 
         
 
         of the record as an offer of proof.  It was not considered in the 
 
         determination of this case.
 
         
 
                                   STIPULATIONS
 
         
 
              The parties stipulated to the following matters at the 
 
         hearing:
 
         
 
              That an employer/employee relationship existed between 
 
         claimant and employer at the time of the injury.
 
         
 
              That the claimant sustained an injury on March 3, 1983 which 
 
         arose out of and in the course of his employment with employer.
 
         
 
              That causal connection of temporary disability and the 
 
         claimant's entitlement to temporary disability benefits are not 
 
         an issue in this case at this time.
 
         
 
              That the type of permanent disability, if the injury is 
 
         found to be the cause of additional permanent disability, is 
 
         stipulated to be industrial disability to the body as a whole.
 
         
 
              That the commencement date for any additional permanent 
 
         partial disability benefits is stipulated to commence immediately 
 
         after the prior award terminated.
 
         
 
              That in the event of an additional award of benefits the 
 
         weekly rate of compensation is $201.30 per week.
 
         
 
              That no affirmative defenses are asserted; that medical 
 
         benefits are not in dispute; that no credits are claimed under 
 
         Iowa Code section 85.38(2) for employee non-occupational group 
 
         plans and no credit is claimed for prior benefits paid.
 
         
 
                          SPECIAL PREHEARING STIPULATION
 
         
 
              The parties entered into a written stipulation prior to this 
 
         hearing on or about October 15, 1986 that there was no competent 
 
         medical evidence to support a change in the claimant's physical 
 
         condition attributable to this work injury since the first 
 
         hearing on January 17, 1985 (Defendants' Exhibit B).
 
         
 
         
 
         
 
                                      ISSUES
 
         
 
              The issues presented by the parties for determination at the 
 
         time of the hearing are as follows:
 
         
 
              Whether the injury is the cause of any additional permanent 
 
         partial disability based upon a non-medical change of condition.
 
         
 
              Whether the claimant is entitled to any additional permanent 
 
         partial disability benefits based upon a non-medical change of 
 
         condition.
 
                             SUMMARY OF THE EVIDENCE
 
         
 
              All of the evidence was examined and considered.  The 
 
         following is a summary of the pertinent evidence.
 

 
         
 
         
 
         
 
         MILLER V. CITY OF DES MOINES, IOWA
 
         Page   3
 
         
 
         
 
         
 
              At the first hearing on January 17, 1985, Michael Peterson, 
 
         a representative of the city, testified that it is the unwritten 
 
         policy of the City of Des Moines to rehire their injured 
 
         employees.  Their success rate at rehiring injured employees was 
 
         excellent.  They rehire a minimum of 95 percent of their injured 
 
         employees.  Of all employees ever injured Peterson only knew of 
 
         three persons, including claimant, who were not returned to work 
 
         for the city.  Peterson enumerated a number of jobs that claimant 
 
         might be eligible for such as storeroom clerk, custodial work, 
 
         animal handler, truck driver, some types of maintenance work, 
 
         parking meter enforcement, courier, light and medium equipment 
 
         oPerator, housing inspector trainee, construction inspector 
 
         trainee and humane officer (Transcript, pages 72 through 75).
 
         
 
              The following question and answer appear at page 75 of the 
 
         first hearing transcript.  The question was asked by defendants' 
 
         counsel and answered by Peterson:
 
         
 
                   Q.  Does the City of Des Moines at all times make 
 
              accommodations with respect to injured employees in terms of 
 
              modifying work?
 
         
 
                   A.  Yes, we do.  If we can modify a job without 
 
              significantly changing the structure of that position to 
 
              accommodate a handicap or disability, we'll attempt to do 
 
              that.  We can't do it every time, but we'll make an effort 
 
              to try to do that.
 
         
 
              At pages 81 and 82 of the prior hearing transcript, the 
 
         following questions and answers transpired between defendants' 
 
         counsel and Peterson, the city's representative.
 
         
 
                   Q.  Now, you've gone through a series of jobs that were 
 
              opened and either filled, or whatever.  Is that a continuing 
 
              process with the City?
 
                   A.  Yes. Every week there would be jobs posted.
 
         
 
                   Q.  Okay. So this is a-- In terms of hiring him back, 
 
              it's a continuous process of waiting until the right 
 
              position comes up for him; is that right?
 
         
 
                   A.  Yes.
 
         
 
              Claimant testified that when he tried custodial jobs earlier 
 
         that he injured his back and that he was unable to 'do the 
 
         portion of the custodial work that required.him to lift heavy 
 
         barrels and dump them into a dumpster.
 
         
 
              The following questions and answers transpired between 
 
         claimant's counsel and Peterson on pages 84 and 85 of the first 
 
         hearing transcript.
 
         
 
                   Q.  Would those custodial jobs you're talking about be 
 
              lifting the heavy barrels and dumping them into the 
 
              dumpsters?
 
         
 
                   A.  Custodial positions would generally require lifting 
 
              more than 50 pounds, but it would be something where we 
 

 
         
 
         
 
         
 
         MILLER V. CITY OF DES MOINES, IOWA
 
         Page   4
 
         
 
         
 
              could make a concession, I believe, in the jobs.  For 
 
              instance, the one custodial position he was appointed to 
 
              required shoveling snow, and we appointed him to that 
 
              position with the understanding with the supervisor he would 
 
              not be required to scoop snow.  The same with lifting 
 
              weights.  We make concessions that they would not have to 
 
              lift those weights, that that would not be a part of their 
 
              regular job.
 
         
 
                   Q.  Okay. Would that include dumping the heavier 
 
              barrels into the dumpster?
 
         
 
                   A.  Yes.
 
         
 
              Deputy Trier commented on the statements of Peterson on 
 
         pages 4, 5 and 6 in his summary of facts and again on pages 8 and 
 
         9 in his application of the law and analysis.  It would appear 
 
         that Deputy Trier relied on these remarks because he concluded 
 
         that claimant would be employed in custodial work and that as a 
 
         result his disability would then be limited to decreased earnings 
 
         in custodial work over what he would have been earning as a 
 
         street laborer.  Deputy Trier concluded his analysis on pages 9 
 
         and 10 of this decision with these words:
 
         
 
                   It would appear that claimant is capable of working as 
 
              a truck driver and also of performing custodial work if 
 
              concessions are made by the city
 
         
 
         
 
         
 
         
 
         
 
         
 
              in regard to activities such as shoveling snow and dumping 
 
              barrels of material into dumpsters.  The city has indicated 
 
              a willingness to make those concessions.  In the custodial 
 
              positions it appears that claimant would earn approximately 
 
              ten percent less than he could earn as a street cleaning 
 
              department laborer.  As a truck driver he would earn more 
 
              than he could earn as a laborer.  From the evidence 
 
              presented, it would appear that claimant does have a 
 
              reasonable expectation of obtaining custodial work but that 
 
              he does not presently have much chance of obtaining one of 
 
              the truck driving jobs which would be consistent with his 
 
              physical restrictions.  It is more likely than not that he 
 
              will in fact suffer an actual reduction in his rate of 
 
              earnings as a result of his injury.  It also appears likely 
 
              that he will have intermittent absences from work as a 
 
              result of his condition which will also reduce his total 
 
              earnings.  It is therefore found and concluded that when 
 
              claimant's disability is measured industrially it is 15 
 
              percent of total disability.
 
         
 
              At this hearing claimant testified that Paul Black, the 
 
         personnel analysis for the city, told him that if he had the 
 
         seniority for a job and if he could do the job, than he would get 
 
         it.  Claimant further testified that he told Black that he could 
 
         do custodial work.
 
         
 

 
         
 
         
 
         
 
         MILLER V. CITY OF DES MOINES, IOWA
 
         Page   5
 
         
 
         
 
              After the hearing on January 17, 1985, claimant applied for 
 
         several jobs with the city.  Claimant's exhibit 6 is a list of 29 
 
         job openings between February 4, 1985 and July 22, 1985.  
 
         Claimant applied for all but seven of these 29 job openings on 
 
         this list.  However, three of the seven were not posted until 
 
         after claimant was terminated on July 1, 1985 and one of them 
 
         (custodian--building services) that he did not apply for was 
 
         designated as a job which claimant was unable to do.  Of the 
 
         remaining 25 possible job openings then claimant applied for all 
 
         of them except three of them after the hearing on January 17, 
 
         1985 and prior to his termination on July 1, 1985.  Claimant then 
 
         applied for 22 out of a possible 25 job openings.  Claimant was 
 
         rejected for nine of these jobs, mostly truck driving jobs, 
 
         because claimant did not have enough seniority.  On the remaining 
 
         13 jobs, many of which were custodial jobs, claimant was rejected 
 
         because Peterson determined that claimant was unable to do them 
 
         (Cl. Ex. 6, pages 2 and 3; Deft. Ex. A, pages 1&2; Partial 
 
         Transcript, page 9).
 
         
 
              The most insight into what Peterson thought and did after 
 
         the hearing on January 17, 1985 might best be illustrated by his 
 
         own verbatim testimony in answer to questions of claimant's 
 
         counsel.
 
         
 
         
 
         
 
         
 
                   Q.  And following that hearing, are you aware, did 
 
              Dennis Miller apply for custodial jobs?
 
         
 
                   A.  Yes, he did.
 
         
 
                   Q.  And did you play a part in making a determination 
 
              that he was not capable of doing those custodial jobs after 
 
              the last hearing?
 
         
 
                   A.  Yes.
 
         
 
                   Q.  Mr. Peterson, at the last hearing, Dennis Miller 
 
              was on an unpaid leave of absence; is that correct?
 
         
 
                   A.  Yes.
 
         
 
                   Q.  Would you review for us briefly what the 
 
              significance of an unpaid leave of absence is for a city 
 
              employee?
 
         
 
                   A.  Unpaid leave of absence allows an employee to 
 
              retain their seniority that they had when they were first 
 
              injured, thereby helping them or allowing them to use that 
 
              seniority for bidding on other jobs.
 
         
 
                   Q.  And Dennis Miller had over seven years seniority at 
 
              the time he went on that unpaid leave of absence; is that 
 
              correct?
 
         
 
                   A.  Yes.
 
         
 
                   Q.  Was that leave of absence later terminated?
 

 
         
 
         
 
         
 
         MILLER V. CITY OF DES MOINES, IOWA
 
         Page   6
 
         
 
         
 
         
 
                   A.  Yes.
 
         
 
                   Q.  At the hearing-- Strike that.  What was the date 
 
              that Dennis Miller's leave of absence was terminated?
 
         
 
                   A.  July lst of 1985, I believe.
 
         
 
                   Q.  Okay. I'll show you Exhibit 5, which has been 
 
              admitted into evidence.  Did you provide this to me, first 
 
              of all?
 
         
 
                   A.  Yes.
 
         
 
                   Q.  Would you explain for us what Exhibit 5 is?
 
         
 
                   A.  Exhibit 5 is entitled "Personnel Action
 
         
 
              Form," and is the mechanism the City uses to separate an 
 
              employee from the City.
 
         
 
                   Q.  All right.  And that Exhibit 5 deals specifically 
 
              with Dennis Miller and his separation from the City?
 
         
 
                   A.  Yes.
 
         
 
                   Q.  That termination of his unpaid leave of absence 
 
              status was something unilaterally decided by the City; is 
 
              that correct?
 

 
         
 
         
 
         
 
         MILLER V. CITY OF DES MOINES, IOWA
 
         Page   7
 
         
 
         
 
         
 
                   A.  Yes.
 
         
 
                   Q.  What does the form indicate the reason for the 
 
              termination was?
 
         
 
                   A.  Due to medical disability.
 
         
 
                   Q.  Would that be his work injury?
 
         
 
                   A.  It would have been his ability to--his restrictions 
 
              he had which would have prevented him from being 
 
              reemployable within a reasonable period of time.
 
         
 
                   Q.  Those restrictions were due to his work injury?
 
         
 
                   A.  Yes.
 
         
 
                   Q.  So 5 1/2 months, basically, after the hearing, he 
 
              was taken off of that unpaid leave of absence.  Would you 
 
              tell us the reason why?
 
         
 
                   A.  It was approximately 5 1/2 months after the 
 
              hearing.  It was probably closer to a year after he first 
 
              became eligible to return to work.  We decided that although 
 
              Dennis met the physical-met the physical limitations for a 
 
              custodial job, it seemed very unlikely or illogical that 
 
              weld send him back to the same job he told us he couldn't do 
 
              before, so we arbitrarily excluded him from applying for 
 
              that particular type of position.
 
         
 
                   And the likelihood of him becoming employed in a 
 
              promotional-type position was diminishing very rapidly, and 
 
              there was a need to be able to fill that line-item position, 
 
              so we decided to terminate him as of July.
 
              (P.Tr., pp. 9-11)
 
         
 
         
 
         
 
              The following colloquy is also informative:
 
         
 
                   Q.  (BY MR. LAWYER) Mr. Peterson, you sat through 
 
              Dennis's testimony at the last hearing, didn't you?
 
         
 
                   A.  Yes.
 
         
 
                   Q.  Have you reviewed his testimony recently?
 
         
 
                   A.  Yes.
 
         
 
                   Q.  In his testimony that you listened to and now 
 
              you've reviewed, Dennis indicated a willingness to take on a 
 
              custodial job; isn't that correct?
 
         
 
                   A.  Yes.
 
         
 
                   Q.   And at that first hearing, you didn't express the 
 
              same thing that you're expressing today with respect to the 
 
              fact that you were not going to consider him for a custodial 
 

 
         
 
         
 
         
 
         MILLER V. CITY OF DES MOINES, IOWA
 
         Page   8
 
         
 
         
 
              job because you thought that he was not capable of that; 
 
              correct?
 
         
 
                   A.  Yes.
 
         
 
                   Q.  So after you got done testifying at the first 
 
              hearing, you determined that he no longer could be a 
 
              custodian and disqualified him from any type of custodial 
 
              job with the City; correct?
 
         
 
                   A.  Yes.
 
         
 
              (P.Tr., pp. 12 & 13)
 
         
 
              This exchange is also pertinent:
 
         
 
                   Q.  As long as you kept disqualifying him for custodial 
 
              positions, he would never be eligible for custodial 
 
              positions; is that true?
 
         
 
                   A.  Correct.
 
         
 
                   Q.  Even though he had the top seniority?
 
         
 
                   A.  Correct.
 
         
 
              (P.Tr., p. 24)
 
         
 
              Some of Peterson's problems within the city employment 
 
         system are revealed by the following dialogue with his own 
 
         counsel.
 
         
 
         
 
                   Q.  Now, at the time of the first hearing--I'm not 
 
              going to read it verbatim, but I think the gist of your 
 
              testimony was not so much that you could guarantee that Mr. 
 
              Miller could get a custodial job, but the gist of your 
 
              testimony was you thought there might be some concessions 
 
              that might be made that would enable him to do the work with 
 
              his restrictions?
 
         
 
                   A.  Yes.
 
         
 
                   Q.  Did you make an effort to do that?
 
         
 
                   A.  We had tried to place Mr. Miller in two jobs prior 
 
              to that time, prior to January of O85.
 
         
 
                   Q.  Okay. And what happened? 
 
         
 
                   A.  We had discussed with the supervisor-- As a matter 
 
              of fact, we had to virtually arm wrestle with the department 
 
              to employ him even though he had the seniority, because they 
 
              felt that, you know, he was damaged goods, and "you're just 
 
              giving us your injured employees.O
 
         
 
                   We argued, and successfully, that the doctors felt he 
 
              could handle it and we needed to give him a fair chance at 
 
              that.  We subsequently did that twice, tried to give him a 
 

 
         
 
         
 
         
 
         MILLER V. CITY OF DES MOINES, IOWA
 
         Page   9
 
         
 
         
 
              chance with the concession that he would not have to lift 
 
              heavy objects, was told to get help when he had to lift 
 
              something that he felt he couldn't handle.  That's something 
 
              we do very reasonably.
 
         
 
                   Q.  How did those positions work out?
 
         
 
                   A.  He was not able to do them.  Both times he
 
              complained of severe pain, and subsequently we had to take 
 
              him out of the positions.
 
         
 
                   Q.  Is this an individual department head that was 
 
              objecting to reemploying him?
 
         
 
                   A.  Yes.
 
         
 
                   Q.  It's not somebody in the city manager's office?
 
         
 
                   A.  No.  That would be division manager.
 
         
 
              (P.Tr., pp. 38-40)
 
         
 
         
 
         
 
         
 
         
 
              By this testimony Peterson also confirmed that his efforts 
 
         to place claimant in a custodial job were both made prior to the 
 
         first hearing on January 17, 1985 and not after the first 
 
         hearing.
 
         
 
              In answer to the questions of this deputy at this hearing 
 
         Peterson specifically confirmed that the efforts to reemploy the 
 
         claimant in custodial work were made prior to the first hearing 
 
         and it was not done again after the first hearing (P.Tr., p. 40).  
 
         Peterson gave the following explanation for his decision not to 
 
         place the claimant in custodial work after the first hearing.
 
         
 
                   Q.  (BY MR. DUCKWORTH) What was the reason you didn't 
 
              make those efforts after the last hearing?
 
         
 
                   A.  We honestly just decided that we tried it back in 
 
              these departments, and Dennis could do the custodial job, 
 
              and when he demonstrated he couldn't--He made it very clear 
 
              to us that he didn't think he could handle it.  The doctor's 
 
              report said he had a physical limitation that would have 
 
              allowed that, but it didn't seem like it; he couldn't.
 
         
 
              (P.Tr., p. 40)
 
         
 
              Peterson testified that if claimant had obtained a custodial 
 
         job with the city that he would be earning about $7.00 per hour 
 
         at the time of the second hearing (P.Tr., p. 45).
 
         
 
              Peterson explained that after the injury on March 3, 1983, 
 
         and prior to the hearing on January 17, 1987, claimant was given 
 
         special concessions to do custodial work in the armory and the 
 
         police department.  He related that claimant did not have to lift 
 
         over 50 pounds and he did not have to shovel snow.  Nevertheless, 
 

 
         
 
         
 
         
 
         MILLER V. CITY OF DES MOINES, IOWA
 
         Page  10
 
         
 
         
 
         each time claimant only worked a short time and complained of 
 
         severe pain and had to be removed from each of these two jobs 
 
         (P.Tr., pp. 46-50).  The decision of Deputy Trier stated that 
 
         claimant worked in the armory for one week and in the police 
 
         station for one and one-half weeks.
 
         
 
              Peterson enumerated a number of other factors that may have 
 
         impacted on claimant's ability to be rehired.  There was a hiring 
 
         freeze in September of 1983 (P.Tr., pp. 23 & 35).  There has been 
 
         a steady decrease in the number of city employees (P.Tr., pp. 23 
 
         & 32).  The city had approximately 2,200 employees in 1983 
 
         compared to approximately 2,000 employees in January of 1985 
 
         (P.Tr., p. 23).  An arbitration decision in May of 1986 forced 
 
         the city to reemploy 15 or 16 high seniority maintenance 
 
         employees (P.Tr., pp. 34 & 35).  Peterson also cited an economic 
 
         downturn, loss of Federal funds and the restructuring of city 
 
         government (P.Tr., p. 37).  The primary reason and the recurring, 
 
         reason why claimant was not employed in a custodial job may be
 
         
 
         
 
         epitomized in the following transaction between Peterson and 
 
         defendants' counsel.
 
         
 
                   Q.  And getting back to, I guess, the crux of the 
 
              reason that you didn't put Mr. Miller in a custodial 
 
              position or try very hard was what?
 
         
 
                   A.  Physical. we didn't think he could physically 
 
              handle it based on past practice or experience.
 
         
 
                   Q.  That was after he had had jobs where so-called 
 
              concessions had been made already.
 
         
 
                   A.  Yes. (P.Tr., P. 56)
 
         
 
              Claimant testified that after the first hearing he also 
 
         applied for about 50 other jobs other than at the City of Des 
 
         Moines.  He finally got a job on August 20, 1985 doing 
 
         construction work for western Waterproofing through his brother 
 
         who was a superintendent there.  It was general labor roofing 
 
         work which involved carrying 20 pound buckets and rolling 85 
 
         pound rolls of asphalt.  Claimant testified that his brother made 
 
         concessions that enabled him to do that work.  This job paid 
 
         $6.00 per hour, except for one federally funded project on a fire 
 
         station at which time he earned $14.00 per hour.  Claimant worked 
 
         there until October 22, 1985 when he slipped on a piece of 
 
         plywood that was wet with dew and fell and reinjured his low 
 
         back.  Claimant received workers' compensation temporary 
 
         disability benefits for this injury until August of 1986; but he 
 
         did not receive permanent partial disability benefits for this 
 
         injury.
 
         
 
              Claimant did not find employment again until November 21, 
 
         1986.  At that time he took a job with Younkers at  $6.50 per 
 
         hour as a warehouseman and had only worked there three weeks 
 
         prior to the time of this hearing.  Claimant's duties involved 
 
         moving furniture on a four wheel flatbed cart between the 
 
         warehouse storage areas and the dock.  Some items of furniture 
 
         weigh four to five pounds and other items of furniture weigh 50 
 

 
         
 
         
 
         
 
         MILLER V. CITY OF DES MOINES, IOWA
 
         Page  11
 
         
 
         
 
         or 60 pounds.  Claimant explained that he was able to do this job 
 
         by the use of body mechanics.  He stated that he did not like the 
 
         job particularly well but it improved his self-esteem to be 
 
         employed.  Claimant testified that the reason that he continued 
 
         to apply for and perform labor jobs even though he has a back 
 
         problem is because that is the only kind of work that he knows 
 
         how to do.  Claimant said that he sought help on his own to find 
 
         a job through Iowa Vocational Rehabilitation Services.  He only 
 
         drew unemployment compensation for a few weeks after he was 
 
         terminated by the city on July 1, 1985 until he went to work for 
 
         Western Waterproofing on August 20, 1985.  Claimant conceded that 
 
         the majority of the places were he looked for work were not 
 
         hiring and that he actually only filled out a few application 
 
         forms.  He stated that he was able to do the manual labor for 
 
         Western Waterproofing and also Younkers.  He acknowledged that he 
 
         played softball at a family picnic but he was in pain when he did 
 
         it.  He granted that he changed an automobile tire by himself.  
 
         He conceded that William A. Boulden, M.D., an orthopedic surgeon, 
 
         had recommended surgery but claimant declined to go through with 
 
         it after it was scheduled and the anesthesia had been 
 
         administered in preparation for the surgery.
 
         
 
              Claimant's original injury occurred while he was driving an 
 
         end loader for the city on Fleur Drive in Des Moines.  He was 
 
         struck from the rear by an intoxicated driver.  Claimant is 
 
         married and has three dependent children.  He completed tenth 
 
         grade but obtained a GED in 1979.  Past employments include 
 
         working in a parts department, production line manufacturing 
 

 
         
 
         
 
         
 
         MILLER V. CITY OF DES MOINES, IOWA
 
         Page  12
 
         
 
         
 
         work, roof construction and repairs, garbage collection, general 
 
         construction, automobile mechanic, gas pump operator, and 
 
         operating equipment for the City of Des Moines Streets 
 
         Department.  Claimant disclaimed any serious low back problems 
 
         prior to this injury.
 
         
 
              Thomas A. Carlstrom, M.D., a neurosurgeon, examined claimant 
 
         on December 4, 1984.  On December 13, 1984, he wrote that a small 
 
         bulging disc at L-4, L-5 was not the cause of claimant's 
 
         symptoms.  He found instead that claimant was suffering from 
 
         chronic myofascial low back pain which was probably permanent.  
 
         He found that claimant suffered a fairly significant impairment.  
 
         He assessed a five-six percent permanent impairment of the body 
 
         as a whole based upon diminished range of motion.  Dr. Carlstrom 
 
         recommended that claimant change occupations to a job which 
 
         required no heavy lifting.  He thought that claimant's weight 
 
         lifting restriction should be 25 to 30 pounds and 10 to 15 pounds 
 
         for repetitive work.  He stated also that forward bending, 
 
         prolonged sitting or standing, and stooping or crouching would 
 
         need to be eliminated (Cl. Ex. 1, p. 1; Def. Ex. C).  Dr. 
 
         Carlstrom examined claimant again on January 2, 1986.  On 
 
         February 4, 1986, he reported no significant change from his 
 
         earlier examination on December 4, 1984 (Cl. Ex. 1, p. 2; Def Ex. 
 
         D).  Dr. Carlstom did not specifically find that claimant's 
 
         condition was caused by the accident on March 3, 1983, but he did 
 
         cite this motor vehicle accident of March, 1983, as the medical 
 
         history which was the basis of his report (Cl. Ex. 1, p. 1; Def. 
 
         Ex. C).
 
         
 
              Marshal Flappan, M.D., an orthopedic surgeon, both examined 
 
         and treated claimant on a number of occasions.  He found claimant 
 
         sustained lumbosacral strain.  He found that claimant suffered a 
 
         five percent permanent impairment as a result of being rear ended 
 
         on March 3, 1983.  He imposed a 50 pound weight restriction.  
 
         Claimant was not to do any repetitive bending, twisting, 
 
         straining, pushing or pulling (Cl. Ex. 1, pp. 3, 4 & 5; Def. Ex. 
 
         G).
 
         
 
         
 
              On October 25, 1983, J. B. Bell, D.O., an orthopedic 
 
         surgeon, stated that claimant suffered a lumbosacral strain which 
 
         at that time was stable.  He stated claimant had no permanent 
 
         disability.  He stated claimant should not be subjected to 
 
         continual stooping, bending or riding for a significant period of 
 
         time.  He imposed no lifting restrictions in pounds, but 
 
         cautioned against repetitive weight lifting.. He too recommended 
 
         a less strenuous job.  His history for the claimant shows that 
 
         claimant was rear ended while operating an end loader which 
 
         injured his neck and back (Cl. Ex. 1, pp. 15-17).
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              In a proceeding for review-reopening under Iowa Code section 
 
         86.14(2) the proponent must sustain the burden of proof by a 
 
         preponderance of the evidence of a change of condition as a 
 
         result of the original injury.  Stice v. Consolidated Ind. Coal 
 
         Co., 228 Iowa 1031, 291 N.W. 452 (1940); Henderson v. Iles, 250 
 
         Iowa 787, 96 N.W.2d 321 (1959).  An increase in industrial 
 
         disability may occur without a change in physical condition.  
 

 
         
 
         
 
         
 
         MILLER V. CITY OF DES MOINES, IOWA
 
         Page  13
 
         
 
         
 
         Blacksmith v. All-American, Inc., 290 N.W.2d 348, 350 (Iowa 
 
         1980); McSpadden v. Big Ben Coal Co., 228 N.W.2d 181, 182 (Iowa 
 
         1980).
 
         
 
              The required change of condition to satisfy the requirements 
 
         of review-reopening need not rest solely upon a physical change 
 
         of condition if economic hardship causally related to a 
 
         compensable injury but not contemplated within the initial award 
 
         or agreement are demonstrated.  Rowe v. Dept. of Transportation, 
 
         File No. 451058 (Appl. Decn. July 23, 1986).
 
         
 
              Peterson's testimony at the hearing on January 17, 1985 
 
         created the expectation that claimant would be reemployed in 
 
         stable and continuous employment by his former employer, the City 
 
         of Des Moines, where he had seven years of seniority.  Peterson 
 
         said that 95 percent of the injured workers are reemployed.  Only 
 
         three employees, including claimant, had not been so reemployed. 
 
          He enumerated a number of job possibilities that might be 
 
         available to claimant (Tr. pp. 72-75).  He indicated that the 
 
         city modified jobs to accommodate injured workers (Tr. p. 75).  
 
         Job opportunities are available every week (Tr. pp. 81 & 82).  
 
         Claimant's counsel questioned whether Peterson could or would 
 
         reemploy claimant in a custodial job since two earlier attempts 
 
         had failed; but Peterson reassured him that concessions could be 
 
         made and implied that they would be made (Tr. pp. 84 & 85).
 
         
 
              Deputy Trier relied on these statements of Peterson (Decn.  
 
         April 2, 1985, pp. 4, 5, 6, 8 & 9).  He remarked that claimant 
 
         had the seniority for custodial jobs and that defendant was 
 
         willing to make concessions consistent with claimant's physical 
 
         restrictions (Decn.  April 2, 1985, pp. 9 & 10).  Deputy Trier 
 
         determined that claimant would be earning 10 percent less money 
 
         in a custodial job than as a street laborer and would have 
 
         intermittent absences from work due to this injury.  Based on 
 
         these considerations, Trier allowed 15 percent permanent partial 
 
         disability as industrial disability.
 
         
 
              After the hearing Peterson had at least 13 opportunities to 
 
         make the necessary accommodations and concessions in custodial 
 
         jobs or other jobs that claimant applied for and for which he had 
 
         seniority.  However, each time Peterson decided that claimant was 
 
         unable to do each of these jobs.  No accommodations were made.  
 
         No concessions were made.  No attempts even,.of any kind, were 
 
         made to assist claimant in obtaining any of these 13 job 
 
         opportunities, many of which were custodial jobs (Cl. Ex. 6; Def. 
 
         Ex. A).  There was no evidence that any attempt was made to 
 
         employ claimant in any of the other 2,000 jobs in which the City 
 
         of Des Moines employs various persons.
 
         
 
              Peterson plainly stated that after the hearing on January 
 
         17, 1985, he decided that if claimant could not do the two 
 
         earlier custodial jobs at the armory and at the police station, 
 
         then he "arbitrarily excluded him from applying from that 
 
         particular type of position" (P.Tr., p. 11).  Peterson agreed 
 
         with claimant's counsel that after he testified at the earlier 
 
         hearing he determined that claimant could no longer be a 
 
         custodian and disqualified claimant from any type of custodial 
 
         job within the city (P.Tr., pp. 12 & 13).  Peterson also conceded 
 
         that as long as he kept disqualifying claimant from custodial 
 

 
         
 
         
 
         
 
         MILLER V. CITY OF DES MOINES, IOWA
 
         Page  14
 
         
 
         
 
         positions, even though claimant had the seniority, then claimant 
 
         would never be eligible for a custodial position (P.Tr., p. 24).  
 
         Peterson acknowledged again that he did not try to place claimant 
 
         in a custodial job because of the failure of his earlier attempts 
 
         prior to the hearing on January 17, 1985.  He said that 
 
         department heads viewed injured employees as damaged goods and 
 
         you had to arm wrestle with the department heads to employ them 
 
         (P.Tr., pp. 38-40).  Peterson again confirmed that he made no 
 
         attempt to employ claimant after January 17, 1985 because the 
 
         attempts to employ him in a custodial job prior to the hearing 
 
         had failed (P.Tr., p. 40).  Again, Peterson said the crux of the 
 
         reason that he did not try to put claimant in a custodial 
 
         position after the January 17, 1985 hearing was because "We 
 
         didn't think he could physically handle it based on past practice 
 
         or experience" (P.Tr., P. 56).
 
         
 
              Deputy Trier in awarding 15 percent permanent partial 
 
         disability as industrial disability contemplated that claimant 
 
         would have stable and continuous employment with his former 
 
         employer and suffer only a 10 percent loss of earnings and 
 
         possibly some intermittent absences from work (Decn., April 2, 
 
         1985, p. 10).
 
         
 
              What actually happened was that claimant applied for 13 jobs 
 
         for which he had seniority.  He was rejected for all of them with 
 
         no accommodation or concession being made or even attempted.  
 
         This was in direct opposition and contravention of Peterson's 
 
         testimony at the hearing on January 17, 1985 (Tr. pp. 84 & 85).  
 
         Claimant was then fired on July 1, 1985.  Claimant lost seven 
 
         years of seniority with the City of Des Moines and was confronted 
 
         with the open competitive job market in difficult economic times, 
 
         in an impaired physical condition, qualifying only for labor work 
 
         which is the only kind of work that he knew how to do.
 
         
 
              In Blacksmith, cited above, industrial disability was found 
 
         where claimant was transferred to a lower paying job.  Deputy 
 
         Trier proceeded on this basis.  His decision is based on a 10 
 
         percent loss of earnings doing custodial work instead of street 
 
         labor work.
 
         
 
              However, in fact, this case is more analogous to McSpadden, 
 
         cited above, where the employer refused to give any work to the 
 
         employee and the employee could not find other suitable work 
 
         after a diligent search.  In this case claimant was totally 
 
         unemployed from the date of the hearing on January 17, 1985 until 
 
         he went to work for Western Waterproofing on August 20, 1985.  
 
         Claimant kept applying for jobs with the city; apparently unaware 
 
         of the fact that Peterson had already decided that claimant could 
 
         not do any of these custodial jobs even before claimant applied 
 
         for them.
 
         
 
              This case is somewhat similar to Meyers v. Holiday Inn of 
 
         Cedar Falls, Iowa, Iowa App., 272 N.W.2d 24, 25 (1978).  In that 
 
         case claimant's physical condition failed to improve to the 
 
         extent anticipated at the earlier hearing.  In this case, 
 
         claimant's non-physical condition, his reemployment opportunity 
 
         with the City of Des Moines, did not improve as was expected and 
 
         represented by the city at the earlier hearing.  To claimant's 
 
         detriment the earlier deputy relied upon this representation and 
 

 
         
 
         
 
         
 
         MILLER V. CITY OF DES MOINES, IOWA
 
         Page  15
 
         
 
         
 
         the expection that claimant would be reemployed by the city in a 
 
         custodial job as shown by the earlier deputy's decision.
 
         
 
              Therefore, it is determined that claimant has sustained the 
 
         burden of proof by a preponderance of the evidence that the 
 
         injury of March 3, 1983 is the cause of additional permanent 
 
         disability as industrial disability based upon the non-physical 
 
         change of condition.  It was represented that there was a fair 
 
         chance the claimant would be reemployed by the city.  In fact no 
 
         attempt of any kind was made by the city to accommodate or make 
 
         any concessions as represented.
 
         
 
              As a consequence, claimant had more than a 10 percent loss 
 
         of earnings.  He suffered a total loss of earnings from January 
 
         to August of 1985.  Claimant is still subject to intermittent 
 
         absences from work in the future due to his back injury as 
 
         recognized by Deputy Trier.  In addition, since claimant has been 
 
         forced into the competitive labor market in an impaired
 
         
 
         
 
         condition where the only work he knows how to do is labor work, 
 
         then claimant will be subject to periodic job changes due to this 
 
         back injury because of claimant's inability to continue 
 
         indefinitely in laboring type of work.  It would also appear that 
 
         eventually claimant will have to develop a less strenuous method 
 
         of making a living.  This could entail a period of unemployment 
 
         or loss of earnings while learning new work.
 
         
 
              Claimant testified that he could perform the roofing job.  
 
         However, he also stated that his brother made concessions for him 
 
         which enabled him to do so.  Claimant testified,that he is 
 
         performing the manual labor job at the furniture warehouse.  
 
         However, at the same time it violates the weight restriction of 
 
         Dr. Carlstrom and Dr. Flappan, and the suggestion of Dr. Bell and 
 
         Dr. Carlstrom that claimant change occupations from strenuous 
 
         work.
 
         
 
              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. * * * *
 
         
 
              Claimant is in his mid-thirties.  He has a wife and three 
 
         dependant children.  He has serious financial responsibilities.  
 
         At a time when claimant should be nearing the top of his earning 
 
         capacity, the doctors have recommended that he no longer engage 
 
         in the employment for which he is best suited.  His high school 
 
         qualification is a GED certificate.  He is not qualified for 
 
         skilled or semi-skilled jobs generally.  His past employments had 
 
         been unskilled labor jobs.
 
         
 

 
         
 
         
 
         
 
         MILLER V. CITY OF DES MOINES, IOWA
 
         Page  16
 
         
 
         
 
              It should also be noted that this injury had a traumatic 
 
         onset in a motor vehicle accident as distinguished from a simple 
 
         back strain that simply occurred while doing ordinary tasks.  
 
         Claimant was struck from behind by an intoxicated motorist while 
 
         driving an end loader for the City of Des Moines.
 
         
 
              Consequently, based on all of the foregoing considerations 
 
         it is determinated that claimant's overall permanent partial 
 
         disability is 25 percent as industrial disability.  Therefore, 
 
         claimant is entitled to an additional 10 percent permanent 
 
         partial disability as industrial disability as a result of this 
 
         hearing due to the non-physical or economic change of condition 
 
         that the expectation of employment in a custodial job was not 
 
         fulfilled or even attempted after the prior hearing.
 
         
 
              It is true that claimant is currently earning approximately 
 
         the same compensation as a warehouseman that he would be earning 
 
         in a custodial job for the city.  This award is based upon (1) 
 
         the fact that claimant had no employment or compensation from 
 
         January of 1985 to August of 1985; (2) that claimant will be 
 
         subject to intermittent absences from work from time to time due 
 
         to this back injury; (3) that claimant will be subject to loss of 
 
         earnings because he will not be able to continue in his current 
 
         job indefinitely because it violates the weight restrictions of 
 
         two doctors and the job recommendations of two doctors that 
 
         claimant should abandon strenuous labor work; and, (4) claimant 
 
         lost seven years of seniority and the ability to bid on other 
 
         jobs.  Claimant will be subject to loss of earnings in between 
 

 
         
 
         
 
         
 
         MILLER V. CITY OF DES MOINES, IOWA
 
         Page  17
 
         
 
         
 
         jobs as he tries to find suitable work or while he educates or 
 
         retrains himself for more suitable skilled or semi-skilled work.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              WHEREFORE, based upon the evidence presented, the following 
 
         findings of fact are made:
 
         
 
              That claimant was employed by the City of Des Moines on 
 
         March 3, 1983.
 
         
 
              That claimant sustained an injury on March 3, 1983, when the 
 
         end loader he was driving for the City of Des Moines was struck 
 
         from behind by an intoxicated driver.
 
         
 
              That claimant suffered a lumbosacral strain in this motor 
 
         vehicle accident which caused a five percent permanent functional 
 
         impairment of his lumbosacral spine.
 
         
 
              That Dr. Flappan imposed a 50 pound weight restriction on 
 
         claimant and Dr. Carlstrom imposed a 30 pound weight restriction 
 
         on claimant.
 
         
 
              That claimant's present job as a warehouseman requires him 
 
         to handle as much as 50 or 60 pounds on occasions.
 
         
 
              That Dr. Carlstrom recommended that claimant change 
 
         occupations to eliminate heavy lifting and Dr. Bell recommended 
 
         claimant change occupations to a less strenuous job.
 
         
 
              That claimant was 31 years old at the time of the injury.
 
         
 
              That claimant is married and has three dependent children.
 
         
 
         
 
             That claimant has a high school equivalent education through
 
         GED qualifications.
 
         
 
              That claimant has no education or training beyond high 
 
         school.
 
         
 
              That all of claimant's former jobs have been laboring types 
 
         of work and that he is not trained at the present time for any 
 
         skilled or semi-skilled jobs.
 
         
 
              That Peterson created the expectation by his testimony at 
 
         the earlier hearing that claimant would be reemployed in stable 
 
         and continuous employment by the City of Des Moines in a 
 
         custodial job and that his past seven years of employment with 
 
         the city provided sufficient seniority to obtain a custodial 
 
         job.
 
         
 
              That after the hearing Peterson made no attempt to place 
 
         claimant in a custodial job or any other job or to make any 
 
         concessions or accommodations of any kind even though he had at 
 
         least 13 opportunities to do so.
 
         
 
              That defendants' failure to provide or attempt to provide a 
 
         continuous and stable employment opportunity to claimant 
 

 
         
 
         
 
         
 
         MILLER V. CITY OF DES MOINES, IOWA
 
         Page  18
 
         
 
         
 
         constitutes a non-physical or economic change of condition not 
 
         anticipated or contemplated at the first hearing.
 
         
 
              That claimant was totally unemployed from January of 1985 to 
 
         August of 1985 and had a total loss of earnings during that 
 
         period.
 
         
 
              That claimant will be subject to intermittent absences from 
 
         work due to this back injury and may suffer loss of earnings 
 
         during these periods.
 
         
 
              That claimant will be subject to job changes as he attempts 
 
         to find suitable work consistent with his impairment and 
 
         restrictions from this injury and may lose earnings for this 
 
         reason.
 
         
 
              That claimant will be subject to obtaining education or 
 
         training to perform suitable work consistent with his impairment 
 
         and his restrictions from this injury and may lose earnings for 
 
         this reason.
 
                                CONCLUSIONS OF LAW
 
         
 
              WHEREFORE, based upon the evidence presented and the 
 
         principles of law previously discussed, the following conclusions 
 
         of law are made:
 
         
 
              Claimant has established a substantial change of condition 
 
         that was not anticipated at the time of the prior award.
 
         
 
              That claimant has sustained the burden of proof by a 
 
         preponderance of the evidence that the injury of March 3, 1983 
 
         was the cause of additional permanent partial disability as 
 
         industrial disability.
 
         
 
         
 
              That claimant is 25 percent industrially disabled which 
 
         entitles him to an additional 50 weeks of permanent partial 
 
         disability benefits based upon an additional 10 percent of 
 
         industrial disability.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              That defendants pay claimant fifty (50) additional weeks of 
 
         permanent partial disability benefits as industrial,disability at 
 
         the rate of two hundred one and 30/100 dollars ($201.30) in the 
 
         total amount of ten thousand sixty-five and no/100 dollars 
 
         ($10,065.00) commencing immediately after payments under the 
 
         prior award terminated as stipulated by the parties.
 
         
 
              That all accrued benefits are to be paid in a lump sum.
 
         
 
              That interest will accrue as provided by Iowa Code section 
 
         85.30.
 
         
 
              That defendants are to pay the costs of this action as 
 
         provided by Division of Industrial Services Rule 343-4.33.
 
         
 

 
         
 
         
 
         
 
         MILLER V. CITY OF DES MOINES, IOWA
 
         Page  19
 
         
 
         
 
              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 30th day of July, 1987.
 
         
 
         
 
         
 
         
 
                                             WALTER R. McMANUS, JR.
 
                                             DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. James R. Lawyer
 
         Attorney at Law
 
         2141 Grand Ave.
 
         P. 0. Box 367
 
         Des Moines, Iowa 50302
 
         
 
         Mr. Marvin Duckworth 
 
         Attorney at Law 
 
         1040 Fifth Ave.
 
         Des Moines, Iowa 50314
 
         
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                     1803; 2905
 
                                                     Filed July 30, 1987 
 
                                                     WALTER R. McMANUS, JR.
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         DENNIS WAYNE MILLER,
 
         
 
              Claimant,
 
                                                      FILE NO. 738184
 
         VS.
 
                                                        R E V I E W -
 
         CITY OF DES MOINES, IOWA,
 
                                                     R E 0 P E N I N G 
 
              Employer,
 
                                                      D E C I S I 0 N
 
          and
 
         
 
         CIGNA,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1803; 2905
 
         
 
              At the first hearing deputy awarded 15% PPD.  Deputy relied 
 
         on statements of City of Des Moines representative that 
 
         concessions and accommodations would be made to re-employ 
 
         claimant, new jobs came up every week, and it was,just a matter 
 
         of time until claimant would be re-employed in a custodial job 
 
         for which he had ample seniority.  Prior award was based on a 10% 
 
         decrease in earnings as a custodial employee as compared to a 
 
         street laborer.  Subsequent to hearing claimant applied for 13 
 
         custodial jobs and was arbitrarily turned down for all of them.  
 
         No concessions, accommodations or attempt of any kind was made to 
 
         re-employ claimant.  Instead claimant was fired six months later.  
 
         The City of Des Moines employs about 2,000 people.  Claimant was 
 
         allowed an additional 10% PPD for non-medical, economic change of 
 
         condition.
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
        
 
         
 
         WILLIAM E. SHELTON, Deceased,
 
         BARBARA SHELTON, Surviving 
 
         Spouse,
 
         
 
             Claimant,
 
         
 
         VS.
 
                                                 File No. 738188
 
         RUAN TRANSPORT CORPORATION,
 
                                                   A P P E A L
 
               Employer,
 
                                                 D E C I S I 0 N
 
         and
 
         
 
         CARRIERS INSURANCE COMPANY,
 
         
 
            Insurance Carrier,
 
            Defendants.
 
         ___________________________________________________________________
 
         
 
          
 
                               STATEMENT OF THE CASE
 
         
 
              Barbara Shelton, surviving spouse of William Shelton, 
 
         appeals from an arbitration decision denying her all compensation 
 
         for her husband's death because his intoxication was a 
 
         substantial factor in causing his work-related injury.
 
         
 
              The record on appeal consists of the transcript of the 
 
         arbitration proceeding; claimant's exhibits 1 through 11; and 
 
         defendants' exhibits A through K. N through Q,'and S through Z. 
 
         Both parties filed briefs on appeal.
 
         
 
                                    ISSUES
 
         
 
              Claimant states the issues on appeal as:
 
         
 
                 I.  Whether Defendants have shown by a preponderance 
 
              of the evidence that Mr. Shelton was intoxicated at the 
 
              time he fell.
 
         
 
                 II.  If Defendants are found to have met their burden 
 
              on Issue I, whether Defendants have shown by a 
 
              preponderance of the evidence that the intoxication was 
 
              a substantial factor in Mr. Shelton's fatal injury.
 
         
 
         
 
         
 
         
 
                             REVIEW OF THE EVIDENCE
 
         
 
              The arbitration decision adequately and accurately reflects 
 
         the pertinent evidence and it will not be reiterated herein.
 
         
 
              Briefly stated, on July 12, 1983 William Shelton died 
 
         shortly after he fell from the top of a "pneumatic bulk trailer" 
 

 
         he was driving.  Shelton had, as a regular part of his duties, 
 
         climbed on top of the bulk trailer to close the dome lid.  There 
 
         were six latches around the dome lid which drivers would close 
 
         with their hand and/or feet and/or a hammer.  The top of the 
 
         trailer was covered with an accumulation of cement dust which may 
 
         have actually improved traction.  The weather conditions that day 
 
         were described as warm, clear with little wind by Kenneth 
 
         Mersereau, a claims adjuster who investigated the accident.
 
         
 
              No one actually saw Shelton fall from the top of the bulk 
 
         trailer.  However Melvin B. Lyons, another Ruan driver, states 
 
         that he saw Shelton closing the hatch then he looked away for a 
 
         minute and when looked back again Shelton was on the ground and 
 
         one of the latches on the dome lid was standing straight up.  
 
         About two hours after Shelton's fall Lyons closed the latch that 
 
         was standing up with his hands.
 
         
 
              Charles Buchanan, a bulk loader, states that he saw Shelton 
 
         closing the dome lid on July 12, 1983 and that Shelton would 
 
         close each latch with both hands and then he would stand up "like 
 
         he was out of breath" and rest.
 
         
 
              The autopsy report signed by Robert J. Ketelaar, M.D., lists 
 
         among the final diagnosis "6.  Acute ethanol intoxication, blood 
 
         alcohol 384 mg/dl." This diagnosis is the result of blood alcohol 
 
         obtained at the time Shelton was brought to the emergency room.  
 
         Another blood alcohol examination performed at the time of the 
 
         post mortem examination showed 275 mg/dl; however, the change was 
 
         attributed to the dilutional effect of intravenous fluids 
 
         administered while in the emergency room.
 
         
 
              However, to Shelton's coworkers who saw Shelton before the 
 
         accident, he did not appear to have been drinking although his 
 
         eyes were very red.  Additionally, Barbara Shelton states that 
 
         her husband had a very high tolerance for alcohol and that he 
 
         could drink a lot before anyone would notice.
 
         
 
              Robert Baughman, Ph.D., and Peter Stephens, M.D., opine that 
 
         Shelton was intoxicated on July 12, 1983.  Johnathan D. Cowan, 
 
         Ph.D., opines, however, that Shelton was not intoxicated and that 
 
         if he was that, his intoxication was not a substantial factor in 
 
         causing his injury.  Dr. Stephens opines that Shelton's 
 
         intoxication was a substantial factor.
 
         
 
         
 
         
 
                        APPLICABLE LAW AND ANALYSIS
 
         
 
              There is conflicting evidence here concerning whether 
 
         Shelton was intoxicated at the time of his injury.  Claimant 
 
         notes that to his coworkers Shelton appeared outwardly normal and 
 
         he was able to maneuver his truck into the loading area and 
 
         complete the necessary paperwork without difficulty.  However, 
 
         medical reports indicate that Shelton's blood alcohol level was 
 
         384 mg/dl at the time he entered the emergency room.  Also 
 
         Barbara Shelton states that her husband was drinking the night 
 
         before the accident and that he had been depressed because his 
 
         uncle had died.  She also states that depression usually preceded 
 
         her husband's drinking episodes.  Claimant argues however, that 
 
         "evidence that a person has drank alcohol is not evidence that 
 
         they are intoxicated."
 
         
 
              However, when the record as a whole is considered it can 
 
         reasonably be inferred that Shelton was in fact intoxicated on 
 

 
         
 
         
 
         
 
         SHELTON V. RUAN TRANSPORT CORPORATION
 
         Page   3
 
         
 
         
 
         July 12, 1983 and that his intoxication was a substantial factor 
 
         in causing his injury.  The following citations lend persuasive 
 
         authority for this inference:
 
         
 
                   Reduced to its simplest terms this case involves a 
 
              severely intoxicated individual working in an area and 
 
              under circumstances familiar to him who, without being 
 
              pushed, shoved or interfered with in any way, falls to 
 
              the floor in such a manner as to injure himself.
 
         
 
         
 
         
 
                   The effect of alcohol, especially the amount of 
 
              alcohol which must be consummed to produce a .429 blood 
 
              alcohol level on an individual's reaction, coordination 
 
              and muscular control is a matter of common knowledge.  
 
              No reasonable person, under the above set of 
 
              circumstances, could reach any conclusion other than 
 
              that the intoxication was a substantial factor in 
 
              causing the individual to fall and injure himself.
 
         
 
         
 
         
 
                   On the other hand, in the case of a slip and fall 
 
              such as the one at bench or any accident not involving 
 
              external trauma or force but involving only the 
 
              reactions, coordination or muscular control of the 
 
              applicant, intoxication which substantially impairs 
 
              those functions must necessarily be viewed as a 
 
              substantial factor in causing the accident.
 
         
 
         Republic Indemnity Company of America v. Workers' Compensation
 
         Appeals Board, 187 Cal.Rptr. 636, 639, 138 Cal.App.3d 44, 47
 
         (App. 1982).
 
         
 
                   There is conflicting evidence in the record 
 
              regarding intoxication.  Petitioner cites 
 
              uncontradicted testimony of witnesses that Smith drove 
 
              up to the mountain, spent nearly two hours outside in 
 
              very cold, wet conditions, supervising and assisting in 
 
              efforts to retrieve the backhoe.  He appeared sober to 
 
              his coworkers and functioned normally.  He went down 
 
              the muddy, slippery bank, without difficulty, to put 
 
              slings on the backhoe, whereas Morris slipped going 
 
              down.  No one was drinking at the site.  Such evidence 
 
              indicates Smith was not intoxicated.
 
         
 
                   However, other evidence supports the conclusion of 
 
              intoxication.  The coroner's report states that Smith's 
 
              blood contained .25 percent by weight of alcohol.  Dr. 
 
              Hayes testified that anyone, whether he had tolerance 
 
              to alcohol or not, would be intoxicated at this high 
 
              blood alcohol level, and that, at such a blood alcohol 
 
              level, a person would have impaired judgment, impaired 
 
              sensory perception, and slowed reaction time.  Although 
 
              the results of blood tests are not conclusive and must 
 
              be weighed with all other evidence (Pacific Employers 
 
              Insurance Co. v. Workmen's Comp.  Appeals Bd. (1966) 31 
 
              Cal.  Comp.Cases 214, 216), based on the conflicting 
 

 
         
 
         
 
         
 
         SHELTON V. RUAN TRANSPORT CORPORATION
 
         Page   4
 
         
 
         
 
              evidence, the board's finding that decedent was 
 
              intoxicated is clearly supported by substantial 
 
              evidence.
 
         
 
         
 
         
 
                   Once the board found, on ample evidence, that 
 
              decedent was intoxicated, the testimony of Dr. Hayes 
 
              that anyone's judgment and reaction time would be 
 
              impaired seriously at that blood alcohol level provides 
 
              the basis for an inference that such impairment was a 
 
              substantial factor in bringing about the accident.  We 
 
              cannot say such an inference is unreasonable.  The 
 
              existence of numerous circumstances that would support 
 
              other, conflicting inferences is not a basis for 
 
              overturning the decision.
 
         
 
         Smith v. Workers' Compensation Appeals Board, 176 Cal.Rptr. 843, 
 
         849-850, 123 Cal.App.3d 763, 774-775 (App. 1981).  See also 
 
         Country Pride v. Holly, 624 S.W.2d 443 (Ark.App. 1981); Davis v. 
 
         CE& M Tractor Company, 627 S.W.2d 561 (Ark.App. 1982).
 
         
 
              In all other respects the applicable law and analysis of 
 
              the arbitration decision are adopted herein.
 
         
 
         
 
         
 
         
 
         
 
              The findings of fact conclusions of law and order are also 
 
         adopted herein.
 
         
 
                             FINDINGS OF FACT
 
         
 
              1.  That William E. Shelton started-driving trucks for Ruan 
 
         Transport Corporation in 1979 and was employed in that capacity 
 
         on July 12, 1983.
 
         
 
              2.  That William E. Shelton reported to work at the Ruan's 
 
         Buffalo, Iowa, terminal at about 1:00 p.m. on July 12, 1983.
 
         
 
              3.  That William E. Shelton was assigned a job at Davenport 
 
         Cement Company about one-quarter mile from Ruan's Buffalo, Iowa 
 
         terminal and drove a pneumatic bulk trailer to the site.
 
         
 
              4.  That while attempting to close one of six latches used 
 
         to seal a dome lid on top of the pneumatic bulk trailer, William 
 
         E. Shelton fell off the trailer between 1:00 p.m. and 2:00 p.m. 
 
         on July 12, 1983.
 
         
 
              5.  That William E. Shelton had been ill for the two or 
 
         three weeks prior to July 12, 1983 with the flu and because of 
 
         the consumption of alcohol.
 
         
 
              6.  That the flu illness had for the most part resolved 
 
         itself about a week prior to July 12, 1983.
 
         
 
              7.  That William E. Shelton engaged in "drinking periods" or 
 

 
         
 
         
 
         
 
         SHELTON V. RUAN TRANSPORT CORPORATION
 
         Page   5
 
         
 
         
 
         "drinking sessions" that lasted ten days to two weeks.
 
         
 
              8.  That William E. Shelton was going through one of his 
 
         drinking sessions or periods at the time of his injury from his 
 
         fall on July 12, 1983.
 
         
 
              9.  That July 12, 1983 was a clear, warm day with very
 
         little wind.
 
         
 
              10.  That William E. Shelton's uncle died on July 9, 1983 
 
         and was buried on July 11, 1983 in Illinois, and he attended the 
 
         funeral.
 
         
 
              11.  That William E. Shelton purchased whiskey in Illinois 
 
         and returned to his home in Iowa, after attending his uncle's 
 
         funeral, at about 8:00 p.m. on July 11, 1983.
 
         
 
              12.  That William E. Shelton was upset about his uncle's 
 
         death and drank whiskey the evening of July 11, 1983.
 
         
 
              13.  That a partially empty pint bottle of whiskey was 
 
         found in William E. Shelton's suitcase that he took to work with him on 
 
         July 12, 1983 and he had other whiskey bottles at his home.
 
         
 
              14.  That Ed Binke, an ambulance attendant who gave 
 
         mouth-to-mouth resuscitation to William E. Shelton, after his 
 
         fall on July 12, 1983, stated that his breath had a strong odor 
 
         of alcohol.
 
         
 
              15.  That a blood alcohol test taken from William E. Shelton 
 
         after his fall at an emergency room showed a result of 384 
 
         mg/dl.
 
         
 
              16.  That tests administered at an autopsy of William E. 
 
         Shelton performed on July 13, 1983 showed a blood alcohol level 
 
         of 275 mg/dl, with much of the drop from 384 mg/dl attributable 
 
         to the dilutional effect of intravenous fluids given to William 
 
         E. Shelton on July 12, 1983, and urine test showing an alcohol 
 
         level of 297 mg/dl.
 
         
 
              17.  That William E. Shelton was intoxicated on July 12, 
 
         1983 at the time he fell off a pneumatic bulk trailer owned by 
 
         Ruan Transport Corporation.
 
         
 
              18.  That the cement dust, on top of the trailer that 
 
         William E.Shelton fell off of, improved traction.
 
         
 
              19.  Kenneth Mersereau, a claims adjustor, was able to walk 
 
         on top of the trailer that William E. Shelton fell off of, 
 
         shortly after Shelton's fall, even though Mersereau had 
 
         "smoothsoled" leather shoes on.
 
         
 
              20.  That William E. Shelton's intoxication on July 12, 
 
         1983, at the time he fell off the trailer, was a substantial 
 
         factor in causing his injury that resulted from the fall.
 
         
 

 
         
 
         
 
         
 
         SHELTON V. RUAN TRANSPORT CORPORATION
 
         Page   6
 
         
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              That William E. Shelton sustained an injury on July 12, 1983 
 
         that arose out of and in the course of his employment with Ruan 
 
         Transport Corporation.
 
         
 
              That Ruan Transport Corporation has established by a 
 
         preponderance of the evidence that William E. Shelton's 
 
         intoxication on July 12, 1983 was a substantial factor in causing 
 
         his work-related injury and, therefore, recovery is barred in 
 
         accordance with section 85.16(2), The Code.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
         
 
         
 
              That claimant take nothing from these proceedings.
 
         
 
              That the costs of this action are assessed against the 
 
         claimant pursuant to Industrial Services Rule 343-4.33, formerly 
 
         Industrial Commissioner Rule 500-4.33.
 
         
 
         
 
         
 
         
 
         
 
                    Signed and filed this 18th day of March, 1987.
 
         
 
         
 
                                          ROBERT C. LANDRESS
 
                                          INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. J. W. McGrath
 
         Attorney at Law
 
         Fourth & Dodge Street
 
         P.O. Box 453
 
         Keosauqua, Iowa 52565
 
         
 
         Mr. Arthur Buzzell
 
         Attorney at Law
 
         246 W. Third
 
         Davenport, Iowa 52801
 
         
 
         Mr. Paul C. Thune
 
         Attorney at Law
 
         300 Fleming Building
 
         218 Sixth Avenue
 
         Des Moines, Iowa 50309
 
         
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                      1601
 
                                                      Filed March 18, 1987
 
                                                      ROBERT C. LANDESS
 
         
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         
 
         WILLIAM E. SHELTON, Deceased,
 
         BARBARA SHELTON, Surviving
 
         Spouse,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                                 File No. 738188
 
         RUAN TRANSPORT CORPORATION,
 
                                                  A P P E A L
 
              Employer,
 
                                                 D E C I S I 0 N
 
         and
 
         CARRIERS INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         _________________________________________________________________
 
         
 
         
 
         1601
 
         
 
              Where record showed that decedent's blood alcohol level was 
 
         384 mg/dl and where no other evidence is present that would prove 
 
         otherwise it can reasonably be inferred that decedent was in fact 
 
         intoxicated and that his intoxication was a substantial factor in 
 
         causing his injury.  See Republic Indemnity Company of America v. 
 
         Workers' Compensation Appeals Board, 187 Cal.Rptr. b3b, 639, 138 
 
         Cal.App.3d 44, 47 (App. 1982); Smith v. Workers' Compensation 
 
         Appeals Board, 176 Cal.Rptr. 843, 849-850, 123 Cal.App.3d 7631 
 
         774-775 (App. 1981); Country Pride v. Holly, 624 S.W.2d 443 (Ark.  
 
         App. 1981); Davis v. C & M Tractor Company, 627 S.W.2d 561 (Ark.  
 
         App. 1982).